Marase v The State [1994] PGSC 11; [1994] PNGLR 415 (27 October 1994)

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APPEAL - Leave to appeal although out of time - Convincing reasons why Court should exercise its constitutional power of review must be shown.

CRIMINAL LAW - Sentence - Cumulative sentences - Totality approach - Whether Court has apprehension that points raised by applicant might have been decided in his favour - Total cumulative sentence of 19 1/2 years for rape and robbery left unaffected.

The applicant sought leave to appeal, although out of time, against cumulative sentences of 19 1/2 years for rape, robbery, abduction and unlawful use of a motor vehicle, after trial in the National Court. His notice of appeal was prepared and lodged, in person, over 12 months after sentence.

N1>1.�� Convincing reasons must be shown before the Court will go behind the statutory provision allowing 40 days for the filing of notice of appeal, Supreme Court Act Ch 37, s 17 and Constitution s 155(2)(b).

N1>2.�� There must be clear circumstances, giving rise to an apprehension in the Court that the points raised by the applicant might be decided in his favour, before the Court will embark on a review of the National Court sentence.

N1>3.�� Leave to appeal is refused because no sufficient reasons for the late submission of the notice of appeal have been shown.

HINCHLIFFE SHEEHAN BROWN JJ: This prisoner's notice of appeal was dated some 12 months after sentence by Los J. It baldly stated that the sentence was excessive. The trial judge had sentenced him to 19 1/2 years, in total, for abduction and unlawful use of motor vehicle, robbery and rape. The circumstances of the offences were little short of horrendous, the victim having suffered a pack rape during a night of terror when this prisoner, with others, carried out these crimes while armed with two shotguns.

The rape may be fairly described as "a worst case" category. The appellant was, in effect, sentenced to 7 1/2 years cumulative for the robbery and unlawful use of a motor vehicle and 12 years for the rape. Both sentences were made cumulative, so that the prisoner had 19 1/2 years to serve in toto.

Mr Koeget, for the applicant, while conceding that the 7 1/2 years sentence is within the range, says that 12 years for the rape is too heavy and that, when added together, they are excessive with regard to the totality principles expounded previously by this Court in Mase v The State [1991] PNGLR 88.

Mr Unagui, for the State, says that the trial Judge had alluded to the totality principles in his judgment and that his sentence was not so excessive as to warrant this Court's interference.

The Supreme Court Act Ch 37 provides for an appeal period of 40 days. This Court has said, when considering its discretionary power to review judicial acts of the National Court:

"It must be emphasised from the outset that the power vested in this Court by s 155(2)(b) (of the Constitution) will not be exercised as a matter of course. The reason is quite obvious. Where statutory appeal provisions are not complied with there must be shown convincing reasons why this Court should exercise its constitutional power".

Mr Koeget has advanced no reasons. Rather, he has relied on the face of the notice of appeal written by the prisoner. The notice, perhaps, shows a lack of education and does not give any further reasons for the late notice. Thus, the applicant has not advanced any argument. Leave is refused to appeal out of time.

Counsel was allowed to address the Court on the merits. The refusal of leave, in the circumstances of this case, does not give rise to any apprehension in this Court that the points raised by the applicant might have been decided in his favour. The Court had reason to consider the totality principle in Mase's case.

Having regard to the trial Judge's reasons, and bearing in mind the principles, we are satisfied no miscarriage of justice has occurred.

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Supreme Court of Papua New Guinea

Marase v The State [1994] PGSC 11; [1994] PNGLR 415 (27 October 1994)

PNG Law Reports 1994