Michael v The State [2004] PGSC 37; SC737 (1 April 2004)

SC737

PAPUA NEW GUINEA

[SUPREME COURT OF JUSTICE]

SCR 02 of 2003

BETWEEN

MARY BOMAI MICHAEL
Appellant

AND

THE STATE
Respondent

Mount Hagen: Sevua, Kandakasi, & Lenalia, JJ
2004: 29th March & 1st April.

CRIMINAL LAW – PRACTICE & PROCEDURE – Court accepting tender of defence medical evidence after close of case by defence – State’s objection’s over-ruled – Court placing reliance on matters raised in the report – Whether it was appropriate to accept medical report – Whether relying on it amounted to error of law.

CRIMINAL LAW – PRACTICE & PROCEDURE – Appeal against sentence – Murder – Sentence of 12 years – Sentence too lenient – Public Prosecutor not exercising right of appeal – Section 24 Supreme Court Act – Order 7 Rule 26 Supreme Court Rules – Public Prosecutor not cross appealing – Warning that Court will increase sentence on appeals against sentence without merit and where sentence is too low – Section 23 (4) Supreme Court Act – Notion of quantum leap or leaps and bounds considered.

CRIMINAL LAW – Murder – Plea of Not Guilty – Conviction after trial – Sentence of 12 years – Whether sentence too excessive.

Cases cited:
Wanosa & Ors v. The Queen [1971-72] PNGLR 90
William Norris v. The State [1979] PNGLR 605
Ian Setep Napoleon v. The State, SC666, unreported, 18th May 2000
The State v. Laura No 2; [1988-89] PNGLR 98
The State v. Eddie Peter (No 2); N2297, 12th October 2001
The State v. James Donald Keimou; N2295, 12th October 2001
The State v. Fabian Kenny; N2237, 16th May 2002
The State v. Vincent Malara; N2188, 20th February 2002
The State v. Max Charles, Tony Steven and Daudi Charles; N2187, 17th October 2001
The State v. Damien Mangawi; N2419, 13th June 2003
Pauline Painuk v. The State; (SCRA 54 of 2000) unnumbered and unreported, 26th November 2000
Max Java v. The State; SC701, unreported, 20th December 2002
Lawrence Simbe v. The State; [1994] PNGLR 38

Counsels:
Appellant in person
J. Kesan for Respondent.

1st April 2004

BY THE COURT: This is an appeal by the appellant, Mary Bomai Michael, in person, against a decision of the National Court in Kundiawa on 20th November 2002.

The appellant, was indicted with one count of murder in respect of the killing of her husband, Michael Kama Murange, and pleaded not guilty, but was found guilty after a trial and convicted of the charge. She was then sentenced to 12 years imprisonment. Her appeal is against that sentence. The grounds of her appeal are:-

"1. The Court did not consider my submission.

2. My medical report was disregarded by the Court.
   
3. Sentence is too excessive."
   

In her written submissions, the appellant said the Court failed to consider the fact that the deceased (Michael) had held a knife against her neck which demonstrated that the deceased wanted to kill her. Secondly, the Court failed to consider that her medical report showed three wounds inflicted by the deceased. Finally, she submitted that in imposing the sentence of 12 years, the Court did not take into account the injuries she had suffered at the hands of the deceased and that she has one child to rear. Furthermore that the Court only considered the State’s case.

Perhaps, at this juncture, we should reiterate the brief facts which are not really in dispute. What had transpired on the night of the killing was this. There was a quarrel between the deceased and the appellant inside their matrimonial home at Kumbu Kama Village near Kundiawa in Simbu Province. The appellant went and lied down on a bed. The deceased then got cold water and poured it over her. The appellant got up and cried over this incident then changed her clothes and went to the fire place and lit a fire. The deceased went over to her and held a knife against her neck, but did not cut her or injure her and returned to the bedroom. The appellant followed him, picked up a knife, stabbed the deceased with it and then escaped.

The Post Mortem Report of Dr. Kenneth Maima revealed that the deceased died of shock from severe pain caused by a penetrating wound to the abdomen which pierced the stomach. There is no doubt that the force used must have been so great to cause the kind of injury, which consequently led to death.

