Kasia v State [2013] PGSC 19; SC1238 (26 June 2013)

SC1238

PAPUA NEW GUINEA
[IN THE SUPREME COURT OF JUSTICE]

SCR 15 OF 2011

BETWEEN:

DAVID KASIA
Applicant

AND:

THE INDEPENDENT STATE OF
PAPUA NEW GUINEA
Respondent

Wewak: Lenalia, Hartshorn, Makail JJ
2013: June 25th, 26th

CRIMINAL LAW – Appeal out of Time – Review of Sentence – s.155(2)(b) Constitution – Murder - s. 300(1)(a) Criminal Code – whether trial judge had considered de facto provocation - deceased engaging in extramarital affair with spouse of deceased

Facts:
The applicant was convicted of murder pursuant to s. 300(1) (a) Criminal Code, after he pleaded guilty. The applicant was sentenced to 20 years imprisonment in hard labour. The applicant seeks a review of the sentence imposed pursuant to s.155(2)(b) Constitution.

Held:

1. The trial judge erred by not giving sufficient weight to the de facto provocation of the deceased having an extramarital affair with the spouse of the applicant.
   
2. The sentence imposed upon the applicant by the National Court is quashed and is replaced with a term of imprisonment of 17 years in hard labour.
   

Cases cited:

Avia Aihi v The State [1981] PNGLR 81
State v Joseph Ulakua (2000) N2240
Manu Kovi v The State (2005) SC789
Counsel

Applicant in person
Mr. C. Sambua, for the Respondent

26th June, 2013

1. BY THE COURT: The applicant was convicted of murder pursuant to s. 300(1) (a) Criminal Code, after he pleaded guilty. The applicant was sentenced to 20 years imprisonment in hard labour.

2. The applicant appeals his sentence. As his notice of appeal was filed about ten days after the requisite 40 day period we consider the matter by way of review pursuant to s.155(2)(b) Constitution.

Facts

3. The applicant pleaded guilty to the allegation that he had hid in the bushes near a creek where his wife and children were. He witnessed the deceased following his wife to the creek and throwing stones at her to get her attention. The applicant attacked the deceased with a knife, causing wounds to his body. The deceased died from loss of blood from the injuries that he sustained.

4. The State contends that upon a review before the Supreme Court an applicant must explain why he failed to lodge his appeal in time and why his case merits a hearing before the Court; and that here the applicant has not done so.

5. Section 155(2)(b) Constitution provides that this Court has an inherent power to review all judicial acts of the National Court. The relevant legal principles were pronounced in Avia Aihi v. The State [1981] PNGLR 81. These equate essentially, to the Court exercising its discretionary power where it is in the interests of justice to do so.

6. The applicant submitted that he had relied upon the Public Solicitor to file his appeal in time but that he did not.

7. In this case on the face of it, the lack of reasons for the late filing of the appeal and why the applicant's case merits a hearing, would render the review incompetent. Given that this was a "prisoner's appeal" with the applicant representing himself, in the interests of justice, we have decided to consider it.

8. The applicant in essence submits that the trial judge erred by not giving sufficient weight to the de facto provocation that the applicant endured by virtue of the deceased engaging in an extramarital affair with the applicant's wife.

9. It was conceded by counsel for the respondent that the trial judge did not appear to have taken this factor into account in determining the sentence to be imposed. Further, the sentence of 20 years imprisonment was at the upper range of a sentence to be imposed for a category two murder in Manu Kovi v. The State (2005) SC789, and a term of imprisonment in the lower range would have been more appropriate.

10. Although considering that a sentence of between 16 and 20 years must be imposed, the sentencing range for a category two murder under Manu Kovi (supra), the trial judge imposed a sentence of 20 years after referring to the case of State v. Joseph Ulakua (2000) N2240 in which a sentence of 20 years was also imposed. Ulakua's case (supra) concerned a guilty plea of a husband who murdered his wife. The circumstances of the murder were more severe than the murder in this case however, and by imposing the same sentence in this case and not giving sufficient weight to the de facto provocation to which we have referred, in our respectful view, the trial judge erred.

11. In our view a more appropriate sentence would have been 17 years imprisonment in hard labour and that is the sentence that we will impose.

Orders

12. The sentence imposed upon the applicant by Davani J on 24th February 2011 at the National Court at Wewak is quashed and is replaced with a term of imprisonment of 17 years in hard labour.
_________________________________________________
Applicant in person
Office of the Public Prosecutor: Lawyers for the Respondent