SC2036

PAPUA NEW GUINEA
[IN THE SUPREME COURT OF JUSTICE]

SCREV 31 OF 2018

BETWEEN:
MAKIS LALAL
Applicant

AND:

THE STATE
Defendant

Kokopo: Hartshorn J, Yagi J and Makail J
2020: 28th, 29th & 30th October  

SUPREME COURT REVIEW - Contested Application for Leave to Review and Review of Sentence – leave to review and review granted – sentence of 14 years quashed and substituted with sentence of 10 years in light labour

Cases Cited:

Avia Aihi v. The State (No. 2) [1982] PNGLR 44
Application by Anderson Agiru (2002) SC686 
Application by Herman Leahy (2006) SC855
Application by John Maddison and Bank of South Pacific Ltd (2009) SC984 Alphonse Tay v. Newcombe Gerau (2011) SC1097
Benjamin Sengi v. The State (2015) SC1425
Sakai Saraga v. The State (2017) SC1592

Counsel

Mr. JF. Unua, for the Applicant
Mr. P. Kaluwin, for the Respondent 

Oral decision delivered on
30th October 2020

1. BY THE COURT: This is a decision on a contested application for leave to review and a review of a sentence imposed following a conviction for the crime of manslaughter. The applicant had pleaded guilty to the crime. 

Background

2. The applicant caused the death of the deceased by hitting the deceased’s head with a branch of a tree. The deceased suffered internal bleeding to his head and died thereafter. 

3. The applicant filed an Application for Leave to Review. It was filed about 20 days after the statutory appeal period had expired. 

4. The applicant submits that his sentence of 14 years in hard labour was unfair, his probation report and its contents were disregarded, he is still a student, his property was damaged by the deceased’s family and he paid compensation of K7,000.00. Further, he submits that his family’s welfare was not considered. 

Consideration

5. As the proceeding before the Court is an application for leave pursuant to s.155(2) (b) Constitution, three factors are required to be satisfied for leave to be granted: Avia Aihi v. The State (No. 2) [1982] PNGLR 44; Application by Anderson Agiru (2002) SC686; Application by Herman Leahy (2006) SC855; Application by John Maddison and Bank of South Pacific Ltd (2009) SC984; Alphonse Tay v. Newcombe Gerau (2011) SC1097; Benjamin Sengi v. The State (2015) SC1425 and Sakai Saraga v. The State (2017) SC1592.
6. They are that:

a)	it is in the interests of justice that leave be granted;

b)	there are cogent and convincing reasons or exceptional circumstances;

c)	there are clear legal grounds meriting a review of the decision of the trial judge. 

7. As to the reasons for not filing an appeal in time, no reasons have been given. 

8. As to whether there are cogent, convincing reasons or exceptional circumstances, the applicant’s counsel initially submitted that there were and these are that the trial judge failed to properly consider the factors of de facto provocation, the youthfulness of the applicant and the compensation paid. 

9. During the course of submissions, it became apparent that the trial judge had considered the sentence to be imposed on the basis that the applicant was 17 years of age at the time that the crime was committed. That the applicant was 17 years of age at the time that the crime was committed was made in submissions on behalf of the applicant. There is no evidence before this Court, and indeed there was no evidence before the Courts below, of the applicant’s age. 

10. As the trial judge proceeded on the basis that the applicant was 17 years of age at the time the crime was committed, the issue was raised by Kassman J of this Court as to why the crime alleged to have been committed by the applicant had not been dealt with pursuant to the provisions of the Juvenile Justice Act 2014. That Act applies to a person charged with an offence who is under the age of 18 years at the time of the commission of the offence. The other issues that arise are what are the consequences of the trial judge proceeding to consider the sentence to be imposed upon the applicant without having recourse to the Juvenile Justice Act and more fundamentally, whether the entire criminal process which was followed for the prosecution of the applicant was flawed from the beginning, such that, for instance, a mistrial should be ordered. 

11. Given this, we are satisfied that cogent, convincing reasons or exceptional circumstances and clear legal grounds exist such that leave to review should be granted. 

12. The first issue is whether the criminal process which was followed to prosecute the applicant is fundamentally flawed. We consider this, notwithstanding that counsel for the applicant did not press or raise this issue. This is because, for instance, if we find that the National Court did not have jurisdiction, this Court using its inherent power, may order that the conviction as well as the sentence be quashed. 

13. As referred to, it is common ground that the applicant’s age,  purportedly being 17 years at that time of the commission of the crime, was not raised until it was referred to in submissions being made on penalty. In the Information filed against the applicant, his age is listed as 19. In the Notice of Committal it is stated that, “I estimate the age of the accused at: M/19 years”. There is no evidence of any issue or dispute concerning the applicant’s age. 

