SC2168

PAPUA NEW GUINEA
[IN THE SUPREME COURT OF JUSTICE]

SCRA NO. 10 OF 2020

BETWEEN:
PETRUS HAIVETA
Appellant

V

THE STATE
Respondent

Waigani: Salika CJ, Murray J & Anis J
2021: 22nd & 26th November

SUPREME COURT - APPEAL AGAINST SENTENCE – Application for leave to appeal and Notice of Appeal – s. 22(d) – Supreme Court Act – Leave to appeal filed within time and not contested – substantive appeal – s. 23(4) – Supreme Court Act - exercise of discretion in sentencing – whether the trial judge committed identifiable error or errors that requires intervention by the Supreme Court – early guilty plea - consideration – findings

Cases Cited:

Ignatius Nalu Pomalou v The State (2006) SC834
Ricky Antio v. The State (2019) SC1858
Olivia Warome v The State (2020) SC1991
Mary Bomai Michael v The State (2004) SC737
Gimble v. The State [1988-89] PNGLR
Don Hale v. The State [1988] SC564
Tau Jim Anis v. The State (2000) SC642
Dudley Henry Gorop v. The State [2003] SC732
The State v. Mila Renof [2009] N4027

Counsel:

I Dalu with counsel assisting J Bibilo, for the Appellant
R Luman, for the Respondent

26th November, 2021

1.	BY THE COURT:  The prisoner (appellant) is appealing against his sentence of 11 years for robbery (aggravated robbery).  His appeal is made under s. 22(d) of the Supreme Court Act Chapter No 37 (the SC Act) where leave of Court is required.  Subject to leave being granted, the appellant also wishes the same Court to hear the substantive matter.  Both matters were set down for hearing before us on 22 November 2021.  We heard arguments from the parties on both the leave application and the substantive appeal on sentence and reserved our decision to today at 9:30am.

BACKGROUND

2.	Briefly, the robbery occurred at Kwikila Station in the Central Province between 4pm and 5pm on Sunday 26 August 2018.  The appellant and his accomplices which included the 2 co-accused Louis Ingian and Charlie Parua (2 co-accused), and Brian Kovea (escapee who was sentenced in absence), robbed a mini supermarket there called Titan Supermarket of its goods and cash the latter to the tune of K6,155.90.  They were armed with 2 pistols and a pocketknife.  Two accomplices were dressed in police uniforms and held 2 pistols at the time of the robbery.  The appellant held the pocketknife.  In the supermarket, customers there were told to lay on the floor whilst the robbery was underway.  The appellant proceeded to one of the tills where he collected monies that were kept there.  The others collected goods in the supermarket.  They later escaped through a getaway vehicle, a silver-grey sedan, Mark II with the registration number BFI 207.  They were later apprehended, arrested and charged under s. 386(1)(2)(a)(b) of the Criminal Code Act Chapter No. 262 (Criminal Code Act).

3.	The appellant entered an early guilty plea at the record of interview and on arraignment.  The 2 co-accused and Brian Kovea denied the charge but were later convicted for robbery (aggravated robbery) upon a trial.  All 4 prisoners were later called in for sentencing.  Prisoner Brian Kovea escaped from custody during the trial.  On 20 February 2020, the trial Judge handed down his sentence where he sentenced all 4 prisoners including the appellant, to 11 years imprisonment in hard labour.  His Honour also ordered their pre-sentence custody period to be deducted from their sentences.  As for the appellant, 1 year, 5 months, 3 weeks and 4 days were deducted from his sentence reducing it down to 9 years 6 months and 3 days to serve, that is, as of 20 February 2020.  The appellant’s appeal stems from the said decision of the Court.

LEAVE TO APPEAL

4.	We will address the leave application, and subject to leave being granted, proceed to deal with the substantive appeal on sentence.

5.	Section 22(d) of the SC Act states, A person convicted by the National Court may appeal to the Supreme Court….. with the leave of the Supreme Court, against the sentence passed on his conviction, unless the sentence is one fixed by law.  And the power of the Supreme Court to hear and determine an appeal against sentence is provided under s. 23(4), and it reads, On an appeal against sentence, if the Supreme Court is of opinion that some other sentence, whether more or less severe, is warranted in law and should have been passed, it shall quash the sentence and pass the other sentence in substitution for it, and in any other case shall dismiss the appeal.

6.	The respondent concedes that the leave application was filed within time.  In its opening, counsel submitted that the respondent took no issue with the leave application, and counsel proceeded to make submissions on the merit of the appeal.

