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Sawaer v State [2013] PGNC 340; N5256 (20 June 2013)

N5256

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CA NO 38 0F 2012

ADOLF SAWAER
Appellant

V

THE STATE
Respondent

Madang: Cannings J
2013: 10 May, 20 June

CRIMINAL LAW – appeal against convictions and sentences and orders for compensation – Summary Offences Act, Section 6 (assault) – Firearms Act, Section 57 (possession of firearms whilst under influence etc), Section 59 (discharge of firearms) – whether errors made by District Court in convicting appellant – whether penalty provisions correctly applied

The District Court convicted the appellant of five offences and sentenced him to a total of 21 months imprisonment and ordered him to pay a total amount of compensation of K10,000.00. The appellant appealed against the convictions on seven grounds and against the sentences and compensation orders on three grounds.

Held:

(1) None of the grounds of appeal against conviction for any of the five offences succeeded, the National Court being satisfied that all convictions were safe and that the District Court did not fail to consider that the acts were committed in the execution of police duties, make findings without evidence, conduct the trial unfairly or wrongly admit evidence by the prosecution.

(2) Two of the three grounds of appeal against the sentences and compensation orders were upheld as the penalty imposed for each of the five offences was contrary to law and excessive and the District Court failed to properly apply sentencing principles for multiple offences.

(3) There was a substantial miscarriage of justice as to penalty, so the National Court quashed the sentences and orders for compensation and replaced them with a total sentence of 12 months imprisonment, with no order for compensation.

Cases cited

The following cases are cited in the judgment:

Browne v Dunne (1893) 6 R 67 (HL)
Emil Kongian v The State (2007) SC928
Kau Kepi v Micah Kaua (1982) N378(M)
Kutau v The State (2007) SC927
Mase v The State [1991] PNGLR 88
Public Prosecutor v Kerua [1985] PNGLR 85
The State v Danny Sunu [1983] PNGLR 396
The State v John Akoko (2001) N2061
Wellington Belawa v The State [1988-89] PNGLR 496
William Norris v The State [1979] PNGLR 605

APPEAL

This was an appeal against convictions and sentences and compensation orders regarding five offences.

Counsel

S Tanei, for the appellant
J Morog, for the respondent

20 June, 2013

1. CANNINGS J: The appellant Adolf Sawaer appeals against his conviction by the Madang District Court of five criminal offences. He also appeals against the sentences and orders for compensation imposed for those offences. He was convicted in relation to two separate incidents at Bogia town, the first on 28 August 2012, the second on 14 September 2012. He was sentenced by the presiding Magistrate his Worship Mr M Samala to a total of 21 months imprisonment and ordered to pay total compensation of K10,000.00. The sentences and compensation orders have been stayed pending determination of this appeal.

2. The appellant is a member of the Police Force. He was at the time Police Station Commander at Bogia and held the rank of Chief Sergeant. On 28 August 2012 he was on duty and led a group of reserve constables who attempted to apprehend a group of drunken men who were causing a disturbance in town. In the process he shot Melvin Amuki in the foot and injured Maria Kiaro by slapping her in the mouth and hitting her with a bushknife. He was charged with two counts of unlawful assault under the Summary Offences Act Chapter No 264 and two offences under the Firearms Act Chapter No 310. At the trial in the District Court the appellant pleaded not guilty. He admitted causing injuries to those persons but claimed that the assaults were justified as he was acting in self defence and both persons were hindering him in the lawful discharge of police duties. Those defences were rejected and he was convicted of the four offences with which he was charged. He was sentenced to various terms of imprisonment for each offence and ordered to pay compensation in respect of three of the offences. All sentences and compensation orders were made cumulative to each other.

3. On 14 September 2012 the appellant was on duty and responded to a call from a shop owner who had an altercation with a customer, James Sawaer. The appellant shot James Sawaer in the foot. He was charged with one count of unlawful assault under Section 6(3) of the Summary Offences Act. The trial of this matter, which was conducted separately to the other four charges, proceeded in a similar manner: the appellant pleaded not guilty, his defence of self-defence was rejected, he was convicted and sentenced to a term of imprisonment and ordered to pay compensation to the victim. The sentence and compensation order were made cumulative to the sentences and orders for the earlier incident. Details of the offences, sentences and compensation orders are in the following table.

