The State v Nelson N Ngasele (2003) SC731

• Jurisdiction: Papua New Guinea
• Judge: Kirriwom J, Kandakasi J, Batari J
• Judgment Date: 03 October 2003
• Court: Supreme Court
• Citation: (2003) SC731
• Docket Number: SCRA No 17 of 2002
• Year: 2003
• Judgement Number: SC731

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.

___________________________

PAPUA NEW GUINEA

[IN THE SUPREME COURT OF JUSTICE]

SCRA NO.17 of 2002

THE STATE

-V-

NELSON N. NGASELE

KOKOPO: KIRRIWOM, KANDAKASI, BATARI JJ.

2003: 30th September

3nd of October

APPEAL – PRACTICE & 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 – s. 525(1)(a) of the Criminal Code.

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 and error warranting appeal by appellant – If there was cross-appeal by public prosecutor, sentence could have been increased - Appeal dismissed – Criminal Code s. 386.

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.

Cases cited:

The State v. Jack Gola and Mopana Aure [1990] PNGLR 206.

The State v Jason Dongoma (unreported judgement delivered on 13/12/00) N2038.

Gimble v. The State [1988 – 89] PNGLR 27.

Tau Jim Anis & Ors v. The State (Unreported judgement delivered 25/05/00) SC642.

Acting Public Prosecutor v. Don Hale (unreported judgement delivered on (27/08/98) SC564.

Hawai John v. The State (unreported judgement delivered on 02/04/98) SCR 09 of 1995.

The State v Gilbert Peter Diga (unreported judgment delivered on 02/04/98) SCR 09 of 1995.

The State v Danny Pakai (unreported judgment delivered 17/12/01) N217.

The State v Kennedy Arus (unreported judgment delivered on 16/03/01) N2081.

The State v Fabian Kenny (unreported judgment delivered on 16/05/02) N2237.

The State v Collin Amoko (unreported judgment delivered 18/04/02) N2214.

The State v Jamie Campbell Fereka (unreported judgment delivered 07/04/03) N2359.

Counsel:

Appellant in Person.

Mr. R. Auka for the Respondent.

3nd October, 2003

BY THE COURT: Nelson Ngasele, you are appealing against a sentence of five years less the time you had already spent in custody awaiting your trial for armed robbery. The National Court imposed that sentence against you on 22nd March 2002. You lodged your appeal on the 22nd of April 2002. Clearly your appeal is well within time. But the Supreme Court registry treated your appeal as a review matter. That is obviously an error. We therefore, proceed on the basis that this is an appeal within time.

In your notice of appeal, you set out four grounds. These are:

1. You were charged with illegal use of motor vehicle but when you appeared before the National Court it was changed to arm robbery.

2. There was no evidence presented against you by the police investigator or the prosecutor.

3. The Court did not consider your submission that you were not the...