7.	We observe that the appellant’s sentence of 11 years was handed down on 20 February 2020.  And we observe that his application for leave and notice of appeal were filed on 9 March 2020, which was 18 days after the date of sentence.  This was well within time or within the mandatory appeal period which is 40 days as prescribed under s. 29(1) of the SC Act.  Section 29(1) states, Subject to Subsection (2), where a person convicted desires to appeal or to obtain leave to appeal to the Supreme Court, he shall give notice of appeal, or notice of his application for leave to appeal, as the case may be, in the manner prescribed by the Rules of Court within 40 days after the date of conviction.

8.	To determine whether leave should be granted, the appellant is required to demonstrate that there is an arguable case or an identifiable error that leave be granted:  See case:  Ignatius Nalu Pomalou v The State (2006) SC834 and Ricky Antio v. The State (2019) SC1858.

9.	As the respondent does not challenge leave, we are inclined to grant leave and proceed to deal with the substantive matter.  But having said that and regardless of the position taken by the respondent, we note that our powers to grant or refuse leave herein is discretionary.  And in order for us to decide whether leave should be granted, the appellant is required to demonstrate that there is an arguable case or an identifiable error, that or to an extent that leave be granted so that the matter is resolved through its merit.  See cases: Olivia Warome v The State (2020) SC1991 and Ignatius Nalu Pomalou v The State (supra).  At this juncture, we are satisfied that there is an arguable case that requires proper consideration by the Court.  The main contention by the appellant is that he was the only person out of the 4 that were convicted and sentenced for the offence of robbery (or aggravated robbery) under s. 386(1)(2)(a)(b) of the Criminal Code Act who had pleaded guilty.  He said despite that, he received the same sentence of 11 years like the other 2 co-accused and Brian Kovea (escapee) who had pleaded not guilty but were convicted.  In our view, the matter centres around exercise of judicial discretion by the trial Judge.  As such, it would come to the main question of whether the trial Judge had properly exercised his discretion when he sentenced the appellant, who had pleaded guilty, to 11 years imprisonment with the other 2 co-accused when the 2 co-accused did not plead guilty but were convicted after a trial for the same offence.  This, to us, should or will require a closer extermination of what transpired before the lower Court and how the trial Judge arrived at his decision on sentences.  We therefore find merit in the proposed ground of appeal and grant leave to the appellant to his appeal on sentence.

SUBSTANTIVE APPEAL

10.	The Notice of Appeal (NoA) is located at page 4 of the Appeal Book (AB).  The ground of appeal is hand-written and reads:

THE TRIAL JUDGE ERRED WHEN HE SENTENCED THE PRISONER (PETRUS HAIVETA) TO ELEVEN (11) YEARS ALONG WITH HIS CO-ACCUSED WHO WERE CONVICTED AFTER A TRIAL AND THE PRISONER (PETRUS HAIVETA) HAD PLEADED GUILTY.  THE TRIAL JUDGE IN SENTENCING THE PRISONER (PETRUS HAIVETA) FAILED TO TAKE INTO CONSIDERATION THE STRONG MITIGATING FACTORS AND THE EARLY GUILTY PLEA OF THE PRISONER (PETRUS HAIVETA).

ISSUE

11.	The main issue is whether the trial Judge committed an identifiable error in the exercise of his discretion when he sentenced the appellant to 11 years imprisonment, that is, whether he took into account the appellant’s early guilty plea as a significant mitigating factor and whether it was factored into his consideration before he arrived at a sentence of 11 years.

CONSIDERATION

12.	On this core issue, we were drawn by both counsel to the relevant parts of the transcript of proceedings in the AB.  They include the following [at pages 64 and 65 of the AB],

Applying those principles to this case, Petrus Haiveta should receive a higher sentence than the other three co-offenders because he was actually with the other members of the group inside the supermarket where the robbery was perpetrated and shoppers assaulted. The other co-offenders were inside the getaway vehicle outside the supermarket. They were not with Petrus Haiveta and the other co-accused inside the supermarket. 

A plea of guilty. It is trite law that an offender who pleads guilty to an offence is entitled to a lenient sentence than if he had been convicted following a trial. According to the case of John Elipa Kalabus –v- The State [1988] PNGLR at p193, the court held that where an accused makes an expression of remorse or pleads early after the commission of an offence or pleads guilty, the more favourable it would become for the offender. Applying this principle to this case, Petrus Haiveta should receive a lesser sentence than the three offenders because he pleaded guilty to the offence.

