Simon Kama v The State (2004) SC740

• Jurisdiction: Papua New Guinea
• Judge: Sevua J, Kandakasi J, Lenalia J
• Judgment Date: 01 April 2004
• Citation: (2004) SC740
• Docket Number: SCRA No 34 of 2001
• Court: Supreme Court
• Year: 2004
• Judgement Number: SC740

Full Title: SCRA No 34 of 2001; Simon Kama v The State (2004) SC740

Supreme Court: Sevua J, Kandakasi J, Lenalia J

Judgment Delivered: 1 April 2004

1 APPEAL—PRACTICE AND PROCEDURE—Appeal to the Supreme Court—Appellants obliged to specify meritorious grounds of appeal—Failure to do so amounts to frivolous and vexatious appeals and an abuse of process—Supreme Court Registrar shall refer such appeals to the Supreme Court for summary determination to avoid wastage of limited public funds and limited judicial time—s11 of the Supreme Court Act (Ch37).

2 APPEAL—PRACTICE AND PROCEDURE—Appeal against sentence—Supreme Court cannot interfere unless a clear case of error is demonstrated—Lenient sentence—No error vitiating the trial judge's exercise of discretion—Case warranted cross–appeal—No cross–appeal—Consistent pattern of the Public Prosecutor with no apparent good reason—Public Prosecutor under Constitutional duty to charge and ask for appropriate sentences—Failure by Public Prosecutor to cross–appeal or ask for an increase in sentence no bar to Supreme Court exercising its powers under s23(4) of the Supreme Court Act (Ch37).

3 CRIMINAL LAW—Appeal against sentence—Murder—Offence committed in the course of armed robbery on highway—Death due to gunshot to the head—Guilty plea—First time offender—No prove of customary compensation paid—Aggravating factors outweighing factors in mitigation—Sentence of life imprisonment warranted—Sentence imposed too lenient—No Cross–appeal against sentence—Sentence of 25 years confirmed with warning that in future the Supreme Court will exercise its powers under s23(4) of the Supreme Court Act (Ch37).

4 Wanosa v R [1971–72] PNGLR 90, Norris v The State [1979] PNGLR 605, Ian Napoleon Setep v The State (2001) SC666, The State v Eddy Kava Laura (No 2) [1988–89] PNGLR 98, Lawrence Simbe v The State [1994] PNGLR 38, The State v Joseph Ulakua (2002) N2240, The State v Tony Pandau Hahuahori (No 2) (2002) N2186, The State v Tom Keroi Gurua (2002) N2312, The State v Kevin Anis (2003) N2360, Sakarowa Koe v The State (2004) SC739, The State v Peter John Plesman (1997) N1657, The State v Ian Napolean Setep [1997] PNGLR 428, The State v Yapes Paege and Relya Tanda [1994] PNGLR 65, The State v Godfrey Edwin Ahupa (1998) N1789, The State v Ben Simakot Simbu (No 2) (2004) N2546, Antap Yala v The State (1994) (CRA No 64 of 1994, Unnumbered and Unreported Supreme Court judgment of Amet CJ, Salika J and Injia J dated 31 May 1996 at Mt Hagen; SCR 69/96), Ure Hane v The State [1984] PNGLR 105 referred to

Facts

This was an appeal against a sentence of 25 years on a guilty plea to a charge of murder on grounds of excessiveness and failure to take into account the appellant's guilty plea and not allowing him to address the Court on sentence. The offence was committed in the course of conducting a planned armed robbery with the use of three firearms on a highway. The deceased, then a driver of a motor vehicle, slowed down to stop and the appellant shot the deceased in the head killing him instantly. The vehicle ended up in a drain with passengers in it who managed to run away as the appellants and his co–offenders attempted to shoot them too. Unfortunately, the appellant and his co–offenders pulled down a female passenger and robbed of her a sum of K50.00. On the presentation of an indictment charging him with murder, the appellant pleaded guilty while one of his co–offenders denied the allegation. After his sentence and the lodgment of his appeal, the appellant claimed that his co–offender received a lesser sentence of 15 years after a trial and so he asked for the same sentence but provided no evidence supporting this claim.