APPEAL AGAINST CONVICTIONS

4. The seven grounds of appeal are set out in the notice of appeal as follows:

1. All the five convictions are unsafe and the three assault convictions were for non-offences and further the court failed to consider that the acts committed were done while in the execution of his official duties as a policeman and assaults were justified to ensure arrest or where obstructions are met.
   
2. The court erred in convicting the appellant for carrying loaded firearm or discharging a firearm in a public place to effect arrest as a police officer and while executing official duties.
   
3. The court erred in convicting the appellant for carrying firearm while intoxicated as the appellant during trial tried to adduce evidence to show that he does not drink beer and the place where the assault took place was the drinking site overnight still foul with smell but the learned Magistrate ordered him to stop such a line of evidence or cross-examination.
   
4. The learned Magistrate in all cases did not permit or assist the appellant to cross-examine police witnesses fully and would stop the appellant when unfavourable evidence for prosecution starts to show upon his cross-examination and the Magistrate even addressed the appellant as "RAMBO".
   
5. The learned Magistrate did not allow the appellant to give his evidence in full as he had liked to because the Magistrate ordered him to stop at the key places and examples are the Court refused his medical report, the court failed to adjourn when evidence was given that the victims are being convicted separately for obstructions.
   
6. The Magistrate wrongly allowed evidence which was not in the knowledge of the Police witnesses such as the exact description of the firearm, make, serial No and other matters which were led by the Police Prosecutor.
   
7. The whole trial of the seven counts therefore manifest prejudice and bias by the Magistrate in collaboration with the prosecution and with the appellant being denied of his material evidence and right to rebut or cross-examine in full, aggravating facts in relation to charges were unlawfully admitted, no medical reports produced by prosecution of all resulted in a mistrial. [sic]
   

I now determine each of those grounds.

5. Ground 1: None of the five convictions is intrinsically unsafe. I have examined the District Court depositions and the two written judgments that the trial Magistrate delivered as well as a report by his Worship under Section 225 (report by magistrate) of the District Courts Act Chapter No 40 further setting out reasons for his decisions. The four charges relating to the incident of 28 August 2012 were tried separately to the charge relating to the incident of 14 September 2012. There were two trials, the first on 5 November 2012, the second on 6 November 2012. The appellant was present at each trial and represented himself. It is surprising that he was not legally represented given the seriousness of the charges but there is no evidence that he was denied the right to legal representation and no complaint along those lines is made in the notice of appeal.

6. In the first trial the prosecution's case was based on the oral testimony of two witnesses, the complainants Melvin Amuki and Maria Kiaro. Their evidence as to what happened and how they were assaulted by the appellant was accepted. The appellant gave oral evidence but there was no corroboration of his claim that he acted in self-defence and that he was not drunk, and his evidence was rejected. The trial Magistrate took into account that the appellant was acting in the course of his official police duties and was pursuing a person who was the subject of an arrest warrant who had been seen with Mr Amuki but held that he had abused his powers as a member of the Police Force.

7. In the second trial the prosecution's case was based on the oral testimony of two witnesses, the complainant James Sawaer and an independent witness Henry Kem. The appellant gave oral evidence but his claim that he acted in self-defence was uncorroborated and his evidence was rejected. I have been unable to make any sense of the claim that the three assault convictions were for "non-offences". Ground 1 of the appeal is dismissed.

8. Ground 2: The appellant was convicted of offences under Sections 57 and 59(1) of the Firearms Act, which state:

57. Possession of firearms whilst under influence, etc.

A person found under the influence of alcohol or a drug in actual physical possession of a firearm is guilty of an offence.

Penalty: A fine not exceeding K500.00 or imprisonment for a term not exceeding six months.

59. Discharge of firearms.

(1) A person who, without lawful excuse (proof of which is on him), discharges a firearm in or over any place within the boundaries of a town is guilty of an offence.

