Bellie v State [2022] PGSC 130; SC2325 (24 November 2022)

SC2325

PAPUA NEW GUINEA
[IN THE SUPREME COURT OF JUSTICE]

SCRA NO 23 OF 2022

BETWEEN
GEORGE BELLIE
Appellant

AND
THE STATE
Respondent

Kimbe: Makail, Anis & Numapo JJ
2022: 22^nd & 24^th November

SUPREME COURT – Appeal against sentence – Severity of sentence – 23 years term of imprisonment – Murder – Mitigating and aggravating factors – Killing in a domestic setting – Stabbing of deceased on abdomen – Use of knife – Whether advanced age was considered an aggravating factor – Plea of mitigation on allocutus – Remorsefulness – Criminal Code – Sections 19, 300(1)(a) & 593

Cases Cited:

Manu Kovi v. The State (2005) SC789
Thress Kumbamong v. The State (2008) SC1017
The State v. Bafe Quati [1990] PNGLR 57
William Norris v. The State [1979] PNGLR 605

Counsel:

Ms. J. Bibilo, for Appellant
Mr. A. Bray, for Respondent

JUDGMENT

24^th November, 2022

1. BY THE COURT: This is an appeal against severity of sentence of 23 years term of imprisonment for murder under Section 300(1)(a) of the Criminal Code.

Brief Facts

2. The appellant was convicted after a trial on the following facts, between 8 and 9 o’clock on the night of 29^th August 2020 the appellant and the deceased were returning home after a night out with their neighbours when the appellant assaulted the deceased for greeting a group of boys. The neighbours intervened and stopped the appellant and he left ahead of the deceased for the house.

3. The deceased followed thereafter and when she arrived at the house, the appellant armed with a knife, stabbed her twice on her abdomen. She was rushed to the hospital but died a week later.

Grounds of Appeal

4. Out of the four grounds of appeal, the appellant took up two. The other two were abandoned. For the grounds that were taken up, the appellant conceded that the sentence of 23 years term of imprisonment was within the range of sentences in the case of Manu Kovi v. The State (2005) SC789.

5. However, according to the case of Thress Kumbamong v. The State (2008) SC1017, the Court is not bound to apply the sentencing guidelines in the Manu Kovi case (supra) because the Court is conferred discretion under Section 19 of the Criminal Code to impose a lesser sentence based on the facts of each case.

6. The appellant’s submission correctly sums up the sentencing discretion conferred on a judge to impose a lesser penalty under Section 19 of the Criminal Code and at the same time acknowledging that the offence of murder carries a maximum penalty of life imprisonment.

7. In a case where parties agree that the facts of the case identify mitigating and aggravating factors which fall within a certain sentencing range and a sentence is imposed within that sentencing range, parties are bound by their agreement, but the Supreme Court has an overriding duty to ensure that the sentence is not manifestly excessive. The onus is on the appellant to demonstrate that there has been an identifiable error which has the effect of vitiating the trial judge’s discretion on sentence: William Norris v. The State [1979] PNGLR 605.

Mitigating Factors

8. In this case, the appellant conceded that while the sentence of 23 years term of imprisonment was within the range of 20 and 30 years, a sentence between 16 and 20 years was appropriate because of number of mitigating factors which the learned trial judge gave no consideration. These were:

• He was a first-time offender.
• There was a degree of provocation because the deceased greeted a group of boys.
• He apologised and was remorseful.
• He lost all his properties after he fled the crime scene.
  

9. Secondly, the learned trial judge held that the appellant’s age of 54 years old constituted an aggravating factor and finally, the learned trial judge rejected his plea of remorsefulness and leniency on his allocutus.

Advanced Age

10. As to advanced age, the appellant referred to a series of statements by the learned trial judge that “He is a very matured man aged 54 years old. That has not schooled him in life it appears”; “......for a man of his age, 54 years old, he did not demonstrate wisdom”; “She was 49 years, you were 54 and you thought badly about her and therefore the fights that erupted”; and “Because you were 54 years old and when you go grey they say you come with wisdom but it seems you do not have that on you,” and contended that by these series of statements the learned trial judge considered his age as an aggravating factor instead of a factor operating in his favour to mitigate the severity of the offence. Consequently, it influenced the learned trial judge to impose a higher sentence.

