Elvis Tanabo v The State

• Jurisdiction: Papua New Guinea
• Judge: Makail, Geita & Nablu, JJ
• Judgment Date: 28 October 2016
• Citation: (2016) SC1543
• Court: Supreme Court
• Year: 2016
• Judgement Number: SC1543

Full : SCREV No 11 of 2016; Elvis Tanabo v The State (2016) SC1543

Supreme Court: Makail, Geita & Nablu, JJ

Judgment Delivered: 28 October 2016

SC1543

PAPUA NEW GUINEA

[IN THE SUPREME COURT OF JUSTICE]

SCREV NO. 11 of 2016

BETWEEN:

ELVIS TANABO

Applicant/Appellant

AND:

THE STATE

Respondent

Mt Hagen: Makail, Geita& Nablu, JJ

2016: 26, 28 October

SUPREME COURT REVIEW – CRIMINAL LAW – Review of National Court decision on sentence – Application for leave to review – discretionary power of the Court to grant leave – Constitution s. 155 (2) (b) –Avia Aihi vs. The State [1981] PNGLR 81 followed – Leave granted.

SUPREME COURT REVIEW – CRIMINAL LAW – Offence of murder – s. 300(1)(a) of the Criminal Code - plea of guilty - sentence of life imprisonment imposed – Sentencing principles – Serious errors of law identified – Trial Judge took into account other aggravating factors not available for consideration – amounted to a miscarriage of justice – killing in domestic setting – vicious attack – prevalent offence – not a worse case – strict sentence to deter like-minded offenders - Sentence of life imprisonment quashed and substituted to a sentence of 20 years in hard labour.

Cases cited:

Antap Yala vs. The State (1996) SCR 96 of 1996

Avia Aihivs. The State [1981] PNGLR 81

Manu Kovi vs. The State (2005) SC 789

Saperus Yalibakut vs. The State (2006) SC 890

William Norris vs. .The State [1979] PNGLR 605

Counsel:

L. Siminji, for the Applicant

J. Kesan, for the Respondent

JUDGMENT

28 October 2016

1. BY THE COURT: The applicant sought leave to review the decision of the National Court in Kainantu to impose a sentence of life imprisonment with hard labour, after he had plead guilty to the charge of murder pursuant to Section 300(1) (a) of the Criminal Code. The sentence of life imprisonment was imposed on 21st September 2015 by the National Court. The applicant was indicted for the offence of murdering his wife, Ruthy Tobe Tanabo on 20th September 2014 at Tombetaka Village, Kainantu, Eastern Highlands Province.

Application for leave to review

2. Counsel for the applicant prior to making the application for review moved an application for leave to review pursuant to Order 7 Rules 25 and 26 of the Supreme Court Rules 2012. Counsel conceded that the applicant did file his application for review outside of the statutory time limit of 40 days. The applicant’s right to appeal expired on 30th October 2015. The application for review was filed by the prisoner on 25 February 2016, about four (4) months after the expiration of his time to appeal.

3. Mr Siminji submitted that the period of 4 months did not amount to an inordinate delay and that the applicant had a good reason to explain the delay. The applicant stated that he was waiting for his lawyer to assist him to file his appeal, but the lawyers’ assistance was not forthcoming. It was also submitted that the State did not raise any serious objection to the application and the applicant had an arguable case that warranted further enquiry by this Court.

4. The State through Counsel opposed the application for leave and argued that leave should only be granted in cases where the applicant had a convincing reason for not appealing within the 40 day statutory time limit. In the present case, he submitted that the reason advanced by the applicant was not a convincing reason for the Court to exercise its discretion in favour of granting leave.

5. The grant of leave to appeal is discretionary. The Court has the power to grant leave where the applicant’s primary right to appeal has expired pursuant to 155 (2) (b) of the Constitution; Avia Aihivs. The State [1981] PNGLR 81 followed.

