SC2868

PAPUA NEW GUINEA
SUPREME COURT OF JUSTICE

SCREV NO 65 OF 2024 

ALEX MANAWA
Applicant 

v

 THE STATE
 Respondent 

LAE: MANUHU J, WAWUN-KUVI J, CHRISTENSEN J
25, 26 MARCH 2026

REVIEW – CRIMINAL LAW – Sentence review – murder – strike to head with iron rod causing death – sentence of 20 years imprisonment – less weight on mitigating factors – extenuating circumstances – uncontested facts – manifest excess – difficult balancing exercise in homicide sentencing 

The applicant was sentenced to 20 years imprisonment for an offence of murder in which he killed an associate with an iron bar by striking him to the head.  On review, the applicant contended that there were extenuating circumstances that surround, and mitigate, the offending.  The applicant further contended that there was less weight given to the mitigating factors than the aggravating factors, and that the sentence was manifestly excessive.  

Held

1.	It is well recognised that a sentencing judge has a wide discretion in how mitigating, and aggravating, factors are weighed in the exercise of the sentencing discretion.

2.	The role of the sentencing judge in sentencing for an offence of homicide typically involves a difficult balancing exercise

3.	A ground of review that contends that a sentencing judge erred by placing less weight on the mitigating factors available is incapable of success given the nature of the enquiry on a review.  

4.	A sentencing judge does not have a duty to engage in an exercise of fact finding when the factual basis for the sentence is not contested. 

5.	The contended extenuating circumstances in this matter were not relied upon at sentence such that the brief facts were the appropriate basis for sentence.  

6.	The sentence imposed was not manifestly excessive, being well within the range of sentences imposed for the offending having regard to all relevant sentencing considerations.  

Cases cited

Ake, Public Prosecutor v [1978] PNGLR 469
Jumbo and Awatan v The State [1997] PGSC 1, SC516
Kama v The State [2004] PGSC 32, SC740
Mangi v The State [2006] PGSC 30, SC880
Manu Kovi v The State [2005] PGSC 34, SC789
Norris v The State [1979] PNGLR 605
State v Glaman [2022] PGNC 249, N9736 
State v Karuka [2021] PGNC 504, N9281
State v Luke [2022] PGNC 611, N10355
The State v Alex Manapa, CR 1948 of 2023, 05.06.24, unreported
The State v Gala [2018] PNGC 307, N7402
The State v Kanjip [2021] PNGNC 368, N9181
The State v Ligat [2019] PGNC 178, N7888
Ume v The State [2006] PGSC 9
Umme v The State [2006] PGSC 9, SC836
Yalibakut v State [2006] PGSC 27; SC890

Counsel 

E Misikali for the applicant 
P Matana with J Wusik for the respondent 

1.	BY THE COURT: By way of application for review filed 24 October 2024 the applicant seeks a review of his sentence for murder.   Leave to review was granted on 7 March 2025. 

2.	On 21 June 2024, the applicant was sentenced to a term of 20 years imprisonment for an offence of murder contrary to s 300(1)(a) of the Criminal Code that was committed on 19 March 2023.  The applicant pleaded guilty to the charge on 30 May 2024.  It is an offence that carries a maximum penalty of life imprisonment.   

3.	The law applicable to be applied by this court in determining the review of sentence is well settled.  That is, the applicant must demonstrate that the sentencing judge committed an error which has the effect of vitiating the sentencing discretion: Norris v The State [1979] PNGLR 605

Grounds of the review 

4.	The applicant sets out, in a revised application for review filed 4 March 2026, the following grounds:

(a)	The sentencing judge erred in fact and in law by placing less weight on the mitigating factors available in the applicant’s case. 

(b)	The sentencing judge erred in the exercise of the sentencing discretion by failing to take into account and/ or placing little to no weight on the circumstances of the offence in its entirety given the following reasons:

(i)	The deceased was drunk and instigated the incident;
(ii)	The applicant was at home, the deceased coming to the fight with the applicant without any good reasons; 
(iii)	The applicant had no intention to commit the crime, rather her acted in self-defence when the deceased attacked him with a sharp iron rod.  

