Walus v State [2007] PGSC 4; SC882 (23 February 2007)

SC882

PAPUA NEW GUINEA
[IN THE SUPREME COURT OF JUSTICE]
SCR 32 OF 2005

BETWEEN

DANIEL RONALD WALUS
Applicant

AND

THE STATE
Respondent

Kokopo & Kimbe: Sevua, Kandakasi & Manuhu, JJ
2006: 30 August
2007: 23 February

PRACTICE & PROCEDURE – Appeals – Leave to withdraw – Objected to conditional on Supreme Court correcting apparent error on the face of the record – No provision in the Rules governing withdrawal of appeals – Court has power under s. 155 (4) of the Constitution to devise appropriate remedy – Merits of objection considered – Objection meritorious – Apparent error on the face of the record - Court has power to correct apparent error before allowing withdrawal of appeal – Apparent errors corrected and Appellant granted leave to withdraw - Section 155(4) of the Constitution – Sections 4 to 12 and 20 – 32 Supreme Court Act (ch. 37) – Sections 19 (1) (6), (9), 26, 527 of Criminal Code – Section 4 Criminal Justice (Sentencing) Act 1986 – Sections 17 to 21 of Parole Act 1991 - Order 8 r 6 of the Supreme Court Rules.

PRACTICE & PROCEDURE – Suspension of sentence – A trial judge has power to suspend part of an offender’s sentence - The Court required and consider a pre-sentence report – If pre-sentence reports supports suspension on then should the Court suspend part of the sentence - Where suspension is warranted the Court must exercise the power to do so at the time of the pronouncement of sentence and not at a later time – The Court must clearly state the sentence imposed, any suspension and deduction and the term to be served at the time of pronouncing the sentence - Once the Court has pronounced sentence it becomes functus officio - Section 19 of Criminal Code - Section 4 of the Criminal Justice (Sentences) Act 1986.

Cases cited:
Regina v. Abia Tambule and 11 Others [1974] PNGLR 250.
Acting Public Prosecutor v. John Airi (24/11/81) SC214.
Public Prosecutor v. Thomas Vola [1981] PNGLR 412.
See Acting Public Prosecutor v. Don Hale (27/08/98) SC564.
Edmund Gima & Siune Arnold v. The State (03/10/03) SC730.
William Powi & Ors v. Southern Highlands Provincial Government & Ors (26/07/06) SC844.
James Pangnan and Patrick Ponat v. The State SCRA 39 & 54 OF 2004, judgment delivered on 30th August 2006

Counsel:
Appellant in Person.
Mr. J. Pambel, for the Respondent

23 February, 2007

1. BY THE COURT: You lodged an appeal against a judgment of the National Court (per Cannings J.) delivered in Kimbe on 25 February 2005, imposing a sentence of 18 years in hard labour on your guilty plea to a charge of unlawfully killing your wife’ s cousin sister. This Court convened and started to hear your appeal on 30 August 2006. In the course of the hearing, you applied for leave of the Court to withdraw your appeal. The State opposed that application pointing out that there was an apparent error on the face of the judgment which must be corrected before you can be allowed to withdraw your appeal. In taking that position, the State pointed to the following part of the judgment:

"1 Daniel Ronald Walus, having been convicted of the crime of unlawful killing, is sentence to 18 years imprisonment in hard labour, 10 years of which must be served and the balance of 8 years may be suspended by order of the National Court if and when an application for suspension is granted.

"2 For the avoidance of doubt:

(a) the suspension of the above sentence will only come into effect if and when ordered by the National Court; ..."

2. The State pointed out that, the learned trial judge acted ultra vires his sentencing powers, and in particular Section 19 of the Criminal Code.[1] Mr. Kaluwin of the Public Solicitor’s Office in Kokopo, who appeared as a friend of the Court on the Court’s invitation, agreed with counsel for the State that, there was an apparent error on the face of the judgment. He then drew the Court’s attention to Sections 3 and 4 of the Criminal Justice (Sentences) Act 1986.

Relevant Issues

3. This presents three (3) issues for this Court to determine. The first is, whether this Court has the power to allow you to withdraw your appeal. The second issue is, if the answer to the first issue is in the affirmative, can this court allow you to withdraw your appeal in the face of a suggestion that, there is an apparent error on the face of judgment, the subject of your appeal. The third issue is, whether there is in fact an apparent error on the face of the judgment and whether, this Court should correct it before granting you leave to withdraw your appeal.

