Hetinu v State [2023] PGSC 110; SC2457 (5 September 2023)

SC2457

PAPUA NEW GUINEA
[IN THE SUPREME COURT OF JUSTICE]

SCREV NO 41 OF 2023

TERENCE HETINU
Applicant

V

THE STATE
Respondent

Waigani: Cannings J
2023: 15^th August, 5^th September

CRIMINAL LAW – sentences – application to Supreme Court for leave to apply for review of sentence passed by National Court – Constitution, s155(2)(b) – considerations relevant to determination of leave application.

A prisoner who was sentenced to seven years imprisonment by the National Court and recently had his appeal against conviction dismissed by the Supreme Court, applied to a single Judge of the Supreme Court for leave to apply under s 155(2)(b) of the Constitution for review of the sentence.

Held:

(1) An application for leave for review under s 155(2)(b) of the Constitution may be heard and determined by a single Judge of the Supreme Court.

(2) When deciding whether to grant leave, three criteria, all of which should support the grant of leave, are considered: (i) whether it is in the interests of justice to grant leave; (ii) whether there are cogent and convincing reasons and exceptional circumstances, eg some substantial injustice is manifest or the case is of special gravity; and (iii) whether there are clear legal grounds meriting a review of the decision.

(3) It is not in the interests of justice to allow prisoners to file challenges against their conviction and sentence in a piecemeal manner. Prisoners should be encouraged to file their application for leave to appeal against sentence at the time of filing their appeal against conviction, or at least within 40 days after sentence. It is not a good practice to allow appeals against conviction to be heard and determined and then to allow prisoners whose appeals against conviction are unsuccessful to file separate proceedings to challenge their sentence.

(4) There are no cogent and convincing reasons for granting leave. There are no exceptional circumstances. Leave refused.

Cases Cited

The following cases are cited in the judgment:

Bob v The State (2005) SC808
Hetinu v The State SCRA 39 of 2023, 31.03.23, unreported
The State v Gamato & Hetinu (2021) N9250
The State v Hetinu (2011) N4381

Counsel

T Hetinu, the applicant, in person
T Kametan, for the Respondent

5^th September 2023

1. CANNINGS J: Terence Hetinu is a prisoner at Bomana Correctional Institution serving a sentence of seven years imprisonment. He was convicted of one count of official corruption under s 87(1)(a)(i) and (ii) of the Criminal Code after a trial at Waigani before Berrigan J in 2021 (The State v Gamato & Hetinu (2021) N9250).

2. He was sentenced on 29 April 2022 to the maximum term of imprisonment of seven years. Her Honour found that it was a case of official corruption of the worst kind, that the offending involved a gross breach of trust, that the applicant corruptly received monies for the purpose of rigging an election (for the seat of National Capital District in the 2017 general election) in the course of his duties as election manager and that his conduct struck at the heart of democracy. Her Honour did not impose a fine. There was no suspension of any part of the sentence (The State v Hetinu (2011) N4381).

3. His appeal to the Supreme Court against conviction was dismissed on 31 March 2023 in a unanimous decision of the Supreme Court (Salika CJ, Hartshorn J, Bona J) (Hetinu v The State SCRA 39 of 2023, 31.03.23, unreported).

4. Curiously the Supreme Court ordered that the applicant’s appeal against sentence was also dismissed. However, it seems that that was an error as there was no appeal against sentence before the Court. The applicant had not sought leave to appeal against sentence; nor did he purport to appeal against sentence. I will therefore for present purposes disregard that part of the judgment and order of the Supreme Court relating to sentence.

5. On 1 May 2023 he filed an application in the Supreme Court for leave to review the sentence of seven years imprisonment. He claims that he lodged an appeal against sentence “through the correctional officers on duty” within 40 days after sentence. However, there is no evidence in support of that claim and I disregard it.

6. He submits that there are extenuating circumstances warranting the grant of leave, which he explains in his written submission:

1. It remained disputed as to the allegation of the applicant receiving money from Michael Kandiu as alleged. There was no evidence directly showing the applicant corruptly receiving money from Michael Kandiu.
   
