Maima v State [2016] PGSC 19; SC1504 (27 April 2016)

SC1504

PAPUA NEW GUINEA
[IN THE SUPREME COURT OF JUSTICE]

SC REV NO 31 OF 2010

BETWEEN

JU MAIMA

Applicant

V

THE STATE
Respondent

Mt Hagen: Cannings J, Geita J, Pitpit J

2016: 26^th, 27^th April

CRIMINAL LAW – sentencing – application for review of sentence of 53 years imprisonment for armed robbery and two counts of rape – whether any identifiable error made by sentencing Judge – whether sentence obviously excessive.

Facts:

The applicant sought and was granted leave to make an application for review of a sentence of a term of 53 years imprisonment imposed on him by the National Court following his conviction, after trial, of one count of armed robbery and two counts of rape, committed in a single incident. The trial judge imposed sentences of 15 years for count 1 (armed robbery), 18 years for count 2 (rape) and 20 years for count 3 (rape), a total of 53 years, decided that the sentences should be served cumulatively and then, having applied the totality principle, ordered that three years of each sentence would be suspended. His Honour also deducted the pre-sentence period in custody (PSPIC) of two years. The warrant of commitment showed that the time to be served in custody was 53 years – 2 years (PSPIC) – 9 years (suspended) = 42 years. The applicant argued that the trial judge made a number of identifiable errors and imposed a sentence that was obviously excessive.

Held:

(1) In applying for review of a sentence, the applicant is in the same position as a person appealing against the sentence: he must show that the primary Judge either made an identifiable error that has the effect of vitiating the sentence or imposed a sentence that was obviously (not merely arguably) excessive.

(2) The primary Judge made identifiable errors in imposing a sentence of 15 years for count 1 and 18 years for count 2; but made no error in imposing a sentence of 20 years for count 3. The Supreme Court invoked Section 23(4) of the Supreme Court Act and substituted sentences of 10 years for count 1 and 10 years for count 2, making the total head sentence 10 + 10 + 20 = 40 years imprisonment.

(3) The primary Judge did not err in determining that the sentences should be served cumulatively.

(4) As for application of the totality principle, the primary Judge erred, having decided that a reduction was necessary to avoid a crushing sentence, by suspending nine years of the sentence, rather than deducting that period from the head sentence. The Supreme Court again invoked Section 23(4) of the Supreme Court Act and decided that a deduction of ten years should be made on account of the totality principle.

(5) The Supreme Court granted the application and substituted, for the sentence imposed by the National Court, a total sentence of 30 years imprisonment, calculated as follows: 10 years (count 1) + 10 years (count 2) + 20 years (count 3) = 40 years, to be served cumulatively, – 10 years (totality principle) = 30 years – 2 years (PSPIC) = 28 years in custody from the date of sentence (17 March 2008).

Cases cited

The following cases are cited in the judgment:

Acting Public Prosecutor v Konis Haha [1981] PNGLR 205
Ben Wafia v The State (2006) SC851
Eddie Peter v The State (2006) SC1340
Gimble v The State [1988-1989] PNGLR 271
Ignatius Pomaloh v The State (2006) SC834
Mark Bob v The State (2005) SC808
Mase v The State [1991] PNGLR 88
Public Prosecutor v Don Hale (1998) SC564
Public Prosecutor v Kerua [1985] PNGLR 85
William Norris v The State [1979] PNGLR 605

Legislations:
Constitution
Criminal Code
Supreme Court Act

REVIEW

This was an application for review of a sentence of 53 years imprisonment for one count of armed robbery and two counts of rape.

Counsel

L Siminji, for the applicant
P Kaluwin & J Kesan, for the respondent

27^th, April 2016

1. BY THE COURT: Ju Maima seeks review by the Supreme Court of the sentence of 53 years imprisonment imposed by the National Court following his conviction on one count of armed robbery, contrary to Sections 386(1) and (2)(a) and (b) of the Criminal Code, and two counts of rape under Sections 347(1) and (2) of the Criminal Code
   
2. He was convicted on 19 November 2007, after a trial at Lae, for his involvement in an incident at Six Mile, near Lae, on the night of 15 March 2006. A man, Tom Matai, and his wife, Maria Tom, and their 19-year-old daughter, Edna Tom, had travelled in their vehicle that day from Menyamya, heading to Lae, with a load of coffee bags to sell. They also had cash in the vehicle. At 10.00 pm the vehicle broke down, they could not fix it, so they decided to sleep in the vehicle overnight at what they thought was a safe place.
   
3. At around midnight, after they had all gone to sleep, they were held up by an armed gang of which the applicant was a member. Tom Matai was the victim of an armed robbery and both Maria Tom and Edna Tom were dragged away and raped.
   
4. The trial Judge, Justice Gavara-Nanu, convicted the applicant and a co-accused, Michael Dak Wur, of the three offences with which they had been charged. His Honour sentenced them as follows:
   
   1. 15 years for count 1 (armed robbery),
   2. 18 years for count 2 (rape), and
   3. 20 years for count 3 (rape), a total of 53 years imprisonment.
      
5. His Honour decided that the sentences should be served cumulatively and then, having applied the totality principle, ordered that three years of each sentence would be suspended. His Honour also deducted the pre-sentence period in custody (PSPIC) of two years. The warrant of commitment showed that the time to be served in custody was:
   
   1. 53 years – 2 years (PSPIC) – 9 years (suspended) = 42 years.
      