Power to Allow Withdrawal of Appeals

4. Turning first to the first issue, we note that, there is no dispute that, this Court has an "inherent power" under Section 155 (2) (b) of the Constitution, "to review all judicial acts of the National Court". That power is usually exercised by this Court on appeal or review by a person aggrieved by a decision of the National Court. Appeals to this Court are governed by the Supreme Court Act,[2] particularly s 4 to s 12 and s 20 to s 32. Section 6 of the Act makes it clear that "an appeal ... is by way of rehearing on the evidence given in" the National Court "subject to" this Court’s power to "allow fresh evidence ... and to draw inferences of facts." On hearing of an appeal this Court "has all the powers, authority and jurisdiction of a judge exercising the jurisdiction of the National Court." In most appeal cases, this Court has either affirmed the decision and or orders of the National Court appealed against or, has quashed and set them aside and substituted them with its own. A recent example of that happening is the decision delivered by this Court in the case of James Pangan and Patrick Ponat v. The State.[3] This has happened particularly in cases where the National Court has fallen into identifiable error resulting in a miscarriage of justice and therefore, warranting correction by this Court.

5. In your case, you applied to this Court to withdraw your appeal as this court started to hear your appeal. There is no provision either in the Act or the rules enacted thereunder for a withdrawal of appeals once filed. The Rules of this Court provide under O 8 r 6 for a withdrawal of a reference under s 26 of the Act. This provision empowers the Principle Legal Adviser to withdraw such references without leave of the Court before the hearing of a reference and with leave of the Court, after the commencement of the hearing of the reference but before the Court delivers its opinion. Similar provisions exist in the National Court Rules[4] in civil cases. For criminal cases at the trial level, s 527 of Criminal Code empowers the Public Prosecutor to withdraw an indictment or charge against an accused person. This section is silent on when this can be done. However, it is now well accepted that, the Public Prosecutor can withdraw an indictment that is still pending prior to commencement of trial without leave and with leave of the court, after the commencement of trial but before decision.[5]

6. The reason for requiring leave of the Court is simple. It is to avoid prejudice to the rights and or interests of the other parties to the proceedings. In Regina v. Abia Tambule and 11 Others[6] Frost SPJ made that clear in these terms:

"Thus if a fair hearing requires upon the evidence a determination of the merits of the case in favour of the accused, that right cannot be defeated by permitting the Crown at that stage to withdraw the charge, and more particularly if the nature of the withdrawal does not preclude further proceedings."[7]

7. There is a well recognized right in a party to withdraw either the whole or a part of any proceedings brought by him or her. That is why provisions are invariably made either in the statutory law establishing a court or in the rules of the court promulgated under its enabling legislation for that right. Unfortunately, neither the Supreme Court Act nor the Rules of the Court provide for the right in an appellant like you to withdraw their appeals. Despite that, we are aware that, this Court has granted leave to appellants in some cases in the past to withdraw their appeals. This is not confirmed by any written judgment because there is usually no issue taken, warranting a written judgment. The lack of any written record of this Court having allowed a withdrawal of appeals in the past does not mean that the Court has not allowed withdrawal of proceedings and or that, the power to do so does not exist.

8. This Court has an inherent power under s 155(4) of the Constitution to devise such remedies as are necessary to do justice either to protect or give effect to a right already vested in a person by law but there is nothing in the statutory or case law for an appropriate remedy when breached or an occasion to exercise that right arises.[8] This Court has exercised that inherent power in appropriate cases, either expressly or by implication particularly in cases where the other parties to the proceedings sought to be withdrawn have not taken any issue. This is the first time, at least, in our experience where an objection is taken, warranting us to consider the issues presented before us in the way they are.

9. For clarity and to guide future cases, we would recommend that the Court Rules be amended to expressly make provision for the enabling of a party to an appeal to withdraw his proceedings. Such a provision should allow for withdrawals without leave of the Court if the withdrawal takes place prior to the taking of any substantial steps toward either the prosecution or, defence of an appeal and with leave of the Court, for withdrawals anytime thereafter. Such leave should be readily granted unless, the withdrawal will result in any prejudice to the rights of the parties in terms of the issues raised in the proceedings or deny the other parties an opportunity they had to raise an issue and receive such redress as may be warranted in the particular circumstances of the case. It is impossible for us to spell out exhaustively the kind prejudice a withdrawal of any appeal could cause. Hence, we would leave each case of possible prejudice to be considered on its own merits on a case by case basis.

