Pori v State [2007] PGSC 39; SC912 (2 November 2007)

SC912

PAPUA NEW GUINEA
IN THE SUPREME COURT OF JUSTICE

SCR NO. 20 OF 2007

ALEX PORI
Applicant

v

THE STATE
Respondent

Lae: Davani, Mogish & David, JJ
2007: 30 October & 2 November

CRIMINAL LAW – application for leave – review of judicial act of the National Court under s.155(2)(b) Constitution – appeal filed out of time – notice of appeal registered as a review – legal principles to be satisfied – all legal principles not satisfied – application is frivolous or vexatious or unmeritorious and an abuse of process of the Court – prevalence of offence – application refused – sentence of the National Court confirmed.

Cases cited:

Avia Aihi v. The State [1981] PNGLR 81
Bobolan M. Peter v. The State, Unreported Judgment, 26 June 2007, SCR 59 of 2005
Dinge Damane v. The State [1991] PNGLR 244
Gimble v. The State [1988-89] PNGLR 271
John Peter Arua v. The State [2000] SC638
Mark Bob v. The State [2005] SC808
Philip Kassman v. The State [2004] SC759
Public Prosecutor v. Don Hale [1998] SC564
Simon Kama v. The State [2004] SC740
Stuard Kepu v. The State, Unreported Judgment, 01 November 2007, SCR 21 of 2007
Tau Jim Anis v. The State [2000] SC642

Counsel:

Appellant, in person
C. Sambua, for the Respondent

DECISION

2 November, 2007

1. BY THE COURT: This is an application for leave made under s.155 (2)(b) of the Constitution seeking to review the sentence of the Applicant, Alex Pori by the National Court sitting at Lae on Tuesday, 19 September 2006 which was indicted with one (1) count of armed robbery under s.386 (1) & (2)(a)(b)(c) of the Criminal Code (the charge). The Applicant was convicted upon entering a guilty plea on the charge and sentenced to eight (8) years imprisonment in hard labour less the period of pre-trial custody leaving seven (7) years, two (2) months and five (5) days to serve. The Applicant considered the sentence to be excessive.

BACKGROUND

2. The facts alleged against the Applicant were these. On 13 December 2004 at about 6:00 am, the Applicant and two (2) others were at the Sawdust Compound in Wau, Morobe Province. They were armed with a homemade gun and two (2) bush knives. They held up the complainant one Daniel Nathawiku with the Applicant pointing the gun at him whilst his two (2) accomplices searched him. In the process, they removed from him property with an estimated total value of K3,096.80 consisting of; K2,200.00 in cash, a 36.6 gram of gold valued at about K841.80, a pair of shoes valued at K25.00, a string bag valued at K15.00 and a pair of sunglasses also valued at K15.00. The victim did not retaliate or do anything in fear. The Applicant and his accomplices then fled with the booty. The members of the public gave chase upon being alerted by the victim calling out, but their efforts were thwarted when the Accused discharged a shot from his gun in the direction of the pursuing public and the victim resulting in the Applicant suffering from pellet wounds.

THE APPLICANT’S NOTICES OF APPEAL AND APPLICATIONS FOR LEAVE TO APPEAL AGAINST THE DECISION OF THE NATIONAL COURT

3. The Applicant’s Notice of Appeal and of Application for Leave to Appeal Against a Decision of the National Court dated 28 December 2006 (the Notice) was filed at the Supreme Court Registry on 20 March 2007. This was 182 days after sentence, a period far beyond the statutory period of forty (40) days prescribed under s.29 (1) of the Supreme Court Act (the Act) to file an appeal or to obtain leave to appeal which time started running after the date of sentence: Mark Bob v. The State [2005] SC808. The Applicant did not seek any extension of time either under s.29 (2) of the Act. The consequence for non compliance is therefore that the Applicant has lost his right of appeal: see Avia Aihi v. The State [1981] PNGLR 81, Dinge Damane v. The State [1991] PNGLR 244.

APPLICATION FOR LEAVE SEEKING REVIEW AND RELEVANT LAW

4. The only avenue available now for the Applicant to have his sentence reviewed is by applying for leave seeking to invoke the Court’s inherent and discretionary powers of review under s.155 (2)(b) of the Constitution. That provision reads:-

The Supreme Court....has an inherent power to review all judicial acts of the National Court.

5. The relevant legal principles were first pronounced in the pioneering case of Avia Aihi and they have been affirmed, developed and applied in numerous cases since. These are that the exercise of the Court’s discretionary power pursuant to the provision under discussion can only be possible where the Applicant satisfied all of the following requirements that:-

1. it is in the interests of justice that leave be granted;
2. there are cogent and convincing reasons or exceptional circumstances; and
3. there are clear legal grounds meriting a review of the decision.
   

