Ivaninga v State [2023] PGSC 164; SC2512 (11 December 2023)

SC2512

PAPUA NEW GUINEA
[IN THE SUPREME COURT OF JUSTICE]

SCREV NO. 116 OF 2017

BETWEEN
KEVIN MOSES IVANINGA
Applicant

AND
THE STATE
Respondent

Mt Hagen: Manuhu J, Toliken J & Lindsay J
2021: 27^th September
2023: 11^th December

CRIMINAL LAW – application for leave to review sentences – applicant committed for trial on two counts of willful murder – guilty pleas for murder after plea bargaining – sentences of life imprisonment and 50 years – Criminal Code, s 300 (1)(a).

REVIEW - delay in applying for leave – whether reasons for 4 years delay is reasonable – reference to intention to kill in judgment by trial judge – whether a cogent and convincing reason to warrant grant of leave to review –Constitution, s 155 (2)(b); Supreme Court Act, s 29.

REVIEW – repeated reference to intention to kill – whether trial judge erred – whether sentences were manifestly excessive.

Facts

The Applicant was committed to stand trial for two counts of willful murder. After plea bargaining these were reduced to murder. He pleaded guilty to both counts. The agreed facts showed that he directly killed one of victims. The other victim was killed by his co-accused or accomplice. He was sentenced to life imprisonment and 50 years respectively. In passing sentence, the trial judge repeatedly referred to an intention to kill which he said was open to him from the depositions.

The Appellant did not appeal or apply for extension of time to appeal. After 4 years and 4 days he filled an application for leave for review pursuant to Section 155(2)(b) of the Constitution. He argued that the trial judge erred when he repeatedly referred to an intention to kill in his judgment which resulted in sentences which were manifestly excessive in the circumstances.

Held

(1) The delay of 4 years and 4 days to apply for leave for review was inordinate and the reasons for the delay are not reasonable.
(2) The trial judge’s repeated reference to an intention to kill in sentencing the Applicant for two counts of murder justifies grant of leave.
(3) Where it appears from the depositions that an offender ought to have been indicted for a more serious charge, the sentencing judge must exercise judicial tact and restraint. He must be wary and circumspect about what he says so as not to go outside and beyond the facts to which the offender pleaded. His reading of the deposition may reveal that the offender would have easily been indicted for a more serious offence and he would entirely be within his discretion to say so. However, facts that justify a more serious charge should normally be treated as serious aggravating factors only.
(4) On a plea matter where after a plea bargain the offender pleaded guilty to the lesser charge of murder, as was in this case, it is not open to the sentencing judge to draw inferences of fact which the offender did not plead guilty to on arraignment let alone draw conclusions of law as one would do in a trial. He is confined to the admitted facts and must sentence the offender on those facts. To go beyond these and pronounce that the offender manifested an intention or intended to kill as was the case here would constitute an error and a reasonable inference can be drawn that his judgment was clouded thus vitiating his sentencing discretion. We find that the trial judge fell into an identifiable error.
(5) Despite finding that the trial judge fell into error, we do not find the sentences imposed on the Applicant manifestly excessive in the circumstances.
(6) Appeal dismissed and the sentences imposed by the National Court are affirmed.

Cases Cited:
Lawrence Simbe v The State [1994] PNGLR 38
Gimble v The State [1988-89] PNGLR 271
Acting Public Prosecutor v Nitak Mangilonde Taganis [1982] PNGLR 299
Avia Aihi v The State (No.3) [1982] PNGLR 92
Avia Aihi v The State (No.1) [1981] PNGLR 81
Goli Golu v The State [1979] PNGLR 653
William Norris v The State [1979] PNGLR 605
Stephanie Konia v The State (2020) SC2122
Mai v The State (2015) SC1462
In Re Application of Maddison (2009) SC984
John Vali v The State (2007) PGSC 31; SCRA No.61 of 2004
Pomaloh v The State (2006) SC834
Saperus Yalibakut v The State (2006) SC890
Bob v The State (2005) SC808
Manu Kovi v The State (2005) SC789

Counsel:
J F Unua, for the Applicant
D Kuvi, for the State

JUDGMENT

11^th December 2023

1. BY THE COURT: INTRODUCTION: On 18 May 2012, the Applicant Kevin Moses pleaded guilty before his Honour Kandakasi J (as he then was) for two counts of murder pursuant to Section 300 (1)(a) of the Criminal Code. On 26 November 2013, his Honour sentenced the Applicant to life imprisonment for the first count and 50 years for the second count. His Honour ordered that the sentences be served concurrently. His Honour delivered a draft judgment (see pp. 43 - 52 of the Review Book and followed that up with a written unnumbered judgment which can be found at pp. 53 – 68 of the Review Book (RB).
   