It is trite law that, the Supreme Court cannot readily disturb a sentence imposed by a trial Judge unless an appellant demonstrates that the sentence imposed is manifestly excessive. A sentence can be manifestly excessive where, for example, the trial Judge has acted on a wrong principle of law or has clearly overlooked, undervalued, overestimated or misunderstood some salient features of the evidence: See Wanosa & Ors v. The Queen [1971-72] PNGLR 90. That means, this Court must be satisfied that the learned trial Judge fell into some demonstrable error, which has the effect of vitiating the trial Judge’s discretion on sentence before it can change a sentence of the National Court: See William Norris v. The State [1979] PNGLR 605 and Ian Setep Napoleon v. The State, SC666, unreported, 18th May 2000.

The appellant had raised self-defence in the trial: however, the Court correctly ruled that it did not apply in this case. Therefore self-defence is not in issue in this appeal. It seems that the appellant is complaining about allegations of assaults and violence committed against her by the deceased; however, we consider that this is not the place nor the time to raise this issue. The appellant should have reported these incidents to the police, but did not therefore she cannot raise them in this Court. All she was able to say was that the Court did not take into account the scars or wounds on her body, which were caused by the deceased.

The trial in the National Court was one of those trials which the State tendered the statements of witnesses, record of interview and medical report then closed its case. The appellant did not testify on oath. Instead she gave an unsworn statement from the dock. After closing its case, the defence tendered the appellant’s medical report, which was actually admission records of treatments she received at the hospital, not medical report in its strict sense. The Court accepted the documents despite objections by the respondent. The trial Judge gave no legal basis for admitting this evidence particularly, after the close of the defence case. In addition, no reason was provided as to how this evidence could be admitted through the appellant, who was clearly not the author and there was no evidence in relation to their custody and production in Court. In the absence of any evidence to the contrary, this evidence was hearsay. In our view, the trial Judge fell into error when he did that. Not only that, he fell into further error when he made findings favourable to the appellant in his judgment on sentence based on the erroneously admitted evidence.

Furthermore, after erroneously allowing into evidence inadmissible evidence, he allowed his mind to be clouded, resulting in the kind of sentence he imposed. He took into account the alleged assaults and injuries by the deceased, without strict proof that the deceased had caused those injuries on the person of the appellant. In admitting this hearsay evidence, the trial Judge relied on it and consequently, he took into account matters that should not have been taken into account. As a result, mitigating factors which he considered in favour of the appellant subsequently influenced his mind in imposing what is terribly a low sentence, following a murder trial. The respondent submitted that such a sentence was very lenient and we agree. It was an error, which affected the sentence ultimately arrived at, but the Public Prosecutor did not appeal against such a lenient sentence.

We mention this issue because it seems obvious that the Public Prosecutor is not appealing against some of these lenient sentences. The respondent did not appeal against the inadequacy of the sentence nor did he lodge a cross - appeal although we appreciate that he can under s.24 of the Supreme Court Act and Order 7 Rule 26 of the Supreme Court Rules. We are of the view that since the respondent has not appealed or cross - appealed, the Court is unable to consider the issue of leniency of sentence in this matter, even though the Court has power under the Supreme Court Act to increase a sentence.

Section 23 (4) of the Supreme Court Act empowers the Court to increase or decrease a sentence on an appeal against sentence. We are of the view that this Court must warn that inadequate or lenient sentences on serious violent crimes ought to be dealt with in accordance with this power. Section 23 (4) states:-

"On an appeal against sentence, if the Supreme Court is of the opinion that some other sentence, whether more or less severe, is warranted in law and should have been passed, it shall quash the sentence and pass the other sentence in substitution for it, and in any other case shall dismiss the appeal."

Furthermore, the Public Prosecutor will be reminded of his right under s.24 of the Supreme Court Act. He has the right to appeal against sentence and also seriously consider some of the lenient sentences imposed in serious crimes like the present appeal. Even if the Public Prosecutor does not appeal against sentence and a prisoner appeals against excessiveness of a sentence, the Public Prosecutor can institute a cross-appeal in accordance with Order 7 Rule 26 Supreme Court Rules. We observe that in this Court, some of the sentences imposed on murders are too low, but the Public Prosecutor has not appealed or cross-appealed. He just cannot ignore this issue and turn a blind eye to it pretending the sentences are fair. We are of the opinion that it is time the Public Prosecutor started exercising his right of appeal against inadequate low sentences to do justice to the victims of serious crimes.

