Amobra v State [2020] PGSC 48; SC1959 (26 May 2020)

SC1959

PAPUA NEW GUINEA
[IN THE SUPREME COURT OF JUSTICE]

SCREV NO. 61 OF 2018

BETWEEN
SEDRRICK AMOBRA
Applicant

AND
THE STATE
Respondent

Wewak: Manuhu, David & Makail JJ
2020: 25^th & 26^th May

SUPREME COURT REVIEW – Review of sentence – Leave to review sought at hearing – Delay – Proposed ground raised ground meriting a review – No prejudice shown – Leave granted – Constitution – Section 155(2)(b)

SUPREME COURT REVIEW – Review of sentence – 30 years imprisonment – Excessiveness of sentence – Appropriateness of sentence – Criminal Code – Section 300(1)(a)

Cases Cited:

Avia Aihi v. The State [1981] PNGLR 81
Elvis Tanabo v. The State (2016) SC1543
Manu Kovi v. The State (2005) SC789

Counsel:

Mr. R. Pariwa with Mr. Kana, for Applicant
Mr. C. Sambua with Mr. R. Galama, for Respondent

26^th May 2020

JUDGMENT

1. BY THE COURT: The applicant seeks leave to review a sentence of 30 years imprisonment term imposed by the National Court after he pleaded guilty to a charge of murder under Section 300(1)(a) of the Criminal Code. Leave is being sought pursuant to Section 155(2)(b) of the Constitution because he is out of time to file an appeal.

Brief Facts

2. The applicant is from Dimiri village of Angoram in East Sepik Province. On 30^th September 2016 there was a fight at Dimiri village between the applicant and his brothers against other people from the village.

3. The ward councillor intervened to stop the fight but was struck on the head with a bush knife. The deceased went to his aid by lifting him up when the applicant thrust an iron rod into the deceased’s back which penetrated his back and appeared on the other side of his stomach. The deceased died the next day.

Leave for Review

4. As to the question of leave, relying on the criteria for grant of leave in Avia Aihi v. The State [1981] PNGLR 81, the applicant says that he was not informed about the time-limitation of forty days and had no-one to assist him that he did not file an appeal within time. We find these reasons unconvincing and unimpressive.

5. However, as to delay, it is not disputed that the applicant was sentenced on 9^th December 2017 and forty days expired on 19^th January 2018. He filed the application for leave to review on 17^th July 2018. The delay is about six months. Guided by Elvis Tanabo v. The State (2016) SC1543, a case where a delay of four months was not considered inordinate, we are satisfied that the delay of six months in this case is not inordinate.

6. As to the question of clear legal grounds meriting a review, the applicant argues that the proposed ground raises the issue of excessiveness of sentence.

7. He says the head sentence of 30 years imprisonment term is excessive because the trial judge failed to identify a starting point consistent with the approach taken by the Supreme Court in Manu Kovi v. The State (2005) SC789 to work out the head sentence and failed to take into account mitigating factors in his case which would have resulted in a lesser term of imprisonment.

8. We are satisfied that a question of appropriateness of sentence has been demonstrated by the applicant and constitutes a ground meriting a review of the sentence.

9. It is also in the interests of justice that we hear both parties on this question. We are further satisfied that the State has not shown how it will be prejudiced in its defence if leave was granted.

10. Leave is granted.

Substantive Review

11. The applicant submits that the trial judge made an identifiable error when he failed to identify a starting point consistent with the approach taken by the Supreme Court in Manu Kovi (supra) before arriving at the head sentence taking into account the aggravating and mitigating factors present in his case.

12. Moreover, the trial judge failed to give consideration to his guilty plea, being a first offender and absence of an intention to kill the deceased.

13. He contends that the trial judge placed too much weight on the assault of the ward councillor who had intervened to stop the fight. It influenced him to impose the sentence of 30 years imprisonment term which was at the top end on the sentencing range set in Manu Kovi (supra).

14. An appropriate sentence would be 25 years and we were asked to quashed the sentence and substitute it with 25 years.

15. The State argues that the sentence is appropriate and within the sentencing range of murder cases in category three in Manu Kovi and we should not disturb it.

16. The case of Manu Kovi (supra) is a useful guide for sentencing purposes but it should not curtail the discretion conferred on a trial judge. The trial judge should be given that flexibility to impose a sentence depending on the gravity of the offence.

17. In this case, it may be that the trial judge did not use a starting point to then work out the final term of the sentence. However, we agree with the State’s submission that the sentence was within the sentencing range of murder cases in category three in Manu Kovi (supra). The applicant’s guilty plea, being a first offender, absence of an intention to kill and even an offer to make restitution as noted by the trial judge were outweighed by the presence of a number of aggravating factors.

18. Against the applicant and taken into account by the trial judge were the prevalence of the offence and the need to deter like-minded people from offending, death arose from a fight between two groups of people and significantly, a ward councillor was attacked while trying to stop the fight. He was considered a law enforcement officer trying to restore peace and good order.

19. Worst still, the deceased went to the aid of the councillor when the applicant attacked the deceased from behind. A bare hand was not used in the attack but an iron rod, which was thrust into the back of the deceased and appeared on the other side of his abdomen.

20. This is how grave the offence was but just fell shy of a charge of wilful murder because of the absence of intent. It also explains why the trial judge said that it was a cowardly attack.

21. This type of murder cases fall within category three of Manu Kovi case (supra) and would attract a sentence within the range of 20 to 30 years. Given the aggravating and mitigating factors, we accept the sentence of 30 years was well within the sentencing range.

22. We find no error in the sentence imposed by the trial judge and dismiss the review.

Order

23. The order of the Court is the application for review is dismissed. The sentence of 30 years imprisonment is affirmed.
Judgment and orders accordingly.
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Public Solicitor: Lawyers for Applicant
Public Prosecutor: Lawyers for Respondent