Wickless v Independent State of Papua New Guinea [2020] PGSC 163; SC2293 (26 November 2020)

SC2293

PAPUA NEW GUINEA
[IN THE SUPREME COURT OF JUSTICE]

SCREV NO. 66 OF 2019

BETWEEN:
STEVEN WICKLESS
Appellant

AND:
THE INDEPENDENT STATE OF PAPUA NEW GUINEA
Respondent

Kokopo: Mogish, Kaumi and Kassman JJ
2020: 24^th & 26^th November

CRIMINAL LAW – Appeal against sentence – Armed and Aggravated Robbery – 15 years imprisonment – Robbery of a Shop – Identifiable error in Sentencing – Appeal Upheld and Sentence of 15 years Quashed – 11 years Substituted- Section 155 (2) (b) of the Constitution

This is an application by Steven Wickless for leave to review under section 155(2) of the Constitution for review of the sentence imposed on him after he pleaded guilty to armed and aggravated robbery.

Held:

1. The starting point of 8 years set by the Supreme Court in Tau Jim Anis and Others v The State (supra) was twenty years ago. This was an increase of 3 years from the 5 years starting point set by the Supreme Court in Gimble v The State [1988-89] PNGLR 271, twelve years earlier to that. This trend shows that the starting point has for this category of robbery increased incrementally by 3 years every 10 to 20 years and so we feel it is appropriate at this junction in time given the exponential increase of this form of robbery throughout the length and breadth of this country and the sophistication involved that its starting point should increase by three (3) years to eleven (11) years.

Cases Cited:

William Norris v The State [1979] PNGLR 605
Avia Aihi v The State (No.1) [1981] PNGLR 81
Gimble v The State [1988-89] PNGLR 271
Marase v The State [1994] PGSC 11
Tau Jim Anis and Others v The State. [2000] SC 564
Ignatius Nalu Pomalou v The State (2006) SC834
Saperus Yalibakut v The State [2008] SC 564
Benjamin Sengi v The State (2015) SC1425

Counsel:

Mr. J. Unua, for the Appellant,
Mr P. Kaluwin, for the Respondent

26^th November, 2020

1. BY THE COURT: This is an application by Steven Wickless for leave to review his sentence of 15 years imprisonment imposed on him by the National Court at Kimbe on 20^th June 2018 after he pleaded guilty to armed and aggravated robbery pursuant to section 386 (1) (2) (a) (b) ( c) of the Criminal Code.
   
2. A brief background to the offence is that on 13 February 2017, between the hours of 8 and 9am, the accused was part of a seven-man gang that entered the City Pharmacy store at Kimbe, West New Britain Province. The gang was armed with a homemade staple gun, a pump-action shotgun and knives. The applicant was unarmed but still part of the gang. They entered the building and threatened the staff therein and stole cash in the sum of K22, 325.86 and mobile phones, portable speakers and other electronic accessories worth K7, 105.55. The total amount of cash and goods stolen was K29, 431.41. The gang was about to make their getaway when police arrived at the scene and arrested them all.
   

GROUNDS FOR REVIEW

3. The applicant’s ground for review is contained in the Form and is that the lawyer representing him from the Office of the Public Solicitors in Kimbe denied his appeal and delayed to lodge his appeal within 40 days as required.
   
4. The applicant seeks review of the sentence which he says is manifestly excessive.

ISSUES

(A) Whether leave to review should be granted to the applicant? (Primary issue)

(B) Whether the sentence imposed on the Applicant is manifestly excessive, considering the peculiar facts and circumstances of the case? (Secondary Issue)

(A) Whether leave to review should be granted to the applicant? (Primary issue)

5. The law on applications for leave to review and applications for review pursuant to section 155 (2) (b) of the Constitution is well settled in this jurisdiction. Avia Aihi v The State (No.1) [1981] PNGLR 81. The principles are discussed and summarized by the Supreme Court in the case of Benjamin Sengi v The State (2015) SC1425, that when a right of appeal has not been exercised within the 40-day time period provided by Section 29 of the Supreme Court Act 1975, three (3) criteria must be satisfied before leave can be granted. They are:

[1] it is in the interests of justice to grant leave:

[2] there are cogent and convincing reasons and exceptional circumstances, such as substantial injustice is manifest, or the case is of special gravity; and

[3] there are clear legal grounds meriting a review of the decision.

