Yugari v Independent State of Papua New Guinea [2018] PGSC 10; SC1664 (14 March 2018)

SC1664

PAPUA NEW GUINEA
[IN THE SUPREME COURT OF JUSTICE]

SCRA NO. 01 OF 2018

BETWEEN:
ROLYN YUGARI
Appellant

AND:
THE INDEPENDENT STATE OF PAPUA NEW GUINEA
Respondent

Waigani: Dingake J
2018: 14 March

SUPREME COURT – Application for Leave to appeal against Sentence – s.22(d) of the Supreme Court Act – Requirements for Leave to be granted – requirements not met – leave refused .\

Cases Cited

Matiabe Oberia v Chief Inspector Michael Charlie (2005) SC 1 801.

Counsel:

Mr. David Tokeam Mamu, for Appellant
Mr. Thomas Emmanuel, for Respondent

14^th March, 2018

1. DINGAKE J: INTRODUCTION: This is an application for leave to appeal pursuant to Section 22 (d) of the Supreme Court Act.

2. The applicant seeks leave to appeal against the sentence of the National Court, per Salika DCJ.

Background

3. The applicant was charged with two counts of Forgery under Section 462 (1) and (3)(f) of the Criminal Code. At the end of the trial she was sentenced to six (6) years imprisonment in hard labour of which three (3) years was suspended upon the applicant entering into self-recognizance on good behavior for three years.

4. The particulars of the offence alleged that the applicant on unknown dates between 19^th January 2004 and 24^th of January 2004, in Port Moresby, forged a document purporting to be a Statutory Declaration, purporting same to be signed by one late Moses Kombuki. He was also alleged on the same time indicated above, in Port Moresby, to have forged a document purporting to be a Department of Lands Transfer Application Form, purporting same to be signed by one Moses Kombuki.

5. It is plain from the record and the applicant’s affidavit filed in support of the application that the Court imposed the sentence mentioned above after considering the evidence adduced in the trial, matters stated in a Pre-Sentence Report (PSR), the mitigating and aggravating factors.

6. The PSR detailed the applicant’s involvement in missionary work, her son’s medical condition, the positive impact she made in communities in the course of her missionary work. The Court after balancing the mitigating and aggravating factors imposed the sentence mentioned earlier.

Submissions

7. In his submissions to the Court in support of the application learned Counsel for the applicant Mr. Adam Ninkama, submitted that the sentence was harsh and excessive; that the mitigating factors outweighed the aggravating factors; that the sentence imposed was not in line with established precedent which “revealed that the maximum sentence imposed for such offences were not more than five years and in most cases the term of sentence imposed were fully suspended with conditions”.

8. On the other hand learned Counsel for the State, Mr. Thomas Emmanuel submitted that the offence of forgery carries a maximum penalty of 14 years and that the sentence imposed was lenient.

9. The relevant principles governing the grant or refusal of leave were set out in the case of Matiabe Oberia v Chief Inspector Michael Charlie (2005) SC 1 801.

10. The Court in the aforesaid case stated the considerations as follows:

• Is there an arguable or prima facie case demonstrated that the trial judge was wrong?
• Does the applicant have recourse in the Court below?
• Was the ruling within the discretion of the Court? Has it been shown that its exercise was manifestly unreasonable, exercised on wrong principle or a mistake of fact?
• Does the decision have any bearing on the final determination of the issue between the parties? Will it affect the primary rights of the parties or prevent the determination of the issues?
• Will substantial injustice be caused by allowing the decision to stand?
• Has cause been shown that the trial process should be interrupted by an appeal?
  

11. The onus is upon the applicant to show that the National Court fell into error in exercising its sentencing discretion. In this case no arguable case has been demonstrated that the trial judge was wrong in anyway or that the exercise of discretion was manifestly unreasonable or the sentencing decision was based on wrong principle. In my mind the applicant failed to make out a case that any substantial injustice would be caused by allowing the decision to stand.

12. With respect to the argument that the Court did not sufficiently consider mitigating factors such as the applicant’s son medical condition, I must say, with respect that such consideration count for very little once the applicant has been convicted – it is not a factor that accrues in favor of the applicant. The Court below cannot be faulted if it assigned little or no weight to that aspect when considering an appropriate sentence.

13. In considering whether the sentence imposed on the applicant may be said to be excessive, I have adverted my mind to Section 462 (1) and (3) (f) of the Criminal Code, the law under which the applicant was charged.

14. I notice from the above that the offence of forgery carries a maximum sentence of 14 years. The National Court was mindful that forgery was a very serious offence and that in this case the applicant enjoyed the fruit of her crime for 13 years.

15. The applicant’s counsel took issue with the learned Judge’s reference to laws of God or religious principles and argued that same was inappropriate. I must say with respect to this submission that I found no evidence that such references by the learned Judge affected his discretion in anyway or had any bearing at all on the sentence imposed.

16. In the result, the application for leave to appeal is without merit and is refused.

____________________________________________________________
Mr. David Tokeam Mamu: Lawyers for the Appellant
Mr. Thomas Emmanuel: Lawyers for the Respondent