Michael Mikoro v The State (2015) SC1424

• Jurisdiction: Papua New Guinea
• Judge: Cannings J, Makail J, Kangwia J
• Judgment Date: 01 May 2015
• Citation: (2015) SC1424
• Docket Number: SCRA NO 45 of 2011
• Court: Supreme Court
• Year: 2015
• Judgement Number: SC1424

Full Title: SCRA NO 45 of 2011; Michael Mikoro v The State (2015) SC1424

Supreme Court: Cannings J, Makail J, Kangwia J

Judgment Delivered: 1 May 2015

SC1424

PAPUA NEW GUINEA

[IN THE SUPREME COURT OF JUSTICE]

SCRA NO 45 0F 2011

MICHAEL MIKORO

Appellant

V

THE STATE

Respondent

Waigani: Cannings J, Makail J, Kangwia J

2015: 27 April, 1 May

CRIMINAL LAW – sentencing – appeal against sentence of 20 years for murder, Criminal Code, Section 300(1)(a) – whether any identifiable error made by sentencing Judge – whether sentence manifestly excessive.

The appellant appealed on four grounds to the Supreme Court against the sentence of 20 years imprisonment imposed on him by the National Court following his conviction, after trial for one count of murder under Section 300(1)(a) of the Criminal Code. He argued that the sentence was excessive as: (a) the deceased had only sustained one wound, (b) he had been in remand for an excessive period prior to being convicted and sentenced, (c) there had been a peace and reconciliation ceremony with the deceased’s family and (d) he had a wife and two children to care for.

Held:

(1) In an appeal against sentence the appellant must show that the sentencing Judge either made an identifiable error that has the effect of vitiating the sentence or imposed a sentence that was obviously (not merely arguably) excessive (William Norris v The State [1979] PNGLR 605, Eddie Peter v The State (2006) SC1340).

(2) None of the four grounds of appeal exposed any identifiable error by the sentencing Judge, in that: (a) the fact that the deceased sustained only one wound was not a mitigating factor given the severity of the wound to the head; (b) the full pre-sentence period that the appellant was in remand was taken into account and deducted from the head sentence; (c) the sentencing Judge took into account that there had been a peace and reconciliation ceremony and that some compensation was paid and gave those matters appropriate weight; (d) the sentencing Judge took into account the effect of the sentence on the welfare of the appellant’s family and properly regarded it as a matter that deserved little weight in the exercise of the sentencing discretion.

(3) The sentencing Judge properly had regard to the sentencing guidelines for murder in Manu Kovi v The State (2005) SC789, found that this was a case falling within category 2 of those guidelines and imposed a sentence in accordance with the sentencing range suggested. The sentence was not excessive, let alone manifestly excessive.

(4) The appeal was dismissed and the sentence fixed by the National Court was affirmed.

Cases cited

The following cases are cited in the judgment:

Allan Peter Utieng v The State, SCR No 15 of 2000, 23.11.00, unreported

Ben Wafia v The State (2006) SC851

Eddie Peter v The State (2006) SC1340

Manu Kovi v The State (2005) SC789

The State v Donald Angavia (No 2) (2004) N2590

The State v Flotyne Sina (2004) N2082

The State v Lucas Yovura (2003) N2366

The State v Michael Mikoro CR No 388 of 2007, 28.09.11, unreported

William Norris v The State [1979] PNGLR 605

APPEAL

This was an appeal against a sentence of 20 years imprisonment for murder.

Counsel

M Mikoro, the appellant, in person

D Mark & H Roalakona for the respondent

1 May, 2015

1. BY THE COURT: Michael Mikoro appeals in person as a prisoner against the sentence of 20 years imprisonment imposed by the National Court following his conviction on one count of murder, contrary to Section 300(1)(a) of the Criminal Code.

2. He was convicted on 24 September 2009, after a trial at Kerema, of the murder of Tapita Ivara. The trial Judge, Yalo AJ, found that the offence was committed at Karama village, Malalaua District, Gulf Province, on 5 September 2006. The appellant was drunk when he committed the offence. Earlier that day the appellant had an altercation with another person, Yohi Poki, and armed himself with a bush-knife and went looking for that person. The appellant came across three men. He thought that one of them was Yohi Poki. He swung his bush-knife at that person, who was not Yohi Poki but an entirely innocent person with whom the offender had no grievance, the deceased, Tapita Ivara. He cut Mr Ivara severely on the left side of the skull, causing almost instant death. The trial Judge found that the appellant directly killed the deceased, intending to cause him grievous bodily harm. His Honour rejected the defence of mistake of fact and convicted him of murder, as charged.