6. The Applicant has applied for leave to review after the 40 days statutory time period provided under section 29 of the Supreme Court Act. The applicant submits that there was a delay of 10 months 11 days, after the grace period of 40 days is discounted from the calculation and that this was inordinate considering that though he was advised by the lawyer representing him that an appeal would be lodged it was not lodged within the 40 days statutory time period. Therefore he took it upon himself to fill the Form at the prison and lodge his application.
   
7. In considering whether or not to grant leave we note with concern the ground raised by the applicant which essentially is an allegation that the lawyer representing him did not lodge his appeal within the statutory period though he was given to understand that the appeal would be lodged.
   
8. What this is tantamount to in essence is a serious allegation of professional negligence on the part of the lawyer and a slur on his integrity. Further we do not see any evidence whatsoever provided by the applicant to support what he says. Nor is there any response by the lawyer concerned to the allegation. Today there are a lot of applications for leave for review which are premised on similar grounds and given this such applicants must provide evidence of where, when and how they instructed counsel to appeal. It is trite that he who asserts must prove. Having made mention of this matter we note that the applicant was serving sentence at Lakiemata CI when he lodged his application. He was not at Bomana CI so he could easily access the Waigani Supreme Court Registry through the assistance of CS officers and lodge his application. He faced a dilemma also faced by other such applicants who are incarcerated in prisons outside of Port Moresby and as such some allowance should be given for this reason.
   
9. The Supreme Court in Tau Jim Anis and Others v The State [2000] SC 564 stated that with respect to sentencing tariffs applicable in Armed Robbery cases, inter alia the appropriate starting point for the robbery of a store, hotel, club and vehicle on the road should be 8 years.
   
10. The matter before us involved the robbery of a store and the starting point would be 8 years as per Tau Jim Anis and Others (supra) for a contested case however the applicant pleaded guilty and was sentenced to15 years imprisonment with hard labour.
    
11. This case involved the robbery of a store in Kimbe Town in which the applicant and his accomplices were caught red handed before they could make their getaway by police whilst they were in the store. The applicant pleaded guilty and did not benefit from the crime nor was any person hurt or any gun fired and he was a first time offender.
    
12. Having considered these matters we are satisfied that the applicant’s ground of appeal raises an arguable issue as to whether the sentence imposed is manifestly excessive, considering the peculiar facts and circumstances of this case and therefore we consider that it is in the interest of justice that leave be granted. Accordingly, we grant leave: Ignatius Nalu Pomalou v The State (2006) SC834.
    

(B) Whether the sentence imposed on the Applicant is manifestly excessive, considering the peculiar facts and circumstances of the case?

13. The relevant principles in relation to an appeal against sentence are succinctly stated by Kearney, J in the Supreme Court case of William Norris v The State [1979] PNGLR 605 at pp 612-613. An appellate court will not disturb the discretionary power exercised by a trial court in sentencing. To disturb the sentence, appellant must show error by the trial judge in the sentencing process. Such error may be identifiable such as a mistake regarding facts or application of the law; error in taking into account matters or omitting matters; and not giving proper weight to matters, but even if no identifiable error can be shown, the sentence may be set aside if the sentence is clearly out of reasonable proportion to the circumstances of the offence.
    
14. At the outset we note that the Public Prosecutor concedes that the 15 years sentence imposed on the applicant was manifestly excessive and that he submits for a sentence of 10 to 12 year to be substituted in its place. In response to this submission we note that the Public Prosecutor did not file a cross-appeal so we do not accede to it.
    
