Irai Thomas v The State (2007) SC867

• Jurisdiction: Papua New Guinea
• Judge: Kandakasi, Lenalia and David, JJ
• Judgment Date: 28 August 2007
• Citation: (2007) SC867
• Docket Number: SCR 08 OF 2006
• Court: Supreme Court
• Year: 2007
• Judgement Number: SC867

Full Title: SCR 08 OF 2006; Irai Thomas v The State (2007) SC867

Supreme Court: Kandakasi, Lenalia and David, JJ

Judgment Delivered: 28 August 2007

SC867

PAPUA NEW GUINEA

[IN THE SUPREME COURT OF JUSTICE]

SCR 08 OF 2006

BETWEEN:

IRAI THOMAS

Applicant

AND

THE STATE

Respondent

Mt. Hagen: Kandakasi, Lenalia and David, JJ.

2007:26 February

: 28 August

APPEALS - PRACTICE & PROCEDURE – Power of the Supreme Court on appeal – Power to increase sentences – Sentence imposed by trial judge inordinately low - National Court sentence quashed and substituted – Section 23 (4) Supreme Court Act (Chap. 37).

CRIMINAL LAW - PRACTICE & PROCEDURE – Claims of sorcery- Mitigating factor – Ready claim of and prevalence of commission serious offences such as wilful murder – Need for and revisit of principles - Sorcery is not a fact but only a believe – Danger that offenders claim belief in sorcery to avoid full consequences of their offence - Acting on believe of sorcery repugnant to general principles of humanity and may be Unconstitutional – Inappropriate to readily treat a claim of belief in sorcery as a mitigating factor – Only in cases where the offenders acted in the spare of the moment without preplanning and execution may get their cases mitigated – Section 19 Sorcery Act .

CRIMINAL LAW – Appeal against sentence – Wilful murder – Leader and part of a group alleging deceased cause of appellant’s fathers death - Claim of believe in sorcery for committing the offence – Deceased kicked punched and eventually struck hard on forehead causing split in skull and brain damage and instant death – Appellant acting against people trying to stop him – First time offender – Guilty plea – Sentencing trend – Deterrence against claims of sorcery and offence required – Sentence of 18 years imposed by National Court too low – Sentence increased to 22 years imprisonment in hard labour.

Cases Cited:

Seki Wanosa & 2 Ors. v. The Queen [1971-72] PNGLR 90.

Acting Public Solicitor v. Uname Aumane & 3 Ors. [1980] PNGLR 510.

Avia Aihi v. The State [1981] PNGLR 81.

Agoara Kelo & Anor. v. The State (1981) SC198.

Danny Sunu & Ors v. The State [1984] PNGLR 305.

Public Prosecutor v. Apava Keru and Aia Moroi [1985] PNGLR 78.

Kwayawako & 5 Os. v. The State [1990] PNGLR 6.

Lawrence Hindemba v. The State, (27/10/98) SC593.

The State v. Sambura (2002) N2219.

The State v. Boat Yokum & Ors. (04/12/02) N2337.

The State v. Francis Kuta Amet & Ors, CR1418 of 2002 & CR688 of 2003, unreported and unnumbered decision, (2004).

Sakarowa Koe v. The State (01/04/04) SC739.

The State v. Urari Siviri (30/08/04) N2747.

Manu Kovi v. The State (2005) SC789.

James Pangnan and Patrick Ponat v. The State, SCRA 39 & 54 OF 2004, (2005).

The State v. Maraka Jackson, CR1433 of 2004, unreported and unnumbered, (2006).

Counsels

Applicant in Person.

Mr. R. Auka, for the Respondent.

28 February, 2007

1. BY THE COURT: You sought a review of a decision of the National Court sitting in Kundiawa on 26 August 2005. You want this Court to reduce a sentence of 18 years imposed against you on a wilful murder conviction. We heard your review and decided against you as we found no merit in your application. At the same time, we ruled that the sentence you received was too low and decided to increase your sentence to 22 years less your pre-trial custody and the time you already served under the sentence imposed by the National Court. At the time of handing down our decision, we promised to provide a written judgment with the full reasons for our decision. This is now the promised written judgment.