6. Given the circumstances in the present case, the lack of availability of counsel in Kainantu and the fact that applicant had little formal education, we are persuaded that it was reasonable for the applicant to wait for further advice from his lawyer on how to appeal his sentence. Therefore, we are satisfied that leave should be granted in this matter and grant leave accordingly.

Application for review

7. The applicant was indicted for the murder of Ruthy Tobe Tanabo on 20th September 2014.

8. The learned trial Judge arraigned and convicted the applicant on the following facts which we have taken the liberty to reproduce herein. The relevant facts are contained at pages 14 – 15 of the Review Book.

“That the accused was the husband of the deceased namely, Ruthy Tobe Tanabo. The State alleges that on 20th September 2014 at around 6pm, they were on the road leading to Tombetaka village. After some argument, the accused got his bush knife and cut the deceased three times on her head and other parts of her body. The deceased fell to the ground and died instantly from the injuries and loss of blood. The body was taken to Kainantu hospital for a post-mortem.”

9. The sole ground of review is that the sentence was manifestly excessive. The applicant through Counsel submitted that the learned trial judge erred in her decision to impose the sentence of life imprisonment. The errors were identifiable and that would ultimately have the effect of vitiating the sentence. The sentence of life imprisonment was harsh and did not reflect the peculiar circumstances of the case.

10. The inherent power of the Supreme Court to review all judicial acts of the National Court (Section 155(2) of the Constitution) is further provided for under Section 23(4) of the Supreme Court Act. In an appeal against sentence, if this Court “ …is of the 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.” (Section 23(4) of the Supreme Court Act)

11. The proper way to formulate appeals against sentence was summarised succinctly by Kearney J in William Norris v. The State [1979] PNGLR 605. We adopt His Honour’s views at page 612 of that judgment. His Honour stated that:

“In practice in order to persuade this Court, an appellant will usually be required to show some error on the part of the trial judge, going to sentence…The sentencing power is a discretionary judicial power. If no such error is shown, this Court is unlikely to interfere with the sentence, because a trial judge is usually in a much better position to assess the proper sentence than is a court of appeal.”

12. The onus is on the appellant to show to this Court that there is an identifiable error which has the effect of vitiating the trial Judge’s discretion on sentence. Identifiable errors may include, but not limited to instances where the trial judge has made a mistake as to the facts; or acted on a wrong principle of law; or took into account matters which he or she should not have taken into account; or failed to take into account matters which he or she should have taken into account; or given too much or not enough weight to a matter he or she properly took into account: William Norris v. The State (supra) per Kearney J at page 612.

13. In William Norris v. The State (supra), the appellant appealed against the sentence of 5 years imprisonment in hard labour on the argument that the sentence was manifestly excessive. The appellant plead guilty to a charge of unlawful killing. The Supreme Court found that the trial Judge had committed an identifiable error when he accepted hearsay evidence, of the tempestuous relationship between the appellant and the deceased which was contained in the diary that the deceased had kept. By accepting the hearsay evidence, the trial judge fell into error when he considered and was influenced by the content of the diary and relied on the material to form an adverse view of the appellants’ character which ultimately culminated in the Judge imposing the sentence of 5 years.

14. The particulars of the identifiable error should be specifically set out in the Notice of Appeal. However, in the present case, because the prisoner filed his appeal without legal assistance he has not specified the ground of appeal properly. Despite the lack of form and the generality of the ground of review, we are of the view that in all fairness we can proceed to consider whether the trial judge had committed an identifiable error. If it is established that there was an error then the next issue is whether such error had the effect of vitiating the sentence.

Ground of Review: Identifiable Errors

15. The applicant through Counsel submitted that the learned trial judge erred in a number of ways. Firstly, the learned trial judge erred in both law and fact when she acted on a wrong principle of law, when she imposed the prescribed maximum penalty for murder which was life imprisonment when the facts of the case showed that it was not a “worst case” which would warrant an imposition of the prescribed maximum penalty.

16. Secondly, the learned trial judge took into account extraneous material and facts when considering the aggravating and mitigating factors during sentencing. The applicant argued that the trial Judge erred in respect of...