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Asio v State [2024] PGSC 129; SC2657 (27 November 2024)

SC2657

PAPUA NEW GUINEA
[IN THE SUPREME COURT OF JUSTICE]

SCREV NO. 54 OF 2023

BENTLY BONSA ASIO
Applicant

-V-

THE STATE
Respondent

Kimbe: Kariko J, Geita J, Narokobi J
2024: 25^th & 27^th November

CRIMINAL LAW – application for review of conviction – s 155(2)(b) Constitution – wilful murder, s 299 Criminal Code – trial - killing by group – applicant convicted on statements by co-accused in record of interview -whether statements admissible as evidence – whether error of law – whether other evidence implicated culpability

CRIMINAL LAW – application for review of sentence – s 155(2)(b) Constitution – wilful murder, s 299 Criminal Code – life imprisonment - killing by group - – disparity in sentences

Facts

The applicant was with a group of men who during a drinking spree severely assaulted a man to death. His conviction was based on statements implicating him made by an accomplice in a record of interview and he was sentenced to life imprisonment. He filed for judicial review of the conviction and sentence.

Held:

1. It is a fundamental rule of law that a statement made by an accused person not made in sworn evidence at trial is not evidence against a co-accused, an accomplice or any person he may implicate.
   
2. There are admissions by the applicant in his record of interview that nevertheless render the applicant criminally liable for wilful murder.
   
3. As the proper facts upon which the applicant is guilty show the extent of his involvement in the killing is not as serious as viewed by the trial Judge, a lesser sentence is warranted.
   

Cases Cited:

Ambrose Lati v The State (2015) SC1413
Aparo, Araba, Haio, Tinidipu and Akwia v The State (1983) SC249
State v Bungtabu (2020) N8240
Ingian v State (2022) SC2263
John Beng v State [1977] PNGLR 115
Kaya v State (2020) SC2026
R v Sapulo Masuve (1973) No. 732
Sanawi v The State (2010) SC1076
William Norris v The State [1979] PNGLR 605

Counsel:
N Hukula & N Loloma, for the Applicant
H Roalakona & S Mosoro, for the Respondent

27^th November 2024

1. BY THE COURT: On 17 June 2019, Bently Bonsa Asio was convicted by the National Court at Kimbe for wilful murder contrary to s 299 of the Criminal Code and sentenced on 10 March 2020 to life imprisonment. See State v Bungtabu (2020) N8240.
   
2. He failed to file an appeal within the statutory time-limit.
   
3. After being granted the requisite leave on 16 February 2024, he filed for judicial review of his conviction and sentence pursuant to s 155(2)(b) of the Constitution.
   

THE TRIAL

4. This case concerns the killing of one Nobert Tomiral at Kumbango, WNBP (the deceased) between 26 and 27 March 2016 at the hands of a group of young men mainly from the Dagi Settlement during a drinking spree that involved driving around in a truck over several hours. It is undisputed that the deceased was badly assaulted and died from serious injuries sustained due to the assaults (there being more than one incident) over the material period.
   
5. The applicant was indicted with six others. They all pleaded not guilty and he with five others were convicted on evidence which only came from the prosecution. This comprised several documents tendered by consent and included the records-of-interview of all defendants.
   
6. It was clear from the evidence that:
   
   • the deceased was assaulted by persons from a group of men that included the applicant; and
   • the death resulted from the assaults.
     
7. The evidence the trial Judge found to implicate the applicant was the statements of co-defendant Alfred Bungtabu contained in his record of interview. The statements were to the effect that the applicant continuously hit the deceased over a long period and struck the fatal blow that caused the death - that he hit the deceased in the head with a car jack. The Court determined that the applicant and co-defendant Nathaniel Sino, the owner and driver of the truck, were the instigators and the leaders in the whole episode.
   
8. In sentencing, the trial Judge distinguished what he viewed as the different roles played by the defendants – the nature and extent of involvement in the killing. The applicant and Nathaniel Sino were punished with life imprisonment. Two other defendants who also assaulted the deceased were regarded as mere followers and they were sentenced to 25 years imprisonment. Another two defendants received 20 years in prison seemingly for being present and encouraging the assaults.

GROUNDS FOR REVIEW

9. The application for review raises two grounds, claiming:
   
   • (1) The trial judge erred in law in and in fact in relying on the accomplice evidence of Alfred Bungtabu to convict the applicant of wilful murder.
     
   • (2) The trial judge erred in sentencing the applicant to life imprisonment whilst his co-accused Martin Tuki, Alfred Bungtabu received 20 years imprisonment, Bata Dioni and Gunan Balu received 25 years imprisonment.

SUBMISSIONS

10. The applicant argued that the trial Judge wrongly relied on the statements of co-accused Alfred Bungtabu in his record of interview to convict. In support of this submission, reliance was had to Ingian v State (2022) SC2263 for the proposition that out-of-court statements by a co-accused is not admissible against the accused unless those statements are adopted by the co-accused in giving evidence in court.
    
11. The Court put to Mr Hukula of counsel for the applicant whether the admissions of the applicant in his record of interview to slapping the deceased and then dumping his body after he was killed by the others might nonetheless make him culpable for the killing. Counsel conceded to this proposition.
    
