SC2733
PAPUA NEW GUINEA
[SUPREME COURT OF JUSTICE]

SCREV NO 31 0F 2022

BARNABAS SOLOMON
Appellant

V

THE STATE
Respondent

ALOTAU: YAGI J, TOLIKEN J, BONA J
23, 25 AUGUST 2022

CRIMINAL LAW – application for review against sentence– whether any identifiable error made by sentencing Judge – whether sentence manifestly excessive – No identifiable error shown – sentence not manifestly excessive – review dismissed.

Cases cited
Belawa v The State [1988-89] PNGLR 496
Gimble v The State [1988-89] PNGLR 271
Aubuku v The State [1987] PNGLR 267
Avia Aihi v The State (No.3) [1982] PNGLR 92
William Norris v The State [1979] PNGLR 605
Konio v The State (2020) SC2122
Michael Mikoro v The State (2015) SC1424
Stanley Sabiu v The State (2007) SC866 
John Vali v The State [2007] PGSC 31; SCRA 61 of 2004
Manu Kovi v The State (2005) SC789
The State v Zachariah Bagari (2016) N6721

Counsel
L Giyomwanauri for the applicant
P Kaluwin for the respondent

JUDGMENT

1.	BY THE COURT: The applicant pleaded guilty to one count of manslaughter before Koeget J on 03rd August 2021 and was sentenced to 13 years imprisonment. 

2.	He did not appeal against his sentence within the stipulated time of 40 days or apply for leave to appeal out of time. However, on 03rd May 2022 he applied in person for leave to review his sentence only.  On 10th May, leave was granted by Cannings J sitting as a single judge of the Supreme Court. His Honour directed, among others, that the Public Solicitor provide legal aid, advise and assist the applicant to file an Application for Review in Form 5B of the Supreme Court Rules. (SCR) These and other orders were duly complied with.
 
Background

3.	The appellant and the deceased, Brian Tauledimo, are from Boselewa Village, Esa’ala District of Milne Bay Province. On the morning of 17th September 2020, at around 8.00 o’clock, the appellant and three other boys were drinking alcohol when a fight broke out between them. The deceased Brian Tauledimo went in to stop the fight and was attempting to remove a spear from the appellant. The appellant tried to have the deceased let go of the spear, but in the process the spear penetrated him on the left chest, and he died as a result. The appellant did not intend to cause the death of the deceased.

Grounds of Appeal

4.	The appellant raised two grounds of appeal. These are –

(a)	The trial judge erred in law whereby not taking into account the strong mitigating factors which would have reflectived in the reduction of the sentence. (Sic.)
(b)	The sentencing judge erred by imposing a sentence that was in the circumstances of the case too excessive.
Relief Sought
5.	The appellant sought the following relief –

(a)	 That the review is allowed
(b)	 The sentence of 13 years is set aside
(c)	A new sentence of 8 years be imposed
(d)	Any other orders this Court deems fit.
Issues

6.	The issues are (1) Whether the primary judge erred by failing to consider strong mitigating factors in favour of the applicant, and (2) whether the sentence imposed was excessive in the circumstances.

The Law 

7.	A sentencing judge has wide discretion which of course must be exercised according to law and on proper principle. Be that as it may, in an appeal or review against sentence, the appellant, must demonstrate that the primary judge made an identifiable error, whether in law or fact, which has the effect of vitiating the sentence. But even where no error is identifiable, an error can be inferred if the sentence is out of all reasonable proportion to the circumstances of the crime. (William Norris v The State [1979] PNGLR 605; Michael Mikoro v The State (2015) SC 1424)

8.	To fully appreciate what is required of an appellant/applicant to convince this Court to disturb a sentence, it is appropriate to quote fully from what Kearney J (as he then was) relevantly stated in William Norris (supra) at pp. 612 and 613-