2. Having lost his primary right under Section 29 of the Supreme Court Act to appeal or apply for leave to appeal, the Applicant personally filed this application for leave to review his sentence pursuant to Section 155 (2)(b) of the Constitution, on 30 November 2017 - after a lapse of 4 years and 4 days.
   
3. The matter came before us on 27 September 2021. We heard the application and reserved our decision. This our judgment.
   
4. Since leave for review had not been previously granted, we decided to hear the application for leave together with the substantive arguments on the review. If the application for leave fails, then that will be the end of the matter. If it succeeds, we will determine the review. On the date of hearing the Public Solicitor handed up a Notice of Appearance for the Applicant through his employed lawyer Mr. Junior Fish Nunua.
   

BACKGROUND

5. The relevant facts can be gleaned from the oral and written judgments of his Honour and of course the transcript. The Applicant and two accomplices (who were and may still be at large) were employed by a Chinese couple namely Wang Cheng Chang (Mr. Wang) and his wife Xiaolin Whuang (Ms. Xiaolin). The couple operated a Kai Bar at the Hagen Plaza, Mt. Hagen City. In the course of employment, the applicant and his colleagues had issues over poor working conditions such as low pay, pay deductions over minor misdeeds such as not serving customers properly, being forced to work long hours including Sabbaths and Wednesday prayer nights with little or no pay, being forced to eat old or expired food and so on. On two occasions the Applicant had told the deceased couple that Papua New Guineans kill for as little as 20t and he was challenged to carry through his threats.
   
6. On the day of the killing, all other employees had knocked off leaving only the Applicant and two of his colleagues (security guards) to provide security for the couple and the premises. Earlier that day a colleague and friend (and accomplice) of the Applicant, Philip Mekunda had K50.00 deducted from his wages for not serving a customer properly. This angered Mekunda so he went home and soon returned armed with a sharp bush knife.
   
7. The Applicant was coming out of his room after changing his clothes to sort out potatoes on Mr. Wang’s instructions when he saw Mekunda come in with his bush knife. He could tell that Mekunda was ready to kill Mr. Wang because he was trembling, and so he ran back to his room and again changed his clothes. When he came out, he noticed Mr. Wang already laying on the floor dead. He picked up a knife and went straight at Ms. Xiaolin. He grabbed her by her shirt and tried to kill her by chopping of her neck but missed and cut her on her mouth area instead. On the second attempt he succeeded in cutting Ms. Xiaolin on her neck killing her.
   
8. After killing the deceased, the Applicant told his accomplice that he had killed the wrong person. Mekunda took K2000.00 from the deceased which they later shared equally. The Applicant then got the keys to the premises, locked the gate and they left for Warakum. From there the Applicant left for Baisu before traveling to Goroka. While in Goroka the Applicant thought about what he had done. He was caught by the police at the Goroka/Hagen Bus Stop while trying to go back to Mt. Hagen to surrender.
   

GROUND FOR REVIEW

9. The Applicant advanced one ground only for his application which is that the sentences were manifestly excessive on the basis that the trial judge fell into error when he repeatedly made reference to an intention to kill in his judgment when the Appellant pleaded guilty to murder and not wilful murder.
   
10. The ultimate issue therefore is whether the sentences the subject of this application were manifestly excessive.
    

GROUNDS FOR LEAVE

11. Before we can get to that though, the Applicant must, however, convince the Court that leave should be granted for him to apply for a review of his sentence. And for this he must satisfy the following requirements -
    

(1) it is in the interest of justice to grant leave.

(2) there are cogent and convincing reasons and exceptional circumstances, where some substantial injustice is manifest, or the case is of special gravity.

(3) show that there are clear grounds meriting a review.

(4) explain why he did not appeal within the time stipulated by law to appeal: Avia Aihi v The State (No.1) [1981] PNGLR 81; Bob v The State (2005) SC808; In Re Application of Maddison (2009) SC984.

12. So, has the Applicant met the above requirements? Let us consider if the Applicant has satisfied the above requirements. He need not satisfy all the requirements.
    