(c)	The sentence of 20 years is excessive in the circumstances of the offence. 

5.	It is sought that the review be allowed, and that the sentence be set aside and substituted with a lower sentence.  

The sentence proceeding

6.	The sentence hearing occurred on 30 April 2024, 1 May 2024, and 16 May 2024.  

7.	The brief facts provided that between 6pm and 7pm at China Town, 13A Block, Lae, Morobe Province, the accused was drinking beer with the deceased and two other people.  Once the applicant’s wife and children returned home, the applicant left the group and went to his house.  Minutes later, the wife of the applicant approached the group and told them that the accused had locked the door and had cut their daughter who was inside.  The applicant’s wife ran to the police station, and the deceased and one other male went to the house.  The applicant came outside. 

8.	The deceased told the applicant that what he was doing was child abuse.  When the applicant heard that he came to the deceased and fought with him.  The other male tried to stop them.  

9.	The applicant ran out of the premises and ran back a few minutes later with an umbrella iron rod and tried to stab the other male with the rod.  This male blocked it with a plastic bag.  The applicant then used that same iron rod and hit the deceased on his head.  The deceased fell onto the ground.  The applicant then used the sharp part of the iron rod and stabbed the deceased on his head and ran away.  

10.	Relatives of the deceased rushed him to hospital, but he succumbed to the injuries and passed away the following day.  The matter was reported to the police, and the applicant was apprehended, interviewed, arrested and charged.  

11.	At the sentence hearing, the antecedent report with no previous convictions, was tendered. In the allocutus, the applicant expressed his apologies to God, the deceased, his community, family, and the lawyers and asked for the court’s mercy.  A pre-sentence report was then ordered and subsequently formed part of the sentencing material.  

12.	On the applicant’s behalf, it was submitted at sentence that the court would find that the offending was not the worst type of offence, and that it was offending that fell within category one and category two of Manu Kovi v The State [2005] PGSC 34, SC789.  The mitigating factors relied upon were that the attack was not premeditated, the applicant was a first time offender, and he pleaded guilty at an early stage.  No submissions were made as to there being extenuating circumstances that were informative to the sentencing exercise.  

13.	Four comparative authorities were relied upon by the applicant’s counsel, these being Mangi v The State [2006] PGSC 30, SC880; State v Luke [2022] PGNC 611, N10355; State v Glaman [2022] PGNC 249, N9736; and State v Karuka [2021] PGNC 504, N9281.  Each of these authorities involved circumstances of an offence occurring during a fight where alcohol had been consumed and a weapon was used.  A plea of guilty was entered in three of those matters.  Sentences in the range of 12 years to 16 years imprisonment were imposed.  A sentence in that range was submitted to be the appropriate sentence for the applicant.    

14.	On behalf of the State, it was submitted that the aggravating factors of the offending were the use of a dangerous weapon, that the stabbing was to a vulnerable part of the body, and that it was the killing of a defenceless or harmless man.  The State submitted that a strong intention to cause grievous bodily harm was established and there was an element of viciousness from the persistence in the offending.  It was submitted that the offending fell within the upper end of category two and lower end of category three in Manu Kovi v The State.  

15.	The State relied on three additional comparative authorities: The State v Gala [2018] PNGC 307, N7402; The State v Ligat [2019] PGNC 178, N7888; and The State v Kanjip [2021] PNGNC 368, N9181.  These authorities involved the use of an iron rod to kill the deceased in the course of a dispute.  Sentences of 20 to 28 years imprisonment were imposed.  

16.	The State emphasised the need to reflect the sanctity of human life in the sentence to be imposed and submitted that a sentence in the range of 16 to 25 years was appropriate.  

