Pera v State [2022] PGSC 93; SC2279 (19 August 2022)

SC2279

PAPUA NEW GUINEA
[IN THE SUPREME COURT OF JUSTICE]

SCREV NO. 14 OF 2020

BETWEEN:
VELMA PERA
Applicant

V

THE STATE
Respondent

Waigani: Salika CJ, Mogish J, Anis J
2022: 28^th June & 19^th August

SUBSTANTIVE REVIEW – Section 155(2)(b) of the Constitution - Substantive review after earlier grant of leave – review against sentence of 15 years imposed for murder under s 300(1)(a) of the Criminal Code – applicant separated from her friend or husband – applicant promised compensation for separation – compensation not paid – applicant visited her former friend or husband unannounced or uninvited – applicant sees a bilum in her former friend/husband’s room and sees ID photo of deceased in the bilum – applicant finds deceased at the laundry area of the house – applicant stabs deceased on her back shoulder – deceased died from the stab wound – applicant pleaded guilty to the offence of murder - whether trial judge committed identifiable error – regardless, whether the sentence was obviously excessive – consideration – exercise of discretion – s 19(1)(a) and (d) of the Criminal Code

Cases Cited:

Jonathan Kumba v. Kuk Kuli [2000] PNGLR 173
Stephen Ambo (Deceased) by his next of kin Sakaire Ambo & Ors -v- Ame Lawyers (2012) SC1195
William Norris v The State [1979] PNGLR 605
Manu Kovi v The State (2005) SC789
Avia Aihi v. The State [1981] PNGLR 81
State v. Toka Enterprises Ltd (2018) SC1746
Robert Solomon v The State (2007) SC871
State v Peter (2000) N1973
Thress Kumbamong v The State (2008) SC1017

Counsel:

L Siminji, for the Applicant
R Luman, for the Respondent

19^th August, 2022

1. BY THE COURT: This is the substantive review hearing on sentence of the above matter. Leave for review was required (s 22(d) of the Supreme Court Act) and was granted on 14 March 2022.

BACKGROUND

2. The applicant was indicted to stand trial on a charge of one count of murder under s 300(1)(a) of the Criminal Code Chapter 262 (the Criminal Code) on 5 November 2019. The applicant pleaded guilty to the charge on the same day. On 9 December 2019, the trial Court handed down its sentence in an extempore decision. The trial Judge imposed a sentence of 15 years imprisonment in hard labour for the offence of murder less the pre-sentence custody period. The pre-sentence period was 1 year 3 months and 1 week. The applicant was left to serve 13 years 8 months and 3 weeks, on 9 December 2019.

3. The brief facts which the applicant pleaded guilty to may be summarized as follows. The applicant and this man Taylor Mark had a de facto relationship. Taylor Mark had also been previously married and had children in the said past marriage. The relationship between the applicant and Taylor Mark did not last for long. They did not have any children. They both separated and lived separate lives before the time of the offence. The murdered victim was Dian Pawa Maka (deceased). She was 24 years old at the time of her death. The murder occurred at Taylor Mark’s residence at Gordons in Port Moresby. On the day of the murder, which was on 1 September 2018, the applicant decided to visit Taylor Mark’s residence unannounced, that is, at the time of their separation. It was in the morning between 10am and 11am. At Taylor Mark’s residence, the applicant met Taylor Mark’s younger sister. She asked the sister where Taylor Mark was. When the applicant was told that Taylor Mark was not at home, she did not leave but instead proceeded into Taylor Mark’s bedroom. There she saw a bilum. Upon inspecting its content, she discovered an ID card that belonged to the deceased. The applicant searched for the deceased and met her outside the house at the laundry area. The applicant picked up a saw edge knife on a table nearby and used it to stab the deceased on her left shoulder. The deceased fell to the ground. The stab was fatal because the deceased was pronounced dead on arrival at the Port Moresby General Hospital.

GROUNDS FOR REVIEW

4. The applicant pleads 2 grounds of review to say why she thinks the trial Judge erred when he exercised his discretion and sentenced her to 15 years imprisonment. They are:

1. The learned trial judge erred in when he failed to take into consideration the past physical and psychological abuse inflicted on the applicant by her ex-husband;
   
2. The learned trial judge fell into error in sentencing the applicant to 15 years imprisonment and not properly taking into consideration the applicant’s own peculiar set of facts and circumstances to the applicant’s case.
   

SECTION 155(2)(b) - REVIEW

5. Section 155(2)(b) reads, The Supreme Court – ......has an inherent power to review all judicial acts of the National Court.