Reasons for Delay

13. What then is the Applicant’s explanation for not exercising his right to appeal or apply for leave to appeal? And why did he have to wait another 4 years and 4 days before applying for leave to review his sentences?
    
14. The Applicant said in his application that he did not lodge an appeal against his sentences because he did not know of his right of appeal. And in his supporting affidavit he deposed that he became very ill around or about the 7^th of September 2012. His legs were swollen, and he was not able to walk. He was able to walk again in 2015. He sought assistance from CS officers, but they did not help. It was not until 2017 that he was able to file for leave.
    
15. The applicant’s claim of having been sick has not been corroborated in anyway. The least he could have done was to produce a medical report either from the Mt. Hagen General Hospital if he was treated there, or from the Officer In-Charge of the Baisu or Bihute Corrective Institution Clinic where he was and continues to be incarcerated.
    
16. Bare assertions of ignorance of the law or that one was ill-disposed or sick without further or corroborating evidence, is insufficient a reason for sitting on one’s right to appeal accorded under Section 29 of the Supreme Court Act or the right to apply for leave to review under Section 155(2)(b) of the Constitution without delay. A person who has reason to believe that he was not served justice must act quickly and with due haste.
    
17. Claims of ignorance of the right to appeal or review is becoming too common so much so that cases have been resurrected after several years through the review process under Section 155(2)(b) of the Constitution. We are not saying that prisoners should not apply for leave to review their sentences or convictions for that matter. By all means they should where there is clear merit, but such challenges must be without inordinate delay. And we say this fully cognizant of the fact that such applications are the very last resort an applicant has to challenge the deprivation of his liberty.
    
18. That said, we are not satisfied with the Applicant’s explanation for his failure to lodge an appeal and his inordinate delay in applying for leave to review. Even if we were to believe that he took ill immediately after his sentence and was not able to walk again until 2015, it took him another 2 years before he lodged his application. The only reason he advanced was that the CS authorities did not help him. That to us is not an acceptable reason.
    

Whether there are Cogent, Convincing Reasons etc. Warranting Review

19. Are there cogent and convincing reasons and exceptional circumstances, manifesting or showing substantial injustice? At this juncture, all that we ought to be satisfied of, is whether - at a glance - the applicant has shown strong, cogent and convincing reasons that substantial injustice was done which must be corrected on review.
    
20. It was submitted for the Applicant that the trial judge did not consider extenuating circumstances such as strong de facto provocation stemming from his mistreatment by the deceased couple. It was further submitted that the trial judge repeatedly referenced an intention to kill when the Applicant pleaded guilty to murder and not wilful murder. This counsel submitted affected the sentencing judge’s sentencing discretion resulting in substantial injustice to the Applicant.
    
21. The State argued that the application for leave has no merit for the reason that the Applicant simply does not want to continue to stay in prison after having served 6 years already.
    

Alleged Failure to Consider Extenuating & Mitigating Factors

22. Having heard the Applicant on these points, we are of the view that his argument that the trial judge did not consider his mistreatment by the deceased couple as extenuating circumstances has no merit because the trial judge did in fact take those into account but rejected them. At paragraph 43 of his written judgment (p. 67 RB at lines 21-26) his Honour said “... I do take into account and note in your favour that you had reasons to kill the deceased in the way you did. However, I find that those reasons did not necessary[ily] justify a cold blooded and merciless killing of one’s employ[ers] with[in] their own home and business location. In any event they were not any good reason for you to take the law into your own hands and commit the serious offences you committed.” (Sic.)
    
23. If he did not specifically mention any factor(s) urged on him in submissions, it cannot be presumed that he did not consider such a factor. This Court rejected a similar argument in Avia Aihi v The State (No.3) [1982] PNGLR 92. (Kidu CJ, Kearney DCJ, Greville-Smith, Andrew, Kapi JJ) The Applicant there was sentenced to life for murdering her victim during a crime scene visit by the trial court. On review her counsel argued that the trial judge ignored some mitigating factors which were urged upon him. Kidu CJ said at pp.97,98 that “[a] judge does not always, in making remarks on sentence, mention each and every factor for and against an accused person.”
    
24. Kearney DCJ then expanded on this saying at p.103 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 John Vali v The State (2007) PGSC 31; SCRA No.61 of 2004; Stephanie Konia v The State (2020) SC 2122)
    
25. We therefore reject this argument and dismiss this ground.
    

Whether Trial Judge Erred by Referencing Intention to Kill

26. We do, however, find that the alleged repeated reference to an intention to kill by the trial judge warrants consideration because this may have affected his Honour’s sentencing discretion. Hence, we shall grant leave on that point alone. We shall now proceed to review the sentence.
    