17.	On 5 June 2024, the sentencing judge delivered his reasons and sentence: The State v Alex Manapa, CR 1948 of 2023, 05.06.24, unreported.  His Honour relied on the facts of the offending in accordance with the brief facts.  The antecedents of the applicant were acknowledged, including that he is married with two wives and six children.  It was recognised that the applicant had no prior convictions and that he apologised in the allocutus.  The conclusion of the pre-sentence report, being that no recommendation was made given the serious nature of the offending, was acknowledged.  

18.	The sentencing judge had regard to the comparative authorities relied upon by both parties and the submissions made.  His Honour further had regard to what was said by the Supreme Court in Kama v The State [2004] PGSC 32, SC740 and observed that in accordance with that authority a sentence of 17 to 30 years imprisonment was warranted.  

19.	It was found that a particularly aggravating factor was the complete disregard for the sanctity of life.  The sentencing judge observed that the deceased was unarmed and could not defend himself from a repeated attack. It was found that there was a strong intention to cause grievous bodily harm.  

20.	The sentencing judge emphasised the role of deterrence in the sentence, expressing that the prevalence of the offence warranted this.  The sentence of 20 years imprisonment, with the time in custody deducted, was imposed.  

Ground (a) – Less weight placed on the mitigating factors

21.	The way this ground of review is framed is incapable of success.  It is well recognised that a sentencing judge has a wide discretion in how mitigating, and aggravating, factors are weighed in the exercise of the sentencing discretion: Norris v The State.  This Court will not interfere in that discretion in the absence of it being established that a factor was not taken into account at all, that a relevant mitigating factor was weighed on a wrong principle, or that the weight given to a relevant mitigating factor was so manifestly unreasonable that it demonstrably was given little or no practical effect in the sentence imposed.  

22.	The role of the sentencing judge in sentencing for an offence of homicide typically involves a difficult balancing exercise.  As the Supreme Court in Ume v The State [2006] PGSC 9 at [40] observed:

The sentencing principles in homicide cases are settled. In the exercise of its sentencing discretion, the Court must take into account all relevant aggravating circumstances, all relevant extenuating circumstances and all relevant mitigating factors. The Court must then balance these factors and determine a punishment which fits the particular crime.

23.	It was submitted on behalf of the applicant that the court failed to take into account the mitigating factors relied upon by the applicant and gave considerable weight to aggravating factors.  It was submitted that his Honour erroneously applied the principle from The State v Kama to the extent that it focuses only on aggravating factors.  

24.	This submission misconceives the sentencing decision, and the exercise of the discretion of a sentencing judge. The sentencing judge here recognised the submissions as to mitigation made on behalf of the applicant, including that he was a first time offender, he pleaded guilty, and that it was submitted it was not a premediated offence.  The sentencing judge recognised the expressions of remorse in the allocutus.  These mitigating factors were required to be weighed amongst significant aggravating factors in the offending.  His Honour then also had regard to established principle as to the appropriate sentencing range that may be of application.  The sentencing decision clearly reflected that his Honour considered and balanced not only the aggravating factors of the offending, but also the matters in mitigation relied upon by the applicant.  

25.	No error is identifiable from this aspect of the sentencing exercise.  

Ground (b) – Consideration and/ or weight on circumstances of offending

26.	The applicant’s contention under this ground misconceives the factual circumstances of the offending as relied on at the sentence hearing.  These were set out in the brief facts.  The applicant was afforded an opportunity for these to be explained to him and expressed his understanding of the facts alleged.  He pleaded guilty on the basis of the brief facts.  

27.	While at the time of entering the plea the applicant expressed that “some of the stories were true and some are not”, he was afforded an opportunity to consult with his lawyer.  The sentence hearing was adjourned to the following day.  Upon return, the sentence hearing continued with the brief facts again explained to the applicant.  The applicant entered a plea of guilty, and this was confirmed to be consistent with instructions.  The depositions were tendered, it was observed that the plea entered was consistent with the record of interview, and the conviction was formally entered.  

