Liri v State [2007] PGSC 3; SC883 (22 February 2007)

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APPEALS – Appeal against conviction – Before an appeal against conviction can be allowed, there must be reasonable doubt as to the safeness of the conviction in all of the circumstances – Where identification is an issue trial judge required to warn himself of the dangers of proceeding to convict – Trial judge in better position to assess demeanour of witnesses – Supreme Court must be slow to interfere and can only do so in the clearest of cases.

APPEALS - PRACTICE & PROCEDURE – Power of the Supreme Court on appeal – Power to increase sentences – Sentence imposed by trial judge below sentence trends and tariffs - National Court sentence quashed and substituted – Section 23 (4) Supreme Court Act (ch 37).

CRIMINAL LAW - PRACTICE & PROCEDURE – National Court bound by decisions of the Supreme Court – National Court bound to follow Supreme Court guidelines or sentencing tariffs set by the Supreme Court except for good reason sound in law – Failure amounts to identifiable error liable for set aside by the Supreme Court – Schedule 2.9 (1) of the Constitution.

CRIMINAL LAW – Appeal against sentence – Armed gang robbery – Prisoner at time of committing offence a policeman – Breach of trust placed in offender as a police man very serious - Offence committed in company of others – Use of fire arm – Conviction after trial – First time offender - Trial judge imposing sentence of 8 years – Sentences manifestly low and inconsistent with sentencing tariffs – Sentence by National Court substituted by sentence of 15 years in hard labour – Section 386 Criminal Code – Section 23 (4) Supreme Court Act.

David Coyle & 2 Ors v. Loani Henao (30/11/00) SC655.
John Beng v. the State [1977] PNGCR 115.
Jimmy Ono v. The State (04/10/02) SC698.
The State v. Marety Ame Gaidi (01/08/02) N2256.
The State v. Paul Maima Yogol and Dama Teiye (21/05/04) N2583.
The State v. Warip Mondol & Ors. (19/08/04) N2707.
The State v Gilbert Monai (09/06/04) N2617.
Nelson Ngasale v. The State (02/10/03) SC731
John Aubuku v. The State [1987] PNGLR 267.
James Mora Meaoa v. The State [1996] PNGLR 280.
Public Prosecutor v. Thomas Vola [1981] PNGLR 412.
Acting Public Prosecutor v. Don Hale (27/08/98) SC564.
Edmund Gima and Siune Arnold v. The State (03/10/03) SC730.
State v. Frank Kagai [1987] PNGLR 320.
The State v. Guise Jopping (24/09/04) N2678.
James Pangnan and Patrick Ponat v. The State (SCRA 39 & 54 OF 2004 (28/08/06).
Lawrence Hindemba v. The State (27/10/98) SC593.
Sakarowa Koe v. The State (01/04/04) SC739.

1. SEVUA & KANDAKASI JJ (WITH GABI J DISSENTING): You are appealing against both your conviction and sentence by the National Court (per Lenalia J.) on a charge of armed gang robbery. We heard your appeal on 28 August 2006, and reserved our decision. This now constitutes the decision of the Court.

(a) Scene of crime witnesses (victims) gave inconsistent and contradicting evidence. Trial judge had doubted their evidence.

(b) The basis of finding me guilty was a female State witness who was at a night club at Kokopo and was not at the crime scene in Rabaul.

(c) The two (2) witnesses at the night club called to rebut the defence alibi evidence were inconsistent and contradicted each other.

(d) There was no inconsistency or contradictions in the defence alibi evidence which was never rebutted and remains uncontradicted (sic) and intact.

(e) There is doubt in the credibility of all State witnesses and told lies under oath against me in Court.

(a) Armed robbery classified level 3 (category c) with penalty of 5-17 years. Sentences of 8 years is level 2 (category b) with penalty of 8-14 years.

3. It is clear to us that, your appeal against conviction is based on your claim that, the State witnesses contradicted each other and were not credible with one of them, not being at the scene of the crime. You also claim that, the State witnesses did not rebut your alibi witness and therefore, your alibi remains in tact. Hence, you claim that, the learned trial Judge erred in finding you guilty.

4. As for your appeal against sentence, you claim that, the learned trial Judge was wrong in imposing the 8 years sentence against you. You do not expressly say it but we note that you impliedly claim that the sentence is excessive.

