Tony Kande v The State
| Jurisdiction | Papua New Guinea |
| Judge | Kariko J,Murray J,Kaumi J |
| Judgment Date | 12 December 2022 |
| Neutral Citation | SC2327 |
| Docket Number | SCRA NOS. 36, 37 & 38 OF 2021 |
| Counsel | Mr M Wenge, for the Appellants,Mr D Kuvi, for the Respondent |
| Citation | SC2327, 2022-12-12 |
| Hearing Date | 26 October 2022,12 December 2022 |
| Court | Supreme Court |
PAPUA NEW GUINEA
[IN THE SUPREME COURT OF JUSTICE]
SCRA NOS. 36, 37 & 38 OF 2021
Tony Kande, Henry Naio & Wilson Muka
Appellants
v.
The State
Respondent
Waigani: Kariko J, Murray J & Kaumi J
2022: 26th October & 12th December
CRIMINAL LAW — appeal — notice of appeal — grounds of appeal to be stated briefly and specifically, O7 r 9 (c) & 10 Supreme Court Rules — not sufficient for ground to state charge not proved
CRIMINAL LAW — appeal against convictions — s 23(1)(a) Supreme Court Act — attempt to obstruct the course of justice — s 136 Criminal Code — whether evidence proved the requisite intent to obstruct
CRIMINAL LAW — appeal against sentences — s 22(d) Criminal Code — whether mitigation factors properly considered — whether sentences are a quantum leap
The appellants were charged together for four offences including attempt to obstruct the course of justice pursuant to s 136 Criminal Code. They pleaded not guilty to the charges and were tried, convicted only of the charge under s 136. Two of the appellants were sentenced to two (2) years imprisonment while the other received an eighteen (18) months imprisonment term. They appealed both their convictions and sentences.
Held:
1. Pursuant to O7 r 9(c) & r 10 Supreme Court Rules, the appellants must specify with particularity the grounds relied to demonstrate why the appealed judgment, in this case on the convictions, is alleged to be against the evidence, the weight of the evidence or wrong in law.
2. The issue of whether the conviction is safe and satisfactory can be determined by reference to the evidence, the treatment given to them by the trial judge; the findings of fact and the reasons for the findings and the eventual decision on verdict; Denden Tom & Anor v The State (2008) SC967 referred to.
3. Based on the evidence, the trial judge was entitled to conclude that the conduct of the appellants involved an intent to stop the service of contempt charges, and they thereby obstructed the administration of justice contrary to s 136 Criminal Code.
4. An appellant in an appeal against sentence must show that the primary judge either made an identifiable error that has the effect of vitiating the sentence or imposed a sentence that was obviously (not merely arguably) excessive: William Norris v The State [1979] PNGLR 605 referred to.
5. The trial judge did not err in the exercise of her sentencing discretion; that she properly considered all relevant mitigating and aggravating factors and disregarded irrelevant matters.
6. While the sentences appear to be a quantum leap, the seriousness and circumstances of the offence warranted the sentences imposed: Thress Kumbamong v The State (2008) SC1017 referred to.
7. The appeals against the convictions and sentences were dismissed.
Cases Cited:
Denden Tom & Anor v The State (2008) SC967
Gimble v The State [1988–89] PNGLR 271
Goli Golu v The State [1979] PNGLR 653
Havila Kavo v The State (2015) SC1450
Jimmy Lama v NDB Investments Ltd (2015) SC1423
State v Kande (2021) N9132
State v Kande (2021) N9252
Lawrence Simbe v The State [1994] PNGLR 38
Sanawi v The State (2010) SC1076
State v Kiliki [1990] PNGLR 216
State v Naime (2005) N2873
State v Peril (2005) N2883
State v Tokoye (2009) N4210
Thress Kumbamong v The State (2008) SC1017
William Norris v The State [1979] PNGLR 605
Counsel:
Mr M Wenge, for the Appellants
Mr D Kuvi, for the Respondent
Luthers Lawyers: Lawyers for the Appellants
Office of the Public Prosecutor: Lawyers for the Respondent
APPEALS
These are appeals against conviction and sentence for one count of attempt to obstruct the course of justice.
12th December, 2022
1. BY THE COURT: The appellants were jointly indicted on four charges including attempt to obstruct the course of justice, an offence under s136 Criminal Code. The case went on trial following their pleas of not guilty to all charges, and they were convicted only of the charge under s 136; State v Kande (2021) N9132. While Tony Kande and Henry Naio were each sentenced to two (2) years imprisonment, Wilson Muka was imprisoned for eighteen (18) months; State v Kande (2021) N9252.
2. Each appellant filed his own notice of appeal challenging his conviction and sentence. Because they all raise identical grounds of appeal, the appeals were heard together.