In view of the above considerations, I would be justified in differentiating sentence to reflect their decree of participation. In the present case, there is no dispute that the four offenders acted in concert. The difficulty that I am faced with is whether I impose the same sentence on all of them or sentence each of them individually according to the level of criminal culpability and their respective circumstances. In my view, neither group of offenders should be given special treatment from each other. The differing circumstances, whilst forceful in themselves, cancels out the view of a special treatment. I will therefore proceed on the basis that all the offenders should be sentenced on the same basis. The offence of robbery would not have been successfully executed if each offender did not perform their expected roles.  [Underlining ours]
……

13.	When we consider those parts of His Honour’s decision, it is obvious to us that His Honour did consider the mitigating factor of early guilty plea.  It was considered as a significant mitigating factor.  But we also note that that was not the only significant factor considered by the Court.  Aggravating factors were also considered and we note that they far outweigh the mitigating factors which was noted by the trial Judge at line 40, page 66 of the AB.  Aggravating factors included use of deadly or dangerous weapons, threats and assaults on the customers where the robbery was conducted, disguised as policemen wearing police uniforms and the fact that it was a pre-planned armed robbery.  His Honour also noted, as a significant factor, that the appellant was the main player in the armed robbery, that is, as opposed to his 2 co-accused.  The 2 co-accused were in the getaway vehicle whilst the appellant and others were conducting robbery in the supermarket.  With that, His Honour went on to observe that the appellant should therefore receive a higher sentence then the 2 co-accused.  In so doing, His Honour imposed a higher sentence of 11 years rather than 5 years as submitted by the appellant’s lawyer at the hearing on sentence.  Eleven (11) years was the higher sentence, and because His Honour found that all 4 had acted in concert, he imposed 11 years sentences equally upon each one of them.  As His Honour stated at line 10, page 66 of the AB, The offence of robbery would not have been successfully executed if each offender did not perform their expected roles.  

14.	We also note that it was the 2 co-accused, and not the appellant, who were captured by s. 7 of the Criminal Code Act.  By operation of s. 7, the robbery (aggravated robbery) was also deemed to have been also committed by the 2 co-accused even though they were waiting in the getaway vehicle and did not actually participate in the actual crime.  We note the 2 co-accused may be the ones who could have received a lesser sentence given their minimal roles or lesser criminal culpabilities in the commission of the offence.  But they all had to pay the same price in sentencing terms, as regarded and imposed by the trial Judge at his discretion.  Therefore, and in our view, it is misconceived to argue that since 11 years was given to the 2 co-accused and Brian Kovea (escapee), it is reasonable to assume or say that it makes sense that the appellant should receive a lesser sentence given his guilty plea.  The appellant’s level of culpability, as found by the trial judge, was much higher than those of the 2 co-accused.  As such, His Honour, in our view, was correct when he stated at line 10, page 66 of the AB that The differing circumstances, whilst forceful in themselves, cancels out the view of a special treatment, which led His Honour to his application of equal sentences to all 4 prisoners including the appellant. 

15.	In our view, we consider that to be proper exercise of judicial discretion by the trial Judge.  We therefore find no identifiable error in the exercise of discretion by the trial Judge.  In fact, we find that His Honour had carefully considered and weighed the guilty plea mitigating factor with the others, to arrive at a reasonable sentence as he has done in this case.  And further to that, we note that the offence of aggravated armed robbery, after the amendment to the Criminal Code Act, that is, Criminal Code (Amendment) Act 2013 (No. 6 of 2013), carries a maximum sentence of death penalty.  Parliament had regarded the seriousness of the offence thus increased the maximum penalty for robbery under s. 386 from life to death.  As such, 11 years sentence in this case may appear as a lenient sentence but which we note was well within the discretion of the trial Judge.  We say this in view of s. 19 of the Criminal Code Act which gives discretion to a trial judge in sentencing.  Section 19(1)(aa) states, a person liable to death may be sentenced to imprisonment for life or for any shorter term.  See case:  Mary Bomai Michael v The State (2004) SC737.

16.	In His Honour’s decision, he makes reference to comparative case law and tariffs for the offence of robbery (aggravated robbery), and how they have varied over the years, by references to the following cases, Gimble v. The State [1988-89] PNGLR, Don Hale v. The State [1988] SC564, Tau Jim Anis v. The State (2000) SC642, Dudley Henry Gorop v. The State [2003] SC732 and The State v. Mila Renof [2009] N4027.  We also consider His Honour’s actions in that regard as fair and proper, in terms of considering the tariffs to establish an appropriate sentencing term for the case that was before him.

SUMMARY

17.	We dismiss the appeal and confirm the sentence of the trial Court made on 20 February 2020.
________________________________________________________________
Public Solicitor:	Lawyer for the Appellant
Public Prosecutor:	Lawyer for the Respondent