5. We can easily dispose of your third purported ground of appeal as having no merit and or basis. That ground of your appeal is too general and does not state why you say, there is error in the judgment. Similarly, you have not identified the alleged errors. This purported ground of your appeal offends against the clear requirements of the law for an appellant to properly plead his ground of appeal with sufficient particulars so as to enable the respondent and the court to appreciate the basis for the appeal. The rational behind these principles or requirement is to ensure that the Supreme Court is not unnecessarily asked to enter into an exercise of nit picking without any good basis.[1] The Supreme Court appeal remedy is there only to correct any apparent or serious errors resulting in serious injustices and not just about every decision of the National Court not meeting the satisfaction of a party.

7. The State in response to your remaining grounds of appeal points out that, the issue for trial before the National Court was one of identification. It then submits that, the learned trial Judge correctly applied the relevant legal principles, observed the demeanour of each of the witnesses and eventually arrived at his decision to find you guilty. It thus submits that, this Court should not disturb the findings of the National Court. Similarly, it argues that, the learned trial Judge did not fall into any error when he arrived at his decision to impose the sentence of 8 years. Instead, the State submits that, you received a sentence that was much less than the kind of sentences imposed by the Courts in similar cases. Accordingly, it urges this Court to dismiss your appeal and instead exercise its powers under s. 23 (4) of the Supreme Court Act[2] by increasing your sentence.

8. It is clear to us that, your remaining grounds of appeal and the arguments for and against them by the State, raise the following issues for this Court to resolve:

(1). Was the learned trial Judge correct in accepting the prosecution’s evidence and found you guilty on the charge of armed gang robbery?

(2). Did the learned trial Judge fall into any error when he decided to impose the sentence of 8 years following your conviction after a trial?

(3). If the answer to the second question is in the affirmative, is it appropriate for this Court to exercise its powers under s. 23 (4) of the Supreme Court Act in terms of increasing the sentences the National Court imposed against you?

9. In order for us to properly understand and determine the issues raised, we need to turn to a consideration of what transpired in the National Court, and in particular, the evidence that were presented.

10. You were charged with a Steven Liu for armed gang robbery contrary to section 386(1) of the Criminal Code Act. Both of you pleaded not guilty to the charge. That necessitated a trial. At the conclusion of the State’s case, Liu’s lawyer made a no case submission. The Court upheld that submission resulting in his acquittal.

11. The case against you proceeded. At the end of the trial, the learned trial Judge found you guilty and sentenced you to a term of 8 years imprisonment. Without the support of any pre-sentence report, the learned trial Judge suspended 3 years of your 8 years sentence. His Honour did not impose or stipulate any condition for the suspension. His Honour also, deducted the period you already spent in custody awaiting your trial and ordered you to serve the remaining part of your sentence in prison.
Finding of Guilt – Evidence and Findings of Fact

12 The State called four (4) witnesses, namely a Moses Elias, Peter Urami, Julie Wesley and Augustine Kupepe. Moses Elias and Peter Urami gave evidence of the alleged robbery at the Rabaul Yacht Club. Julie Wesley and Augustine Kupepe gave evidence of seeing you in the early hours of Sunday, 2 February 2003, at Kadat Club at Kokopo. Their evidence was relevant only in relation to your defence of alibi, which came from yourself, your wife and a pastor who was related to you through marriage.

13. The learned trail Judge gave carefully considered to the evidence adduced before him by, both the State and yourself. He also, considered the submissions of both yours and the State’s counsels. The State essentially, argued for an acceptance of its evidence as credible and a finding of guilt against you. In so submitting, the State argued for a rejection of your alibi evidence as incredible because, they did not come from any independent witnesses. Your submissions countered the arguments presented by the State. You submitted that, there were inconsistencies and contradictions in the State witnesses’ evidence and the witnesses had a motive to come and falsely testify against you as victims of the offence. Accordingly, you argued for a rejection of their evidence and a return of a not guilty verdict.

14. The learned trial Judge decided to accept the State witnesses’ testimonies as credible. The State’s case was that, the witnesses, Moses Elias and Peter Urami drove into the car park of the Rabaul Yacht Club on 2 February 2003, at about 12.10 am. After they had parked their vehicle, they were trying to find their way through at the club when they noticed another vehicle driving in and parking behind them. They then heard the slamming of the doors of that other vehicle, so they looked over and saw a tall and slim man walk over towards them. They identified you as that person, both at a police identification parade conducted a few days later, and in court.

