The State v Nelson N Ngasele (2003) SC731

• Jurisdiction: Papua New Guinea
• Court: Supreme Court
• Date: 03 October 2003
• Citation: (2003) SC731
• Docket Number: SCRA No 17 of 2002
• Year: 2003

Full Title: SCRA No 17 of 2002; The State v Nelson N Ngasele (2003) SC731

Supreme Court: Kirriwom J, Kandakasi J, Batari J

Judgment Delivered: 3 October 2003

1 APPEAL—PRACTICE AND PROCEDURE—Preferment of charges—Powers of the Public Prosecutor—The Public Prosecutor has an absolute power to decide and present a charge he is able to prove—That power is not subject to any direction or control from anybody—s525(1)(a) of the Criminal Code.

2 CRIMINAL LAW—Appeal against sentence—Armed gang robbery with threats and actual violence on a street—Firearm and other weapons used to execute robbery and cause damage and injury to victims and property—Value of items stole substantial and partially recovered—Guilty plea—Sentence of 5 years imposed by the National Court—Well below range—No identifiable error warranting appeal by appellant—If there was cross–appeal by Public Prosecutor, sentence could have been increased—Appeal dismissed—Criminal Code s386.

3 The State v Jack Gola [1990] PNGLR 206, The State v Jason Dongoma (2000) N2038, Gimble v The State [1988–89] PNGLR 271, Tau Jim Anis v The State (2000) SC642, Public Prosecutor v Don Hale (1998) SC564, Hawai John v The State (Unreported and Unnumbered judgment delivered on 2 April 1998; SCR 9 of 1995), The State v Gilbert Peter Diga (Unreported and Unnumbered judgment delivered on 2 April 1998; SCR 9 of 1995) [The State v Gilbert Peter Diga (2000) N1991], The State v Danny Pakai (2001) N2174, The State v Kennedy Arus (2001) N2081, The State v Fabian Kenny (2002) N2237, The State v Collin Amoko (2002) N2214, The State v Jamie Campbell Fereka (2003) N2359, The State v Lucas Yovura (2003) N2366, The State v James Gurave Guba (2000) N2020, The State v Peter Yawoma (2001) N2032 referred to

Facts

The appellant was part of an armed gang, which conducted two robberies in the night. Actual violence with damages and injury to persons and property were occasioned to secure the robbery. Cash and goods of substantial value were stolen of which, only a part was recovered. The appellant was a first time offender and pleaded guilty to a charge of armed robbery. A sentence of 5 years in hard labour was imposed against him. He appealed against his sentence claiming that the sentence was excessive, it did not reflect the factors in his favour, that he was charge with an offence different to what the police indicated he would be charged with and that no evidence was presented against him.

Held

1. The Public Prosecutor has an absolute discretion to prefer and present a charge he is able to prove. A representation by police to an accused as to the likely charge to be brought against him or her is not binding on the Public Prosecutor.

2. The record of proceedings show that the learned trial judge took into account both the factors for and against the appellant that were fairly put before him. There was therefore no error in the exercise of the learned trial judge's sentencing discretion that requires this Court's intervention.

3. The sentence of 5 years was well below the tariff or range of sentences in similar cases. If the Public Prosecutor cross–appealed, the sentence would have been increased to one over 10 years.

4. For these reasons the appeal was dismissed and the sentence of the National Court was confirmed.

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By the Court: Nelson Ngasele, you are appealing against a sentence of five years less the...