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Antio v Independent State of Papua New Guinea [2019] PGSC 86; SC1858 (27 September 2019)

SC1858

PAPUA NEW GUINEA
[IN THE SUPREME COURT OF JUSTICE]

SCRA NO. 1 OF 2017

BETWEEN:
RICKY ANTIO
Applicant

AND:
THE INDEPENDENT STATE OF PAPUA NEW GUINEA
Respondent

Waigani: Gavara-Nanu J., Bona J, Frank J
2018: 30^th August
2019: 27^th September

APPEAL – Sentence - Application for leave to appeal against sentence – Requirement for leave – Grounds for leave – Whether sentence excessive - Weight given to mitigating factors – Whether sufficient weight given - No error – Parity of sentences – Co-offenders – No error in the exercise of sentencing discretion – Leave refused – Supreme Court Act Ch. 37; s. 22 (d) – Criminal Code (Ch No 262); s. 410 (1) & (2).

Cases Cited

Lionel Gawi v The State (2006) SC850
Norris v The State [1979] PNGLR 605
Mauwe Antape v The State [1981] PNGLR 68
Public Prosecutor v William Bruce Tardrew [1986] PNGLR 91
The State v Tuku & 3 Ors. CR (FC) 24 of 2014
Tamara Player Tomscoll v The State (2012) SC1208

Counsel:

B. Popeu, for the Applicant
R. Luman, for the Respondent

27^th September, 2019

1. BY THE COURT: The applicant seeks leave to appeal against his sentence delivered by the National Court on 21 July 2016, on the ground that: “TRIAL JUDGE ERRED IN SENTENCE (APPEALING AGAINST SENTENCE)”.

2. The applicant was convicted on 25 August 2015, of the charge of receiving stolen property contrary to s. 410 (1) and (2) of the Criminal Code (“Code”) after he pleaded guilty. The brief facts to which he pleaded guilty are these. In the months of October and November 2013 the applicant was in Port Moresby. During this period, an armed robbery of the sum of K6 million occurred. One Paul Steven, a suspect in that armed robbery asked the applicant to assist him with transport. The applicant picked up and transported Paul Steven together with a tin trunk which contained the latter’s share of the proceeds of the armed robbery to the residence of one Paul Kalamandy at Gerehu Stage 2, National Capital District. The applicant assisted Paul Steven again in driving him to Nabuaka village in Bereina, Kairuku, Central Province. On 17 October 2013, the applicant was apprehended by the police. In the vehicle the applicant was driving, the police discovered K125,000 in cash. Later, the police discovered a tin trunk containing K458,000 at Paul Kalamandy's residence. The applicant admitted receiving K583,000, but he said he became aware later that K583,000.00 was proceeds of an armed robbery.

3. The applicant was sentenced to 11 years imprisonment in hard labour. Of this, 11 months were deducted leaving the balance of sentence at 10 years and 1 month. From this term 3 years was suspended which meant that the applicant had to serve 7 years and 1 month, but in the judgment, at para. 36, it was incorrectly stated that the applicant had to serve “6 years 11 months” imprisonment.

Requirement for leave

4. Under s. 22 (d) of the Supreme Court Act Ch. 37 (“Act”), an appeal against sentence lies only with leave: Lionel Gawi v The State (2006) SC850.

5. To obtain leave and for an appeal against sentence to succeed, the applicant must demonstrate:

1. there is an arguable case; and
   
2. that there is an identifiable error in that the sentencing judge acted on a wrong principle, or overlooked, or over emphasized or misunderstood some salient features or facts of the case; or
   

ii. although, there is no identifiable error, the sentence is so unreasonable that there must be an error in the exercise of the sentencing discretion by the trial judge: Norris v. The State [1979] PNGLR 605; Mauwe Antape v. The State [1981] PNGLR 68; Public Prosecutor v. William Bruce Tardrew [1986] PNGLR 91.