15. The witnesses testified that, you wanted Moses Elias to go to the Police Station but he refused to do so resulting in a bit of argument. At that point, you produced a pump action shotgun and you insisted on Moses Elias going to the Police Station with you. However, Moses Elias refused and asked you to shoot him if you wanted and or take his vehicle away. You opted for the later and drove away in Moses Elias’ vehicle.

16. Moses Elias and Peter Urami testified that, this exchange took about 15 minutes. The first of these two witnesses stated that, he paid his attention on you and clearly identified you under two good sets of electric spot lights in addition to a bright moonlight. Your face was not masked or otherwise covered to obscure your identification. He also knew you as a policeman in the Province. Then during the time of the incident, the witness and you were just a meter apart. At the identification later conducted at the police station, these witnesses picked you out from 8 others constituting the line up for the parade. A report on the identification parade confirming your identification by these two witnesses was admitted into evidence without any objection from you.

17. The other two witnesses of the State, Julie Wesley and Augustine Kupepe, separately identified you at the Kadat Club at a dance and where a killing allegedly by you and others took place. The first of these two witnesses testified that, she danced with you and that, you tried unsuccessfully to take her out during the same night and said something about killing a person who was killed a little later.

18. You and your witnesses on the other hand, claimed that, at the time when the offence was committed at Rabaul, you were sick and at home with your family sleeping. You therefore, denied having any knowledge and or involvement in the commission of the offence. You gave contradicting evidence of, either attending to the medical treatment or, not attending to any such treatment. There were suggestions that, your wife would produce the relevant evidence to confirm your receiving medical treatment but you did not in fact produce any such evidence.

19. A decision on your guilt or innocence was depended solely on the credibility of the witnesses and their testimonies. The learned trial Judge dealt with that issue in this way:

But I would ask a question, what would be the motive for Moses Elias and Peter Urami to come to court and tell lies apart from the fact that they were victims of the robbery in Rabaul? The two witnesses, victims of the robbery in Rabaul, observed the accused through two security bright lights. At the identification parade the two witnesses confirmed their recognition of the accused as the man who had been seen through the bright lights at the Rabaul Yacht Club.

It is not the case where only Moses Elias and Peter Urami saw the accused that night at the Kadat night club, two other witnesses Julie Wesley and Augustine Kupepe said they saw the accused on the early hours of 2 February 2003. So I take the evidence of Julie Wesley to be so credible as a piece of circumstantial evidence; Julie Wesley, and of course that of Augustine Kupepe. She was the one who observed the accused at very close range and she came into bodily contact with the accused on the two occasions during which they danced that night. At one stage, the accused touched Julie’s buttocks. Then later, the accused asked her to go out with him and when Julie refused and accused said he would go for either her husband or Jack Peni. Are there any reasons why Julie would come to tell lies to the court? I find from all evidence that there are no reasons for her telling lies.

The evidence of Augustine Kupepe is much the same as that of Julie. He observed the accused at close range. Both Julie and Augustine gave credible evidence and the court accepts their evidence as circumstantial in nature. Their evidence has the effect of rendering the accused’s alibi defence less effective.

The prosecution’s case in relation to identification of the accused is he was seen twice in two different places on the night of the 1st and the early hours of 2 February 2003. I find that the observation made outside the yacht club in Rabaul was made under two bright security lights, meaning that the two State witnesses who identified the accused on the scene properly identified the accused.

During the identification parade at the Kokopo police station conducted on 4 February that year, Peter Urame and Moses Elias confirmed their identification of the accused to be the person whom they had seen on the scene of the robbery."