14. In s.2 Juvenile Justice Act, the definition of “juvenile” is:

“means a person who is, or in the absence of evidence to the contrary, appears to be, ten years old or older, but less than 18 years old”. 

15. Section 61 Juvenile Justice Act concerns the inquiry and other requirements which shall be made when a juvenile first appears in a Court. Section 61 (1) provides:

“(1)	At a juvenile's first appearance before a Court, and prior to taking a plea from the juvenile, the Court shall —

(b)	make a determination as to the juvenile's age in accordance with Section 4;” 

16. In this instance, as the applicant was listed as 19 years of age in the Information, his age was estimated to be 19 years in the Notice of Committal, and no issue was raised by anyone concerning his age, it may be presumed that the applicant appeared to the police and the Committal Magistrate to be a person who was older than 18 years of age. Consequently, the applicant did not fall within the definition of “juvenile” in s. 2 Juvenile Justice Act as he did not appear to be less than 18 years of age and there was no evidence to the contrary.

17. As the applicant did not fall within the definition of “juvenile”, the Court before which the applicant first appeared was not required to perform all of the requirements listed in s.61, including the requirement to make a determination of the applicant’s age. The applicant was dealt with by the Court as an adult and the Court was entitled to deal with the applicant as an adult as no issue or dispute was raised concerning whether he was a juvenile, or concerning his age and the police and Committal Magistrate did not consider that the applicant appeared to be under 18 years of age. That there was no such dispute or issue raised is common ground. As mentioned, there is no evidence before the Courts’ of the applicant’s actual age. Further, the issue of compliance or otherwise with the Juvenile Justice Act was first raised by Kassman J of this Court, 2 days ago. 

18. We are satisfied for these reasons that the criminal process which was followed to prosecute the applicant was not fundamentally flawed. 

19. The next issue for consideration is whether the trial judge fell into error in considering the sentence of the applicant on the basis that the applicant was 17 years of age when the applicant committed the crime, without making or having any reference to the Juvenile Justice Act. 

20. It is common ground that the crime to which the applicant pleaded guilty is a crime that would have been dealt with by the National Court in any event, pursuant to s.20(1) Juvenile Justice Act as the applicant was charged with homicide, or an offence punishable by death or imprisonment for life. Here, the applicant was charged with manslaughter, the penalty for which is imprisonment for life. 
So, the proceeding properly came to the National Court from the Committal Court and the National Court had jurisdiction to hear the trial under s.20 Juvenile Justice Act. 

21. Section 20 (3) Juvenile Justice Act however, provides that when exercising jurisdiction under s.20, the National Court shall so far as is practicable, sit and conduct proceedings in accordance with the Juvenile Justice Act. 

22. To the extent that the trial judge considered and passed sentence against a person who he treated as being 17 years old at the time of the crime and did not comply with s.20 and Parts 6 and 7 of the Act, he fell into error. It should be mentioned however, that the trial judge did not receive any assistance from counsel for the State or the applicant as to the law in this regard. We repeat that the Juvenile Justice Act issue was never raised by counsel at all. It was raised by a Judge of this Court. As a consequence, the sentence imposed should be quashed as the requisite provisions of the Juvenile Justice Act that should have been complied with when dealing with a person under the age of 18, were not complied with by the trial judge. 

23. The review against sentence is successful. As to the sentence that should replace the quashed sentence, counsel for the applicant submits that the sentence that should be imposed instead, taking into account the relevant provisions and considerations of the Juvenile Justice Act, is a sentence of 10 years in light labour, with 2 years of that 10 years suspended and with time already served before and after sentence to be deducted. There was no serious opposition to this proposed sentence by the State. 

24. Given, the purported age of the applicant at the time he committed the crime, the youthfulness of the applicant, the de facto provocation of the applicant before he committed the crime, the amount of compensation that he has paid to the victim’s relatives, the content of his pre-sentence report and the relevant provisions of the Juvenile Justice Act, we agree with these submissions made on behalf of the applicant. 

Orders

a)	The Application for Leave to Review and Review are granted;

b)	The sentence of 14 years imprisonment in hard labour is quashed;

c)	The Applicant is sentenced to 10 years imprisonment in light labour. Two years of the sentence of 10 years are suspended and the time spent in custody before and after the applicant was sentenced in the National Court shall be deducted from the said sentence of 10 years. 
__________________________________________________________________
Office of the Public Solicitor: Lawyers for the Applicant      
Office of the Public Prosecutor:  Lawyers for the Respondent