11. However, the Court notes that the appellant did not rely on advanced age as one of the mitigating factors in his address on sentence in the trial Court. For this reason, the Court is of the view that the appellant did not give the learned trial judge the opportunity to consider it in his consideration of an appropriate sentence.

12. On the other hand, the Court is of the view that the appellant’s contention is misconceived because the statements by the learned trial judge in relation to his age have been taken out of context. To appreciate the context in which they were made, the learned trial judge was stressing the point that as the appellant was 54 years old, he was an adult. This in turn meant that he was supposed to be matured and wise in his conduct, especially when resolving a domestic dispute between him and the deceased. Resorting to violence was not the way an adult like him should behave. In essence, the appellant’s conduct did not befit a 54-years old man and made the circumstances surrounding the death of the deceased much more serious.

Remorsefulness

13. The appellant contended that the learned trial judge gave no consideration to his statement on his allocutus. Learned counsel for the appellant referred to Section 593 of the Criminal Code and the case of The State v. Bafe Quati [1990] PNGLR 57 to reinforce the significance of an allocutus, in that, a sentencing judge must have regard to matters expressed by a prisoner during allocutus. She contended that the phrase “......why sentence should not be passed on him” in Section 593 refers a prisoner who is under no obligation to response but may do so by way of a plea in mitigation. For these reasons, even though he expressed remorse and asked for a suspended sentence with good behaviour bond, the learned trial judge gave no consideration to it.

14. The Court notes the appellant’s apology and expression of remorsefulness. He pleaded for leniency and asked his family and the learned trial judge to have mercy on him. He informed the learned trial judge that he has children in school, that he is the sole caregiver to them and that he had a block of land to tend.

Aggravating Factors

15. Against the mitigating factors is the presence of aggravating factors. The learned trial judge extensively covered the aggravating factors in his judgment. First, it was a trial. Secondly, this was a case where the killing occurred in a domestic setting. Thirdly, it was vicious because the appellant stabbed the deceased twice in her abdomen. Fourthly, a weapon (knife) was used. Fifthly, he stabbed the deceased on a vulnerable part of the body (abdomen). Sixthly, the deceased was unarmed and defenceless and finally, there was some pre-planning because the appellant went ahead of the deceased to the house after he assaulted her and when she arrived, he attacked her.

16. Furthermore, it was not a case of de facto provocation which would militate against the seriousness of the offence but one of jealousy by one spouse over another because the appellant resented the deceased’s flattering gesture towards a group of boys that night. Add to that is the overriding consideration of the prevalence of the offence and its negative impact on the society.

17. The Court agrees with the learned counsel for the respondent that the learned trial judge considered the mitigating factors mentioned by the appellant but given the presence of the aggravating factors, the appellant’s apology and remorse, his plea as sole caregiver to his children and property including loss of property after the commission of the offence were outweighed by the aggravating factors. Consequently, the Court further agrees with the learned trial judge that such a case would attract a sentence within the range of 20 to 30 years term of imprisonment. Furthermore, in all the circumstances, a wholly or partly suspended sentence would not be justified.

Conclusion

18. This Court will intervene and set aside a sentence imposed by a trial Court where “........there is an identifiable error which has the effect of vitiating the trial Judge’s discretion on sentence”: see William Norris v. The State [1979] PNGLR 605.

19. The Court concludes that the appellant has failed to establish any identifiable errors which has the effect of vitiating the learned trial judge’s decision to impose the sentence of 23 years term of imprisonment. The appeal is dismissed, and the sentence of 23 years term of imprisonment is affirmed.

Order

20. The orders are:

1. The appeal against sentence is dismissed.
   
2. The sentence of 23 years term of imprisonment is affirmed.

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Public Solicitor: Lawyers for Appellant
Public Prosecutor: Lawyers for Respondent