20. It is settled law that, on an appeal against conviction, this Court must be satisfied that, in all the circumstances, there is a reasonable doubt as to the safeness or satisfactoriness of the verdict before an appeal can be allowed.[3] Similarly, where the case raises the issue of identification, care must be exercised because there are dangers inherent in accepting or relying even upon eye witness identification. The Supreme Court in Jimmy Ono v. The State [4] endorsed and approved a summation of the relevant principles by the National Court in the case of The State v. Marety Ame Gaidi,[5] as follows:

1. It has been long recognized that, there are dangers inherent in eye-witness identification evidence;

2. A trial judge should warn the jury in the case of a jury trial system or himself as in our case, of the special need for caution before convicting in reliance on the correctness of the identification because for example:

4. There should be a specific direction to closely examine the circumstances in which the identification was made;

5. Identification by recognition may be reliable but one need to be cautious because there can be mistakes in trying to identify close relatives and friends;

6. All these go to the quality of evidence – if the quality of evidence is good the identification may be reliable. If however, the quality of evidence is bad, the identification will be bad;

7. The quality of the evidence may be poor if there is a fleeting glance or a longer observation made in poor conditions; and

21. In your case, the learned trial referred to the relevant cases on point and reminded himself of these principles. He then appropriately warned himself of the dangers of proceeding to conviction on identification evidence. This appears clearly at page 307 of the appeal book in these terms:

"So in circumstances of the instant trial, I adopt the warning stated in those cases and I do warn myself of the dangers of convicting the accused on the evidence of the two eyewitnesses in the Rabaul Yacht Club, namely Moses Elias and Peter Urami. I extend the same warning to the evidence by Julie Wesley and that of Augustine Kupepe."

22. After having warned himself, the learned trial judge, took into account the relevant factors, possible motives of the witnesses, the lighting, the distances between the witnesses and you, the timing, corroboration including identification at the identification parade and the whole of the circumstances in which you were identified. He also observed the demeanour of each of the witnesses and was in a better position to determine which of them were credible and which of them were not. We note also that, His Honour correctly found that, the State witnesses did not have any motive to come into Court and give a false testimony under oath against you. This has to be contrasted with the witnesses you called in your defence, which consisted of yourself, your wife and the pastor who was related to you through marriage. Each of you had a vested interest in the outcome of the case, namely to avoid conviction on the charge. A careful examination of each of your witnesses’ evidence shows instances of them giving testimonies tailored to suit your defence. A good example of that is the pastor being prepared to state that, you were at your house the whole of the night of the day of the robbery even though, the witness was not there at all relevant times.

23. In you appeal, you claim that, there were inconsistencies and contradictions in the State’s case. You do not specify in your notice of appeal any inconsistencies and or contradictions in the trial Judge’s findings. The observations we have made in relation your appeal ground 3 also applies here. However, we note that, in your submissions before the National Court, you did make submissions suggesting that, there were contradictions and inconsistencies but failed to identify the inconsistencies and contradictions. Our careful perusal of the State witnesses’ evidence, fail to disclose any aspect of their evidence that is inconsistent and in contradiction to the individual witnesses’ own evidence or when compared with that of the other witnesses. They are instead, consistent and supportive of each other.

24. Considering the whole of the case against you and your best attempts at rebutting them and how the learned trial Judge arrived at his decision on your guilt, we are able to arrive at only one conclusion. That conclusion is that, the learned trial Judge did not fell into any serious error warranting this Court’s intervention and correction. We find in the circumstances that, your conviction is save and that, it must be allowed to stand. Accordingly, we order that, your appeal against conviction be dismissed.

25. This now leaves your application against the sentence of 8 years. This part of your appeal must have regard to the facts as found by the learned trial Judge which we have affirmed. In so far as they are relevant to the question of sentence, we note that, you were convicted after a trial. During the time of the commission of the offence, you were in the employ of the State as a policeman. A firearm was used to commit the offence against the victim of the offence, Moses Elias, and you stole from him a motor vehicle, which has since been recovered.

26. Additionally, we note that, you are first time offender and that you have given almost between 8 – 9 years of loyal service to the State through the Police Force. Following your conviction, you maintained your innocence, though; you accepted the Court’s decision.

27. Section 386 (1) and (2) of the Criminal Code create the offence of armed robbery and provides for its penalty. The offence carries a maximum penalty of life imprisonment. However, in the much celebrated case of Gimble v. The State,[6] this Court, set sentencing guidelines for armed robbery cases lower than that, in the exercise of the sentencing discretion vested in the courts by s.19 of the Criminal Code. According to those guidelines, higher up on the sentences it recommends, is 7 years for robbery of a dwelling house and at the lower end, robbery of a person on the street at 3 years.