REVIEW

27. Did the trial judge repeatedly reference an intention to kill in his judgment? If he did, was that an error that should vitiate his sentencing discretion?
    
28. A perusal of the judgment reveals that at paragraph 31 of his written judgment (pp. 64,65 (RB)) his Honour said:
    

31. Firstly, I note that, you and your co-offenders set out deliberately [to] kill the deceased who provided you employment out of which you derived some income. You had some issues with the terms and conditions of your employment. It seems you failed to note that others in your position in terms of education and qualification are not employed at all in any meaningful way. That applies unfortunately in our country for some people who have reached education levels much higher than any level you might have or aspired to be. Similarly, you failed to note that, higher the level of education, training and experience one can expect higher or better terms and conditions of employment. Besides in a contract of employment situation like the one you were employed under, parties, and in this case you and your co-offenders in particular had the right and option to leave the employment if indeed you are not happy with the terms and conditions of your employment. Instead of taking that option which was open to you, you chose instead to set out to take the life of the very hands that fed and accommodated you for more than 2 years. Indeed, I note that you had already intimated your desire to take their lives. ... (Underlining supplied)

29. Then at paragraph 36 (p.66 RB) his Honour said:
    

36. ... You call yourself a Christian who had Wednesday night pray[er] fellowships and Sabbaths to keep. If indeed you are a Christian you would have walked away peacefully if you had better place to go for alternate employment or remain happily with whatever you had the privilege of receiving from the deceased. The bible in terms of the 10 commandments clearly speak against murder. Yet you committed murder wilfully after setting out to commit the offence. (Underlining supplied)

30. At paragraph 43 (p67 RB) when discussing the Applicant’s mitigating factors his Honour continued:
    

43. I do take into account and note in your favour that you had reasons to kill the deceased in the way you did. However, I find that those reasons did not necessarily justify a cold blooded and merciless killing of one’s employ[ers] with[in] their own home and business location. ... (Underlining supplied)

31. Finally, the trial judge found that the case was a worst instance of murder the charge the Applicant was charged with as opposed to wilful murder which he said was open on the facts. He then sentenced the Applicant to life imprisonment for the direct murder of Xiaolin and 50 years for the murder of Mr. Wang as a principal offender under Section 7 of the Code.
    
32. There is therefore no issue that the trial judge did in fact referenced intentional killing on more than one occasion in the course of his judgment. Is this an error that affected the exercise of his discretion?
    
33. The task of sentencing is an onerous one. It is not an exact science as often said. Unless a judge’s discretion is removed by legislative edict, such as in the case of mandatory penalties, the sentencing task or process is entirely discretionary, guided of course by well settled principles. Two of these basic principles are that (1) the maximum penalty ought normally to be imposed on the worst instances of offending, and (2) each case must be considered on it own facts and circumstances (Acting Public Prosecutor v Nitak Mangilonde Taganis [1982] PNGLR 299; Goli Golu v The State [1979] PNGLR 653; Lawrence Simbe v The State [1994] PNGLR 38)
    
34. Nevertheless, things are not always clear cut for the sentencing judge, particularly on plea matters and especially when plea bargaining results in a reduced charge as often happens. In such cases agreed facts will often be put to an accused person on arraignment. It is settled that an offender must be sentenced only on the facts which he pleaded guilty to. (Saperus Yalibakut v The State (2006) SC890) The sentencing judge is, however, often placed in a dilemma when the materials on the depositions demonstrate a more serious offence which he may not be able to ignore because he is entitled to read the depositions to ensure the safeness of the plea before he can convict. In The State v Sabarina Yakal [1988 – 89] PNGLR 129, Brunton AJ, held that depositions may be used on sentence on a plea of guilty provided the facts are not challenged and are within the bounds of reasonable possibility. To do otherwise would leave a judge with little to no material to work with and may result in an injustice to the community at large, or to the individual prisoner.
    
35. But how far can a sentencing judge go when confronted with facts that constitute a more serious offence? Can he hold the view that it is open to him to venture outside of the facts pleaded to by an offender or should he strictly confine himself to the agreed facts and turn a blind eye to those other facts?
    
