Simon v State [2022] PGSC 100; SC2301 (14 October 2022)

SC2301

PAPUA NEW GUINEA
[IN THE SUPREME COURT OF JUSTICE]

SCREV NO. 40 OF 2020

ANITA SIMON
Applicant

-V-

THE STATE
Respondent

Waigani: Kariko J, Bona J & Auka J.
2022: 29^th September & 14^th October

CRIMINAL LAW – application for review of sentence – s 155(2)(b) Constitution – murder - s 300(1)(a) Criminal Code – guilty plea – whether error in placing insufficient weight to extenuating circumstances

CRIMINAL LAW – application for review of sentence – suggestion that plea of guilty tainted – no leave to review conviction – abuse of process

The applicant was convicted of murder pursuant to s 300(1) (a) of the Criminal Code, upon pleading guilty to the charge, and she was sentenced to 12 years imprisonment in hard labour less pre-sentence period in custody. She seeks a review of the sentence imposed pursuant to s 155(2)(b) of the Constitution.

Held:

1. An applicant for review of sentence must show that the primary judge either made an identifiable error that has the effect of vitiating the sentence or imposed a sentence that was obviously (not merely arguably) excessive: Ju Maima v The State (2016) SC1504, William Norris v The State [1979] PNGLR 605 referred to.
   
2. The trial judge did not err in the exercise of his sentencing discretion, and the sentence is not manifestly excessive.
   
3. It is an abuse of process for the applicant to argue against her conviction when she was not granted leave for this relief; Michael Wilson v Clement Kuburam (2016) SC1489 referred to.
   
4. The application for review of sentence is dismissed.
   

Cases Cited:

Avia Aihi v The State [1981] PNGLR 81
Ju Maima v The State (2016) SC1504
Manu Kovi v The State (2005) SC789
Michael Wilson v Clement Kuburam (2016) SC1489
William Norris v The State [1079] PNGLR 605

Counsel:

Mr N Hukula, for the Applicant
Ms L Jack, for the Respondent

APPLICATION
This is an application for review of sentence pursuant to s 155(2)(b) of the Constitution.

14^th October, 2022

1. BY THE COURT: The applicant pleaded guilty to a charge of murder pursuant to s 300(1)(a) of the Criminal Code and she was sentenced by the National Court in Waigani on 12 November, 2019 to twelve (12) years imprisonment, less two (2) years eleven (11) months pre-trial custody term, leaving a balance of nine (9) years and one (1) month to serve in light labour.
   
2. The brief facts of the case are that while the applicant and her husband (the deceased) were at their house at Ragamuga No. 2 Settlement, 6 Mile in NCD in the evening of 9 December 2016, they had an argument during which the applicant stabbed the deceased once on the chest with a kitchen knife. The deceased was rushed to the hospital and died sometime later.
   

APPLICATION FOR REVIEW

3. This is an application pursuant to s 155(2)(b) of the Constitution for review of the sentence imposed.
   
4. Pursuant to this provision, this Court has inherent power to review all judicial acts of the National Court. The relevant principles were pronounced in the case of Avia Aihi v The State [1981] PNGLR 81. A person who has lost his right to appeal or leave to appeal may seek to invoke s 155(2)(b). Essentially the Court will exercise its discretionary powers to review the decision of a lower court where it is in the interest of justice to do so, but leave must first be obtained to apply for the review.
   
5. The applicant failed to appeal the National Court decision within the statutory time-limit.
   
6. His Honour Justice Cannings sitting as single Judge of the Supreme Court granted leave for her sentence to be reviewed on 4 March 2022.
   

LEGAL PRINCIPLES

7. In applying for review of a sentence, the applicant is in the same position as a person appealing against the sentence: he must show that the primary Judge either made an identifiable error that has the effect of vitiating the sentence or imposed a sentence that was obviously (not merely arguably) excessive; Ju Maima v The State (2016) SC1504.
   
8. 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 pp612–613. An appellate court will not disturb the discretionary power exercised by a trial court in sentencing. To disturb the sentence, the appellant must show error by the trial judge in the sentencing process. Such error may be identifiable such as 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.
   

SUBMISSIONS

9. The Applicant raised one ground for review of sentence, namely that the sentence of twelve (12) years imposed is manifestly excessive.
   
10. The applicant argued that the primary Judge erred in not placing sufficient weight to the following extenuating circumstances, namely that the applicant acted under provocation (in the non-legal sense) and in the heat of passion, because the stabbing followed her being assaulted and verbally insulted by her husband.
    
11. It was also submitted that while the applicant pleaded guilty to the charge of murder, her confessional statement and her answers in her record of interview do not indicate that she had the requisite intent to cause grievous bodily harm at the time of the stabbing. This therefore tainted her plea of guilty and for this reason, she should have received a lesser sentence.
    
12. The State opposed the application submitting that the primary Judge clearly noted the relevant extenuating matters and properly took them into account in arriving at the sentence imposed. His Honour therefore did not err in the exercise of his sentencing discretion.
    

CONSIDERATION

13. In the National Court, the applicant submitted for a sentence of 12 to 15 years imprisonment as appropriate. She argued then that the case fell into category 1 of the tariffs recommended by the Supreme Court in Manu Koivi v The State (2005) SC789 for the offence of murder. It was urged that a sentence towards the lower end of the range was appropriate.
    
14. The prosecution agreed with that submission.
    
15. After considering the antecedents of the applicant, all relevant mitigating and aggravating factors, and comparative case precedents, the primary Judge imposed twelve (12) years imprisonment – a term consistent with the submissions by counsel.
    
16. We are therefore unable to see how the applicant can justify contending now that the sentence is manifestly excessive.
    
17. Furthermore, we do not accept the argument that the primary Judge did not properly consider the matter of de-facto provocation and that the appellant acted in the heat of passion. In his judgement, his Honour notes these very matters as extenuating circumstances and took them into account (Appeal Book p31:30).
    
18. Regarding the assertion that the applicant’s plea of guilty was tainted, this suggests the plea was wrongly accepted and entered by the primary Judge. The problem with this argument is that the applicant was only granted leave under s 155(2)(b) of the Constitution to have her sentence reviewed, not her conviction. She is not entitled to seek relief other than that approved by the court. It is an abuse of process if processes of the court are improperly used: Michael Wilson v Clement Kuburam (2016) SC1489. We accordingly overrule the submission.
    
19. That apart, we note that the primary Judge in describing the killing stated (Appeal Book p35:2):
    

“... the offence you committed is very serious because you stabbed your husband with a kitchen knife, and that stab wound was to the chest and it finally ended up to wounding the heart. You had some strong thinking of killing or of doing serious bodily harm to your husband”. [Emphasis added]

20. It follows that we find the arguments by the applicant to be without merit. She has not satisfied this court that the primary Judge erred in the exercise of his sentencing discretion and that her sentence is manifestly excessive.
    

ORDERS

(1) The application for review of sentence is refused.
(2) The sentence imposed upon the applicant by the National Court at Waigani on 12 November 2019 is confirmed.

____________________________________________________________________
Office of the Public Solicitor: Lawyers for the Applicant
Office of the Public Prosecutor: Lawyers for the Respondent