Penalty: A fine not exceeding K1,000.00.

9. I am satisfied that there was sufficient evidence before the District Court for the trial Magistrate to be satisfied beyond reasonable doubt that the elements of each offence were proven. The fact that the appellant was a member of the Police Force on duty did not provide him with a defence to either charge. Ground 2 is dismissed.

10. Ground 3: I find no error in the conviction under Section 57 of the Firearms Act which was based on the sworn testimony of Maria Kiaro that the appellant was smelling of alcohol and behaving as if he were intoxicated and did not respond to her urging not to harm Melvin Amuki. The trial Magistrate regarded Maria Kiaro as a witness of truth and his Worship was in the best position to make an assessment of the credibility of the oral testimony of the witnesses including the appellant. His Worship did not err in preventing the appellant from adducing evidence that he was diabetic and did not consume alcohol as such matters had not been put to the State witnesses when they gave their evidence. His Worship did not err in rejecting the appellant's evidence that he smelt of alcohol only because his body and clothes were immersed in the odour of alcohol due to his going to the place at which Melvin Amuki and others had been drinking heavily for long hours. Ground 3 is dismissed.

11. Ground 4: I find no evidence in the depositions including the trial Magistrate's two judgments that his Worship improperly curtailed cross-examination of the police witnesses or that he 'stopped the appellant when unfavourable evidence for the prosecution started to show' or that he addressed the appellant as Rambo. Ground 4 is dismissed.

12. Ground 5: It is correct that the trial Magistrate did not allow the appellant 'to give his evidence in full as he had liked', however I am satisfied that his Worship did not improperly curtail the appellant's evidence. His Worship correctly applied the rule in Browne v Dunne (1893) 6 R 67 (HL). This is a rule of fairness that applies in all trials: for the defence case to be considered credible it must be put to the State witnesses in cross-examination (Kutau v The State (2007) SC927). As the whole of the defence case was not put to the police witnesses his Worship was entitled as a matter of discretion to prevent the appellant giving evidence on the propositions of fact that were not put to the Police witnesses. At the hearing of the appeal I granted leave under Section 229 (evidence to be received on hearing) of the District Courts Act for the appellant to rely on an affidavit that showed that amongst the evidence that the trial Magistrate refused to allow the appellant to rely on were three certificates of conviction that showed that Melvin Amuki and two other persons had each been convicted of the offence of, on 28 August 2012, hindering a member of the Police Force (the appellant) in the execution of his duty contrary to Section 60(1) of the Summary Offences Act. I consider that his Worship did not err in law or act unfairly in refusing to allow this evidence to be admitted. Ground 5 is dismissed.

13. Ground 6: I find no error in the manner in which evidence was admitted as to description of the firearm. This was non-contentious evidence as both the prosecution and the appellant agreed that the firearm that the appellant discharged was a Police-issued pistol. Ground 6 is dismissed.

14. Ground 7: There is no indication that the prosecution collaborated with the trial Magistrate or that his Worship was biased or conducted the trial in any way that denied the appellant the full protection of the law. Ground 7 is dismissed.

15. In summary all grounds of appeal against conviction are dismissed. I see no good reason for the National Court to disturb the five convictions entered against the appellant.

APPEAL AGAINST SENTENCES AND COMPENSATION ORDERS

16. The three grounds of appeal are set out in the notice of appeal as follows:

8. The sentence imposed for each count is manifestly excessive both in fact and law in that offences which normally could attract fines were overlooked and further non-described penalties by law were imposed as well as penalties for non-existing offences in law.
   
9. Cumulative sentences imposed [for] the five offences are excessive in law as was as an error in law.
   
10. Compensation awarded without medical reports is an error of law and excessive and against evidence of justification of self defence, resisting arrest or obstruction of Police and the payments made already as compensation including apologies already made should have been taken into account. [sic]
    

17. Mr Morog for the State conceded that the sentences and compensation orders were excessive and agreed generally with the submissions of Mr Tanei in support of the three grounds of appeal. However, while acknowledging that such a concession has been properly made, I am not bound by it. I must still be satisfied that one or more of the grounds of appeal have merit before considering disturbing the orders of the District Court. I now determine each of the grounds.