15. The sentencing judge in the exercise of his sentencing discretion imposed 15 years in hard labour on the applicant.
    
16. A sentencing judge when deciding punishment befitting a crime takes into account all relevant factors and the peculiar facts and circumstances of the case which an offender has pleaded guilty to and so it follows that such a consideration must be reflected in the sentence. Such considerations by the sentencing judge are done with the notions of sentencing such as deterrence, rehabilitation and punishment in mind. There is no formulae for sentencing but each case is decided on its own peculiar circumstances.
    
17. In the instant matter we note that the sentencing judge in his sentence emphasized heavily on the location of the robbery throughout his judgment and whilst it was a factor to be considered there were other considerations of equal importance that though mentioned were obviously not accorded the type of consideration they deserved to the extent of having little to no effect on the sentence imposed. The plea of guilt by the applicant was obviously not given the kind of weight that it deserved given the benefits of such a plea in comparison to a plea of not guilty.
    
18. There was an over emphasis on the trauma suffered by the employees of the shop.
    
19. Having perused the transcript and heard submissions from both counsels we agree with the applicant that the sentencing judge in the exercise of his sentencing discretion did not give enough weight or no weight at all to the relevant mitigating factors.
    
20. We note from the transcripts that both counsels for the State and Defence each submitted for a term of 8 years imprisonment.
    
21. The current sentencing trend for similar offences is 8 years as a starting point on a contested matter as per Tau Jim Anis and Others v The State [2000] SC564. The sentence imposed was 15 years. An increase of 7 years of the starting point which was in our opinion without proper basis in fact or law and a “quantum leap”.
    
22. The Supreme Court has spoken that increases in sentencing must come incrementally and not in leaps and bounds.
    
23. The facts of this matter show that there was no loss of life and it is unclear whether the applicant benefitted at all as him and his accomplices were caught red handed by police at the shop and given this fact the sentencing judge was obliged to act on the version of facts to which the applicant pleaded guilty to and the version reasonably favorable to him: Saperus Yalibakut v The State [2008] SC564.
    
24. Having referred to this fact we note as well that the facts of the cases referred to by the sentencing judge differ from the instant one and are more serious. Marase v The State [1994] PGSC 11 involved rape and robbery and the appeal was dismissed and 19 and a half years in hard labour confirmed.
    
25. Though the sentencing judge has referred to appropriate sentencing case authorities this was not reflected in the sentence.
    
26. When the appellant’s case is considered in the light of the sentencing guidelines and its peculiar facts and circumstances, the sentence of 15 years in the appellant’s case is considered excessive. The trial Judge has, therefore, made an identifiable error on sentence.
    
27. Having decided that the sentence of 15 years imposed by the sentencing judge on the applicant was excessive we now consider what would be an appropriate substitute sentence.
    
28. The starting point of 8 years set by the Supreme Court in Tau Jim Anis and Others v The State (supra) was twenty years ago. This was an increase of 3 years from the 5 years starting point set by the Supreme Court in Gimble v The State [1988-89] PNGLR 271, twelve years earlier to that. This trend shows that the starting point has for this category of robbery increased incrementally by 3 years every 10 to 20 years and so we feel it is appropriate at this junction in time given the exponential increase of this form of robbery throughout the length and breadth of this country and the sophistication involved that its starting point should increase by three (3) years to eleven (11) years.
    
29. The appellant’s sentence of 15 years is, therefore, quashed and set aside. In all the circumstances and consistent with the sentencing principles and guidelines by the courts and our given thoughts, a substitute sentence of 11 years in hard labour would be appropriate.
    
30. The court records show that the appellant has served a total period of 2 years, 1 month, and 11 days. With the deduction, the appellant has 8 years, 11 months, and 18 days to serve in hard labour.
    

ORDER

31. The Court orders that:
    

1. The application for review of the sentence passed by the National Court is granted.

2. The sentence passed by the National Court is quashed and set aside.

3. The sentence imposed by the National Court on the appellant is quashed and substituted by the following sentence:

a. Steven Wickless 11 years imprisonment in hard labour.
__________________________________________________________________
The Public Solicitor: Lawyer for the Appellant
The Public Prosecutor: Lawyer for the State