Mai v State [2015] PGSC 56; SC1462 (29 October 2015)

SC1462

PAPUA NEW GUINEA
[IN THE SUPREME COURT OF JUSTICE]

SCRA No. 27 OF 2014

STEVEN MAI, JAMES MAI & GENESIS MAI
Appellants

AND

THE STATE
Respondent

Kokopo: Kirriwom J, Geita & Ipang JJ
2015: 26th, 29th October

CRIMINAL LAW – appeal against conviction for wilful murder – Supreme Court Act, Section 23(1) – whether reasonable doubt about safeness or satisfactoriness of verdict – guilty plea –conviction safe and sound.

CRIMINAL LAW – appeal against sentencing – severity of sentence - wilful murder – Supreme Court Act, Section 23(4) – need for appellant to prove identifiable error that vitiates sentence or that sentence manifestly excessive.

CRIMINAL LAW – appeal against sentence – ideally a failure to make an assessment of the degree of participation in the crime amounts to an error in sentencing.

CRIMINAL LAW – appeal against conviction – need for defense lawyers to be prudent and diligent in prosecuting their client's appeals – Any plea bargaining towards achieving lesser or reduced charges are best resolved prior to proper trials - Scuttling trials mid-way with changed pleas may amount to a mistrial.

Held:

(1) To succeed on an appeal against conviction an appellant must by virtue of Section 23 of the Supreme Court Act establish that the verdict is unsafe or unsatisfactory, the conviction entailed a wrong decision on a question of law or there was a material irregularity in the trial.).

(2) To succeed on an appeal against sentence an appellant must establish that the trial Judge made some identifiable error in the course of exercising the discretion as to sentence or that the sentence is manifestly excessive (Norris v The State [1979] PNGLR 605 applied).

Cases cited

The following cases are cited in the judgment:

Gimble v The State [1988-89] PNGLR 271
Ignatius Natu Pomaloh v The State (2006) SC834
John Beng v The State [1977] PNGLR 115
Manu Kovi v The State (2005) SC789
Norris v The State [1979] PNGLR 605

Appeal

This is an appeal against conviction and sentence for willful murder.

Counsel

Steven Mai, for the Appellants in Person
P. Huygens, for the Respondent

29thOctober, 2015

1. KIRRIWOM J: I have had the benefit of reading through the draft judgment of my learned brother Geita J. I agree with the reasoning and conclusion reached by his Honor and further agree with the orders proposed. However I wish to add a few of my own comments in relation to the conduct of defense lawyers in scuttling trials midway through with changed pleas resulting in their clients being bamboozled. I make these observations in light of another appeal case which came before us during this circuit involving the same practice. This practice is of serious concern to us. It is therefore imperative in my considered view to offer some guidance to defense lawyers in particular to refrain from this bad practice unless its use is absolutely necessary.

2. The appellants first pleaded not guilty to the charge of wilful murder and trial was conducted. After the evidence of the first prosecution eye witness was tendered which was the wife of the deceased in whose presence these unprovoked attacks or assaults were perpetrated upon her husband by these appellants, they were advised to change their pleas of not guilty to one of guilty. Consequently the appellants were re-arraigned on the same charge of wilful murder and this time they all pleaded guilty and after reading the depositions they were each sentenced to fifty (50) years imprisonment by the National Court.

3. In their appeal, the appellants also complained about the way they were advised or compelled to change their plea of not guilty to guilty after the trial had commenced. They opted for that course hoping that the indictment of wilful murder would be reduced to murder. To an extent that the Appellants in my considered view have a justifiable grievances in that unless the charge was reduced warranting a lesser penalty, the opportunity that the trial accorded them to test the strength of the State case and for them to properly and fully place their side of the story in court through sworn evidence was hijacked from them when they pleaded guilty on their lawyer's advice that meant nothing at all to them in exchange for their plea or a change of plea.

4. Where injustice results to the accused by such change of pleas mid-stream in a trial after the prosecution evidence has been led in open court, such trial must be declared as a mistrial and a new trial ordered. Lawyers who advise their clients to plead guilty half way through a trial do not realize the enormous disadvantage they place their clients' interests in when there is nothing favorable in return for that change of plea.

5. Lawyers have a duty to their clients to plea – bargain with the prosecution for best possible charge in return for a much favorable sentence. Such practice is acceptable but it should happen before the indictment is settled and the accused is arraigned. Lawyers do complete disservice and injustice to their clients by advising their clients to plead guilty after hearing evidence in the State case given under oath for no other reason except to speed up the case disposition through a guilty plea. This is no different to the accused being left on his own to defend himself because the lawyer has given up on him.