GROUNDS OF APPEAL
3. The grounds of appeal set out in [3] of the Notices of Appeal and they read:
3.1 The Learned Trial Judge erred in fact and law when she held that the appellants threatening and intimidation of the complainant was intended to obstruct the course of justice when the facts and evidence by the State demonstrated that the actions of the appellant followed an episode of harassment and intimidation tactics used by the Complainant to effect service of contempt charges which is more consistent with “spur of the moment” reaction for being treated like a common criminal.
3.2 The Learned Trial Judge erred in fact and law in entering the conviction in the absence of evidence adduced by the State to prove beyond reasonable doubt the guilt of the Appellant, thus rendering the conviction unsafe and unsatisfactory.
3.3 The Learned Trial Judge erred in fact and law by placing little or no weight on mitigating factors in favour of the Appellant, particularly in regard to lengthy delays in prosecution for over seven years and the fact that the Appellant was not personally served contempt charges and there was no evidence of the Appellant being aware of the contempt charges.
3.4 The Learned Trial Judge failed to take into account that the Police Commissioner had issued directions that the Prime Minister would not be arrested and the Appellant as a subordinate was subject to the direction and control of the Police Commissioner, which effectively vitiated the exercise of her sentencing discretion.
3.5 The Primary judge erred when she held that the Appellants' actions achieved their desired effect as the Complainant did not go on to serve the charges when the State failed to produce any evidence that the contempt proceeding were ongoing or were stayed, given that it was undisputed that contempt proceedings against the Appellant were withdrawn and did not reach any finality, which vitiated her sentencing discretion.
3.6 The sentence of 2 years is a quantum leap, considering the trends in sentencing on a charge of attempting to obstruct justice have been between the ranges of non-custodial sentences to 6 months imprisonment.
[Emphasis added]
THE TRIAL
4. The State's case was that in the late afternoon of 19 October 2014, Chief Sergeant Patrick Premenga together with other policemen from the National Fraud & Corruption Unit attempted to serve contempt charges that had been issued by the National Court against several policemen who had prevented the service of a warrant of arrest ordered against the then Prime Minister, Peter O'Neill. One of the charged policemen was Sergeant Philip Pokop who lived at the Games Village Waigani. Pokop refused to accept service of the contempt charges and requested Premenga leave his yard. There was a heated verbal exchange between them before Premenga left the premises.
5. Premenga and his team next tried to effect service on two other policemen including the appellant Henry Naio who lived at Gordons Barracks. Service on Naio was unsuccessful as he was not at home.
6. After debriefing back in the office, Premenga went home to his residence at the Games Village.
7. Apparently, Pokop was the leader of the faction of policemen who blocked service of the warrant of arrest on Mr O'Neill.
8. Between 7 and 8 o'clock that night, several vehicles with armed policemen led by Pokop went to Premenga's residence, entered his yard, and terrorized him and his family. Premenga was threatened and assaulted, and gun shots were fired by the intruders. The other policemen with Pokop included the appellants. The confrontation ended after about half an hour when Pokop and his men left.
9. The prosecution contended the appellants threatened and assaulted Premenga (and that included gun shots being fired) at his residence at the Games Village Waigani, to frighten him off from further trying to serve contempt charges issued by the National Court, and this constituted an attempt to obstruct the course of justice.
10. In support of its case, the State called five witnesses and tendered several documents by consent, including the records of interview of each appellant. Apart from Premenga, the other State's witnesses were:
• Thecla Premenga, Premenga's wife – an eyewitness.
• Elizah Mase, who is Thecla's brother then living with the Premengas – an eyewitness.
• Willie Lape, a former policeman who was living next-door to the Premengas – an eyewitness.
• Detective Segeant Vincent Tapungu, a forensic police officer who examined spent bullet shells that were collected from the scene.
11. The appellants did not produce any evidence in the defence of the charges against them. They each chose to not testify, and no witnesses were called on their behalf.
12. In the records of interview:
• Tony Kande chose not to answer questions.
• Henry Naio stated that he was at 9 Mile at the relevant time and arrived on the scene after the event.
• Wilson Muka said that he was at Hula village that night and was not present during the incident.
13. In relation to the charge under s 136, Kande argued there was no intent to obstruct the course of justice, while Naio and Muka relied on alibis.
14. The trial judge however found the charge properly proven against all the appellants and accordingly convicted them.
APPEALS AGAINST CONVICTIONS
15. A conviction will only be set aside on appeal if the criteria described in s23(1) of the Supreme Court Act have been met. As was explained by the court in Havila Kavo v The State (2015) SC1450:
To succeed on an appeal against conviction an appellant must by virtue of Section 23 of the Supreme Court Act establish that the verdict...
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