6. This Court has an unfettered discretion to hear a sentence review. See case: Jonathan Kumba v. Kuk Kuli [2000] PNGLR 173. Once leave is granted, like in this case, the Court’s unfettered discretion can then be exercised to review the judicial acts as alleged by an applicant(s) under the grounds of review. As this Court had earlier stated in Stephen Ambo (Deceased) by his next of kin Sakaire Ambo & Ors -v- Ame Lawyers (2012) SC1195:

The review jurisdiction of the Supreme Court is available to quash a decision of the National Court where the National Court has made a mistake, the Supreme Court can correct that mistake either by appeal, or in this case, by review, through the exercise of its inherent powers under s.155 (2) (b) of Constitution. (See Application of Herowa Agiwa [1993] PNGLR 136).

ISSUE

7. In the present case, the review is against the decision of the trial Judge on sentence. Decisions on sentences are discretionary matters. As such and in the present matter, it will come down to the question of whether the trial Judge erred in the exercise of his discretion when he sentenced the applicant to serve 15 years imprisonment in hard labour.

PAST PHYSICAL AND PSYCHOLOGICAL ABUSE

8. We address the first ground, and in so doing, refer to the decision of the trial Judge on sentence in general. It commences at pp 39 of the Review Book (RB) and reads:

Exactly 1 year, 3 months, 1 week. All right, Velma Pera, stand up, please. Look, you had a difficult time with your husband. I have seen the report from the probation officer. I also read your note that you attached with the probation officer and you talked about miscarriages, you talked about his cheating you – then he decided to leave you and then he was expected to pay compensation which he did not. That is the summary of everything that went on between you and your ex-husband. The deceased is a young graduate from university. You also went to university and you will understand that she did not contribute into most of your problems with your ex-husband.

9. In our view, although the decision appeared brief in general, the trial expressly stated and summarized the difficulties that the applicant had had with her ‘ex-husband’ that could have or had contributed towards her actions in killing the deceased. His Honour also referred to the report by the probation officer. His Honour also highlighted the written note that the applicant had attached with the probation report regarding her miscarriages; regarding her ex-husband cheating her; regarding her ex-husband deciding to leave her; and regarding her ex-husband promising or expecting to pay her compensation where he had not.

10. These information were also presented through submissions by her counsel. And the trial Judge, in our view, had privy to them prior to or before he exercised his discretion and sentenced the applicant to 15 years. It is apparent that what is alleged under the first ground of review is in fact contrary to the actual facts as revealed in the transcript of proceedings. We therefore dismiss this ground as baseless.

PECULIAR SET OF FACTS AND CIRCUMSTANCES TO THE APPLICANT’S CASE

11. We turn to the second ground of review. The ground appears similar to the first ground. If we ask ourselves what the peculiar set of facts may be which were special that the trial Judge should have taken into account, we will arrive at the same facts or circumstances that were relied upon by the applicant under the first ground of review.

12. Regardless, we make this observation. The only other peculiar facts we see which should require mentioning herein are as follows. The de facto relationship between the applicant and Taylor Mark ended and they were living apart or separately. Taylor Mark did not invite the applicant over to his house at the material time. She therefore had no right or had not sought any permission, to enter Taylor Mark’s residence. The applicant gate crashed unannounced, so to speak, into Taylor Mark’s residence. She invited herself or trespassed into the property. There, she decided to conduct herself aggressively, again, on her own accord. She entered the premises uninvited, searched the bilum of the deceased without her permission; she found an ID photograph of the deceased; it made her angry and she went on to commit the offence. And the trial Judge, in our view, accurately summarized that when he said (at line 10, pp 40), You placed yourself in a situation where you would not control yourself. Therefore, any provocation in the non-legal sense would have been reduced or substantially discounted by her own actions on that day.

13. Now, the applicant’s claim that the trial Judge had used his own experience which could have somewhat ‘clouded’ his judgment on sentence, is noted. However, and in our view, this would have had little or no impact, given the amount of discount or reduced sentence that was imposed on the applicant, as we will further explain below.

14. The second ground of review appears as a repeat of the first. It must therefore be dismissed as well, and we do so accordingly.

WHETHER SENTENCE OBVIOUSLY EXCESSIVE

15. Moving on, we ask ourselves whether the imposed sentence of 15 years by the trial Judge may be termed as “obviously excessive.”

16. We begin by referring to this Court’s decision in William Norris v The State [1979] PNGLR 605. Kearney J addressed, amongst others, (i) a trial Court’s power in sentencing and, (ii), the appeal or review Court’s power to overrule a sentence regardless of its findings on the grounds of appeal or review where the sentence is ‘obviously excessive’. The case is relevant as it was relied upon by the applicant to make her alternative or final submissions, to this Court.

17. Kearney J stated therein, and we quote in part:

......The sentencing power is a discretionary judicial power. If no such error is shown, this Court is unlikely to interfere with the sentence, because a trial judge is usually in a much better position to access 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 the 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.