28.	Nonetheless, the applicant submits that the sentencing judge erred by not having regard to the record of interview and finding extenuating circumstances to the offending that ought to have resulted in a lesser sentence.  This submission is made despite no such position being advanced at the sentence hearing, no contest being raised with the brief facts, and no review against conviction being sought.  It was submitted that the sentencing judge has a duty to consider the depositions and determine the most favourable version of the facts is to form the basis of sentence.  
29.	The applicant contended that such a duty was a principle provided by the Supreme Court in Umme v The State [2006] PGSC 9, SC836.  This is not what Umme v The State provides.  The Supreme Court did observe that extenuating circumstances are relevant factors for the purpose of sentencing but did not dictate an obligation on a sentencing judge to unilaterally embark on a fact finding exercise to identify such circumstances.  

30.	The facts that were contended to establish the extenuating circumstances that were submitted to be necessary for the court to take into account here were drawn from the applicant’s record of interview.  The contents of this interview included that the deceased came and fought the applicant with a stone and that the applicant said he “got unconscious and g[o]t up from the ground and couldn’t remember what I did as I was over drunk”.  

31.	The applicant’s submission was otherwise made with reference to well established principles as to sentencing practice and procedure.  Reliance was placed by the applicant on Jumbo and Awatan v The State [1997] PGSC 1, SC516 as to the nature of a plea of guilty and the facts that determine sentence.  

32.	In Jumbo and Awatan v The State, the Supreme Court considered whether it was an error by the sentencing judge to fail to accept unsworn and unsubstantiated claims and an error by failing to give the appellants an opportunity to call evidence as to this.  The Court found that there was error, and observed:
... the law in relation to how a trial court should deal with competing and conflicting circumstantial facts upon a plea of guilty by the accused is well settled in this jurisdiction.
On a plea of guilty, the plea admits no more than the essential ingredients of the offence.  The plea does not in itself admit any circumstances of aggravation which may be alleged by the prosecution; nor conversely does it in itself negative any circumstances of mitigation not amounting to exculpation which may be within the knowledge of the accused alone.
If an accused disputes circumstances of aggravation alleged, he must do so by sworn evidence from himself or someone else; if on the other hand the aggravating matter is not sworn to and is only alleged on the one hand, and denied on the other, in an unsworn form, then “it is the duty of the trial judge to act upon the version of the facts which, within the bounds of reasonable possibility, is most favourable to the accused”.
The right of the accused must be no less with regard to circumstances of mitigation such as those claimed in the present case.  The facts normally are within the knowledge of the accused alone.  Nevertheless the Court must “within the bounds of reasonable possibility” accept the accused’s version.  The Court can reject the explanation if it passes the bounds of reasonable possibility, but we do not think it ought to take this course without giving the accused an opportunity to support his assertion  by his oath and that of any other witnesses it wishes to call.
[emphasis added]

33.	We accept, as well settled law, those principles as set out above.  However, it does not follow from this that a sentencing judge errs when, in a factually uncontested sentence hearing, an account in a record of interview is not specifically reconciled with the brief facts and a factual finding made.  Nor does it follow that a sentencing judge must engage in an exercise of ascertaining facts most favourable to an offender where they are not contested.  

34.	This was observed by the Supreme Court in Ake, Public Prosecutor v [1978] PNGLR 469 in which it was held that:

When no challenge is made to any of the facts alleged in the State case on a plea of guilty, the doctrine that the version of the facts most favourable to the accused should be acted upon, does not apply.

35.	A sentencing judge’s duty includes to ensure that a plea of guilty is properly made: Yalibakut v The State [2006] PGSC 27; SC890.  In practice, on a sentence hearing, this includes that the judge examines the depositions to check that there is evidence of the elements of the offence: Yalibakut v The State at [40].  Further, as held in Yalibakut:

-	When sentencing an offender who has pleaded guilty the judge must apply the facts to which the offender has pleaded guilty.

-	As to facts to which the offender has not pleaded guilty, the offender must be given the benefit of any reasonable doubt.

-	If the court does not take sworn evidence and there is no agreement between the parties as to the contentious matters, the court should act on the version of the facts which, within the bounds of possibility, is most favourable to the accused.

