Mai v State [2019] PGSC 61; SC1823 (5 July 2019)

SC1823

PAPUA NEW GUINEA
[IN THE SUPREME COURT OF JUSTICE]

SCREV No. 78 of 2017

MORA MAI

V

THE STATE

Waigani: Gavara-Nanu, Berrigan, Miviri JJ
2019: 24 June and 5 July

PRACTICE AND PROCEDURE – Application for leave to review sentence – Section 155(2)(b) of the Constitution – No cogent and convincing reasons, exceptional circumstances or clear legal grounds – Application refused.

On an application for review of a sentence of 18 years of imprisonment on a charge of murder, contrary to Section 300(1)(a) of the Criminal Code (Ch. 262) (the Criminal Code),

Held:

(1) The reasons provided by the applicant for failing to appeal within time, namely that he was ignorant of the appeal process and that the time within which to appeal lapsed whilst he was waiting for a lawyer from the Public Solicitor’s Office to assist him, were neither cogent nor convincing in all the circumstances and having regard to the 7 month delay.

(2) Furthermore, the application for review failed to set out the grounds upon which the applicant relied. For the benefit of future applicants, the Registrar is directed to review the “Application for Leave to Review” form provided by the Registry to ensure its compliance with order 5 of the Rules of the Supreme Court of Justice, 1984, and in particular to revise it to include the following headings compliant with Form 5, i.e: “Grounds (specify each particular ground by paragraph”) and “Relief Sought (state relief sought)”.

(3) The application failed to identify an error on the part of the sentencing judge. The sentencing remarks reflected the applicant’s level of participation, a lack of strong intent to do grievous bodily harm, and relevant mitigating factors.

(4) The sentence imposed was not manifestly excessive having regard to the maximum penalty, the broad discretion of the judge, well established sentencing guidelines and the circumstances of the case: Manu Kovi v The State (2005) SC789 applied.

(5) There are no cogent and convincing reasons, exceptional circumstances or clear legal grounds to justify the applicant being granted leave to review the sentence imposed upon him. Nor is it in the interests of justice.

(6) The application for leave to review is refused and the sentence imposed confirmed.

Cases Cited

William Norris v The State [1979] PNGLR 605
Avia Aihi v The State [1981] PNGLR 81
Danny Sunu v The State [1984] PNGLR 305
Manu Kovi v The State (2005) SC789
Mark Bob v The State (2005) SC 808
Sanawi v The State (2010) SC1076
Saraga v The State (2017) SC1592

References cited

Section 155(2)(b) of the Constitution
Section 300(1)(a) of the Criminal Code (Ch. 262) (the Criminal Code)
Order 5, Rule 1(e) of the Rules of the Supreme Court of Justice, 1984.

Counsel

Mr M. Mai in person, for the Appellant
Mr P. Kaluwin, for the Respondent State

DECISION ON APPLICATION

5 July, 2019

1. BY THE COURT: The applicant seeks review of the sentence imposed on him by the National Court following his conviction on one count of murder, contrary to Section 300(1)(a) of the Criminal Code (Ch. 262) (the Criminal Code).
   
2. The applicant was jointly indicted for murder with two others. He was convicted on 21 November 2016 following a joint trial with one co-accused, who was acquitted. The applicant was sentenced the following day with his other co-accused, Richie Laufa, who pleaded guilty. Both were sentenced to 18 years of imprisonment.
   
3. At trial his Honour found that the applicant was part of a group that had deliberately set out to find the deceased, Felix Koivi, whom the applicant blamed for stabbing his brother the night before. The group went to one house first. The deceased was not there but the applicant, in the company of others, assaulted a person found there. The group then went to another house where the deceased was called outside. Once outside the applicant’s co-accused, Richie Laufa, attacked the deceased with a rock. When the deceased fell to the ground he was dragged across the road by Richie Laufa before the applicant joined with others in kicking and punching the deceased, who subsequently died from his injuries.
   

Leave to Appeal

4. The applicant failed to file a notice of appeal within 40 days of his sentence. Consequently he applies for leave to review the decision on sentence pursuant to Section 155(2)(b) of the Constitution. The Court heard both the application for leave and the substantive application for review.
   
5. It is well established that in determining whether to grant leave for review, three criteria must be satisfied:
   
   • (a) it is in the interests of justice to grant leave;
   • (b) there are cogent and convincing reasons and exceptional circumstances, e.g. some substantial injustice is manifest or the case is of special gravity; and
   • (c) there are clear legal grounds meriting a review of the decision.
6. In deciding whether there are cogent and convincing reasons, the following matters are relevant:

(a) the reasons for failing to appeal within time; and
(b) the merits of the case sought to be argued.

Mark Bob v The State (2005) SC 808 applying Avia Aihi v The State [1981] PNGLR 81; Danny Sunu v The State [1984] PNGLR 305.

Reasons for Delay and Failure to set out Grounds of Review

7. The applicant’s notice of appeal was filed on 31 July 2017, almost 7 months after the prescribed time. The applicant submits that he was ignorant of the appeal process, and that the time within which to appeal lapsed whilst he was waiting for his lawyer from the Public Solicitor’s Office to visit him at Bomana Correctional Institution, where he is serving his sentence.
   
8. In our view these reasons are neither cogent nor convincing. Nor are they exceptional. Many of the appeals before the Supreme Court emanate from persons detained in correctional service institutions across the country. As observed by the Court in Saraga v The State (2017) SC1592, officers at those institutions, and indeed other inmates, are well aware of the prescribed period within which an appeal must be lodged, and it is likely that this information would have been imparted to the applicant, together with the appeal forms which we understand are readily available at Bomana.
   