36. In such a situation, the sentencing judge is indeed placed between a rock and a hard place so to speak. This therefore calls for judicial tact and restraint. He must be wary and circumspect about what he says so as not to go outside and beyond the facts to which the offender pleaded. His reading of the deposition may reveal that the offender would have easily been indicted for a more serious offence and he would entirely be within his discretion to say so. However, facts that justify a more serious charge should normally be treated as serious aggravating factors only.
    
37. Hence, when an offender kills another person in circumstances that clearly (on the depositions) would justify a charge of wilful murder but is instead indicted for murder, a sentencing judge must restrict himself to the facts admitted by the offender on arraignment. Yes, he is entitled to read the depositions and may even form the view that an intention to kill was open on the facts. He, however, cannot conclude that that was in fact the case unless it is also clear from the deposition that the offender admitted the intention to kill.
    
38. On a plea matter it is not open to the sentencing judge to draw inferences of fact which the offender did not plead guilty to on arraignment let alone draw conclusions of law as one would do in a trial. He is confined to the admitted facts and must sentence the offender on those facts. To go beyond that and pronounce that the offender manifested an intention or intended to kill would be an error and a reasonable inference can be drawn that his judgment was clouded thus vitiating his sentencing discretion.
    
39. A case on point is Stephanie Konia (supra.) where this very point was considered. There the appellant was convicted and sentenced to 25 years for the unlawful killing of her husband. One of her grounds of appeal was that the trial judge made an error when, judging from the multiple wounds inflicted on the deceased that her actions were “deliberate and calculated to cause nothing less than death” and that steps taken by the appellant to conceal the body of the deceased was evidence of pre-planning. In allowing the appeal on this ground, the Court (Toliken, Pitpit JJ) said the following which we respectfully adopt:

24. With due respect to the learned primary judge, what the Appellant did there, is not evidence of pre-planning but rather of concealment of the crime.

25. Notwithstanding that, it is clear to us that His Honour was of the view, and effectively held that there was ‘pre-planning’ or ‘pre-meditation’ which words mean the same thing and are often used interchangeably. There was no evidence before His Honour of any pre-planning or pre-meditation by the Appellant to kill the deceased, notwithstanding her own statement in her Pre-sentence Report of the continuous physical abuse she had suffered at the hands of the deceased. The primary judge was obviously swayed by the number of stab wounds inflicted on the deceased by the Appellant and her endeavours to conceal the crime. These effectively led him into erroneously concluding that the Appellant pre-planned to kill the deceased.

26. We also find that the primary judge considered the killing intentional. This can be clearly seen at p. 34 line 2 of the Appeal Book where His Honour very clearly says that “The accused was deliberate and calculated to cause nothing less than death.” The Appellant was not indicted for wilful murder even though she was committed for trial on that charge. On the contrary she was indicted for manslaughter obviously after plea bargaining. She pleaded guilty to manslaughter and to the facts put to her on arraignment which did not allege the element of intention to kill at all.

27. While the trial judge could not pass a blind eye to the nature and extent of the injuries inflicted on the deceased, it was improper for him to draw conclusions, let alone make inferences of fact on matters which were not part of the prosecution’s summary of facts. In saying that the Appellant meant nothing less than to cause the death of the deceased, we find that His Honour erred and this ought to vitiate his sentencing discretion.

28. The prosecutor here had elected, within his absolute discretion, to indict the Appellant for the lesser charge of manslaughter instead of wilful murder, undoubtedly as a result of plea bargaining. As is often the case, the primary judge’s task was a challenging one. On the one hand he was constrained to restrict himself to the facts to which the Appellant pleaded guilty, while on the other hand, he was confronted with the material in the depositions, particularly the Medical Report, which recorded the nature and extent of the injuries inflicted on the deceased. Does he shut his mind to the latter completely? We think not. His Honour must take these into account as aggravating the offence, but he ought not to have gone beyond that and infer or countenance that the multiplicity and nature of the injuries manifested an intention to kill or cause the death of the deceased.

29. In considering an appropriate sentence, the exercise of discretion in that regard must ultimately be circumscribed by the offence and the facts to which the Appellant pleaded. The brief facts put to the Appellant did not include the number of injuries inflicted on the deceased. These aggravating factors were, however, apparent from the medical report.

31. Despite the fact that the depositions may have justified a charge of wilful murder, and irrespective of whether or not His Honour agreed with the decision of the prosecutor to indict for the lesser charge of manslaughter, the primary judge cannot usurp the prosecutor’s power, let alone correct what he would have perceived as a dereliction of duty thereof by treating the charge as anything more than what the Appellant was indicted for.