6. In this appeal, the appellants had changed their pleas from not guilty to one of guilty on their Lawyer's advice believing that a lesser charge of murder would be preferred against them because they attacked the deceased in revenge or pay-back of the death of one of their brothers earlier in the night in which they suspected the deceased Patrick to have had a hand or part of that. Whilst the law must not condone pay-back killings or eye for an eye and tooth for a tooth method of dealing with the loss of loved ones, their change of plea from not guilty to guilty of a lesser charge of murder as a bargain need to be viewed in that context and the sentence imposed must appropriately reflect that feeling of loss and pain. Otherwise injustice is abound because the appellant are made to suffer double punishment, for causing the death of the deceased, Patrick and suffering the loss of their relative in the earlier incident that night.

7. Being cognizant of this view the sentence ought to have been within the range of 30-40 years imprisonment.

8. GEITA J: Steven Mai and his two brothers were convicted by the National Court on one count of wilful murder and sentenced to fifty years (50) each and severally. They all appeal against conviction and sentence.

9. The appellants were convicted of the wilful murder of Patrick Leo Alois on the morning of 6 May 2013. Upon hearing of the death of one of their relatives Gabriel Navo the appellants confronted the deceased and assaulted him as he was walking along the beach. He was struck with a stone thrown by Steven Mai causing him to flee from them. The appellants all pursued the deceased until he fell as a result of a stone thrown by one of the appellants. The victim was then set upon and struck repeatedly with a bush knife and a piece of timber. Eventually they stopped the attack and left.

10. However the appellants returned again the second time around and a struggle ensued on the boat waiting to get the victim to the health clinic. As a result the deceased was struck with a bush knife again, causing him to fall from the boat. Furthermore the appellants prevented the deceased from being driven to the health clinic and threatened health center officials from providing assistance to the deceased.

11. A post mortem conducted on the deceased confirmed the cause of death from cerebral hemorrhage and skull fracture. The deceased also sustained multiple wounds to his head, on upper extremities and lower extremities.

Trial

12. The appellants all pleaded not guilty to the indictment of wilful murder of the deceased and trial ensued. Besides eleven (11) pieces of documentary evidence tended into court by consent as evidence during your trial, the deceased's wife also gave an eye witness account of her husband's ordeal in oral testimony. During the cause of giving her evidence, and after a short luncheon adjournment the trial Judge was informed through their lawyer that the appellants have now decided to change their plea from not guilty to guilty. The trial Judge having satisfied himself that the appellant's new pleas were consistent with their instructions confirmed the new pleas and confirmed the appellant's conviction for the same indictment of wilful murder.

13. In handing down your sentence of fifty years (50) each and severally, the trial Judge conceded that although the maximum death penalty was warranted in your case he opted for a much longer prison term instead after having carefully considered your submissions, including your mitigating factors, your pre-sentence reports and your pleas for leniency in allocutus. The trial judge further canvassed several wilful murder cases in which courts have sentenced perpetrators to imprisonment ranging from 40 to 50 years. The trial judge having considered a number of comparable cases was satisfied that your case would fit within category three or four of the sentencing tariffs in the matter of Manu Kovi v The State [2005] PGSC 34; SC798 (31 May 2005).

Trial Judge's Reasons on Verdict

14. Since your initial contested trial had changed its status to one of being non contested and a guilty plea verdict entered against the three of you by the trial Judge upon your instructions to your Lawyer, I cannot see how an error was possibly committed. Your verdict is therefore safe and is confirmed.

Trial Judges Reasons on Sentence

15. The trial Judge delivered a 13-page written judgment on sentence (The State v Genesis Mai, James Mai & Steven Mai, unreported 15 August 2014 (CR Nos 939,940 and 941 of 2013. His Honor acknowledged that the basic principles of the sanctity and value of a human life is more precious than anything life can afford and must be safeguarded, protected and must be given prominence. He further said the deceased was entitled to the protection of law envisaged by section 35 of the Constitution. The trial Judge further considered the degree of force used against a helpless victim with repeated cuts from a bush knife in the manner he described as vicious in front of his wife and children. The trial Judge's findings were that your aggravating factors outweighed any mitigating factors in your favor. He found that yours was a case of a group attack on a defenseless victim multiple times with a bush knife warranting the maximum death penalty. Having addressed his mind to the proposition that the death penalty should be reserved for the worst type of wilful murder cases, the trial Judged settled for category three or four sentencing
tariffs as articulated in the matter of Manu Kovi v The State (supra).

The grounds of appeal against your conviction

16. At the outset it is acknowledged that the appellants are unrepresented and their reasons for appealing against conviction and sentence not properly articulated. However we have accepted them as they were presented and accorded them every assistance permissible under the Constitution and the Supreme Court Rules to prosecute their appeal. Their submission was written and presented in tok pisin: (Section 37 (16) of the Constitution.)

17. As we understood from their submissions, their only ground of appeal was their conviction on the indictment of wilful murder instead of murder. The appellants submitted that they were forced into changing their not guilty pleas to guilty by their Lawyer on the understanding that a lesser charge would be preferred for them. For the moment it's their assertion that their Lawyer acted contrary to their instructions. The appellants fell short of pointing to the court where in the Appeal Book their instructions to their Lawyer could be found.

