Moses Simua v The State (2017) SC1692
Jurisdiction | Papua New Guinea |
Date | 20 July 2017 |
Citation | (2017) SC1692 |
Docket Number | SCR No 7 of 2017 |
Court | Supreme Court |
Year | 2017 |
Full Title: SCR No 7 of 2017; Moses Simua v The State (2017) SC1692
Supreme Court: Gavara-Nanu, Makail & Dingake JJ
Judgment Delivered: 20 July 2017
SC1692
PAPUA NEW GUINEA
[IN THE SUPREME COURT OF JUSTICE]
SCR NO. 07 OF 2017
MOSES SIMUA
Appellant
AND
THE STATE
Respondent
Waigani : Gavara-Nanu, Makail & Dingake JJ.
2017: 3rd May & 20th July
JUDICIAL REVIEW – Criminal law - Constitution; s155 (2) (b) – Criminal Code; s299 – Wilful Murder – Two counts – Plea of guilty to both counts –Uunequivocal – Allocotus – Expression of remorse.
JUDICIAL REVIEW – Criminal law – Constitution; s1.55 (2) (b) – Sentence – Head Sentence – 40 years in hard labour – Time spent in custody deducted – Totality principle applied – Balance of sentence – 26 years 6 months 2 weeks to serve.
JUDICIAL REVIEW – Criminal law – Constitution; s1.55 (2) (b) – Application to review both conviction and sentence – Relevant principles discussed – Leave refused – Application dismissed.
Cases cited:
Acting Public Prosecutor v. Konis Haha [1981] PNGLR 205
Application by Herman Leahy (2006) SC855
Avia Aihi v. The State (No. 1) [1981] PNGLR 81
Avia Aihi v. The State (NO. 2) [1982] PNGLR 44
Manu Kovi v. The State (2005) SC789
Michael Newall Wilson v. Clement Kuburam (2016) SC1489
Public Prosecutor v. Terrence Kaveku [1977] PNG 110
SCR No. 5 of 1987; re Central Banking (Foreign Exchange and Gold) Regulations [1987] PNGLR 433
The State v. Robert Kawin (2001) N2167
Tremallan v. The Queen [1973] PNGLR 116,
Counsel:
Applicant in person
D. Mark, for the Respondent
20th July, 2017
1. BY THE COURT: The applicant seeks leave to review his conviction and sentence of 40 years imprisonment. The actual period the applicant has to serve is 26 years 6 months and 2 weeks, after 10 years was deducted from the head sentence under the totality principle and further deduction of 3 years 6 months 2 weeks the applicant spent in custody awaiting trial.
2. The applicant was convicted of two counts of wilful murder, following his plea of guilty, on 15 April, 2016. The trial judge imposed 20 years imprisonment for each count, thus the head sentence of 40 years, then made deductions as mentioned above to reach the actual term of imprisonment.
3. The application for leave to review is made pursuant to s. 155 (2) (b) of the Constitution, following failure by the applicant to appeal within 40 days after the date of the conviction under s. 29 (1) of the Supreme Court Act, Chapter 37. The applicant is clearly entitled to invoke the review jurisdiction of the Court: Avia Aihi v. The State (No. 2) [1982] PNGLR 44; Avia Aihi v. The State (No. 1) [1981] PNGLR 81; Application by Herman Leahy (2006) SC855 and Michael Newall Wilson v. Clement Kuburam (2016) SC1489 and SCR No. 5 of 1987; re Central Banking (Foreign Exchange and Gold) Regulations [1987] PNGLR 433.
4. The applicant was charged with two counts of wilful murder. The offences were committed on 28 October, 2012, in Balimo, Western Province. The applicant was sleeping in a room at night when he overheard the two deceased who were sleeping in the same room talking about him and accusing him of raping the sister of one of the deceased and intimating that they would kill him by sorcery. The applicant switched off the light in the room and got a grass knife from a cupboard in the room and attacked the two deceased while they were asleep by cutting and stabbing them repeatedly. Both deceased died from their wounds.
5. On arraignment, the applicant pleaded guilty to both counts. He told the Court that he intended to kill the deceased. The defence counsel informed the Court that defence had no application to make on applicant’s plea of guilty. On his allocutus, the applicant expressed remorse and apologised to the relatives of the two deceased. In the record of interview, he made full admissions.
6. In regard to applicant’s conviction, we find that arraignment was properly administered and the plea of guilty was unambiguous and unequivocal. The charges were explained to the applicant and he...
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