In the present case, although the Public Prosecutor has not appealed against the lenient sentence although he has the right to under s.24, we feel that we should provide this warning so that appellants in future are not caught unaware. In so doing, we note that this power is available to this Court that can be exercised in appropriate cases. We will make further comments on this in the other cases before us in this circuit.

Returning to the case immediately before us, we are of the view that the appellant is very fortunate to have been given 12 years instead of a much longer term. There are many cases in which the National Court has imposed heavier sentences than 12 years. It is our view that the tariffs suggested in such cases as The State v. Laura (No2) [1988-89] PNGLR 98, are outdated and no longer applicable to the circumstances of the country at the present time. Most of those cases were decided more than 10 years ago. Serious violent offences have increased and escalated markedly in the same period and we believe the Courts should not continue to apply those tariffs.

Accordingly, we are of the view that in the light of the fact that more and more murders and wilful murders are being committed, the National Court must seriously look at tougher penalties. It is the view of this Court that the argument of "leaps and bounds" that some Courts apply with respect, is not found in any statute, and certainly not in the Criminal Code. We consider that the legislature, the Parliament, has determined the maximum penalties for homicide cases and other violent crimes in the Criminal Code. The Parliament has also determined that the National Court would have some discretion on sentencing therefore it ensured that the Court’s discretionary power is found in the statute. That is why Courts have been given that discretion under Section 19 of the Criminal Code. Other than what the Parliament has enacted, we should not go outside of the statutes to look for ways to compromise the National Court’s discretionary power of sentencing by using a notion that has no relation to the prevalence of the offence, the quantum leap, the offence under consideration has taken. The Courts have to appropriately respond to the wishes and or calls of the community to increase sentences to meet the ever increase level of such serious crimes as, wilful murder, murder, manslaughter, rape and armed robbery.

We refer to the observations of Kandakasi, J., in The State v. Eddie Peter (No 2) (12/10/01) N2297, in the context of a rape case in the following terms:

"I note that since the pronouncement of the various sentences in all of the cases to date, there has never been a decline in rape or sexual offences cases. In my view, the increase in such offences is in part, a reflection of the sentences imposed to date not serving their intended purpose of deterring other would be offenders. This therefore calls for a serious re-examination of the kind of sentences that have been imposed to date. The Supreme Court in Lawrence Hindemba v. The State, SC 593, unreported, 27th October 1998. In my view however, the kind of sentences that have been imposed since even Lawrence Hindemba have not meaningfully reflected that need, which is evidenced by the growing number of rape and other sexually related offences.

Of the numbers of matters on this circuit list, sexual offence cases feature quite prominently, with a total of 21. This is reflective of the fact that although the Courts have indicated in the recent past that they were reviewing the sentences that have been imposed before them, there has been no meaningful review and impose a sentence much higher than those imposed before his judgment in Thomas Waim v. The State (supra) by imposing a sentence in total of 25 years. Unfortunately the Supreme Court struck it down to 18 years on the basis that the sentence imposed by the National Court was a "quantum leap."

There is no expressed legislative prohibition against "quantum leaps." Parliament after having considered all things prescribed a maximum penalty of life imprisonment subject to section 19 of the Criminal Code. That provision does not even prescribe a minimum term of years or for that matter a range. It is the Judges that have considered it appropriate to start as low as 5 years (see John Aubuki (supra)) and are yet to impose the maximum prescribed penalty. In the meantime this serious evil against society is on the increase. I consider it inappropriate that sentencing Judges should be unnecessarily limited by concepts such as no "quantum leaps" or "disparity in sentencing of co-accused" or such other concepts that have no reflection of the particular circumstances of a case. They should instead be left to be guided by the main purposes of sentencing such as deterrence, rehabilitation and the rest to meet the society’s expectation of stiffer penalties to deter the recurrence of such unacceptable evils in our society."

We note that these considerations have been adopted and applied in a number of cases by His Honour in The State v. James Donald Keimou, N2295, 12th October 2001; The State v. Fabian Kenny, N2237, 16th May, 2002; The State v. Vincent Malara, N2188, 20th February, 2002; The State v. Max Charles, Tony Steven and Daudi Charles, N2187, 17th October 2001. These were mainly armed robbery cases. Nevertheless, the observations are sound and should apply with the necessary modification to murder and other cases.