18. We were unable to find any records of their contrary instructions to their Lawyer after their change of plea nor detect any instances of any misdirection by the trial Judge in the Appeal Book. If anything this ground of appeal could easily be termed as an afterthought in order to mitigate their convictions.

19. In order for the appellants to succeed on their appeal against their conviction they must establish that:

1. the verdict is unsafe or unsatisfactory, or
2. the conviction entailed a wrong decision on a question of law, or
3. there was a material irregularity in the trial.
   

These requirements arise from Sections 23(1) and 23(2) of the Supreme Court Act, which state:

(1) Subject to Subsection (2), on an appeal against a conviction the Supreme Court shall allow the appeal if it thinks that—

(a) the verdict should be set aside on the ground that under all the circumstances of the case it is unsafe or unsatisfactory; or

(b) the judgment of the Court before which the appellant was convicted should be set aside on the ground of a wrong decision on any question of law; or

(c) there was a material irregularity in the course of the trial,

and in any other case shall dismiss the appeal.

20. In our view none of those requirements arising from Section 23 (1) and 23 (2) Supreme Court Act were sufficiently made out nor could we detect any instances or flaws and breaches in the Appeal Book to decide in favor of the appellants. Notwithstanding the fact that a plea of guilty was subsequently recorded against the appellants, upon confirmed instructions we are therefore satisfied that no miscarriage of justice has occurred. It follows that the appellant's conviction is sound and satisfactory: (John Beng v The State [1977] PNGLR 115).

The grounds of appeal against your sentence

21. Our understanding of the appellants ground of appeal against sentence was the severity of the sentence premised on their residual favorable mitigating factors: first time offenders, guilty plea, Christian upbringing and the welfare of their families. In the absence of any aspect of the sentence imposed on the three of you and that an error occurred warranting any reduction of the sentence imposed, we are not compelled to vitiate the trial Judge's discretion on sentence.

22. However what is of concern to the court was the fact that all three appellants received the same fifty years (50) sentence with variations in their pretrial custody periods. We acknowledge that the trial Judges exercise of discretion comfortably falls within the spirit of Gimble v The State [1988-89] PNGLR 271 at 273. We quote the relevant parts:

"The general rule is that all active participants in the crime shall be sentenced on the same basis. The Court does not normally stop to consider whether a particular prisoner actually held up the victim, or held the gun, or the iron bar, or was a watchman outside, or was the driver of the get-away vehicle. All are equally guilty because without each playing his part the crime could not be perpetrated.'

23. Although there was evidence before the trial Judge that appellant Steven Mai played a minor role in that the offensive weapon used in the attack was a piece of timber as opposed to the two appellants with bush knives, the appellants' collective zest resulting in the death of the victim, in my view fell short of deserving an assessment of their degree of participation. There is nothing in the Appeal Book to suggest that either of the two counsels assisted the court on this point. Ideally any failure to make an assessment on ones degree of participation would result in an error in sentencing in my considered view: Ignatius Natu Pomaloh v The State (2006) SC 834.

24. With respect I am of the view that some other sentence, whether more or less severe, is warranted in law and should be made in substitution. I would therefore invoke the powers available to me under Section 23(4) of the Supreme Court Act and quash the fifty years (50) sentence imposed by the National Court and pass in substitution a sentence of forty (40) years imprisonment for all three appellants.

25. IPANG J: I agree with my brothers Kirriwom J and Geita J but wish to make a few comments on the sentencing aspect. I agree that the three appellants are entitled to reasonable discounts in their sentence after pleading guilty to the charge of wilful murder or even if it was a plea-bargaining done properly by defense counsel, they could be indicted on a lesser charge of murder. I am in agreement with Kirriwom J that injustice has been done to the three appellants.

26. Secondly, I am of the view that it is difficult to apportion different sentences to each appellant on the different roles they played and their degree of participation in the commissioning of the crime. Simply because this is a plea matter and there is overwhelming evidence of participation of each appellants from the commission of the offence right up to the Health Centre. Given the above reasons I agree that the appellants' sentence should be reduced to between 30 – 40 years.

The Court

27. The decision of this court is that the appeal on conviction is dismissed. The appeal on sentence is upheld with the sentence of fifty years (50) now substituted and reduced to forty (40) years.

ORDER

(1) The appeal against conviction is dismissed.

(2) The appeal against sentence is allowed.

(3) The sentence of fifty years (50) is quashed and reduced to forty (40) years imprisonment for all three appellants.

(4) The warrant of commitment issued by the National Court shall be revoked and substituted by a fresh warrant of commitment reflecting the new sentence.

_______________________________________________________________
The Appellants In person
Public Prosecutor: Lawyer for the Respondent