12. Regarding sentence, the applicant relied on the principle on disparity of sentence, arguing there was a “huge disparity’ between his life imprisonment and the terms of years imposed on his co-defendants. It was submitted that a similar term of years in prison was appropriate.
    
13. The State did not oppose the first ground of review, nor did it seriously counter the second ground.
    

CONSIDERATION

14. An appeal against conviction is governed by Section 23(1)(a) of the Supreme Court Act, Chapter 37 which states that in an appeal against conviction the Court must be satisfied that there is a reasonable doubt as to the safeness and satisfactoriness of the verdict. This is well settled in the leading case of John Beng v State [1977] PNGLR 115. See also Ambrose Lati v The State (2015) SC1413.
    
15. The same principles apply in the court considering an application for review of a conviction.
    
16. Similarly, an applicant for review of a sentence is in the same position as a person appealing sentence.
    
17. The relevant principles in relation to an appeal against sentence are succinctly stated by Kearney, J in the Supreme Court case of William Norris v The State [1979] PNGLR 605 at 612–613. Where there is an application for review of sentence the Court must be satisfied not only that the primary judge committed an identifiable error in the exercise of his sentencing discretion but also that such error had the effect to vitiating or voiding the sentence.
    
18. Ms Roalakona for the State properly conceded the first ground of review relating to conviction.
    
19. It is a fundamental rule of law that a statement made by an accused person not made in sworn evidence at trial is not evidence against a co-accused, an accomplice or any person he may implicate. An instructive discussion of the relevant principles is found in Aparo, Araba, Haio, Tindipu and Akwia v The State (1983) SC249 per Gajewicz J which are summarised in Ingian v State (supra) by Berrigan J at [30]-[31]. See also R v Sapulo Masuve (1973) No. 732.
    
20. This Court may under s 23(b) of the Supreme Court Act set aside a conviction for a wrong decision on a question of law. However, s 23(2) adds that the Court may still dismiss the appeal against conviction if it considers that no miscarriage of justice has occurred.
    
21. While the trial Judge erred in law convicting the applicant, it is apparent to us that there is proper evidence in the form of statements by the applicant in his record of interview which nevertheless renders him criminally liable along with his co-offenders for the wilful murder of Nobert Tomiral. In the interview, the applicant admitted that:
    
    • (1) he was present and witnessed the assaults upon the deceased at all material time; and
    • (2) he slapped the deceased at one stage (explaining this was to chastise the deceased for putting himself in a position to be attacked); and
    • (3) he took the dead body and dumped it near the side of a river (explaining that he was forced to); and
    • (4) he helped wash the deceased’s blood off the truck.
      
22. It makes no sense that the applicant would chastise someone by slapping him while others are assaulting that same person. Furthermore, the applicant did not elaborate on how he was forced to rid of the body at the river.
    
23. On his own admissions, the applicant is caught by s 7 of the Criminal Code – he aided and abetted in the killing.
    
24. The review of the conviction is therefore declined.
    
25. Regarding the application for review of sentence, the grievance of the applicant is that there is a considerable disparity in his sentence compared with that of the other co-offenders. The principles governing parity were set out in Sanawi v The State (2010) SC1076 applying Mario Postiglione v The Queen [1997] HCA 26; 91997) [1997] HCA 26; 189 CLR 295. See also Kaya v State (2020) SC2026. These key statements are stressed:
    

Equal justice requires that like should be alike but that, if there are relevant differences, due allowances must be made for them. In the case of co-offenders, different sentences may reflect different degrees of culpability or their different circumstances ... that, as between co-offenders, there should not be a marked disparity which gives rise to 'a justifiable sense of grievance'.

26. As the proper facts upon which the applicant is guilty shows that the extent of his involvement in the killing is not as serious as viewed by the trial Judge, a lesser sentence is warranted.
    
27. The Court was advised that Nathaniel Sino had his sentence of life imprisonment reduced to 30 years on appeal. The Registry confirms that decision was delivered by the Supreme Court at Waigani on 8 September 2023 in SCRev No. 21 of 2022. Nathaniel Sino is the owner and driver of the truck which transported the young men involved in the drinking spree that led to the killing of Nobert Tomiral.
    
28. On appeal against sentence, the Supreme Court may quash the sentence and substitute it with another sentence it considers is warranted: s 23(4) of the Supreme Court Act.
    
29. Considering all the circumstances, we would substitute a sentence of 25 years imprisonment.
    

ORDER

1. The application for review of the conviction of the applicant by the National Court on 17 June 2019 for wilful murder is refused.
   
2. The application for review of the sentence of life imprisonment imposed on the applicant by the National Court on 10 March 2020 is upheld and that sentence is quashed.
   
3. In lieu thereof, a head sentence of 25 years imprisonment to be served in hard labour is ordered, less the pre-sentence custody period.
   
4. A fresh warrant of commitment will be issued accordingly.
   

________________________________________________________________
Public Solicitor: Lawyer for the Applicant
Public Prosecutor: Lawyer for the Respondent