Koninda v Independent State of Papua New Guinea [2014] PGSC 42; SC1396 (30 October 2014)

SC1396

PAPUA NEW GUINEA
IN THE SUPREME COURT OF JUSTICE

SCREV 19 OF 2011

BETWEEN:

ANDREW KONINDA
Applicant

AND:

THE INDEPENDENT STATE OF PAPUA NEW GUINEA
Respondent

Lae: Hartshorn, Kariko and Kangwia JJ
2014: 29th & 30th October

CRIMINAL LAW – Appeal out of Time – Review of Sentence– s. 155(2)(b) Constitution – Murder –s. 300 (1)(a) Criminal Code

Cases cited:

Avia Aihi v.The State [1981] PNGLR 81
Manu Kovi v. The State (2005) SC789
Ben Wafia v. The State (2006) SC851
Joe Giamur v. State (2007) SC884

Counsel:

Appellant in person
Mr. R. Auka, for the Respondent

30th October 2014

1. BY THE COURT: The applicant was convicted of murder pursuant to s.300 (1) (a) Criminal Code, following his plea of guilty and was sentenced to 17 years imprisonment in hard labour.

2. The applicant appeals against his sentence. As his notice of appeal was filed over one year after his conviction and is over 10 months out of time we consider the matter by way of review pursuant to s. 155(2)(b) Constitution.

Facts
3. The brief facts are that the applicant, believing that the deceased Mackenzie Jimmy, a 15 year old school student, was one of a number of persons who had been throwing stones, one of which had hit the applicant in the face, chased the deceased and repeatedly stabbed him with a bush knife causing the deceased's death.

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. In his reply the applicant stated that he was not aware of the time limit for filing an appeal and the process involved. Apart from this explanation as to the reasons for the late filing of the appeal there is no explanation as to why the applicant's case merits a hearing. This should render the review incompetent. Given however that this is a "prisoner's appeal", in the interests of justice, we have decided to consider it.

7. At the outset, the applicant abandoned all but the second ground of his review. That ground concerns the trial judge not giving proper consideration to the value of property of his family that had been destroyed. The applicant alleges that the destruction was caused by relatives of the deceased. The applicant further submits that the trial judge should have also taken into account that he surrendered to the police.

8. As to an appeal against sentence, the legal principles are well settled and were reiterated in the Supreme Court case of Ben Wafia v. The State (2006) SC851;

"A sentencing judge has a wide discretion. On an appeal against sentence the appellant must show that the sentencing judge has erred in the exercise of his discretion. Although there may be no identifiable error, if the sentence is out of all reasonable proportion to the crime there is an unidentifiable error: William Norris v The State [1979] PNGLR 605."

9. Counsel for the State submitted that the trial judge took into account all of the necessary mitigating and aggravating factors before deciding upon the sentence to be imposed. One of those factors was the property that the applicant said that he and his family had lost as a result of the retaliatory actions by the relatives of the deceased. We note that the trial judge specifically referred to the Supreme Court case of Joe Giamur v. State (2007) SC884 which amongst others dealt with the court's approach to submissions concerning retaliatory actions causing damage to property. We are satisfied that the trial judge did take this factor into account.

10. We note that the sentence of 17 years is close to the minimum recommended by the Supreme Court in Manu Kovi v.The State (2005) SC789, for category two murder cases. This category involves the use of a weapon, as occurred here.

11. After considering the submissions of the applicant and the State and perusing the reasoning of the trial judge we are satisfied that the trial judge properly considered all of the necessary mitigating and aggravating factors, including the factors referred to by the applicant.

12. Given that the maximum penalty for murder is imprisonment for life and that the sentence imposed is at the lower end of that recommended in Manu Kovi (supra), for a category two murder, we are satisfied that the trial judge was entitled to impose the sentence that he did and that he did not commit any error in so doing.

13. Consequently the appeal is dismissed.

___________________________________________________________
Appellant in person
Office of the Public Prosecutor: Lawyers for the Respondent