36.	Critically, as these authorities show, factual matters that are in dispute or denied, and that are matters capable of aggravating the sentence, must be considered and determined by the sentencing judge.  Here, there was no denial or dispute as to the brief facts, and those facts, which contained the factors of aggravation relied upon by the State, were known to the applicant and informed his entry of the plea of guilty. In contrast is a circumstance such as arose in Yalibakut v The State in which the judge sentenced the offender on the basis of aggravating facts to which the offender did not plead guilty.  

37.	In this matter, in accordance with the undisputed facts on sentence, it is therefore erroneous to describe the deceased as having instigated the incident, that the deceased came to fight without any good reason, and that the conduct of the applicant was in the nature of self-defence from the deceased.  Rather, as the facts reveal, the deceased had attended at the applicant’s premises in defence of a child.  It was the applicant who approached the deceased and fought with him.   It was the applicant who returned after a period of minutes with an iron rod.  It was the applicant who struck the deceased to the head causing him to fall to the ground, and the applicant who then stabbed the deceased to his head while he was on the ground.  These facts were not an unreasonable basis for sentence given the applicant’s own admission as to his state of intoxication and the impacts of this on his recollection.  

38.	The circumstances of the offending as set out in the brief facts were known to the sentencing judge and formed, correctly and appropriately, the basis for sentence.  The contended extenuating circumstances relied upon by the applicant in support of this ground are not circumstances that were established for the purposes of sentence.  

39.	No error is established with respect to this ground.  

Ground (c) – Manifestly excessive sentence

40.	The applicant made no submissions specifically directed at this ground of review beyond submitting the contentions in the earlier grounds led to the manifestly excessive sentence.  

41.	The State submitted on the review that the sentence imposed was within range and was well within the sentencing judge’s discretion.  

42.	For completeness, we have considered this ground by having regard to the authorities said to be comparative that were relied upon at sentence.  

43.	A careful review of the authorities relied upon by the applicant at sentence reveal that these matters involved less serious circumstances and distinguishable features of offending.  In Mangi v The State, the stab wound was to the chest inflicted by a knife, in State v Luke, the stab wound was to the lower abdomen inflicted by scissors, in State v Karuka, an iron rod was used to inflict injury to the forearm.  In State v Glaman, where a sentence of 12 years imprisonment was imposed, a bush knife was used to inflict injuries to the left shoulder and chin area.  Significant weight was placed on the offender being a youthful offender.  

44.	The authorities relied upon by the State on sentence are of more comparative value.  They demonstrate the sentences imposed for offending involving an iron implement used to inflict injury to the head.  As already observed, sentences from 20 to 28 years imprisonment were imposed.  

45.	As to the offending that occurred here, the photographs tendered on sentence show the implement used in the offence was a long and heavy iron bar with a sharpened end.  It enabled a particularly brutal form of killing, particularly given it was used on the head, to occur.  The victim was in a vulnerable position on the ground at the time he was struck.  The applicant was intoxicated, and persistent in his pursuit of the victim.  It was entirely open and an appropriate finding for the sentencing judge to have concluded that the offending was done with a strong intention to cause grievous bodily harm. 

46.	It was also entirely open and appropriate for the sentencing judge to find that there is a prevalence to offending of this type that warranted a deterrent sentence.  Persons who resort to violence, in alcohol fuelled circumstances, must understand that there are not only grave consequences from the harm they cause, but also grave consequences to themselves and their own families with lengthy terms of imprisonment imposed.  

47.	The sentence imposed was well within the range of sentences imposed for the seriousness offending that occurred and appropriate having regard to all relevant sentencing considerations.  The sentence was not manifestly excessive.  

Conclusion

48.	No specific or manifest error is established.  The review must be dismissed.  

Orders

49.	For those reasons, the following orders are made:

(1)	The review is dismissed. 

(2)	The sentence of 20 years for the offence of murder contrary to s 300(1)(a) of the Criminal Code is confirmed.  
________________________________________________________________
Lawyer for the applicant: Public Solicitor
Lawyer for the respondent: Acting Public Prosecutor