6. The applicant contends that the trial judge made two identifiable errors:

(a) First, he gave less or insufficient weight to the applicant’s cooperation with the police by disclosing the location of the tin trunk which resulted in the recovery of K458,000, and in disclosing to the police of the whereabouts of Paul Steven, which resulted in his arrest; and

(b) Second, that on the face of the records, there is a marked disparity between the sentence received by the applicant and those received by the co-offender in The State v Tuku & 3 Ors. CR (FC) 24 of 2014.

7. The applicant submitted that 6 years imprisonment is appropriate punishment for him and this Court should substitute 6 years imprisonment for that imposed by the trial judge.

8. To demonstrate the first error, counsel for the applicant drew a distinction between the applicant’s case and that of Tamara Player (“Tamara”) who was the prisoner/appellant in Tamara Player Tomscoll v The State (2012) SC1208, which the trial judge considered. In that case, Tamara was convicted and sentenced for the same offence of receiving stolen property contrary to section 410 (1) and (2) of the Criminal Code. Counsel argued that in Tamara's case, she did not assist the police in recovering the firearms and K127,000 cash found in her possession. The applicant in this case, on the other hand, informed the police of a trunk and its location which he says resulted in the recovery of K458,000 cash inside the trunk. He argued that he also disclosed and led the police to the place where Paul Steven was hiding, resulting in his arrest.

9. Counsel for the respondent submitted that the trial judge did not err in exercising his sentencing discretion. He argued that his Honour considered all the relevant facts and the sentence imposed is not excessive.

10. We have carefully considered all the materials before us and we find even the head sentence of 11 years imprisonment was warranted given the overall facts and circumstances of the case. Thus, we find that the applicant has failed to demonstrate that the trial judge erred in the exercise of his sentencing discretion.

11. In reaching this conclusion we have also thoroughly considered the issue parity of sentences imposed on all offenders. We find the sentence for the applicant fair in all the circumstances. The applicant played a major part in the crime which involved K6m. Notably, a very large amount of money was stolen in the robbery and the modus operandi was calculated, planned and sophisticated in that vehicles and firearms were used.

12. The applicant submitted that police were able to recover large amounts of stolen money because of his assistance. He said he disclosed the location of the stolen money being kept which also led to the arrest of one of the other offenders. He argued that the Court failed to take into account his role in the recovery of the large amount of the stolen money.

13. Having considered the evidence, we are not convinced that his assistance to the police led to the recovery of the money by the police. We find that it was good police detective work that led to the recovery of the stolen money and arrests. In this regard, it is important to note that a large amount of the stolen money was recovered from the applicant.

14. Violent crimes are prevalent in this country, and these crimes have become sophisticated and perpetrators have also become bold. The punishments given to the perpetrators must meet the crimes, and the punishments must have elements of strong specific and general deterrence. Applying these principles to this case, we find the sentence imposed on the applicant is fair and that it meets the crime. One has to bear in mind that the maximum sentence is life imprisonment. The fact that a large amount of money was recovered from him and that he helped transport one of the perpetrators seriously aggravates his role in the crime. In the circumstances the sentence is not excessive. We therefore refuse leave and dismiss the application.

15. Consequently, as we noted earlier in the judgment, the sentence the applicant must serve is 7 years 1 months (not “...6 years 11 months..” as it was incorrectly recorded in the judgment on sentence).

16. We direct that the Warrant of Commitment issued following sentence of the applicant be amended or a fresh Warrant of Commitment in its place be issued to reflect the sentence of 7 years 1 month imprisonment in hard labour.

17. We make following Orders:

1. Leave to appeal against sentence is refused;

2. Application is dismissed;

3. The Warrant of Commitment issued following sentence of the applicant be amended or in place of it a fresh Warrant of Commitment be issued forthwith to reflect this correction that the resultant sentence which the applicant shall serve is 7 years 1 month in hard labour.

Orders accordingly.
________________________________________________________
Public Solicitor: Lawyer for the Applicant
Public Prosecutor: Lawyer for the Respondent