18. Ground 8: I regard this ground as containing three arguments:

(a) the sentence for each offence was manifestly excessive;
(b) some penalties that were imposed were not permitted by law;
(c) some penalties were imposed for non-existent offences.

(a) Sentences manifestly excessive. An appellant who argues that a sentence is manifestly excessive must demonstrate that even though no identifiable error on the part of the sentencing judge or magistrate can be shown, upon the proven facts and making the fullest allowance for the advantaged position of the trial judge or magistrate, the sentence is obviously – not merely arguably – excessive. The rationale for this way of challenging a sentence was explained by Kearney J in the leading case William Norris v The State [1979] PNGLR 605: although no identifiable error can be shown, if the sentence is out of reasonable proportion to the circumstances of the crime the appellate Court will infer that some error must have occurred in the exercise of the sentencing discretion.

19. In the present case I consider that with the exception of the sentence for the offence under Section 59(1) of the Firearms Act the sentences were not manifestly excessive. The three unlawful assault convictions attracted a prison term of four months each. The maximum term of imprisonment for each offence was two years. Two of the offences involved personal injury caused by deliberate discharge of a firearm and the other involved an assault by a man upon a woman through two separate blows to the body, the first a slap across the mouth and the second with the use of a bushknife. Each unlawful assault was a serious offence and a sentence of a prison term of one-sixth of the maximum (24 months divided by 4 months) was well within the bounds of reasonableness.

20. As to the sentence for the Section 57 Firearms Act offence (possession whilst under the influence of alcohol) I find it unremarkable that the appellant was sentenced to four months imprisonment, which is two-thirds of the maximum of six months, as he had pleaded not guilty and he was a member of the Police Force on duty and he was drunk and actually shot someone. The sentence of five months imprisonment for the offence under Section 59(1) of the Firearms Act is problematic as the maximum penalty is a fine of K1,000.00. No provision is made for a prison term. Subject to that problem with the Section 59(1) sentence, argument (a) is rejected.

(b) Penalties not permitted by law. I uphold this argument and find with respect that the learned trial Magistrate erred when imposing the penalty for each offence. For the three unlawful assault convictions his Worship imposed a sentence of four months each (which I have found was not manifestly excessive) and ordered the appellant to pay compensation to each victim (K3,000.00 each to Melvin Amuki and James Sawaer and K1,000.00 to Maria Kiaro). The penalty regime for the offence of unlawful assault is included in Section 6 (assault) of the Summary Offences Act, which states:

(1) In this section, "applies force" includes the application of heat, light, sound, electrical force, gas odour or any other substance or thing if applied to such a degree as to cause any injury or personal discomfort.

(2) For the purposes of this section, a person who—

(a) strikes, touches, moves or otherwise applies force of any kind to the person of another, either directly or indirectly, without his consent, or with his consent if the consent is obtained by fraud; or

(b) by any bodily act or gesture, attempts or threatens to apply force of any kind to the person of another without his consent, under such circumstances that the person making the attempt or threat has an actual or apparent present ability to apply such force,

is deemed to assault that person.

(3) A person who unlawfully assaults another person is guilty of an offence.

Penalty: A fine not exceeding K500.00 or imprisonment for a term not exceeding two years.

(4) Where a court convicts a person of an offence against Subsection (3), it may order him to pay—

(a) to the person, in relation to whom the offence was committed; or

(b) to any other person who suffers bodily injury or damage to property as a result of the commission of the offence,

such amount by way of compensation for bodily injury or damage to the property of the person occasioned by or in the course of the commission of the offence, as it considers just.

21. Subsection (4) authorises orders for compensation of the type made in the present case but in my view it is not sufficiently clear that such an order can be imposed in addition to a fine or a term of imprisonment imposed under Subsection (3). I acknowledge that it is not stated that an order for compensation cannot be made in addition to a fine or a prison term, so there is some uncertainty in how Subsections (3) and (4) should be applied. The ambiguity must be resolved by giving the provisions a restrictive application. This gives effect to the general principle of statutory interpretation that in the event of ambiguity in the application of a penalty provision it must be read strictly in favour of the person who is subject to the penalty (The State v Danny Sunu [1983] PNGLR 396, Kau Kepi v Micah Kaua (1982) N378(M)).

