Simua v State [2017] PGSC 60; SC1692 (20 July 2017)

SC1692

PAPUA NEW GUINEA
[IN THE SUPREME COURT OF JUSTICE]

SCR NO. 07 OF 2017

MOSES SIMUA
Appellant

AND
THE STATE
Respondent

Waigani : Gavara-Nanu, Makail & Dingake JJ.

2017: 3^rd May & 20^th July

JUDICIAL REVIEW – Criminal law - Constitution; s. 155 (2) (b) – Criminal Code; s. 299 – Wilful Murder – Two counts – Plea of guilty to both counts –Uunequivocal – Allocotus – Expression of remorse.

JUDICIAL REVIEW – Criminal law – Constitution; s. 1.55 (2) (b) – Sentence – Head Sentence – 40 years in hard labour – Time spent in custody deducted – Totality principle applied – Balance of sentence – 26 years 6 months 2 weeks to serve.

JUDICIAL REVIEW – Criminal law – Constitution; s. 1.55 (2) (b) – Application to review both conviction and sentence – Relevant principles discussed – Leave refused – Application dismissed.

Cases Cited:

Acting Public Prosecutor v. Konis Haha [1981] PNGLR 205

Application by Herman Leahy (2006) SC855

Avia Aihi v. The State (No. 1) [1981] PNGLR 81

Avia Aihi v. The State (NO. 2) [1982] PNGLR 44

Manu Kovi v. The State (2005) SC789

Michael Newall Wilson v. Clement Kuburam (2016) SC1489

Public Prosecutor v. Terrence Kaveku [1977] PNG 110

SCR No. 5 of 1987; re Central Banking (Foreign Exchange and Gold) Regulations [1987] PNGLR 433

The State v. Robert Kawin (2001) N2167

Tremallan v. The Queen [1973] PNGLR 116,

Counsel:

Applicant in person
D. Mark, for the Respondent

20^th July, 2017

1. BY THE COURT: The applicant seeks leave to review his conviction and sentence of 40 years imprisonment. The actual period the applicant has to serve is 26 years 6 months and 2 weeks, after 10 years was deducted from the head sentence under the totality principle and further deduction of 3 years 6 months 2 weeks the applicant spent in custody awaiting trial.
   
2. The applicant was convicted of two counts of wilful murder, following his plea of guilty, on 15 April, 2016. The trial judge imposed 20 years imprisonment for each count, thus the head sentence of 40 years, then made deductions as mentioned above to reach the actual term of imprisonment.
   
3. The application for leave to review is made pursuant to s. 155 (2) (b) of the Constitution, following failure by the applicant to appeal within 40 days after the date of the conviction under s. 29 (1) of the Supreme Court Act, Chapter 37. The applicant is clearly entitled to invoke the review jurisdiction of the Court: Avia Aihi v. The State (No. 2) [1982] PNGLR 44; Avia Aihi v. The State (No. 1) [1981] PNGLR 81; Application by Herman Leahy (2006) SC855 and Michael Newall Wilson v. Clement Kuburam (2016) SC1489 and SCR No. 5 of 1987; re Central Banking (Foreign Exchange and Gold) Regulations [1987] PNGLR 433.
   
4. The applicant was charged with two counts of wilful murder. The offences were committed on 28 October, 2012, in Balimo, Western Province. The applicant was sleeping in a room at night when he overheard the two deceased who were sleeping in the same room talking about him and accusing him of raping the sister of one of the deceased and intimating that they would kill him by sorcery. The applicant switched off the light in the room and got a grass knife from a cupboard in the room and attacked the two deceased while they were asleep by cutting and stabbing them repeatedly. Both deceased died from their wounds.
   
5. On arraignment, the applicant pleaded guilty to both counts. He told the Court that he intended to kill the deceased. The defence counsel informed the Court that defence had no application to make on applicant’s plea of guilty. On his allocutus, the applicant expressed remorse and apologised to the relatives of the two deceased. In the record of interview, he made full admissions.
   
6. In regard to applicant’s conviction, we find that arraignment was properly administered and the plea of guilty was unambiguous and unequivocal. The charges were explained to the applicant and he fully understood the charges before pleading guilty. In the circumstances we find that the applicant was properly convicted.
   
7. As to sentence the learned trial judge cited the sentencing guidelines set out in Manu Kovi v. The State (2005) SC789 as a guide. The sentence imposed was at the top range of the ‘second category’ in Manu Kovi sentencing guidelines. The sentences were ordered to be served cumulatively.
   
8. These were cold blooded killings, as evidenced by the deliberate use of a dangerous weapon to attack the deceased by repeatedly cutting and stabbing them while they were asleep and defenceless. In the circumstances, we find no error in the learned trial judge’s exercise of his sentencing discretion. We also find no error in the sentences being ordered to be served cumulatively. The victims were different and the manner in which each victim was attacked was different from the other. We find his Honour applied proper sentencing principles when imposing sentence. By applying the totality principle, the learned trial judge also avoided imposing a sentence that would have been crushing: Public Prosecutor v. Terrence Kaveku [1977] PNG 110, Tremellan v. The Queen [1973] PNGLR 116, Acting Public Prosecutor v. Konis Haha [1981] PNGLR 205 and The State v. Robert Kawin (2001) N2167.
   
9. For the foregoing reasons, leave is refused and application is dismissed. The conviction and sentence of the learned trial judge are affirmed.

____________________________________________________________
Lawyers for the Applicant: Applicant in person
Public Prosecutor: Lawyers for the Respondent