State’s Objection and its Merits

10. In your case, we have no difficulty in saying; we do have the power to allow you to withdraw your appeal. The difficulty however is, whether we can readily do that in the light of the objection from the State. That difficulty is the subject of the second issue. A decision on that issue is dependant on a determination of the third issue. The third issue is, whether there is an apparent error on the face of the judgment, the subject of your appeal and whether, this Court can correct that error in order to enable you to withdraw your appeal. Accordingly, we will deal with the two remaining issues together.

11. We have already quoted the relevant part of the judgment that appears to show an apparent error. Before arriving at that part of the decision and order, the learned trial Judge noted his sentencing powers under Section 19 of the Criminal Code in the following manner:

"The court has a considerable discretion whether to impose the maximum penalty by virtue of Section 19 of the Criminal Code. For example:

• a shorter term of imprisonment may be imposed (Section 19(1)(a)); or
  
• a fine up to K2,000.00 may be imposed instead of or in addition to a term of imprisonment and the prisoner can be imprisoned until the fine is paid (Sections 19(1)(b), 19(1)(c)); or
  
• the prisoner may be given a ‘good behaviour bond’ (Section 19(1)(d)); or
  
• the prisoner can be discharged and the sentence postponed (Section 19(1)(f)); or
  
• the court can suspend all or any portion of the sentence imposed, subject to conditions (Section 19(6))."
  

12. The trial Judge then considered if the sentence should be increased or decreased having regard to the particular factors for and against you. The trial Judge eventually decided to increase the sentence by adding 6 years on the starting point of 12 years. At that point, the trial Judge considered the Pre-Sentence Report. The learned trial Judge found that the Report did not support any suspension of sentence given the particular circumstances of your case. Yet the learned trial Judge decided to do the following:

"I will nonetheless qualify the prison sentence by ordering that it can be suspended, after the prisoner has served a minimum term of imprisonment, if before the expiration of the term prescribed, the National Court approves a post-release parole period with strict conditions attached.

The conditions that I envisage would be suitable are, for example, that the prisoner do some strictly controlled community work; that he submit to regular counselling with an officially recognized and reputable local church or other place of religious worship; that his movements be restricted; that he refrain from consuming drugs; that he be of impeccable behaviour. The issue of compensation could also be addressed. Proof of genuine steps towards peace and reconciliation between the prisoner and the relatives of the deceased would be viewed favourably.

The prisoner will be at liberty to, at any time make an application to vary the sentence so as to suspend the remaining part of the term of imprisonment."

13. There is no argument that, a trial judge has the power to suspend either the whole or part of a sentence. That power comes from Section 19 (6) of the Criminal Code, which stipulates:

"When a court sentences a person convicted under Subsection (1) (d) to a term of imprisonment, it may further order that –

(a). the offender be imprisoned for such portion of that term if it thinks proper; and

(b) the execution of the sentence for the remaining portion of the sentence be suspended on his entering into a recognizance, with sureties if so directed, in accordance with Subsection (1) (d) but further conditions that, if called on, he shall appear and receive judgment in respect of his service of the portion of the sentence."

14. As may be apparent from sub-paragraph (b), s. 19 (6) has to be read in conjunction with subsection (1) (d), which is in the following terms:

"(1). (d). a person convicted on indictment of an offence not punishable with death may –

(i) instead if, or in addition to, any punishment to which he is liable – be ordered to enter into his own recognizance, with or without sureties, in such amount as the court thinks proper, to keep the peace and be of good behaviour for a time fixed by the court; and

(ii) comply with such other conditions as the court may, in its

discretion, impose...."

15. From our reading of these provisions, it is clear that, once a decision has been arrived at in relation to the appropriate sentence in a particular case, the Court has the power to suspend part of the sentence. The judgment of this Court in Acting Public Prosecutor v. John Airi[9] confirmed that view in the following terms:

"The power to suspend part of a sentence derives from the proviso to s.19 (f) of the Criminal code. Portion of the sentence may be suspended upon the offender entering into a recognizance. The terms of the recognizance may be acceptable to the offender or they may not. If the offender declines to enter into a recognizance, he is obliged to serve the whole of the term of the sentence. An examination of the court record indicates that the present respondent has not entered into the recognizance which should have been required by his Honour as a condition of the suspension of portion of the term of imprisonment. It is not clear whether the respondent was given the opportunity to enter into the recognizance or not. The warrant committing the respondent to prison did not fully set out the effect of his Honour’s order and the nine months’ portion of the term having expired, the Corrective Institution has understandably released the respondent but without him having entered into the recognizance."

