Gideon Robert v The State
| Jurisdiction | Papua New Guinea |
| Judge | Kangwia J,Toliken J,Gora J |
| Judgment Date | 29 April 2022 |
| Neutral Citation | SC2370 |
| Citation | SC2370, 2022-04-29 |
| Counsel | J Guri and J Unua, for the Appellant,R Luman, for the Respondent |
| Docket Number | SCRA 28 OF 2020 |
| Hearing Date | 26 April 2022,29 April 2022 |
| Court | Supreme Court |
PAPUA NEW GUINEA
[IN THE SUPREME COURT OF JUSTICE]
SCRA 28 OF 2020
Gideon Robert
Appellant
v.
The State
Respondent
Lae: Kangwia J, Toliken J, Gora J
2022: 26th & 29th April
CRIMINAL LAW — appeal — appeal against sentence of 6 years — stealing — circumstance of aggravation — amount more than K1000.00 — whether sentence manifestly excessive — need to demonstrate identifiable error in sentencing judge's exercise of discretion — no manifest or obvious error shown — sentence out of reasonable proportion to circumstances of offending — unidentifiable error inferred from — Appeal upheld — Sentence quashed and substituted.
APPEAL — law reform — recommendation for — recent amendment to Criminal Code for stealing — increased penalties for stealing monies totalling K1,000,000.00 and K10,000,000.00 — no corresponding or consequential amendments to existing penalty provisions — absurdity created — need for legislative reform.
Cases Cited:
The following cases are cited in the judgment:
Goli Golu v The State [1979] PNGLR 653
Avia Aihi v The State (No.3) [1982] PNGLR 92
Lawrence Simbe v The State [1994] PNGLR 94
William Norris v The State [1979] PNGLR 605
Belawa v The State [1988 – 89] PNGLR 496
Michael Mikoro v The State (2015) SC1424
Thress Kumbamong v The State (2008) SC1017
The State v Salle (No.2) (2015) N6148
The State v Paul [2015] N6132
The State v Gaumior (No.2) (2015) N6141
The State v Simbiri (2012) N5161
Jessie Kaia v The State (2022) SC2369
Counsel:
J Guri and J Unua, for the Appellant
R Luman, for the Respondent
The Public Solicitor: Lawyers the Appellant
The Public Prosecutor: Lawyers the State
JUDGMENT
29th April, 2022
1. BY THE COURT: On 16 August 2019, the appellant pleaded guilty before Pitpit J, to one count of stealing a total of K6000.00 from one Liksen Mandali contrary to Section 372(1)(10) of the Criminal Code (the Code). He was sentenced on 22 September 2020 to 6 years imprisonment.
2. The appellant appealed against his sentence only for which leave is required pursuant to Section 22(d) of the Supreme Court Act. Such leave was granted by Cannings J on 17 March 2022.
Background
3. The background facts are as follows; On 13 January 2016, the complainant, Liksen Mandali (Mandali), attended the National Housing Corporation (NHC) in Lae to enquire about the prospect of buying a portion of land described as Section 322, Allotment 04, Four Mile, Lae City. The appellant was at that relevant time employed by NHC as an Assets Clerk. The appellant advised Mandali that the land was on sale for K6000.00 and received from Mandali K1000.00 as first instalment without issuing a receipt. Mandali returned the next day with the balance of K5000,00. He asked for a receipt and was advised by the appellant to return the next day to collect the receipt. He returned the next day, but the appellant was not in the office. Thereafter Mandali attempted to take possession of the land, but could not as it had been sold to someone else, and of course he did not get a refund.
Grounds
4. The appellant advanced three grounds of appeal:
a. The trial judge erred in law by imposing an excessive sentence when the appellant had already repaid the stolen money in full and served 3 years imprisonment.
b. The trial judge erred in law by placing too little or no weight to the mitigating factor that appellant pleaded guilty, saving court's time and resources to run trial.
c. The sentencing judge erred by refusing to take into account the fraudulent action by the appellant of a sentence that was in the circumstances too excessive.
5. We note that the appellant partly abandoned his assertion in Ground 1 that he had fully repaid K6000.00 conceding instead that he repaid K500.00 only whilst still contending that the sentence was excessive.
Relief
6. The applicant sought the following orders:
i. The appeal be allowed.
ii. The sentence of 6 years imprisonment be quashed and substituted with a term of 4 years imprisonment.
iii. The pre-trial custody and post-sentence periods be deducted from the new term of sentence imposed, and
iv. Other orders the Honourable Court deems fit.
