Tanabo v State [2016] PGSC 61; SC1543 (28 October 2016)

SC1543

PAPUA NEW GUINEA
[IN THE SUPREME COURT OF JUSTICE]

SCREV NO. 11 of 2016

BETWEEN:

ELVIS TANABO
Applicant/Appellant

AND:

THE STATE
Respondent

Mt Hagen: Makail, Geita& Nablu, JJ
2016: 26, 28 October

SUPREME COURT REVIEW – CRIMINAL LAW – Review of National Court decision on sentence – Application for leave to review – discretionary power of the Court to grant leave – Constitution s. 155 (2) (b) –Avia Aihi vs. The State [1981] PNGLR 81 followed – Leave granted.

SUPREME COURT REVIEW – CRIMINAL LAW – Offence of murder – s. 300(1)(a) of the Criminal Code - plea of guilty - sentence of life imprisonment imposed – Sentencing principles – Serious errors of law identified – Trial Judge took into account other aggravating factors not available for consideration – amounted to a miscarriage of justice – killing in domestic setting – vicious attack – prevalent offence – not a worse case – strict sentence to deter like-minded offenders - Sentence of life imprisonment quashed and substituted to a sentence of 20 years in hard labour.

Cases cited:
Antap Yala vs. The State (1996) SCR 96 of 1996
Avia Aihivs. The State [1981] PNGLR 81
Manu Kovi vs. The State (2005) SC 789
Saperus Yalibakut vs. The State (2006) SC 890
William Norris vs. .The State [1979] PNGLR 605

Counsel:
L. Siminji, for the Applicant
J. Kesan, for the Respondent

JUDGMENT

28 October 2016

1. BY THE COURT: The applicant sought leave to review the decision of the National Court in Kainantu to impose a sentence of life imprisonment with hard labour, after he had plead guilty to the charge of murder pursuant to Section 300(1) (a) of the Criminal Code. The sentence of life imprisonment was imposed on 21^st September 2015 by the National Court. The applicant was indicted for the offence of murdering his wife, Ruthy Tobe Tanabo on 20^th September 2014 at Tombetaka Village, Kainantu, Eastern Highlands Province.

Application for leave to review

2. Counsel for the applicant prior to making the application for review moved an application for leave to review pursuant to Order 7 Rules 25 and 26 of the Supreme Court Rules 2012. Counsel conceded that the applicant did file his application for review outside of the statutory time limit of 40 days. The applicant’s right to appeal expired on 30^th October 2015. The application for review was filed by the prisoner on 25 February 2016, about four (4) months after the expiration of his time to appeal.

3. Mr Siminji submitted that the period of 4 months did not amount to an inordinate delay and that the applicant had a good reason to explain the delay. The applicant stated that he was waiting for his lawyer to assist him to file his appeal, but the lawyers’ assistance was not forthcoming. It was also submitted that the State did not raise any serious objection to the application and the applicant had an arguable case that warranted further enquiry by this Court.

4. The State through Counsel opposed the application for leave and argued that leave should only be granted in cases where the applicant had a convincing reason for not appealing within the 40 day statutory time limit. In the present case, he submitted that the reason advanced by the applicant was not a convincing reason for the Court to exercise its discretion in favour of granting leave.

5. The grant of leave to appeal is discretionary. The Court has the power to grant leave where the applicant’s primary right to appeal has expired pursuant to 155 (2) (b) of the Constitution; Avia Aihivs. The State [1981] PNGLR 81 followed.

6. Given the circumstances in the present case, the lack of availability of counsel in Kainantu and the fact that applicant had little formal education, we are persuaded that it was reasonable for the applicant to wait for further advice from his lawyer on how to appeal his sentence. Therefore, we are satisfied that leave should be granted in this matter and grant leave accordingly.

Application for review

7. The applicant was indicted for the murder of Ruthy Tobe Tanabo on 20^th September 2014.

8. The learned trial Judge arraigned and convicted the applicant on the following facts which we have taken the liberty to reproduce herein. The relevant facts are contained at pages 14 – 15 of the Review Book.

“That the accused was the husband of the deceased namely, Ruthy Tobe Tanabo. The State alleges that on 20^th September 2014 at around 6pm, they were on the road leading to Tombetaka village. After some argument, the accused got his bush knife and cut the deceased three times on her head and other parts of her body. The deceased fell to the ground and died instantly from the injuries and loss of blood. The body was taken to Kainantu hospital for a post-mortem.”

9. The sole ground of review is that the sentence was manifestly excessive. The applicant through Counsel submitted that the learned trial judge erred in her decision to impose the sentence of life imprisonment. The errors were identifiable and that would ultimately have the effect of vitiating the sentence. The sentence of life imprisonment was harsh and did not reflect the peculiar circumstances of the case.