To succeed in an appeal against sentence an appellant (other than the prosecutor) must persuade this Court that a more lenient sentence should have been imposed; when so persuaded this Court must quash, and substitute the sentence which should have been imposed – s. 22 (4) Supreme Court Act 1975. In practice in order to persuade this Court, an appellant will usually be required to show some error on the part of the trial judge, going to sentence; …  The sentencing power is discretionary judicial power. If no error is shown, this Court is unlikely to interfere with the sentence, because a trial judge is usually in a much better position to assess the proper sentence than is a court of appeal.   
So the question in practice on a sentence appeal is usually this - has the appellant shown that an error occurred which has effect of vitiating the trial judge’s discretion on sentencing? Such an error may be identifiable: thus, the trial judge may have made a mistake as to the facts; or acted on a wrong principle of law; or taken into account matters which he should not have taken into account; or failed to take into account matters which he should have taken into account; or clearly given not enough weight or too much weight to a matter he properly took into account. There will also be vitiating error if upon the proved facts and making the fullest allowance for the advantaged position of the trial judge, the sentence is obviously (and not merely arguably) excessive, although no identifiable error can be shown; for, if a sentence is out of reasonable proportion to the circumstances of the crime, even though no particular error can be identified, this Court will infer that some error must have occurred in the exercise of the sentencing discretion.
9.	With that in mind, we proceed now to consider the grounds of review. 

Ground (a): Whether the primary judge erred by failing to consider strong mitigating factors in favour of the applicant.

10.	The applicant advances two arguments in support of this ground. First, he contends that the primary judge erred by not taking into account the strong mitigating factors in favour of the applicant which would have resulted or justified a much lower sentenced than what was imposed.

11.	If the error imputed against the primary judge is the failure to take into account strong mitigating factors, then the applicant (or appellant for that matter) must set these out with particulars in his application for review or notice of appeal.  It is not sufficient to simply state generally that the primary judge failed to take into account strong mitigating factors. As Kearney J said in Norris v The State (supra. at p. 613) –
Where an identifiable error is relied on as a ground of appeal it should be set out in the notice of appeal, with particulars. An appellant relying upon identifiable error will usually have to show as well that the sentence was manifestly excessive, because otherwise he is unlikely to persuade this Court (as he must, to comply with s. 22 (4) of the Supreme Court Act 1975), that a different sentence should have been passed; this is because there is no precise sentencing tariff.
To state in a notice of appeal as the only ground of appeal, that a sentence is manifestly excessive, when what in truth is relied on is an identifiable error, conceals the question which this Court will be asked to determine.” (underlining supplied)
12.	So, what are these “strong mitigating factors” which the appellant says the primary judge failed to take into account? Apart from stating in his application for review that the primary judge failed to take strong mitigating factors into account, the applicant does not state or give any particulars of what such factors are. His failure to particularize those “strong mitigating factors” could in fact render the application for review incompetent on the basis of what Kearney J said above, which, we agree with. The respondent, however, did not take issue with this apparent defect hence it can be allowed to pass.

13.	That, however, is not the end of the matter. Even in submissions Mr. Giyomwanauri, did not tell the Court what those strong mitigation factors are except to merely repeat the factors which the primary judge duly considered such as nil priors, prior good character, early admissions to police and co-operation thereof, early guilty plea and expression of remorse.   These seem to us to be normal or ordinary mitigating factors which the primary judge clearly took into account and weighed against the aggravating factors such as use of a weapon, prevalence of the offence and the fact that the appellant was intoxicated when he committed the offence. 

14.	Mr. Giyomwanauri submitted that the primary judge clearly overlooked and undervalued the overwhelming mitigating factors in this case and hence fell into error when he imposed the sentence of 13 years. 

15.	In Avia Aihi v The State (No.3) [1982] PNGLR 92, the appellant there advanced a similar argument – that the trial judge, among other things, ignored mitigating factors urged on him in submissions by defence counsel. Kidu CJ rejected this argument and said at p. 97 that “[a] judge does not always, in making remarks on sentence, mention each and every factor for and against an accused person.”

16.	Kearney DCJ then expanded on this saying at pp. 104 and 105  that "... if the sentencing judge does not expressly refer to all the matters urged in mitigation before him, it is not to be inferred that he has not taken them into account; the proper presumption is that he has considered each important matter put before him, and given it due weight, it is for the appellant to show that this did not occur, or that some error was made in the process." (See also Konia v The State (2020) SC2122, and John Vali v The State (2007) PGSC 31; SCRA 61 of 2004).

17.	It is therefore not correct to say that the primary judge overlooked and undervalued what the appellant may have thought were overwhelming mitigating factors which would have justified a lesser sentence. The presumption is that his Honour took these factors into account, and it is for the appellant to show that he did not. The appellant has not shown to us that the primary judge erred in this respect.

