Olmi v State [2004] PGSC 43; SC872 (3 December 2004)

SC872

PAPUA NEW GUINEA
[IN THE SUPREME COURT OF JUSTICE]

SCR 7 OF 2004

BAUNE BERNARD OLMI

AND

THE STATE

Mt. Hagen: Sakora, Mogish & Lay JJ
2004: 29 November,
3 December

CRIMINAL LAW – review – Constitution s.155(2)(b) – sentence – compensation, payment of – compensation payment after conviction, effect of – fresh evidence – Supreme Court Act s.6(1)(a) - Criminal Code s.300 – murder.

Cases Cited:

Wanos v R {1971-72] PNGLR 90,
The State v Jim Paupa (1973) No 765
Norris v State [1979] PNGLR 605,
Avia Aihi v State [1981] PNGLR 81
Acting Public Prosecutor v Mitak Mengilonde Taganis [1982] PNGLR 299
Avia Aihi v State (No.3) [1982] PNGLR 92
The State v Rex Liale [1988-89] 449
State v Laura (No 2 )[1988-89] PNGLR 98
Simbe v State [1994] PNGLR 38
Ian Napolean Setep v State (2001) SC666.
Simon Kama v State SC740 (2004)
The State v Abel Aire (28/11/2000) N2007
John Peng v The State [1982] PNGLR 331
Mai Kuri v State (No.2) [1991] PNGLR 311
Counsel

Applicant in person
Mr Kesan, for the State

3 December, 2004

1. BY THE COURT: The Applicant was convicted of murder on a plea of guilty following a "plea bargain", and sentenced on 19th December 2003 to a term of 22 years imprisonment. Being out of time to appeal, he now asks this Court to review the decision on sentence because he says

(a). it is excessive;

(b). the National Court did not consider his grounds;

(c) an out of court settlement was made.

2. Where an appellant fails to appeal within the time allowed and seeks to have this Court review a decision outside the appeal time the Court does so pursuant to the powers conferred upon it by s.155(2)(b) of the Constitution. The Court exercises that power in its discretion and only if there is some substantial injustice or the case is of special gravity[1].

3. The trial judge has a wide discretion as to what he considers to be an appropriate sentence in the case before him. This Court should not interfere in that exercise of discretion unless it is clear that the judge fell into demonstrable error resulting in a wrong sentence.[2]

4. In Simon Kama v State[3] the Supreme Court has said the following in April this year by way of suggesting tariffs as a guide to increasing sentencing in murder cases:

"With these qualifications in mind, we are of the view that the guidelines set by State v. Laura (No. 2)[4] and Simbe v. The State[5] for murder cases are relevant with the following variations based on the sentences imposed to date and the prevalence of the offence:

(a) where there is a guilty plea with no factors in aggravation, a sentence of twelve (12) to sixteen (16) years;

(b) where there is a guilty plea with aggravating factors other than the use of firearms and the commission of another serious offence, a sentence between the range of seventeen (17) to thirty (30) years;

(c) where there is a guilty plea with aggravating factors and where there is a use of firearms and such other dangerous weapons in the course of committing or attempting to committed another serious offence, a sentence of thirty one (31) years to life imprisonment;

(d) on a plea of not guilty, with no other aggravating factors a range of sentences from seventeen (17) to twenty one (21) years;

(e) on a plea of not guilty, with aggravating factors other than the use of firearms and in the course of committing or attempting to commit another offence, a range of sentences from twenty two (22) to forty (40) years;

(f) where there is a not guilty plea with aggravating factors where there is a use of firearms and or such other dangerous weapons and or in the course of committing or attempting to committed another offence, a sentence of forty one (41) years to life imprisonment;

Of course, where there are some very good mitigating factors, such as a very young offender persuaded by other older persons to commit the offence may warrant a sentence lower than, any of the tariffs suggested above. These suggested tariffs are guides only and not a rigid set of rules requiring strict adherence in every case. A judge may therefore depart from them in appropriate cases for very good reasons."

5. Turning to the effect of payment of compensation, the fact that it has been paid is taken into account on sentence as a mitigating factor, but compensation can never be a substitution for the conviction and imposition of penalty prescribed by the Criminal Code. In serious crimes of violence the fact that compensation has been paid will not be a significant mitigating factor. There is no correlation between the amount of compensation paid and the reduction in sentence which the Court might allow. The deduction of a specific period from the sentence to reflect the mitigating effect of a customary payment is not appropriate. [6]

6. An Appellate Court can assume all factors in mitigation were taken into account by the trial judge unless the Applicant shows that this did not occur[7].

7. Dealing first with the second ground of the application, the Applicant said that the Court did not consider his grounds. We take it that the Applicant is saying the Court did not consider what he put to the Court on his allocutus. His allocutus is set out at Appeal Book page 14 line 30-40 and what his Counsel had to say on his behalf is set out at page 15 lines 1-20. The Applicant spoke about his family situation and the fact that he was a first offender. At page 19 line 40 of the Appeal Book the trial judge says he takes into account that the Applicant is a first offender and his family situation and his remorse. So this ground of the application is not true and does not succeed.