16. The case of Public Prosecutor v. Thomas Vola[10] remarked on the correct procedure to adopt before suspending part of a sentence. There, the Court said:

"We wish to remark on the procedure to be adopted by a sentencing judge who proposes to suspend portion of a sentence pursuant to the proviso to s. 19 (f) of the Criminal Code. As the suspension is effectively only upon the offender entering into the recognizance proposed, it would normally be advisable for the sentencing judge to give the offender the opportunity of entering into the recognizance before commencing to serve the portion of the term ordered to be served".

17. A close examination and consideration of the provisions of s 19 (1) (d) and (6) and the above decisions of the Supreme Court on point, brings out two clear points. First, the power to suspend part of an offender’s sentence is not dependent on the prisoner serving a portion of the sentence. If suspension of a part of a sentence is warranted, the Court must exercise the power to do so at the time of the pronouncement of sentence and not at a later time. Section 4 of the Criminal Justice (Sentences) Act 1986, although speaking only in relation to deducting the period spend in custody awaiting trial by an offender, it adds to the point that, any decision to deduct a part of the sentence must be made clear at the time of pronouncing the sentence. This is clear from the use of the words "At the time of imposing a sentence...."

18. Secondly, a prisoner must, as part of an actual suspension package, as opposed to an expected suspension, be ordered to enter into his own recognizance to keep the peace and be of good behaviour for a time fixed by the court; and comply with such other conditions as the court may, in its discretion, impose. The prisoner is required to enter into his own recognizance and accept any other terms of suspension before the decision to suspend is pronounced.

19. These are mandatory requirements to a valid exercise of the power to suspend part of a sentence. This has been so provided for a number of good reasons. First, a prisoner is entitled to know with certainty from the date of the pronouncement of his sentence, what sentence he is receiving and how much of it, if any, is being suspended and on what terms. This is necessary because, certainty in the sentence accords a prisoner the opportunity to consider his right of appeal and his possible grounds of an appeal against the decision on sentence. It can not simply be deferred to a later time. This point is made clear and or emphasized by the provisions of s 4 of the Criminal Justice (Sentences) Act 1986, where it states that:

"At the time of imposing a sentence in any court ... the judicial officer imposing the sentence shall specify-

(a) the length of the sentence imposed; and

(b) the length of any period to be deducted from the sentence under Section 3(2); and

(c) the resultant length of the sentence to be served."

(Emphasis supplied)

20. Secondly, the appropriateness of a sentence is dependent on the particular circumstances prevailing at the time of its pronouncement. Correctly, sentence has never been and could not possibly be dependent on any post sentence events. The only circumstances in which this could happen and is provided for by law is under s 19 (1) (f) (i) of the Criminal Code. Even in that case, however, the court arrives at a decision to discharge the offender on his entering into his own recognizance with or without sureties and where one of the conditions is to return to the court to receive judgment at a future date, time and place specified by the court.

21. Thirdly, it is established law now that, a decision to suspend part of the sentence must be supported by a pre-sentencing report from the probation services. If such a report is not before the court or, the report does not support the suspension of a part of the sentence, the court is not at liberty to suspend either the whole or part of a sentence.[11] Where sentence is deferred to a longer period, it will be difficult to get a pre-sentence report that truly reflects the reaction and or response of the community to the offence committed by the offender and what kind of punishment the offender should receive. As time goes by, things do change either for the worse or for the better and as such, whatever a pre-sentencing report states much later after the commission of the offence and the passing of the appropriate time for sentence may be unreliable.

22. Finally, and more importantly, once the sentencing judge has pronounced his sentence, he becomes functus officio. In other words, the sentencing judge has completed his duty and there is nothing left for him to do. The only exception would be in a case in which an Act of Parliament allows for a deferment of decision on sentence as in the case of s.19 (1) (f) (i) of the Criminal Code. Save only for such an exception, after a sentence has been pronounced and the prisoner starts serving his time, there is no power in a court except, on appeal, to revisit the decision on sentence. Also, whether or not a prisoner should serve the full term of his sentence or should be released earlier on conditions becomes the province of another authority, the Parole Board under the Parole Act 1991. That authority has the power to investigate and consider such evidence and reports required by the Act and then in appropriate cases, decide to release a prisoner earlier than the full term of his sentence after the prisoner had served a portion of his sentence in prison. Hence, a court would be usurping the powers of the Parole Board if it reserves to itself the need to revisit its decision on sentence and then decide whether or not part of the sentence should be suspended and if so, on what terms. It would also be usurping the powers of an appellate court without an appeal.