18.	The second argument advanced by the appellant in support of ground 1 is that the primary judge failed to set a starting point and set out how the mitigating factors impacted on the head sentence of 13 years which His Honour imposed.

19.	Mr. Giyomwanauri was not able to provide any authority for his argument when pressed by the Court. It is correct to say, however, that some trial judges approach the task of sentencing by fixing a starting point from which a head sentence can be fixed either below or above the starting point depending on the mitigating and aggravating factors or an offender’s degree of participation in the case of multiple offenders for instance. Indeed, in cases of sexual penetration of a child under the age of 12 years, this Court in Stanley Sabiu v The State (2007) SC 866 suggested a starting point of 15 years. This may be seen as the Court adopting the tariff system which is used in some Commonwealth jurisdictions such as the United Kingdom where sentencing guidelines are fixed by the UK Sentencing Council. (www.sentencingcouncil,org.uk) The guidelines require the sentencing court to fix starting points among other things. 

20.	We do not have such a system, but the Supreme Court has over the years espoused general sentencing guidelines for offences of dishonesty, robbery, rape and homicides for instance. (Belawa v The State [1988 – 89] PNGLR 496; Gimble v The State [1988 – 1989] PNGLR 271; Aubuku v The State [1987] PNGLR 267; Manu Kovi v The State (2005) SC 789) Rather than provide for starting points, these guidelines provide for ranges within which appropriate sentences may be imposed. Other than that, a sentencing judge, is imbued with a wide discretion. He may fix a starting point or simply impose a sentence within the range suggested in the Supreme Court guideline.

21.	In the appellant’s case the primary judge agreed with both counsel at the trial that the circumstances of the case placed it within Category 2 of the Manu Kovi guidelines which should attract a sentence between 13 – 16 years. Was the trial judge required to fix a starting point? No, he was not, even though he could have chosen to do so. Rather, after considering the mitigating and aggravating factors, his Honour determined that a sentence at the bottom of the suggested range – 13 years – meet the justice of the case.

22.	It is true that a sentencing judge must, when exercising his discretion, consider all relevant mitigating and aggravating factors and extenuating circumstances as this Court held in Steven Loke & Ors v The State (2006) 836, It is also true that a sentencing judge must act judiciously. He must not act perfunctorily but approach his task with the seriousness it deserves because his decision will have a serious effect on the offender’s life and liberty, and further so that justice may not miscarry.

23.	Be that as it may, we find that the sentence imposed by the primary judge was within the range suggested in Manu Kovi. It is to be noted that Mr. Wallis, the applicant’s lawyer at trial in fact submitted for a sentence within that range. Mr. Wallis also cited the case of The State v Zachariah Bagari (2016) N6721, where the offender killed his victim in similar circumstances and was sentenced to 16 years. His Honour could have easily followed Bagari but chose not to. Rather he opted to impose a sentence at the bottom of Category 2 of Manu Kovi. Indeed, the applicant is fortunate he did not get 16 years.

24.	We find no identifiable error in the primary judge’s exercise of discretion when sentencing the applicant to 13 years imprisonment. The sentence is not out of reasonable proportion to the circumstances under which the offence was committed; hence we cannot infer that an error may have occurred, nonetheless.

25.	We therefore agree with the Public Prosecutor Mr. Kaluwin that this ground of appeal has no merit and must be dismissed.

Ground 2:	Whether the sentence was manifestly excessive

26.	Where it is contended that a sentence is manifestly excessive, the real question for the Court to determine is whether an identifiable error has been shown. (Norris v The State (supra) per Kearney J)

27.	In other words, the question of whether or not the sentence is manifestly excessive only becomes relevant if an appellant or applicant has demonstrated an identifiable error, whether in law or fact, by the sentencing judge in exercising his sentencing discretion. It cannot stand alone as a ground of appeal against sentence. It is not an end to itself, as it were. 

28.	The applicant in this case has failed convince us that the primary judge had erred in exercising his sentencing discretion. He has not demonstrated an identifiable error in the exercise of discretion by the primary judge. Therefore, the review must fail in its entirety and must be dismissed.

Orders

1.	The review is dismissed.

2.	The sentence of the National Court dated 03th August 2021 is affirmed.

Ordered accordingly.

________________________________________________________________
Lawyer for the appellant:		The Public Solicitor
Lawyer for the respondent:	The Public Prosecutor