6. The relevant matters to be considered when deciding whether there are cogent and convincing reasons are:-

1. the reasons for failing to appeal within time; and
2. the merits of the case to be argued.
   

7. According to the relevant endorsement of the Court file, the Notice was received and registered by the Supreme Court Registry as a notice of review when it was filed.

8. The Respondent has not taken issue with any irregularity associated with the Notice maybe because the Applicant is self represented. Under the circumstances, the Court will treat the Notice, as to form, in order.

GROUNDS FOR REVIEW

9. Only one (1) ground is advanced. It is handwritten in Tok Pisin at item 7 of the Notice, which is found at pages 5 and 6 of the Appeal Book as follows:-

Why mi laik apil bikos, dispela keis mi bin sarenda pinis long en, mi bin sarenda andanit long smapel lo lain olsem, Ward Kanso, District Magistrate, Community Justice CJC, MS15 na wantaim Anthony General long Mosbi. Afta long dispela sarenda biling mi, mi bin stap ples kilia wantain lo community na wok wantaim na tu mi traim long cooperate wantaim ol youths na mekim ol community wok. Long behainim dispela, taim ol liklik trabol save kamap ol MS15 sae questenim mi na paitim mi nating nogat evidens o nogat prove na mi save kisim pen nating, so behain tasol long stap bilong mi, ol polis I bin holim mi long wanpela suspect, tasol nogat prove long kotim mi, olsem na ol kotim mi long idspela trabol we mi bin sarenda pinis long en.(sic)

10 Mr. Sambua, in his written submissions, has translated that into English as follows-

The Appellant had surrendered to the police already and was doing community work for this crime. He was arrested by the police as a suspect in another incident, but since there was no prove against him, he was charged for this trouble. (sic)

11. Basically, the Applicant thinks that the trial judge did not take into account the fact of his surrender to those involved in the law and justice section in his community as a mitigating factor.

12. Mr Sambua of counsel for the State submitted that the ground was very broad and he was uncertain as to whether the application was against conviction or sentence. The Court then enquired with the Applicant to clarify what his position was and he said that he was only taking issue on sentence.

DISCUSSION OF REQUIREMENTS AND GROUNDS FOR REVIEW

13. We have considered the submissions of the parties and say these.

Whether it is in the interests of justice that the Applicant should be granted leave?

14. The Applicant generally submitted that the trial judge did not consider the fact that he had surrendered to those involved in the law and justice sector in his community and did community work after he was suspected of committing another offence. On the contrary, Mr Sambua submitted that this factor was considered by the trial judge. We agree with counsel. This is evidence in the transcript of the proceedings which is found at lines 32 to 36 of page 23 of the Appeal Book when His Honour said:-

When you were initially caught, you surrendered and you did some community work in the community and that is a factor in your favour. But the most important thing is that you have not been convicted for this offence. So this will be the first time that the court has convicted you for this offence.

15. This particular robbery falls under the category of robbery of a person on the street which attracts a starting point of three (3) years in a plea of not guilty: Gimble v. The State [1988-89] PNGLR 271. According to the Gimble Case, features of aggravation such as actual violence, the large amount stolen, etc, could justify a higher sentence and a plea of guilty could justify a lower sentence. The starting point in Gimble was increased by three (3) years in Public Prosecutor v. Don Hale [1998] SC564 which was subsequently reaffirmed by Tau Jim Anis v. The State [2000] SC642. This means that the starting point for this category of robbery is six (6) years which may vary upwards or downwards depending on the facts of each particular case.

16. Consequently, the Supreme Court has confirmed a sentence of ten (10) years in a number of cases which is a couple more than the sentence imposed in this case.

17. In John Peter Arua v. The State [2000] SC638, the prisoner pleaded guilty to one (1) count of aggravated robbery and one (1) count of illegal use of a motor vehicle. He was convicted on both counts and sentenced to ten (10) years imprisonment for robbery and two (2) years for the other count. He appealed against the severity of the sentence. The Supreme Court found that ‘the trial judge has not made any errors in the exercise of his sentencing discretion’ and dismissed the appeal.

18. In Philip Kassman v. The State [2004] SC759, four (4) men armed with a couple of pistols held up a bank customer at gunpoint as he was about to enter the bank to deposit his company’s takings. He was threatened with violence and a money bag containing K128,464.24 was taken from him. The prisoner was convicted by the National Court for the offence of armed robbery following a trial and was sentenced to ten (10) years imprisonment. The Supreme Court said that applying the three (3) year denominator in Don Hale’s case the sentence should have been around (8) years. However, it found that while ‘the sentence of 10 years is slightly above what might be the starting point of 8 years, we do not however consider that the sentence of 10 years was manifestly excessive in all the circumstances.’