9. The failure of the Public Solicitor’s Office to attend to the applicant is regrettable. Nevertheless, whilst we have some sympathy for the applicant’s initial decision to wait, in our view a delay of 7 months is not a reasonable one in all of the circumstances.
   
10. Moreover, the application for leave to review does not set out the grounds upon which the applicant relies for substantive review. It simply restates the criteria set out in paragraph 5 above. It was not until the applicant’s submissions were filed on 14 June 2019 that the grounds upon which he relies to challenge the sentence were made known.
    
11. For each of these two reasons alone it would be permissible to dismiss the application and conclude our decision here.
    
12. It has come to our attention, however, that the “Application for Leave to Review” form filed by the applicant is not compliant with Order 5, Rule 1(e) of the Rules of the Supreme Court of Justice, 1984 (the Supreme Court Rules). In particular, it is not in accordance with Form 5 of the Supreme Court Rules as it does not expressly contain a section for setting out the “grounds of review” relied upon by the applicant.
    
13. We understand that the form used by the applicant may have been made available by the Supreme Court Registry. It contains a number of headings additional to, or expressed differently from, that in Form 5 of the Supreme Court Rules. There is no doubt that the additions and alterations are intended to simplify the language contained in Form 5 and assist applicants without legal training to file an application for review. This is important given that many such applications before this Court are made by prisoners appearing in person and without legal advice, and we are not suggesting that all of the additional or explanatory information should be removed. Nevertheless, an application for review must be filed in compliance with the Supreme Court Rules and for obvious reasons must clearly set out the grounds upon which an applicant relies.
    
14. In the circumstances and for the benefit of future applicants, we direct the Registry to immediately review the form to ensure its compliance with Order 5 of the Supreme Court Rules, and in particular to revise it to include the following headings compliant with Form 5, i.e: “Grounds (specify each particular ground by paragraph”) and “Relief Sought (state relief sought)”. To be clear, however, none of this is to derogate in any way from the responsibility of every applicant to ensure that their application for review is filed in the appropriate form.
    
15. We are also mindful of the fact that the applicant is serving a sentence of 18 years in prison. In the circumstances, and having heard his submissions, we will set out why, in our view, the grounds upon which he relies are also without merit.
    

Merits of the Application

16. The applicant’s submissions raise 4 grounds, namely that the learned trial judge erred in law in failing to:
    
    • (a) Ground 1: give sufficient reasons;
    • (b) Ground 2: take into consideration the level or degree of participation by the applicant;
    • (c) Ground 3: take into consideration that there was strong de facto provocation; and
    • (d) Ground 4: take into account that there was very little intent to cause grievous bodily harm.
      
17. It is well established in this jurisdiction that an appellate court will not readily disturb the discretionary power of a sentencing judge. For it to do so it must be satisfied that the judge made an error that has the effect of vitiating the sentence. Such an error may be identifiable: a mistake as to the facts; an error of law; the taking into account of matters which should not be taken into account; or the failure to give appropriate weight to matters to be taken into account. Even where no identifiable error can be shown, a sentence may be set aside where the sentence is obviously (and not merely arguably) out of all reasonable proportion to the circumstances of the case: William Norris v The State [1979] PNGLR 605 at 612 to 613.
    
18. The applicant complains that the sentencing remarks are insufficient. It is the case that the learned trial judge’s remarks on sentence might be described as brief. It is not the length of the remarks that an appellate court will be concerned with, however, but whether or not they disclose an identifiable error.
    
19. In this regard the applicant submits that the learned trial judge failed to take into account his level of participation. We don’t agree. The sentencing remarks reflect the role of the applicant within the group, and the respective roles of the applicant and his co-accused, Richie Laufa. Whilst it was Richie Laufa who inflicted the fatal head injury on the deceased, it was the applicant who had mobilised the group after the attack on his brother, and who had joined in with the others in attacking the deceased after he had been struck by Laufa and dragged across the road. The trial judge also took into account that Laufa had cooperated from an early stage with police, expressed remorse and pleaded guilty to the offence. Certainly there was no breach of the principles outlined by the Supreme Court regarding parity in Sanawi v The State (2010) SC1076.
    
20. It is also clear that in determining sentence, the trial judge found that there was no strong intent to do grievous bodily harm. Furthermore, he specifically took into account as a mitigating factor that the applicant had gone to the police station the previous day to seek assistance in relation to the assault on his brother but had been turned away.
    
21. There was no error on the part of the trial judge.
    
22. Furthermore, whilst not expressly articulated in the applicant’s submissions, his argument is essentially that the sentence of 18 years’ imprisonment was excessive.
    
23. As found by the learned trial judge, the assault was planned, deliberate and vicious.
    
24. Considering that the maximum penalty for murder is life, and that the facts of this case place the severity of the crime committed within category two of the guidelines set out in Manu Kovi v The State (2005) SC789, which suggest a sentencing range of 16 to 20 years, and that the sentencing judge has a wide discretion at his disposal, it is our view that the sentence imposed is not out of all reasonable proportion to the crime committed.
    

Conclusion

25. In conclusion, having regard to all of the matters outlined above, and having considered the merits of the case, we are not satisfied that there are any cogent and convincing reasons, exceptional circumstances or clear legal grounds to justify the applicant being granted leave to review the sentence imposed upon him. Nor is it in the interests of justice.
    
26. The application for leave to review is refused and the sentence imposed confirmed.

_______________________________________________________________
Appellant in Person
Public Prosecutor: Lawyer for the Respondent