8. Dealing next with the Applicant’s last ground, he said that the National Court did not take into account that there had been what he termed "an out of Court settlement", a compensation payment. This payment was mentioned by Counsel at Appeal Book page 15 line 22 as K200 and 2 live pigs. The first thing we say about this is that the Applicant cannot seriously believe that this payment or any payment of any amount truly compensates for the loss of a man’s life. Secondly any reduction for payment of compensation will not be a significant reduction where a long term of years is ordinarily the appropriate sentence. Thirdly, although the trial judge did not specifically mention the payment in his decision, for the reasons mentioned below we are of the opinion that he did take it into account and the Applicant has not shown that the trial judge did not do so.

9. In his submissions the Applicant referred to additional compensation payments and a peace ceremony made after the sentence was passed on him and he produced a number of informal affidavits in proof of that submission. The affidavits are fresh evidence. Section 6(1)(a) of the Supreme Court Act permits this Court to allow fresh evidence to be adduced where it is satisfied that the justice of the case warrants it." The evidence should be "fresh" in the sense that it is newly available, relevant, credible, admissible and would cause a reasonable man to doubt.[8] In this case the doubt which would have to arise is as to whether the sentence imposed would have been imposed if the evidence was available to the trial judge. In our opinion the fresh evidence does not raise any doubt that, if adduced at the trial, it would have altered the sentence imposed. We say this because in our opinion the sentence imposed has already given full credit for the mitigating factor of a compensation payment and no additional reduction in sentence would have been made by the trial judge if the evidence of an additional payment had been before him. There should be no expectation by a convicted person that compensation payments made after sentence will further reduce the sentence imposed, because it will not. For those reasons we do not admit the fresh evidence.

10. The Applicant said in his submission that he felt that he had been sentenced twice because of the compensation payment and also the term of years. This is a misapprehension of the relationship between the sentence and the compensation payment. The sentence imposed by the trial judge is required by law. The compensation payment may be required by custom to restore peace and harmony and it may amount to a detriment to the Applicants line, but it can never take the place of the requirement of the Criminal Code to impose a proper sentence. We also have to recognize that, where the appropriate sentence is a lengthy term of years, it is the Applicant’s line and not the Applicant who bear the burden of the compensation payment.

11. On the general issue of the sentence being excessive, the facts to which the Applicant pleaded were that he went looking for the deceased to kill him because he had heard stories of him using sorcery to kill another person. When he found the deceased the Applicant’s friends attacked him with knives and axes and the Applicant shot him at close range with the Applicant’s gun killing him instantly. The factors which make the offence more serious are:

• it was pre planned and deliberate;
  
• it was really a wilful murder, the Applicant was fortunate that the Public Prosecutor accepted his plea bargain and indicted him with the lesser charge of murder.
  
• He went in the company of others to do the killing;
  
• He used a dangerous weapon being a fire arm;
  
• A young life has been cut short by many years.
  

12. The case falls between category (b) and (c) in Simon Kama v State. That is between 17 years and life imprisonment. A sentence of 30 years would not have been unreasonable. Even though the Applicant has already had the great benefit of facing the lesser charge, the trial judge has given him a sentence of only 22 years. We are therefore of the opinion that His Honour took into account all of the mitigating factors and made full allowance for them.

13. We conclude that the trial judge did not fall into any identifiable error, there has been no injustice and the case is not of any special gravity.

Application for review refused.

Public Prosecutor: Lawyer for the State

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^[1] Avia Aihi v State [1981] PNGLR 81
^[2] Wanos v R {1971-72] PNGLR 90, Norris v State [1979] PNGLR 605, Ian Napolean Setep v State (2001) SC666.
^[3] SC740 (2004) Sevua, Kandakasi and Lenalia JJ
^[4] [1998-89] PNGLR 98
^[5] [1994] PNGLR 38
^[6] The State v Rex Liale [1988-89] 449, Amet J; The State v Abel Aire (28/11/2000) N2007, Hinchcliffe J; The State v Jim Paupa (1973) No 765, Wilson J followed and applied in Acting Public Prosecutor v Mitak Mengilonde Taganis, Kidu, CJ Kapi DCJ and Pratt J per Kapi DCJ.
^[7] Avia Aihi v State (No.3) [1982] PNGLR 92 Per Kearney Dep. C.J., with whom Greville Smith J. and Kapi J. agreed
^[8] John Peng v The State [1982] PNGLR 331 per Kidu CJ Pratt and McDemott JJ; Mair Kuri v State (N0.2) [1991] PNGLR 311 Kidu CJ, Hinchliffe, Sheehan, Brown and Jalina JJ.