19. In Bobolan Mebu Peter v. The State, Unreported Judgment, 26 June 2007, SCR 59 of 2005, the prisoner sought a review of his sentence after pleading guilty to a charge of armed robbery of a motor vehicle on a road. The prisoner and his accomplices placed a log across a bridge and waited for a motor vehicle to be driven by. When a motor vehicle came by, it was set upon by the prisoner and his accomplices who threatened the passengers with homemade guns, sling-shots and bush knives and in the course also stole from them K2,200.00 which was intended for salaries and wages of employees of a college. He was convicted and sentenced by the National Court to thirteen (13) years imprisonment in hard labour. The Supreme Court was of the view that the sentence imposed was a significant departure from the sentencing guidelines, manifestly excessive and therefore quashed it. To maintain consistency, the Court imposed a sentence of ten (10) years imprisonment in hard labour.

20. In Stuard Kepu v. The State, Unreported Judgment, SCR 21 of 2007, a decision this Court delivered yesterday, the prisoner sought review of his sentence after pleading guilty to a charge of armed robbery of a person on a street. About noon on that fateful day, the Applicant and three (3) others drove to the Papindo Supermarket, at top town, Lae in a hired motor vehicle armed with a homemade gun. They parked their motor vehicle in front of the Papindo Supermarket and waited for the manager to arrive with the weekend’s takings. When he arrived, the Applicant and his accomplices held him up with the home made gun pointed at him and threatened to shoot him. In fear of his life, he gave them the money bag and they drove away in their motor vehicle. The money bag contained cash and cheques totalling K79,750.00 belonging to the Papindo Trading Group of Companies. He was convicted and sentenced by the National Court to ten (10) years imprisonment in hard labour less the period of pre-trial custody. The Court considered that the sentence was appropriately imposed in the exercise of the trial judge’s discretion and rejected the application.

21. We reaffirm the sentencing guidelines in Gimble, Don Hale and Tau Jim Anis and note that it is within the sentencing Judge’s discretion to increase or decrease from the suggested starting point depending on the facts of each case: see John Peter Arua, Philip Kassman, Bobolan Mebu Peter and Stuard Kepu.

22. The crime of armed robbery is prevalent in the country. The Applicant and his two (2) accomplices were armed with a homemade gun and two (2) bush knives during the robbery. The Applicant was actually pointing the gun at the complainant whilst his accomplices searched him. The crime was committed at first light or early in the morning and daring. It was a demonstration of disregard for the rights and wellbeing of members of the public more particularly so when the Applicant discharged his gun in the direction of the pursuing public and the victim injuring the Applicant in the process. It was also a challenge to the rule of law. The Applicant and his accomplices stole cash and other property belonging to the complainant with an estimated value of K3,096.80.

23. However, the trial judge took into account in mitigation that the Applicant; pleaded guilty, expressed remorse and attempted reconciliation with the complainant, surrendered for his earlier discretion and cooperated with police.

24. What the trial judge considered aggravating in this case were that the Applicant was not a youthful or first time offender, he was in fact married with a child at the time of the crime and much emphasis was placed on the fact that the Applicant had prior convictions one of which was for possession of a firearm, as in this case, which landed him in prison for six (6) months.

25. The Applicant’s family background was also considered by the trial judge, but was deemed negligible given the Applicant was an adult who chose to engage himself in the crime rather than perform his parental obligations.

26. In the circumstances, a sentence of eight (8) years was appropriately imposed in the exercise of the trial judge’s discretion.

27. We are also mindful of the concern raised by this Court in Simon Kama v. The State [2004] SC740 on unnecessary wastage of limited judicial time and scarce public funds on hearing of frivolous or vexatious or unmeritorious appeals that are an abuse of the appeal process. We consider that this is one of those cases.

28. Mr Sambua submitted that the Applicant has not offered any good reason or explanation why the Notice was not filed within the statutory period and therefore the application should be refused. We agree.

29. We therefore do not think that it will be in the interests of justice to grant leave.

Whether there are cogent and convincing reasons or exceptional circumstances?

30. We adopt our reasoning above and say that this requirement has not been satisfied. We answer the question in the negative.

Whether there are clear legal grounds meriting a review of the decision?

31. We also adopt our reasoning above and say that this requirement has not been satisfied either and answer the question in the negative.

OTHER REMARKS

32. The Applicant has failed to meet all the three (3) requirements to be successful in a leave application. It is in fact a frivolous or vexatious or an unmeritorious application and amounts to an abuse of the Court’s process.

JUDGMENT

33. The only ground for review is dismissed. The applicant’s application for leave seeking to review the sentence of the National Court sitting at Lae on 19 September 2006 is refused. The sentence of the National Court is confirmed.

_____________________________________________________________

Applicant In person
Public Prosecutor: Lawyer for the Respondent