Mupang v Independent State of Papua New Guinea [2014] PGSC 43; SC1397 (30 October 2014)

SC1397

PAPUA NEW GUINEA
IN THE SUPREME COURT OF JUSTICE

SCRA 46 0F 2010

BETWEEN:

YANDING SEKA MUPANG
Appellant

AND:

THE INDEPENDENT STATE OF PAPUA NEW GUINEA
Respondent

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

CRIMINAL LAW – Appeal against sentence – Wilful murder – Life imprisonment – Planned mob killing – No identifiable errors – Appeal dismissed – Sections 22(d) & 23(4), Supreme Court Act

Cases cited:

Manu Koivi v The State (2005) SC 789
William Norris v The State [1979] PNGLR 605

Counsel:

Appellant in person
Mr R Auka, for the respondent

30th October, 2014

1. BY THE COURT: This is an appeal by Yanding Seka Mupang against the sentence of life imprisonment imposed on him by the National Court at Lae on 21st June 2010 after being found guilty of the wilful murder of one James Ninga (the Deceased).
   
2. A brief background to the offence is that the families of both the appellant and the Deceased had ongoing serious disputes concerning land and business leading up to the date of the killing. The appellant was part of a group of some 30 people armed with various weapons who converged on the property of the Deceased at Asak cattle farm Sialum around 11 o'clock in the morning of 27th October 2007. The group surrounded the Deceased and his family. The deceased was shot twice and after he fell to the ground his body was chopped up.
   

Grounds of appeal

3. The prisoner filed his own appeal on 24th June 2010 using Form 1 or the "Prisoner Appeal" form challenging both his conviction and sentence. At the hearing of this appeal, he abandoned the appeal against conviction.
   
4. The relevant provisions of the Supreme Court Act concerning appeals against sentence are sections 22(d) and 23(4). Section 22(d) provides that an appeal against sentence first requires leave of the Court which the appellant has sought. Section 23(4) reads:
   

On an appeal against sentence, if the Supreme Court is of opinion that some other sentence, whether more or less severe, is warranted in law and should have been passed, it shall quash the sentence and pass the other sentence in substitution for it, and in any other case shall dismiss the appeal.

5. The relevant principles in relation to an appeal against sentence are succinctly stated by Kearney, J in the Supreme Court case of William Norris v The State [1979] PNGLR 605 at pp 612-613. An appellate court will not disturb the discretionary power exercised by a trial court in sentencing. To disturb the sentence, appellant must show error by the trial judge in the sentencing process. Such error may be identifiable such as a mistake regarding facts or application of the law; error in taking into account matters or omitting matters; and not giving proper weight to matters, but even if no identifiable error can be shown the sentence may be set aside if the sentence is clearly out of reasonable proportion to the circumstances of the offence.
   

Grounds of appeal

6. The appellant's ground of appeal against sentence states that "In regard to the sentence of life imprisonment, I am sincerely disappointed to be sentenced like that for a crime I did not commit before the eyes of our heavenly father. This is an inhuman sentence." As this is a "Prisoner Appeal" drafted by a non-lawyer, we are willing to interpret this ground to be challenging the excessiveness of the sentence.
   
7. In his submissions, the appellant raised two specific matters that he argued should be considered in reducing his sentence. Mr Auka objected to these matters being argued as they were not specified in the Notice of Appeal. We consider that because this is a "Prisoner Appeal" as noted earlier, the appellant should be allowed to submit on these matters as they are intended to elaborate on his appeal against the excessiveness of the sentence.
   
8. First, he stressed his concern that the community was involved in the disputes and the killing of the Deceased, meaning that there were other persons from his community who participated in the killing, yet he is the only one that has been punished for life while the other offenders are free and enjoying their lives. Second, he pointed out that the Deceased was a relative and therefore he also suffered a loss with his death.
   
9. The first concern is really a complaint based on a sense of unfairness that other offenders have yet to be arrested and tried. That is a matter for the community and the Police and we would hope that they are still pursuing this case to make certain that all those implicated in this horrendous and savage killing are brought to justice.
   
10. The second point is not a mitigating or relevant factor in sentencing for wilful murder. As the appellant himself describes in his written submissions, the consequence of losing a relative is a "self-inflicted" loss.
    

Conclusions

11. This case involved a very brutal and planned mob killing of a defenceless man in front of his family, and who was seriously outnumbered by persons armed with very offensive weapons. The appellant also had a prior conviction for unlawfully causing grievous bodily harm. We note that the sentence was well within the range of sentences suggested by Supreme Court in Manu Koivi v The State (2005) SC 789 for the offence of wilful murder.
    
12. The appellant has not shown any merits in his grounds of appeal against sentence and it is our view that he does not have an arguable case. We would therefore refuse him leave to appeal the sentence and we confirm the sentence of the National Court.

_____________________________________________________________
No Lawyer for the appellant
The Public Prosecutor: Lawyer for the respondent