22. The District Court, having convicted the appellant of three unlawful assault offences, could, in respect of each offence either:

• impose under Subsection (3) a fine not exceeding K500.00 or a prison term not exceeding two years; or
  
• order under Subsection (4) compensation (the amount of which is not expressly limited by the provision).
  

23. Here the learned trial Magistrate imposed a prison term and ordered compensation and in doing so fell into error.

24. For the offence under Section 57 of the Firearms Act his Worship imposed a sentence of four months imprisonment and in addition ordered compensation in the sum of K3,000.00. The order for compensation was clearly made in error as Section 57 makes no provision at all for such an order. For the offence under Section 59(1) of the Firearms Act his Worship clearly erred in law by imposing a prison term as the maximum penalty is a fine of K1,000.00. No provision is made for a prison term. The whole of argument (b) is sustained.

(c) Penalties for non-existent offences. I am unable to make any sense of this argument. The whole of argument (c) is rejected.

25. Summing up ground 8: arguments (a) and (c) are rejected, but argument (b) is sustained. Significant errors were made in the imposition of penalty (including the orders for compensation) for each offence. Ground 8 is therefore substantially upheld.

26. Ground 9: It is argued that his Worship erred in law in making all sentences cumulative. Mr Tanei submitted that if his Worship had correctly applied the principles of sentencing for multiple offences he would at least have made the sentences for the four offences relating to the incident of 28 August 2012 concurrent, ie instead of making those four sentences cumulative (4 months + 4 months + 5 months + 4 months = 17 months), they should have been made concurrent (all subsumed within the longest sentence of 5 months). In Emil Kongian v The State (2007) SC928 the Supreme Court reaffirmed (following Public Prosecutor v Kerua [1985] PNGLR 85 and Mase v The State [1991] PNGLR 88) that in deciding whether sentences are concurrent or cumulative the sentencing judge or magistrate should be guided by the following principles:

• where two or more offences are committed in the course of a single transaction all sentences in respect of the offences should be concurrent;
  
• where the offences are different in character, or in relation to different victims, the sentences should normally be cumulative;
  
• when a court has arrived at appropriate sentences and decided whether they should be concurrent or cumulative, it must then apply the totality principle: it looks at the total sentence to see if it is just and appropriate, and if it is not, it must vary one or more sentences to get a just total.
  

I uphold the argument that these principles were not applied and that the learned trial Magistrate erred by making all the sentences cumulative. Ground 9 is upheld.

27. Ground 10: It is argued that his Worship erred in the amounts of compensation that were awarded and that the amounts were excessive, as there was a lack of medical evidence and his Worship failed to take into account that the appellant had paid some compensation and apologised to those persons he had injured. I agree that it was preferable for formal medical evidence to have been provided but I do not agree that the amounts of compensation were excessive or that his Worship failed to take into account relevant considerations in setting the amount of compensation. In any event these arguments are of little consequence as I have already found that for other reasons the orders for compensation were defective. Ground 10 is dismissed.

28. In summary two of the three grounds of appeal against the sentences and compensation orders have been upheld and one has been dismissed. It is open to the National Court to quash the sentences and compensation orders.

WHAT ORDERS SHOULD THE NATIONAL COURT MAKE?

29. The appeal against the convictions has failed, but the appeal against the sentences and compensation orders has succeeded. The consequences of those determinations must now be considered in the light of Section 230 (power of National Court on appeal) of the District Courts Act, which states:

(1) On the hearing of an appeal, the National Court shall inquire into the matter, and may—

(a) adjourn the hearing from time to time; and

(b) mitigate or increase a penalty or fine; and

(c) affirm, quash or vary the conviction, order or adjudication appealed from, or substitute or make a conviction, order or adjudication which ought, on the evidence before the National Court, to have been made by a District Court; and

(d) remit the case for hearing or for further hearing before the Court which made the conviction, order or adjudication or any other competent court; and

(e) exercise a power that the Court that made the conviction, order or adjudication might have exercised; and

(f) make such further or other order as to costs or otherwise as the case requires.