[Underlining mine].

18. The applicant submits that her sentence of 15 years was obviously excessive, and therefore, that it should be reduced to 12 years.

19. The offence the applicant was found guilty of was murder under s300(1)(a) of the Criminal Code. The section reads:

300. Murder.

(1) Subject to the succeeding provisions of this Code, a person who kills another person under any of the following circumstances is guilty of murder:—

(a) if the offender intended to do grievous bodily harm to the person killed or to some other person; or

......

Penalty: Subject to Section 19, imprisonment for life.

20. The maximum sentence for the offence of murder is life imprisonment. In this case, the trial Judge sentenced the applicant to 15 years imprisonment in hard labour. Was the sentence ‘obviously excessive’? In our view, we would say at the outset that a sentence of 15 years for a crime of murder is in itself a minimal sentence, that is, in view of its seriousness as an indictable offence, and of the fact that it carries a maximum penalty of life imprisonment.

21. The applicant had pleaded guilty to the offence. It was her first offence. She had also cooperated with the police at the time of her incarceration. These were all taken into account by the trial Judge at the sentence hearing. The peculiar circumstances of the applicant’s case, which were stated in the grounds of review, were also considered by the trial Judge.

22. Counsel for the applicant before the trial Court, had referred to relevant case authorities to argue the type of or appropriate sentences, that may be imposed upon the applicant. The relevant guiding case referred to was the case of Manu Kovi v The State (2005) SC789. The applicable sentencing range category for murder that may be applied to the present case, based on the formulated scale created in Manu Kovi, would be the sentencing range stipulated under category 2. The sentencing range therein for murder is between 16 and 20 years. When we compare that with the present case, we note that the 15 years sentence that was imposed on the applicant, is actually below the range for category 2 type offence for murder. The trial Judge also reduced the sentence further to 13 years after discounting the pre-sentencing period.

23. The exercise of power in this regard, as stated, is discretionary. The trial Judge had the said discretion which is stated under the case law, but more importantly, under statute law and in particular, s 19(1)(a) of the Criminal Code. Section 19(1)(a) reads:

1) In the construction of this Code, it is to be taken that, except when it is otherwise expressly provided–

...

(a) a person liable to imprisonment for life or for any other period, may be sentenced to imprisonment for any shorter term; and

......

24. So, in a sentence review, the paramount consideration is whether there was an obvious error(s) committed by the trial Judge in the exercise of his or her discretion that, if taken into account or otherwise, may see the sentence being reduced or increased accordingly. The other consideration is as highlighted by Kearney J in William Norris where the sentence may be regarded as ‘obviously excessive’.

25. The applicant also relied on this Court’s decision in Robert Solomon v The State (2007) SC871. The Supreme Court stated at para 9 as follows:

To determine whether the trial judge has erred in the exercise of her discretion requires a consideration of previous sentences that have been imposed for this category of offence.

26. The applicant, in this regard, referred to a similar case, namely, State v Peter (2000) N1973. In that case, the prisoner, who was the 2^nd wife, pleaded guilty to killing the 3^rd wife by stabbing her twice whilst she was asleep, in what was a polygamous marriage. She was sentenced to 12 years imprisonment. The applicant submitted that the case should have been followed, the tariff applied, and she should have been sentenced to 12 years instead of 15 years.

27. We agree that the trial Judge could have applied the same or similar sentence as submitted by the applicant. And we also agreed that the trial Judge did not follow the same sentence tariff. That said, we, however, do not see any obvious error committed by the trial Judge. We also do not find the sentence of 15 years to be or as ‘obviously excessive’. Quite to the contrary, we find the sentence imposed to be more favourable towards the applicant. The trial Judge applied a sentence that was below the range as specified under Category 2 in Manu Kovi. But that was something that was entirely within his discretion to do so, that is, within his powers under s 19(1) of the Criminal Code. The trial Judge was also not bound to strictly follow similar case authorities although they may assist him reach a reasonable or fitting punishment for the applicant.

28. As for this Court’s decision in Robert Solomon, with respect and similarly like Manu Kovi, does not override the sentencing Judge’s discretionary power that is bestowed upon him by statute, namely, under s 19 of the Criminal Code. A primary Judge always retains this sentencing discretion. This was highlighted by this Court in the case, Thress Kumbamong v The State (2008) SC1017.

SUMMARY

29. This review shall fail, and therefore must be dismissed.

ORDERS OF THE COURT:

30. We dismiss this review, and in so doing, affirm the sentence imposed by the trial Judge on 9 December 2019.
________________________________________________________________
Public Solicitor: Lawyers for the Applicant
Public Prosecutor: Lawyers for the Respondent