2. In your review application form, you set out your grounds for seeking the review of the sentence as follows:

“ 1. EXCESSIVE SENTENCE. 17 YEARS

2. IT’S A GROUP MURDER BUT I WAS SENTENCE ONE SIDE, ITS LEGAL OR ILLEGAL YET TO BE JUSTIFIED.

3. COURT DID NOT CONSIDER MY GROUNDS BEFORE HANDING DOWN DECISION.”

3. Standing alone, these grounds of your application do not make any sense. However, when we read them together as one, you seem to be claiming that the sentence of 17 years imposed against you by the National Court is excessive because you were part of a group that committed the offence and that the National Court did not consider your side of the story or matters operating in your favour.

4. As for your appeal against sentence, you claimed that, the learned trial Judge was wrong in imposing the sentence of 17 years against you. You did not expressly say it, but, we note that, you impliedly claim that, the sentence was excessive.

5. You lodged your appeal six months out of time. The Supreme Court has therefore registered it as a review under s. 155(2)(b) of the Constitution. That means, this Court must decide whether or not to allow you to proceed to a review of the sentence you complain of. It is now settled law

1 See Avia Aihi v. The State [1981] PNGLR 81 and Danny Sunu & Ors v. The State [1984] PNGLR 305 for case on point.

1 that, the Court can allow you to proceed with your application only if we are satisfied that:

(a) It is in the interest of justice for us to grant you leave;

(b) There are cogent and convincing reasons and exceptional circumstances warranting a grant of leave; and

(c) There are clear legal grounds meriting a review of the decision, the subject of your application.

6. Of these requirements, the second and third requirements are important, because, they would lead to a determination of the first requirement. The reasons for the delay in lodging your appeal within the time prescribed by law and the merits of the grounds for your application are relevant in order to determine whether there are cogent and convincing reasons and exceptional circumstances.

7. We deal first with your reasons for not lodging your appeal within time. The decision of the National Court was delivered on 26 August 2005. You claim that, you immediately filled in a notice of appeal and arranged for it to be lodged with the Supreme Court registry. You go onto claim that, that notice of appeal was lost and you filled in a new one on 26 February 2006. That was successfully lodged with the Supreme Court registry which acknowledged its receipt on 20 March 2006. You did not file any affidavit and did not provide us with any evidence that confirms your claims. You have not provided this court with a copy of your original notice of appeal. Also, you did not provide us with the details of the arrangements you made to lodge your original appeal documents. In the circumstances, we find that you have not provided us with good reason or explanation for your failure to lodge your appeal within time and for us to grant you leave to proceed to a review of your sentence.

8. This leads us to turn to the issue of whether there are clear legal grounds meriting a review of the decision, the subject of your application. This issue can be determined by having regard to the relevant facts of the case, the reasons for the learned trial judge’s decision and the arguments you are advancing against them. We will now give consideration to each of these aspects, starting with a statement of the relevant facts.

9. Briefly, the facts commence with you and your brothers going to the house of the deceased, an elderly old woman on 20 November 2004. When you got to her house, you asked her to go to a gathering in the middle of the village. At that gathering, there was a discussion about who was responsible for causing the death of your father, which death occurred a few days earlier. During the discussion, another person accused the deceased of causing your father’s death by sorcery. You and two of your brothers kicked and punched the deceased. You got a rope and tried to strangle the deceased but were stopped by others. Instead of stopping at that, you went and got yourself armed with a bush knife and struck the deceased with it on her head. The deceased skull split and her brain was damaged resulting in her instant death.

10. In your allocutus before the National Court you said, the villagers forced you and told you that the deceased killed your father by sorcery. Also you informed the Court that, you were moved by the death of your father which was a big loss to you. Further, you informed the Court that, your mother was very old and that you had no siblings. Your lawyer added by submitting that, you were a first time offender and that you pleaded guilty to the charge. Furthermore, your lawyer submitted that, you were then a single; 19 years old young man educated up to grade 3 education, from Dramo village Gumini, Simbu Province. Your lawyer went on to submit that, you were still mourning the death of your father when confronted with the news of sorcery by the deceased and you committed the offence in the way you did and he urged the Court to take into account the fact that you committed the offence on your belief in sorcery by the deceased. Finally, your lawyer submitted with the agreement of the State that, this was not a worse case of wilful murder.

11. The learned trail Judge gave careful consideration to the relevant facts, what you...