In our humble view, the Supreme Court should now look at the wider implication of serious violent crimes that are being committed with the readily use of offensive weapons and the prevalence and frequency of perpetration. Therefore, if a Judge considers that a violent crime deserves a tougher criminal sanction, the Supreme Court should not criticize him by using the "leaps and bounds" or "no quantum leap" argument. The reason for this is simple, as Kandakasi, J., observed in the above cases, such serious offences have taken quantum leaps while the sentences have been so pitifully low, even though various National Court judgments have repeatedly described how bad a crime is and have warned of increases in the penalties, they have not, with respect, imposed sentences reflecting those expressions: See His Honour’s judgment particular in the other case of The State v. Damien Magawi, N2419, 13th June 2003.

The community looks to the Courts for justice and for the protection of its interest. The Courts must therefore be responsive to the needs of the communities. If the community demands tougher penalties for serious violent offences, the Courts just cannot ignore this and turn a blind eye to the needs of the community. Indirectly, we may be contributing to the escalating prevalence of the crimes when we let serious violent offenders walk free or impose very inadequate or suspended sentences on serious violent crimes as has been seen in more recent times. Of course, we do not, for one moment, suggest that the Courts should be influenced by public demands; however, at least, if the community is complaining that the Courts are not appropriately punishing violent offenders, it is a valid issue that must be considered. Ignoring the community’s concerns may lead to distrust in the judicial system and may provide the catalyst for destructive self-help schemes such as pay back. That would in turn prove a good recipe for a serious break down in law and order and anarchy. We are now experiencing an unprecedented and a high level of crime. Judges now have the serious responsibility on behalf of the society to ensure this does not get out of control by paying close and serious attention to the kind of penalties imposed for those who are found guilty of committing serious violent offences like rape, murder, wilful murder and armed robbery.

It is our view that the trial Judge in this case was too lenient in sentencing the appellant. Despite the aggravating circumstances he adverted to in his judgment, he imposed 12 years, which would have been imposed on a plea of guilty some years ago. We consider that the sentence was quite inadequate and does not take into account the sanctity of life and the protection of life under the Constitution, which he alluded to in his reasons. Even then, the sentence is too low compared to other cases of murder where the accused pleads guilty. One such case is Pauline Painuk v. The State, (SCRA 54 of 2000) unnumbered, 22nd November 2001, where the appellant appealed against a sentence of 18 years on a plea of guilty to murder and the Supreme Court on 22nd November 2000 dismissed her appeal against sentence. That was a case where the appellant stabbed the deceased, a young school girl twice following an argument. The Court said that it was open to the trial Judge to arrive at the sentence of 18 years, which sentence "was well within the range if not somewhat lenient."

We also cite Max Java v. The State, SC 701, unreported, 20th December 2002 where the Supreme Court confirmed a sentence of 20 years imposed in a plea of guilty to murder. We note particularly what the Court said at the bottom of page 3 and top of page 4 – "Having regard to the prevalence of violent offences in the community, we cannot conclude that the sentence is manifestly excessive." We adopt that reasoning in this case. It would appear that the Court was looking at the much wider perspective of violent crimes than the notion of deciding a case on the circumstances of each case as stated in Lawrence Simbe v. The State [1994] PNGLR 38. Furthermore, it is obvious that the Supreme Court has, at least in those two cases, not followed old tariffs and we are of the view that this is the approach we must take.

We are satisfied that the sentence of 12 years is not excessive but too lenient. The appellant should consider herself quite fortunate that she has received such a sentence. This Court warns that in future appeals against sentence, the Court will exercise its power under s.23 (4) of the Supreme Court Act in increasing a sentence where it considers rather inadequate as in the present case.

It is therefore the judgment of this Court that the appellant has not demonstrated the existence of any error by the trial Judge. The only errors we are able to identify goes against the State culminating in the lenient sentence of 12 years. Since the Public Prosecutor has not cross-appealed and or asked for an increase in the sentence, we will not disturb the sentence on this occasion, but we will do so in appropriate cases in future in terms of the warning given herein.

For these reasons we dismiss the appeal against sentence and confirm the conviction and sentence of the National Court.

Orders accordingly.
____________________________________________________________________________
Lawyer for Appellant : Appellant in Person
Lawyer for Respondent: Public Prosecutor