Korop v State [2018] PGSC 15; SC1670 (3 May 2018)

SC1670

PAPUA NEW GUINEA
[IN THE SUPREME COURT OF JUSTICE]

SCRA 31 OF 2016

BETWEEN:
KAPI KOROP
Applicant

AND:
THE STATE
Respondent

Mt. Hagen: Salika DCJ, Anis and Tamate JJ
2018: 01^st& 03^rd May

PRACTICE AND PROCEDURE – Prisoner seeking leave to appeal against sentence pursuant to s.22 (d) of Supreme Court Act, Ch. 37 – Leave to appeal sentence granted - Sentence quashed and matter remitted to National Court for trial upon failure by trial judge to vacate guilty plea when there was a legal defence of self-defence raised on allocatus – Substantial miscarriage of justice.

Cases:
AviaAihi v. The State [1981]PNGLR 81
Gawi v. The State (2006) SC 850
Ila Geno v. Independent State of PNG [1993] PNGLR 22.
Jim Kas&Ors v. The State (1999) SC 772
PorewaWani v. The State [1979] PNGLR 593
The State v. Joe Ivoro and GemoraYavura [1980] PNGLR 01
The State v. Peter Sari [1990] PNGLR 48

Counsel:

Mr. F. Kirriwom, for Applicant
Mr. P. Bannister, for the Respondent

03^rd May, 2018

1. BY THE COURT: The appellant seeks leave to appeal against his sentence of 25 years imprisonment in hard labour for the offence of murder pursuant to section 300 (1) (a) of the Criminal Code Act, Ch. 262. He was sentenced on 14^th of June 2016 and filed his appeal on 02^nd of July 2016 thus his appeal is within time.

2. The appellant seeks leave to appeal his sentence pursuant to s. 22 (d) of the Supreme Court Act, Ch. 37 on the grounds that “the sentence of 25 years is too excessive for the reason that the Court did not consider that he surrendered voluntarily to Police and further that he also admitted the crime and co-operated to assist the Court in convicting him.”

3. Section 22 provides: CRIMINAL APPEALS

“A person convicted by the National Court may appeal to the Supreme Court –

(a)......

(d) with the leave of the Supreme Court, against the sentence passed on his conviction, unless the sentence is fixed by law.”

4. The requirement for leave to appeal sentence under this section is necessary by law therefore any person appealing his sentence after conviction must first seek leave of this court: Porewa Wani v. The State [1979] PNGLR 593; AviaAihi v. The State [1981] 81; Gawi v. The State (2006) SC 850.

5. The essential purposes for the requirement of seeking leave is to ‘prevent busy bodies wasting the Court’s time and further, it is a mechanism for filtering cases that are without any merits: Jim Kas & Ors v. The State (1999) SC 772; Ila Geno & Ors v. The Independent State of PNG [1993] PNGLR 22.

6. The issue for this Court to consider is “Whether the appellant has an arguable case on merit for leave to be granted to appeal his sentence?

7. The facts upon which he pleaded guilty in the National Court was that Appellant and his family and relatives were not happy with the deceased because appellant’s brother who had contested the presidential seat for their Kup LLG Council lost because of the deceased contesting the same seat. They are cousins and they believed deceased should not have contested the same seat. Appellant’s brother’s election defeat was blamed on the deceased therefore this led to the shooting of the deceased. State alleged that on 06^th September, 2013 at about 6. 00 pm appellant was at his house at Kup Station at Kerowagi District when he saw the deceased and got his gun, approached him and shot deceased resulting in his death.

8. The trial judge when considering sentence took into account the mitigating and aggravating factors and case law guidelines as well as relevant comparable sentences and imposed 25 years IHL. The appellant appealed this sentence on grounds that it was too excessive despite him voluntarily surrendering to Police, admitting the offence and co-operating to assist the Court in convicting him.

9. During submissions by Mr. Kirriwom for the appellant a preliminary point was raised as a result of an important matter that Mr. Bannister for the Respondent had raised in his extract of submissions which they had both discussed just before the Court began to hear submissions by Counsel for the appellant.

10. The respondent had raised in his submission that there was an important issue the trial judge had overlooked during allocatus where the appellant had raised a legal defence of self-defence which the trial judge had failed to enquire into with the lawyer for the appellant.This failure amounted to a substantial miscarriage of justice. The trial judge should have enquired with the counsel for the appellant whether the appellant was going to pursue this defence or forego it. If he was going to pursue it then the trial judge should have vacated the plea of guilty and enter a plea of not guilty and have left the matter for trial. This did not happen and there is no record of such in the transcripts.

11. Both Mr. Kirriwom and Mr. Bannister by concession referred the court to the relevant parts of the transcripts in the appeal book confirming the matters raised by the appellant on allocatus which no doubt showed that appellant had raised the defence of self-defence at pages 23, 24 and 25 of the appeal book where he said:

“The deceased people had planned to shoot me and burn the sawmill and the ambulance. Kela Kop Kombi, one of the boys in the middle of them came andtold me.(page 23)..
They came to my area... KombaneKongo, the State witness led them... With big group of people. I was in the house, saw them and realized that they came for a fight where they told me...KombaneKongo was in possession with a single shotgun. .. He said “now I am here”. .. He made the first fire on me. I ran into my house and got the community gun. They gave it to me. I took it out.(page 24). I took it and came out to the hospital gate. They saw me and they ran away. ... I made the first shot at KombaneKongo...The second shot late BangeKonge received and he died andI say sorry. .. We purchased new saw mill machine and we put it in the house and these big valued properties...I tried to make self-defense to protect the property...”(page 25).

12. These matters raised in allocatus clearly show that the appellant was raising a valid legal defence therefore it was necessary for the trial judge at that instance to have vacated the plea of guilty and enter a plea of not guilty: The State v. Joe Ivoro and Gemora Yavura [1980] PNGLR 01: (Kapi, J as he then was) held that a plea of guilty may be changed when there is a clear defence to the charge. In The State v. Peter Sari [1990] PNGLR 48: Court has the powers under section 57 of the Constitution to change a plea from guilty to not guilty where it considers that a defence has been raised even where the lawyer for an accused has not applied for the plea to be changed under section 563 of the Criminal Code Act. Section 155 (4) of the Constitution gives the Court the inherent powers to do justice in circumstances of a particular case. We affirm this and agree on this point. We also accept the submissions by Mr. Bannister that both counsel had agreed to on the defence of self defence been raised by the appellant in his trial at the National Court.

13. We commend the Respondent counsel for pointing this matter out at the outset thus saving the Court’s time from having to hear this application for leave to appeal sentence and the possible appeal on sentence at length. We accept the concession by both counsel and make the following determination.

14. Upon the counsel agreeing that this error was caused by the trial judge resulting in the substantial miscarriage of justice we rule that the appellant has an arguable case on merit to appeal his sentence. It therefore follows that in the circumstances of this case it is only proper that this Court grants leave to the appellant to appeal the sentence. In so doing and upon been urged by Counsel to exercise the Court’s inherent powers under s. 155 (4) of the Constitution, this Court quashes the sentence of 25 years IHL and remit the matter back to the National Court for a new trial by another judge pursuant to s. 16 (e) of the Supreme Court Act, Ch. 37.

ORDERS

15. The orders of the Court are:

(1) Leave to appeal sentence is granted.
(2) The sentence of 25 years IHL is quashed.
(3) The matter is remitted back to the National Court for new trial hearing by another judge.

Orders accordingly.

__________________________________________________________________

Office of the Public Solicitor: Lawyer for the Applicant
Office of the Public Prosecutor : Lawyer for the Respondent