LEAVE TO REVIEW

6. At the commencement of hearing this matter the Court discovered that leave to seek review of the sentence had not been granted under Section 155(2) (b) of the Constitution, which states:
   

The Supreme Court ... has an inherent power to review all judicial acts of the National Court.

7. It was necessary for the applicant to be granted leave to seek review, as he had not lodged an appeal within the time prescribed by the Supreme Court Act.
   
8. We granted leave, after hearing submissions from counsel (the State opposed leave) and applying the criteria set out by the Supreme Court in Mark Bob v The State (2005) SC808.
   

APPROACH TO REVIEW OF SENTENCES UNDER SECTION 155(2) (b) OF THE CONSTITUTION

9. We consider that in hearing an application for review of a sentence the Supreme Court should apply the same principles it applies when hearing an appeal against sentence. That is, the applicant must show that the sentencing Judge either:
   

• made an identifiable error that has the effect of vitiating the sentence; or
  
• Imposed a sentence that was obviously (not merely arguably) excessive.
  

10. These principles are set out in the leading case William Norris v The State [1979] PNGLR 605 and in numerous other Supreme Court cases including Ben Wafia v The State (2006) SC851 and Eddie Peter v The State (2006) SC1340.
    

GROUNDS OF REVIEW

11. Mr Siminji, for the applicant, submitted that the trial Judge made a number of identifiable errors in the exercise of his discretion as to sentence. The Public Prosecutor, Mr Kaluwin, responded by submitting that his Honour made no identifiable error and that the total sentence fitted the crimes committed by the applicant and should not be disturbed.
    

DETERMINATION

12. Having considered the competing submissions of counsel, we have concluded, with respect that the learned trial Judge made some, but not all, of the identifiable errors contended for by the applicant. Having reached that conclusion, it is appropriate to invoke the principles allowing the Supreme Court to pass a substitute sentence in the case of appeals against sentence, which are set out in Section 23(4) of the Supreme Court Act, which states:
    

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.

13. We have concluded that:
    

• The primary Judge made an identifiable error in imposing a sentence of 15 years for count 1 as his Honour arrived at that sentence by treating the case as akin to the armed robbery of a house rather than armed robbery of a vehicle on the road. He applied the sentencing guidelines from the leading cases, Gimble v The State [1988-1989] PNGLR 271 and Public Prosecutor v Don Hale (1998) SC564, and used a starting point of 10 years, whereas in our view the starting point should have been eight years. This vitiates the sentence and in all the circumstances we consider that a sentence of ten years is more appropriate.
  

14. His Honour made an identifiable error in imposing a sentence of 18 years for count 2 as his Honour failed to give adequate weight to the fact that the applicant did not directly commit the offence. He was found guilty under Section 7(1) of the Criminal Code because he aided and assisted the principal offender but he did not actually commit the act of rape. Regard should have been had to his relatively minor degree of involvement (Ignatius Pomaloh v The State (2006) SC834). This vitiates the sentence and in all the circumstances we consider that a sentence of ten years is more appropriate.
    

• His Honour made no error in imposing a sentence of 20 years for count 3 as this was a very serious instance of rape.
  

15. We invoke Section 23(4) of the Supreme Court Act and substitute the sentences of 10 years for count 1 and 10 years for count 2, making the total head sentence:
    

10 + 10 + 20 = 40 year’s imprisonment.

16. As to the question of whether the three sentences should be served cumulatively or concurrently, his Honour applied the standard approach set out in Public Prosecutor v Kerua [1985] PNGLR 85 and Mase v The State [1991] PNGLR 88. In those cases the Supreme Court held that generally, where two or more offences are committed in the course of a “single transaction” all sentences in respect of the offences should be concurrent. However, if the offences are different in character, or in relation to different victims, the sentences should be cumulative.
    
17. Here, though the three offences were committed in the course of a single transaction or incident, we agree with the primary Judge that the two rape offences had different victims, so they should be served cumulatively. As for the armed robbery offence, it was different in character to the rape offences and it should be served cumulatively for that reason (Acting Public Prosecutor v Konis Haha [1981] PNGLR 205). Further, there was a different victim. His Honour therefore did not err in determining that the sentences should be served cumulatively.
    
18. As for application of the totality principle, we respectfully consider that the primary Judge erred. His Honour, having decided that a reduction was necessary to avoid a crushing sentence, suspended nine years of the total sentence. However, suspending part of a sentence does not actually reduce the sentence, which is what is supposed to be the result of application of the totality principle. We again invoke Section 23(4) of the Supreme Court Act and decide that a deduction of ten years should be made on account of the totality principle.
    

CONCLUSION

19. We grant the application and substitute, for the sentence imposed by the National Court, a total sentence of 30 years imprisonment, calculated as follows:
    
    1. 10 years (count 1) + 10 years (count 2) + 20 years (count 3) = 40 years, to be served cumulatively, – 10 years (totality principle) = 30 years – 2 years (PSPIC) = 28 years in custody from the date of sentence (17 March 2008).
       

ORDER

(1) The application for review of the sentence passed by the National Court is granted.

(2) The sentence passed by the National Court is quashed and substituted by the sentence of 30 years imprisonment.

(3) The warrant of commitment issued by the National Court shall be revoked and substituted by a fresh warrant of commitment setting out the details of the sentence as follows:

Length of sentence imposed	30 years
Pre-sentence period to be deducted	2 years
Resultant length of sentence to be served	28 years
Amount of sentence suspended	Nil
Time to be served in custody	28 years

Judgment accordingly,

________________________________________________________________
Public Solicitor : Lawyer for the applicant
Public Prosecutor : Lawyer for the respondent