10. The inherent power of the Supreme Court to review all judicial acts of the National Court (Section 155(2) of the Constitution) is further provided for under Section 23(4) of the Supreme Court Act. In an appeal against sentence, if this Court “ ...is of the 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.” (Section 23(4) of the Supreme Court Act)

11. The proper way to formulate appeals against sentence was summarised succinctly by Kearney J in William Norris v. The State [1979] PNGLR 605. We adopt His Honour’s views at page 612 of that judgment. His Honour stated that:

“In practice in order to persuade this Court, an appellant will usually be required to show some error on the part of the trial judge, going to sentence...The sentencing power is a discretionary judicial power. If no such error is shown, this Court is unlikely to interfere with the sentence, because a trial judge is usually in a much better position to assess the proper sentence than is a court of appeal.”

12. The onus is on the appellant to show to this Court that there is an identifiable error which has the effect of vitiating the trial Judge’s discretion on sentence. Identifiable errors may include, but not limited to instances where the trial judge has made a mistake as to the facts; or acted on a wrong principle of law; or took into account matters which he or she should not have taken into account; or failed to take into account matters which he or she should have taken into account; or given too much or not enough weight to a matter he or she properly took into account: William Norris v. The State (supra) per Kearney J at page 612.

13. In William Norris v. The State (supra), the appellant appealed against the sentence of 5 years imprisonment in hard labour on the argument that the sentence was manifestly excessive. The appellant plead guilty to a charge of unlawful killing. The Supreme Court found that the trial Judge had committed an identifiable error when he accepted hearsay evidence, of the tempestuous relationship between the appellant and the deceased which was contained in the diary that the deceased had kept. By accepting the hearsay evidence, the trial judge fell into error when he considered and was influenced by the content of the diary and relied on the material to form an adverse view of the appellants’ character which ultimately culminated in the Judge imposing the sentence of 5 years.

14. The particulars of the identifiable error should be specifically set out in the Notice of Appeal. However, in the present case, because the prisoner filed his appeal without legal assistance he has not specified the ground of appeal properly. Despite the lack of form and the generality of the ground of review, we are of the view that in all fairness we can proceed to consider whether the trial judge had committed an identifiable error. If it is established that there was an error then the next issue is whether such error had the effect of vitiating the sentence.

Ground of Review: Identifiable Errors

15. The applicant through Counsel submitted that the learned trial judge erred in a number of ways. Firstly, the learned trial judge erred in both law and fact when she acted on a wrong principle of law, when she imposed the prescribed maximum penalty for murder which was life imprisonment when the facts of the case showed that it was not a “worst case” which would warrant an imposition of the prescribed maximum penalty.

16. Secondly, the learned trial judge took into account extraneous material and facts when considering the aggravating and mitigating factors during sentencing. The applicant argued that the trial Judge erred in respect of two material issues. It was argued that Her Honour considered the Autopsy Medical Report which was not admitted through sworn evidence. The Medical Report stated that there were 11 bush knife wounds on the deceased body which indicated that deadly force was used. These particular facts with regard to the number of bush knife wounds were not facts alleged by the State when presenting the indictment. Furthermore, the facts were not put to the applicant during arraignment, conviction after the plea of guilty or during allocutus. In addition, the trial Judge for the purposes of sentencing at page 34 of the Review Book, stated that she “...took into consideration that there was another life taken and that is the life of the deceased who was pregnant at the time she was killed.” These facts were not alleged by the State and the applicant did not plead guilty to these facts.

17. The third argument is that in a plea case, the Court was entitled to take into account all matters favourable to the accused. Where an offender has not pleaded guilty to certain facts, the Court must give the benefit of any reasonable doubt to the offender. The sentence of life imprisonment was based on aggravating facts to which the applicant did not plead guilty to. Mr Siminji referred this Court to the case of Saperus Yalibakut v. The State (2006) SC 890 to support the contention that the Court had the duty to apply the facts to which the offender had pleaded guilty to when sentencing the offender.

18. Mr Kesan for the State submitted that the Autopsy Medical Report formed part of the Court depositions which were tendered into evidence by consent. Defence counsel did not object to the tender of the medical report. He submitted further that this was a case of wilful murder however due to a plea bargain the charge was reduced to one of murder and therefore the trial judge did not commit an error. The learned trial Judge exercised her discretion to impose a sentence of life imprisonment because this was a worst category of murder cases. It was open for the Court to take into account that this was a premeditated attack, a brutal killing in cold blood, killing of an innocent pregnant woman which warranted the imposition of the prescribed maximum penalty. And the Court was correct to exercise its discretion in the way that it did. After further enquiry by this Court, Counsel for the State conceded to the fact that the 11 bush knife wounds were not facts which the applicant had pleaded guilty to. Furthermore, he also conceded that the indictment was only for the murder of the wife, the indictment did not mention the killing of the unborn baby or state that the deceased was pregnant at the time the applicant committed the offence.