2. The circumstances surrounding the memorandum of understanding is far too remote to establish that the signature was that of the applicant.
   
3. The investigation was never completed as confirmed by the State in the appeal on conviction rendering the applicant less blameworthy.
   
4. The trial judge failed to consider that it has remained speculative that the applicant had corruptly received in the form of a contract for himself when there was no clear evidence to prove such.
   
5. The case was properly made out for the trial judge but was given little to no weight. The sentence of four years would be just and fair.
   

7. The question before me is whether he should be granted leave to have his seven-year sentence reviewed by the Supreme Court. It is an application for leave to apply for review under s 155(2)(b) of the Constitution of the decision of the National Court to pass that sentence. Section 155(2)(b) states:

The Supreme Court ... has an inherent power to review all judicial acts of the National Court.

8. If there is a right to appeal or seek leave to appeal against any decision of the National Court that has not been exercised the person aggrieved by the decision can only have it reviewed by the Supreme Court with leave of the Court.

9. An application for leave is heard and determined by a single Judge in accordance with Order 5 rule 3 of the Supreme Court Rules 2012. I am satisfied that the present application for leave is properly before me.

CRITERIA

10. It has been spelt out in a long series of decisions that in deciding whether to grant leave for review by the Supreme Court of a National Court decision (whether made in the civil jurisdiction of the National Court or as here in its criminal jurisdiction), there are three criteria to consider, all of which should support the grant of leave:

(i) whether it is in the interests of justice to grant leave;

(ii) whether there are cogent and convincing reasons and exceptional circumstances, eg some substantial injustice is manifest or the case is of special gravity; and

(iii) whether there are clear legal grounds meriting a review of the decision.

11. As to cogent and convincing reasons for granting leave, it is relevant to consider the reasons for not filing an appeal within time and the merits of the case sought to be argued (see Mark Bob v The State (2005) SC808).

DETERMINATION

12. I do not consider that it is in interests of justice to grant leave as the applicant did not exercise his right to seek leave to appeal against sentence, which he had to exercise within 40 days after the date of sentence, 29 April 2022 (see Supreme Court Act ss 22(d), 29(1) and Mark Bob v The State (2005) SC808).

13. One year passed after the sentence was delivered before the applicant filed his application for leave, which he is now making, including one month after the Supreme Court delivered its decision dismissing his appeal against conviction.

14. I can see he might have been confused by the Supreme Court stating that his appeal against sentence was dismissed, when he had not appealed against his sentence. However, the fact remains he left it for a year to take any steps to have his sentence reviewed.

15. It is not in the interests of justice to allow prisoners to file challenges against their conviction and sentence in a piecemeal manner. Prisoners should be encouraged to file their application for leave to appeal against sentence at the time of filing their appeal against conviction, or at least within 40 days after sentence. It is not a good practice to allow appeals against conviction to be heard and determined and then to allow prisoners whose appeals against conviction are unsuccessful to file separate proceedings to challenge their sentence.

16. Having said that, each prisoner’s application for leave must be considered on its merits. I am conscious of the applicant’s claim that he did attempt to lodge an application for leave to appeal against the sentence within 40 days after the sentence was handed down. But I reiterate: there was no evidence in support of that claim, so I reject it.

17. There are no cogent and convincing reasons for granting leave. The applicant has provided no good reason for not applying for leave to appeal within the time provided by law. There are no exceptional circumstances. He is unable to point to any substantial injustice. He is serving a seven-year sentence as he was convicted of a serious offence. The sentencing Judge gave clear and coherent reasons for imposing the maximum term of imprisonment. The chances of the applicant being given a lesser sentence on review are remote.

18. There are no clear legal grounds warranting a review of his sentence. All the matters he wishes to raise before the Supreme Court in his list of extenuating circumstances are matters relevant to his conviction rather than his sentence. Leave must be refused.

ORDER

1. Leave to apply for review under s 155(2)(b) of the Constitution of the sentence of seven years imprisonment passed by the National Court on 29 April 2022 is refused.
   
2. The file is closed.

_____________________________________________________________
Public Prosecutor: Lawyer for the Respondent