23. In your case, we note that, the learned trial judge found that, the pre-sentencing report did not support a suspension of any part of your sentence of 18 years. His Honour ordered that, you must first serve a period of 10 years in prison. His Honour then effectively decided that, you shall be entitled to a release on parole for the balance of your sentence of 18 years, being 8 years. In order for that to happen however, you would have to apply to the court for a suspension or variation of your sentence, to be considered on its merits. The learned trial judge indicated some factors that might operate in your favour. Effectively, however, the learned trial judge left the question of suspension of the balance of your sentence open and uncertain until you have served the first ten years and was dependant on your application succeeding.

24. We find there is a clearly identifiable error on the face of the judgment and or record for two reasons. First, the learned trial judge did find that the pre-sentencing report and the particular circumstances of your case did not support a suspension of any part of the head sentence of 18 years. Having arrived at that decision, it was incumbent on the learned trial judge to order you to serve that sentence in prison less the period you may have already spent in custody awaiting your trial. Instead of doing that, the learned trial judge decided to allow you to apply for a suspension of part of your sentence the second time around after you have served the first 10 years. As already noted, the learned trial judge had no legal authority to do that. What he has done has left you with uncertainties as to the total period you would have to serve in prison and whether, or not, part of the sentence will be suspended. We have already made the point that, a prisoner is entitled to certainty and finality as to the terms and conditions of his sentence at the time his or her sentence is pronounced. We have also made the point that; the appropriateness of a sentence depends on the circumstances of the case as at the time of the pronouncement of the sentence and can not be delayed to an uncertain future. Accordingly, any suspension and its terms and conditions have to be clear and certain upon the pronouncement of the sentence.

25. Secondly, in our view, the learned trial judge clearly usurped the powers of the Parole Board to consider parole and this Court’s powers on appeal to review sentence. We are also of the view that, that decision had the effect of preventing the Parole Board from considering your eligibility and the prospects of an order for earlier release under s 17 and s 21 of the Parole Act. Clearly, the learned trial judge did not have the powers to make the kinds of orders he made. This is a clear and apparent error that must be correct by this Court so that, your right to be considered for parole under the Parole Act 1991 is available, and to ensure that, there is certainty in the sentence you must serve in prison.

26. For these reasons, we quash the part of the learned trial judge’s decision and order for you to serve 10 years of your sentence in hard labour and for you to apply thereafter for a suspension of the balance of your sentence. That being the only impediment to a withdrawal of your appeal and now being cleared, we grant your application to withdraw the proceedings. That would effectively leave you to serve your sentence of 18 years in hard labour less the time you already spend in custody awaiting your trial and sentence.

26. In passing we note the learned trial judge has made similar orders in a number of other cases. These ought to be corrected. In the meantime, we would suggest that the learned trial judge refrains from making any more of these kinds of orders.

27. The formal orders of the Court then are these:

(1) That part of the trial judge’s decision and order that the appellant serve 10 years in hard labour of his 18 years sentence and thereafter apply for a suspension of the balance of his sentence is quashed.

(2) The Appellant’s application to withdraw his appeal against sentence is granted subject to the correction to the National Court orders in terms of term (1) of these orders

(3) The Appellant shall serve the sentence of 18 years in hard labour less the time he has already spent in custody waiting his trial.

_______________________________

Appellant in Person.
Public Prosecutor: Lawyer for the Respondent

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^[1] Chapter. N0. 262.
^[2] Chapter 37.
^[3] SCRA 39 & 54 OF 2004, judgment delivered on 30^th August 2006, per Sevua, Kandakasi and Manuhu JJ.
^[4] O. 8 rr. 60 and 61.
^[5] See Regina v. Abia Tambule and 11 Others [1974] PNGLR 250, per Minogue CJ, Frost SPJ with Clarkson J dissenting.
^[6] Ibid.
^[7] Per Frost SPJ
^[8] See the recent decision of this Court in William Powi & Ors v. Southern Highlands Provincial Government & Ors (26/07/06) SC844, per Jalina, Gavara-Nanu and Kandakasi JJ.
^[9] (24/11/81) SC214, per Andrew, Miles and Bredmeyer JJ.
^[10] [1981] PNGLR 412, Kapi J, Pratt J, Miles J.
^[11] See Acting Public Prosecutor v. Don Hale (27/08/98) SC564, per Amet CJ, Woods and Kirriwom JJ. and Edmund Gima & Siune Arnold v. The State (03/10/03) SC730, per Kirriwom, Kandakasi, and Batari JJ.