19. We have read the decision of the learned trial Judge and the transcript of the trial. We have also had regard to the trial Judge’s published decisions and read and considered the written and oral submissions by both Counsel.

20. We propose to deal with the second and third issues first. If it is established that the National Court did commit identifiable errors, then this Court can proceed on to determine whether the sentence imposed was manifestly excessive.

21. With respect, we are satisfied that the learned trial judge fell into errors which are identifiable on the face of the record. At the outset, the learned trial Judge’s mind may have been clouded by the mix up in regard to the section of the charge upon the presentation of the indictment. The State Prosecutor when presenting the indictment referred to Section 299 of the Criminal Code for the offence of wilful murder as opposed to Section 300(1) (a) of the Criminal Code (see page 14 of the Review Book). Whilst it may be argued that the slip by the State Prosecutor is not so serious that it prejudiced the applicant’s case and that the mistake was corrected. We are of the view that this slip may have influenced the trial Judge to impose the sentence of life imprisonment because she may have considered that the element of an intention to kill was established and accepted by the applicant. Counsel for the State conceded that there was an apparent error during the presentation of the indictment.

22. In the trial Judge’s decision on sentence (at page 35 of the Review Book) Her Honour stated that:

“The relevant facts put to the prisoner during arraignment which were consistent with his instructions to his defence counsel and contained on the depositions for the plea of guilty were that: On the 26^th of September 2014 at about 6p.m., the prisoner and (his wife) the victim were on the road leading to Tombetaka Village. After some argument, the prisoner got a bush knife and cut the victim three times on her head and he also cut the victim on other parts of her body. The victim fell on the ground and died instantly from the injuries sustained and loss of blood. The body was taken to Kainantu Hospital for purposes of a post mortem report.”

23. The trial Judge found that the following mitigating factors existed and they were that the applicant had no prior convictions, he entered an early guilty plea, he surrendered and co-operated with Police and he was a first time offender. The Courts’ findings in relation to aggravating factors was that it was a premeditated attack, a dangerous weapon namely a bush knife was used, it was a vicious attack, there was a strong desire to inflict grievous bodily harm, loss of life and prevalence of such offences in the community.

24. With respect we are of the view that the learned trial Judge erred when she acknowledged “...that the mitigating circumstances in favour of the prisoner are important considerations; so too are matters relating to his aggravating factors” at page 41 of the Review Book. The trial Judge was bound to apply the principles in the Supreme Court case of Saperus Yalibakut which is authority for the principle that the Court is to give the offender the benefit of a reasonable doubt to facts to which he did not plead guilty to.

25. In the written decision on sentence (at page 43 of the Review Book) the trial Judge set out in detail the contents of the medical report which stated that:

“Upon examination, the general presentation was that the deceased a well-nourished female with bush knife wounds to the body. Upon external examination, Dr Koimbu confirmed that the deceased had sustained 3 deep and ragged wounds on the top of the head with involvement of the left parietal bone showing multiple fractures including a deep 15 cm long arched wound exposing maxilla bone. In addition, the deceased had sustained deep wound to the right shoulder, right biceps area with compound fracture of the distal end of the humerus bone, lateral aspect of the right forearm also had 10 cm long and deep wound, dorsal aspect of the inter digital space of the right hand and a 15cm long, deep wound over the right shoulder. The medical examination also revealed that the deceased was about 28 weeks pregnant. This is yet another life taken without regard.” (Emphasis ours)

26. With respect, upon perusal of the passage of Her Honour’s decision it is clear that the learned trial Judge erred when she took into consideration the particulars of the medical report in relation to the veracity of the attack; the multiple wounds and the revelation that the deceased was 28 weeks pregnant. These facts were clearly not part of the allegations by the State to which the applicant pleaded guilty.