Held

1. The learned trial judge did take into account all of the factors in the appellant's favour, including his guilty plea.

2. Given the prevalence of the offence and past sentences not appearing to deter other would be offenders and that there can be no excuse, except as provided for by law for the taking away of another person's life and that murder is more serious than manslaughter, the sentencing range for the categories of murder identified in The State v Eddy Kava Laura (No 2) [1988–89] PNGLR 98 is now varied in the following terms:

(a) where there is a guilty plea with no factors in aggravation, a sentence of twelve (12) to sixteen (16) years;

(b) where there is a guilty plea with aggravating factors other than the use of firearms and the commission of another serious offence, a sentence between the range of seventeen (17) to thirty (30) years;

(c) where there is a guilty plea with aggravating factors where there is a use of firearms and such other dangerous weapons in the course of committing or attempting to committed another serious offence, a sentence of thirty one (31) years to life imprisonment;

(d) on a plea of not guilty, with no other aggravating factors a range of sentences from seventeen (17) to twenty one (21);

(e) on a plea of not guilty, with aggravating factors other than the use of firearms and in the course of committing or attempting to commit another offence, a range of sentences from twenty two (22) to forty (40) years;

(f) where there is a not guilty plea with aggravating factors where there is a use of firearms and or such other dangerous weapons and or in the course of committing or attempting to committed another offence, a sentence of forty one (41) years to life imprisonment;

A trial judge has the discretion to impose a sentence below these guidelines where there exist very good mitigating factors such as a very young person persuaded by others to commit the offence falling short of the defence of compulsion to commit the offence or for other very good reason.

3. The sentence of 25 years in the present case was a lenient sentence considering that, the case was in fact a willful murder committed in the course of committing other serious offences but reduced to murder for reasons only known to Public Prosecutor.

4. The Court was most surprised that the Public Prosecutor presented an indictment that did not reflect the facts of the case and thereafter failed to cross–appeal against sentence. In future, the Supreme Court will exercise its powers under s23(4) of the Supreme Court Act (Ch37), whether or not there is a cross–appeal as unmeritorious prisoner appeals are wasting the Court's time and are draining public funds unnecessarily.

5. In the circumstances, the learned trial judge did not fall into any identifiable error against the appellant that vitiated the exercise of his sentencing discretion thereby warranting an interference by the Supreme Court in the terms asked for by the appellant. Accordingly, the appeal was dismissed with the sentence by the National Court confirmed.

___________________________

PAPU NEW GUINEA

[IN THE SUPREME COURT OF JUSTICE]

SCRA NO. 34 OF 2001

SIMON KAMA

-V-

THE STATE

MT. HAGEN: SEVUA, KANDAKASI & LENALIA, JJ.

2004: 29th March

1st April

APPEAL – PRACTICE & PROCEDURE - Appeal to the Supreme Court – Appellants obliged to specify meritorious grounds of appeal – Failure to do so amounts to frivolous and vexatious appeals and an abuse of process - Supreme Court Registrar shall refer such appeals to the Supreme Court for summary determination to avoid wastage of limited public funds and limited judicial time - s.11 of the Supreme Court Act Chp.37.

APPEAL – PRACTICE & PROCEDURE - Appeal against sentence – Supreme Court cannot interfere unless a clear case of error is demonstrated – Lenient sentence – No error vitiating the trial judge’s exercise of discretion – Case warranted cross-appeal – No cross-appeal – Consistent pattern of the Public Prosecutor with no apparent good reason – Public Prosecutor under Constitutional duty to charge and ask for appropriate sentences – Failure by Public Prosecutor to cross-appeal or ask for an increase in sentence no bar to Supreme Court exercising its powers under s.23(4) of the Supreme Court Act Chp.37

CRIMINAL LAW –Appeal against sentence – Murder – Offence committed in the course of armed...