The Law
7. A sentencing judge has wide discretion. In an appeal against sentence, the appellant must necessarily demonstrate that the judge made an identifiable error, whether in law or fact, which has the effect of vitiating the sentence. But even where no error is identifiable, an unidentifiable error can be inferred if the sentence is out of all reasonable proportion to the crime. (William Norris v The State [1979] PNGLR 605; Michael Mikoro v The State (2015) SC 1424).
8. To fully appreciate what is required of an appellant to convince this Court to disturb a sentence, it is appropriate to quote fully from what Kearney J relevantly stated in William Norris (supra):
“… the question in practice on a sentence appeal is usually this — has the appellant shown that an error occurred which has the effect of vitiating the trial judge's discretion on sentencing? Such an error may be identifiable: thus, the trial judge may have made a mistake as to the facts; or acted on a wrong principle of law; or taken into account matters which he should not have taken into account; or failed to take into account matters which he should have taken into account; or clearly given not enough weight or too much weight to a matter he properly took into account. There will also be vitiating error if upon the proved facts and making the fullest allowance for the advantaged position of the trial judge, the sentence is obviously (and not merely arguably) excessive, although no identifiable error can be shown; for, if a sentence is out of reasonable proportion to the circumstances of the crime, even though no particular error can be identified, this Court will infer that some error must have occurred in the exercise of the sentencing discretion.
Where an identifiable error is relied on as a ground of appeal it should be set out in the notice of appeal, with particulars. An appellant relying upon identifiable error will usually have to show as well that the sentence was manifestly excessive, because otherwise he is unlikely to persuade this Court (as he must, to comply with s. 22 (4) of the Supreme Court Act 1975), that a different sentence should have been passed; this is because there is no precise sentencing tariff.
To state in a notice of appeal as the only ground of appeal, that a sentence is manifestly excessive, when what in truth is relied on is an identifiable error, conceals the question which this Court will be asked to determine.”
9. In our judgment in Jessie Kaia v The State (2022) SC2369 which we delivered this morning, we expounded on what the Court said there in William Norris (supra) where a sentence is alleged to be manifestly excessive. We said:
Where it is contended that a sentence is manifestly excessive, the real question for the Court to determine is whether an identifiable error has been shown. (William Norris) (supra) per Kearney DCJ)
In other words, a finding of a manifestly excessive sentence naturally results from an identifiable error, whether in law or fact, by the sentencing Judge being demonstrated. It cannot stand alone as a ground of appeal against sentence. It is not an end to itself, as it were.
10. At this juncture we pause to mention that the appellant was charged for stealing with a circumstance of aggravation under Section 372 (10) as opposed to stealing simpliciter under Section 372 (1). As such the penalties defer. Section 372(1) and (10) relevantly stipulate:
STEALING.
(1) Any person who steals anything capable of being stolen is guilty of a crime.
Penalty: Subject to this section, imprisonment for a term not exceeding three years.
…
(10) If the thing stolen is of the value of K1,000.00 or upwards, the offender is liable to imprisonment for a term not exceeding seven years.
11. So, did the primary judge commit identifiable errors that had the effect of vitiating his sentencing discretion as contended by the appellant here? And was the sentence of 6 years manifestly excessive in the circumstances?
12. We now move on to consider the grounds of appeal.
Ground (a)
13. The appellant contends that the primary Judge erred by not considering that he had paid K500.00 already towards restitution.
14. Mr. Guri submitted that the complainant confirmed receiving K500.00 from the appellant. This was placed before His Honour, both in allocutus and in the appellant's pre-sentence report, where the appellant also expressed his willingness to make full restitution by way of instalments, notwithstanding that this offer was rejected by the complainant who wanted a one-off payment in full. Defence counsel, in fact had submitted at trial that the appellant was willing to make 8 fortnightly instalments of K500.00 and taken together with his bail cash surety of K1500.00 and the K500.00 he had already paid, the amount would be fully repaid. Had His Honour properly took this into account, Mr. Guri submitted, he would have imposed a more appropriate sentence.
15. Mr. Luman submitted for the respondent that this ground has no merit and should be dismissed. Counsel submitted that the appellant failed himself by not proposing a repayment schedule in his pre-sentence report. But even if he did, the complainant wanted a one-off full payment.
16. So, has the appellant shown that the primary Judge erred in his treatment of the appellant's request for restitution by instalments?
17. This ground has no merit. The supporting argument is flawed. It is premised on a lack of understanding of the sentencing process. Simply put, the question of restitution, suspension, and deduction for time in custody, among others, are incidental to the task of determining what an appropriate head sentence ought to be in a particular case. These are considered at the very end of the sentencing process. And that was what the primary Judge did once he fixed the...
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