27. After considering that this was a crime which was committed in a domestic setting and it therefore warranted a severe punishment, the Court stated further at page 43 of the Review Book that:

“Given those sentiments, it is my considered view that the prisoner here must be placed in incarceration as this is the consequences of his decision to killing his wife and his unborn child. These are persons who the accused is supposedly meant to love and protect. Furthermore, the number and type of wounds and the force within which these wounds were inflicted does indicate that the accused had intended to cause real harm to the deceased and it was a very vicious and cold blooded attack. In that, there is a strong desire to inflict real actual harm which resulted in the death of the victim.” (Emphasis ours)

28. The case of Saperus Yalibakut v. The State (supra), is a Supreme Court case on point. In that case, the appellant had pleaded guilty to a charge of sexual penetration of a child under the age of sixteen (16) years. The appellant was convicted and sentenced to 17 years imprisonment. He appealed against his conviction and sentence, and argued that trial judge had erred in accepting his guilty plea and had accepted facts related to consent and penetration which were not part of the facts alleged by the State to which he pleaded guilty. The Supreme Court held that when sentencing an offender who has pleaded guilty the judge must apply the facts to which the offender has pleaded guilty. The facts to which the offender has not pleaded guilty, the offender must be given the benefit of any reasonable doubt. The Court also held that if the court does not take sworn evidence and there is no agreement between the parties as to the contentious matters, the Court should not act on the version of facts which, within the bounds of possibility, is most favourable to the accused. The trial judge, in that case sentenced the offender on the basis of aggravating facts to which the offender did not plead guilty. The Court upheld the conviction but quashed the sentence of 17 years and reduced it to 14 years on the basis that the trial judge did not give the benefit of the doubt to the offender on the issue of consent, in a way that vitiated the sentence. Our brief research on the case authorities indicates that this decision is still a relevant authority in this respect.

29. When applying the principles of the Saperus Yalibakut’s case, it is clear, that the learned trial Judge, did commit identifiable errors in the manner as contended by the applicant. Accordingly, we uphold the applicants second and third grounds of review.

30. After, having established that there were in fact two identifiable errors, we now consider whether the sentence was manifestly excessive.

31. At the outset, Mr Siminji argued that sentencing tariffs in the Supreme Court case of Manu Kovi v. The State [2005] SC 789 serves as a guide to the National Court. The imposition of a sentence is an unfettered discretion of the National Court. It goes without saying that like any exercise of judicial discretion it must be done according to judicial principles and within the ambit of the law.

32. The trial Judge sentenced the prisoner to life imprisonment. The Court was of the view that this was a worst case which fell into Category 4 of the Manu Kovi sentencing tariffs. The aggravating factors were that, it was a pre-mediated attack, brutal killing in cold blood, the killing was of an innocent harmless person and therefore was a complete disregard to human life.

33. We are of the considered view, that this was a vicious attack. According to the facts, there were three (3) strikes by a bush knife to the victims’ head. Which indicates that it is was a vicious attack. The applicant struck the deceased during or after an argument. We find that there was no premeditation or pre-planning. The applicant stated in allocutus that he was overcome by a bad spirit or omen which caused him to strike his wife in the manner that he did. This was consistent with his story during the record of interview.

34. The sentences imposed in the murder cases where the killing is within a domestic setting has been on the borderline between the manslaughter category and the murder category as that provided in the case of Manu Kovi v. The State (supra). In murder cases, the Supreme Court has confirmed sentences between the ranges of 8 – 15 years in the past. The earlier case of Antap Yala v. The State (1996) SCR 96 of 1996 is one example amongst many, of a borderline case between manslaughter and murder killings. The accused in that case killed his wife by chopping off her head with an axe following differences in their married life. On a plea of manslaughter, the trial judge sentenced him to 10 years. On appeal, the Supreme Court dismissed the appeal and confirmed the sentence.

35. Notwithstanding, that there were identifiable errors in the trial Judge’s decision on sentence, we are of the view that any substitution of the sentence must reflect the seriousness of the offence committed. We are also of the view that the present case, may not fall into the category of the worst type of offence. Nevertheless, the offence of murder in the context of a domestic setting is an offence that is all too prevalent in our society. In addition to that, the use of offensive weapons like bush knives in domestic killings between husbands and wives is all too common in our communities. This Court is also mindful of the increasing rate of incidents of domestic violence and in particular the violence perpetrated against women and girls in our society which result in death. This in our view calls for much sterner punishment to deter like-minded offenders. In the present case we are fortified in our view that the sentence of life imprisonment is quashed and substituted with a sentence of 20 years in hard labour.

36. In conclusion we grant the application for review, quash the sentence of life imprisonment and substitute it with a sentence of 20 years in hard labour.

ORDER

1. The application for review is granted.
2. The sentence of life imprisonment is quashed and substituted with a sentence of 20 years forthwith.
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 substituted sentence forthwith.
   

Judgment & Orders accordingly,
_______________________________________________________________
Public Solicitor’s Office : Lawyers for the Applicant
Public Prosecutor’s Office : Lawyers for the Respondent