32. When his Honour expressed the very clear view that the multiplicity of the injuries manifested, nothing less than the intention to cause death, without seeking agreement from the prosecutor and the defence as to the use of the medical report, he fell into an identifiable error which vitiated his sentencing discretion.

40. The appeal was allowed on this, and another ground, and the sentence was reduced to 17 years.
    
41. So, did the trial judge fall into error in the instant case? Yes, we find that he did when he repeatedly referenced an intention to kill in his judgment. He said that the Applicant and his co-offenders had intimated their intention to kill the couple, deliberately set out to kill them and that he murdered them wilfully. The facts the Appellant pleaded to did not allege an intention on his part to kill his victims intentionally and wilfully. It is reasonable to infer therefore that his Honour’s reference to an intention to kill in his judgment affected his judgment, and thus vitiated his sentencing discretion.
    

Whether the Sentence Was Manifestly Excessive

42. That said, was the sentence manifestly excessive? The question of excessiveness is not a stand-alone ground. It is or must be predicated on a finding that the trial judge had made an identifiable error which vitiated his sentencing discretion. Where an error cannot be identified, an error can still be inferred if the sentence is out of reasonable proportion to the circumstances of the case. This principle was enunciated in William Norris v The State [1979] PNGLR 605 where at p. 612 Kearney J (as he then was) said:

“... 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.

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.

43. We have found that the trial judge erred, but has the Applicant convinced us that in the circumstances lesser sentences ought to have been imposed on him?
    
44. His Honour assessed this case to be a worst case, one that falls under the fourth category of the Manu Kovi guidelines (Manu Kovi v The State (2005) SC789). We find no error in those findings. Indeed, the Applicant takes no issue with them in this review.
    
45. Except for the trial judge’s reference to an intention to kill, we find that his Honour considered the circumstances under which the killings were committed and those factors that mitigated and aggravated the Applicant’s offending. He acknowledged that the prisoner pleaded guilty to two serious charges and was a first-time offender. These appear to be the only factors in favour of the Applicant. While his Honour considered the reasons for the killing – disagreement over working conditions – he held that this did not justify the killing of the deceased couple.
    
46. Against the Applicant were some serious and grave aggravating factors which his Honour rightly held easily outweighed the mitigating factors. There was pre-planning involved, the Applicant counselled and acted with others to commit the offences, the murders were committed in what was a home invasion committed from within by trusted employees, it was a senseless, brutal and callous killing of foreigners who invested into local economy, the negative effect these killings had on the foreign investors and the image of the country, and the prevalence of this type of offence. The Applicant directly killed one the victims and was caught by Section 7 of the Code in the killing of the other.
    
47. Based on these His Honour imposed a life sentence for the murder of Ms. Xiaolin and 50 years for the murder of Mr. Wang who was killed by the Applicant’s co-accused or accomplice Philip Mekunda.
    
48. We find no error in his Honour’s imposition of a lesser sentence in the latter instance. While the Applicant is equally guilty for Mr. Wang’s murder according to the settled principle in Gimble v The State [1988 -89] PNGLR 271, his Honour correctly considered the fact that the prisoner did not directly kill him and hence sentenced him according to his degree of participation. His Honour’s departure from what was generally held in Gimble - that all active participants must be sentenced on the same basis - is the correct approach in our opinion. In that regard we follow what this Court held in Mai v The State (2015) SC1462 and Pomaloh v The State (2006) SC834 - that offenders ought to be sentenced according to their degree or level of participation.
    
49. What about the life sentence for the killing of Ms. Xiaolin? Obviously, the Applicant ought to have anticipated a higher sentence because he directly and single-handedly killed him. We find no error in his Honour’s finding that this was a worst type of killing taken alone or together with the killing of Mr. Wang. His Honour’s imposition of the maximum penalty of life imprisonment was not out of reasonable proportion to the circumstances of the case despite the obvious error we found against him.
    
50. So, taken in totality the sum of all these is that we do not find the sentences of life imprisonment and 50 years to be manifestly excessive.
    

ORDER

51. We therefore dismiss the appeal and affirm the sentences imposed by the National Court on 26 November 2013.
    

Ordered accordingly.
________________________________________________________________
L B Mamu, Public Solicitor: Lawyer for the Applicant
P. Kaluwin, Public Prosecutor: Lawyer for the State