3. The trial Judge’s term of office expired soon after the date of conviction. After an application was made under Section 576(3) of the Criminal Code, the question of sentencing the appellant was dealt with by Justice Mogish (the sentencing Judge) at Waigani in September 2011. His Honour administered the allocutus and heard submissions from counsel.

4. His Honour emphasised that the deceased was a totally innocent man and the fact that the appellant did not intend to harm him (his intention being to do grievous bodily harm to another person) was irrelevant (The State v Michael Mikoro CR No 388 of 2007, 28.09.11, unreported). His Honour took into account that an offensive weapon was used to injure the victim on a vulnerable part of the body. The appellant acted deliberately and it was a vicious killing. His Honour considered that the case fell within category 2 of the sentencing guidelines given by the Supreme Court in Manu Kovi v The State (2005) SC789, attracting a sentence in the range of 16 to 20 years imprisonment.

5. His Honour, having taken account of the circumstances of the killing, the prevalence of the offence and the need for strong deterrence, imposed a head sentence of 20 years imprisonment. His Honour deducted from the head sentence the pre-sentence period in custody of 5 years, 3 weeks, 5 days and fixed the time to be served in custody as 14 years, 11 months and 2 days.

LEAVE TO APPEAL

6. At the commencement of hearing this appeal the Court discovered that leave to appeal pursuant to Section 22(d) of the Supreme Court Act had been neither sought nor granted. We allowed the appellant to make an oral application for leave, which he did. The respondent had no objection and having regard to the circumstances of the case and the interests of justice, the Court granted leave to appeal and heard the appeal.

GROUNDS OF APPEAL

7. The appellant argued that the sentence of 20 years was excessive and should be reduced. He relied on four grounds of appeal:

(a) the deceased had only sustained one wound;

(b) he had been in remand for an excessive period prior to being convicted and sentenced;

(c) there had been a peace and reconciliation ceremony with the deceased’s family; and

(d) he had a wife and two children to care for.

APPROACH TO APPEALS AGAINST SENTENCE

8. In an appeal against sentence the appellant must show that the sentencing Judge either:

· made an identifiable error that has the effect of vitiating the sentence; or

· imposed a sentence that was obviously (not merely arguably) excessive.

See for example William Norris v The State [1979] PNGLR 605, Ben Wafia v The State (2006) SC851 and Eddie Peter v The State (2006) SC1340.

GROUND (a): DECEASED SUSTAINED ONLY ONE WOUND

9. This matter was taken into account by the sentencing Judge. His Honour, properly, did not regard it as a very significant fact. The fact that the deceased sustained only one wound was not a mitigating factor given the severity of the wound to the head. His Honour made no identifiable error. Ground (a) is dismissed.

GROUND (b): EXCESSIVE PERIOD IN REMAND

10. It is true that the appellant was remanded in custody for a long time being before being convicted and sentenced. However, this was not necessarily a matter that warranted a lesser sentence. His Honour had regard to the full pre-sentence period that the appellant was in remand and deducted that period from the head sentence. His Honour made no identifiable error. Ground (b) is dismissed.

GROUND (c): PEACE, RECONCILIATION AND COMPENSATION

11. The appellant submitted that his family paid compensation to the deceased’s relatives and that this should have been taken into account as a mitigating factor. In fact, these matters were expressly considered by the sentencing Judge. His Honour took into account that there had been a peace and reconciliation ceremony and that some compensation was paid. His Honour stated:

As regards compensation, I note that K3,500.00, two pigs and store goods have been paid to the relatives of the deceased. Compensation is there to restore harmony between relatives of the offender and the victim. In homicide cases it should not be interpreted as a means to a lenient sentence. A life has been lost and no amount of compensation will restore that lost life.

12. We consider that compensation whether paid or ordered in relation to a criminal offence is not a substitute for any prescribed penalty as compensation does not pay for an offence committed. It operates as a mitigating factor for consideration at the discretion of the court....