(2) An appeal shall be allowed only if it appears to the National Court that there has been a substantial miscarriage of justice.

30. I am satisfied that there has been a substantial miscarriage of justice in relation to the sentences and compensation orders and the appeal will to that extent be allowed. I will quash the sentences and compensation orders under Section 230(1)(c). I could remit the question of the appropriate penalty to the District Court under Section 230(1)(d). However I am not obliged to do that and I have decided not to do it as I consider that I am in a position to fix the appropriate penalty and that I should do so now so as to bring an expeditious finality to these proceedings. I am authorised by Section 230(1)(e) to exercise any power that the District Court might have exercised and I will invoke that power and impose a penalty for the five offences that I consider is just and appropriate having regard to all the circumstances of the case.

31. I have taken into account that the appellant has no prior convictions and that he has an unblemished 40-year service record in the Police Force. However, I endorse the opinion of the learned trial Magistrate expressed in his written judgments and in his report under Section 225 of the District Courts Act that a custodial sentence is warranted by the gravity of the offences as they were committed by a senior police officer, a person in a position of public trust (Wellington Belawa v The State [1988-89] PNGLR 496, The State v John Akoko (2001) N2061). There is widespread community concern about indiscriminate use of firearms and unjustified use of force by police officers in the course of performing police duties, and I do not think that orders for compensation would adequately reflect the gravity of the offences.

32. I now apply the principles for sentencing for multiple offences reaffirmed by the Supreme Court in Emil Kongian v The State (2007) SC928. I will firstly fix a notional sentence for each offence and then determine whether the sentences should be served cumulatively or concurrently and then apply the totality principle. The sentences for each offence are:

• unlawful assault of Melvin Amuki on 28 August 2012: I fix the same sentence as the District Court – 4 months imprisonment – as this was a serious case of assault, involving the use of a firearm;
  
• being under the influence of alcohol while in actual possession of a firearm on 28 August 2012: I fix the same sentence as the District Court – 4 months imprisonment – as this was a very serious matter as the appellant was the senior Police officer in the town;
  
• discharging a firearm within town without lawful excuse on 28 August 2012: I fix a penalty at the middle of the available range: K500.00;
  
• unlawful assault of Maria Kiaro on 28 August 2012: I fix the same sentence as the District Court – 4 months imprisonment – as this was a serious assault by a man upon a woman;
  
• unlawful assault of James Sawaer on 14 September 2012: I fix the same sentence as the District Court – 4 months imprisonment – as this was a serious case of assault, involving the use of a firearm.
  

33. The four offences of 28 August 2012 were committed in the one incident, raising the presumption that the sentences should be served concurrently. However, there were two separate victims, Melvin Amuki and Maria Kiaro, so the sentences in respect of the unlawful assault convictions (4 months each) should be served cumulatively. The sentences for the firearms offences will be concurrent with the unlawful assault sentences. The total sentence in respect of the first four offences is 4 months + 4 months = 8 months.

34. The offence of 14 September 2012 was a separate incident so the sentence for it (4 months) will be cumulative to the total sentence for the other four offences. The total sentence of 8 months + 4 months = 12 months is just and appropriate and does not require any reduction under the totality principle.

ORDER

(1) The appeal against conviction of five criminal offences is dismissed.

(2) The appeal against the sentences and compensation orders is allowed.

(3) The sentences and orders for compensation of the Madang District Court of 21 November 2012 in DCR Nos 658 to 662 of 2012 are quashed and substituted by an order that the appellant is sentenced to a total term of 12 months imprisonment less any pre-sentence period in custody, and a warrant of commitment shall be issued by the National Court forthwith.

Judgment accordingly.
______________________________________
Public Solicitor: Lawyer for the Appellant
Public Prosecutor: Lawyer for the Respondent