28. These guidelines, particularly the suggested sentences, have been held by subsequent judgments, especially in the late 1990s, as outdated due to the prevalence of the offence and increased use of dangerous weapons such as guns and serious injuries to victims of the offence. This started on 2 April 1998, in Hawai John v. The State.[7] In that case, the Court considered a sentence of 8 years on a guilty plea by the appellant’s accomplish was too lenient. In the case before the Court, the appellant was given a sentence of life imprisonment. On appeal, the Supreme Court reduced the sentence to 15 years. The reduction was because of a huge disparity between the appellant and his co-offender. Otherwise, the Court found that, the offence was most serious because it was a planned robbery carried out with reckless disregard for others, using firearms resulting in, one of the victims of the offence being rendered blind.

29. Going by the Gimble v. The State,[8] guidelines, it was a last category offence, being robbery on a street. There, the victim was transporting bags of money in cash totalling K1,798 and cheques totaling K215,000 in a company vehicle. The appellant and his accomplishes followed the victim and shot into the screen of the vehicle on the driver’s side. That injured the driver causing him total blindness. The money was stolen with the cash distributed and the cheques destroyed.

30. Judgments after the Hawai John v. The State,[9] such as the decision in Tau Jim Anis & Ors v. The State,[10] citing Acting Public Prosecutor v. Don Hale,[11] did not consider the judgment in Hawai John v. The State.[12] This could be due to the fact that, that judgment was not numbered and circulated. In the first of these two cases, the Supreme Court increased the range of sentences. It did so by a factor of 3 years going by the judgment in Acting Public Prosecutor v. Don Hale.[13] That saw an increase in the previous highest recommended sentence of 7 years to 10 years for robbery of a dwelling house and other categories also increased by the same factor with the last category of robbery on a street, increased to 6 years.

31. In 2003, the Supreme Court in Dadly Henry Gorop v. The State,[14] held that, if the Court in the earlier judgments were aware of the decision in Hawai John v. The State,[15] there would have been greater increases in the sentence than the ones recommended in Tau Jim Anis & Ors v. The State.[16] The Court said:

"...[W]e are of the view that if that was done [considered the judgment in the Hawai John’s case] the sentence ranges recommended in the subsequent judgments could have been beyond what the Court was prepared to settle at. But because that has not happened, everyone has been proceeding on the basis of the judgments in Tau Jim Anis & Ors v. The State ...and Acting Public Prosecutor v. Don Hale.... This has resulted in sentences after a trial reaching as high as 20 years as demonstrated by [sic] The State v. Edward Toude, & Ors (No 2)..."

32. The prevalence in the offence of armed gang and other forms of robbery caused the Supreme Court to take that position, as the past sentences appeared not to deter other would be offenders from committing armed robberies. In doing that, the Supreme Court acknowledged that, there have been increases in the sentences imposed by the National Court.

33. The Court in that case, had regard to the increase in sentences for armed robbery and reduced a sentence of 20 years to 18 years, although it was of the view that, the sentence of 20 years not excessive. There, the prisoner pleaded guilty to one charge of armed robbery. He acted alone and did not use any dangerous weapon such as a gun, axe or a bush knife. The amount of property stolen was not substantial, but the injuries to the victims were very serious. The victims were a Canadian couple, touring the country at the time. The prisoner seriously assaulted the victims with a hockey stick causing the victims fractured head injuries. The prisoner also knocked them down unconscious, with one of them almost dying but for, swift medical intervention.

"Given these, the sentence of 20 years in your case would appear not to be manifestly excessive going by the guidance of the judgment in Hawai John’s ... case. At the same time however, given the kind of sentence the offenders have received in cases like that of The State v. Vincent Malara ... following a guilty plea in the particular circumstances in those cases with a sentence after a trial as in The State v. Edward Toude,& Ors (No 2), ... reaching 20 years, we are of the view that you would have a justified feeling of the sentence being excessive. We are therefore of the view that your sentence should be reduced to 18 years."

35. The above case could be considered a very serious case of armed robbery on a street. It increased the penalty from a low 6 years to 18 years. In doing that, the Court impliedly approved the increase in sentence beyond 10 years on guilty plea for robberies on a street by young first time offenders. Since then, in recent times, the National Court has imposed sentences beyond the 10 years mark for robbery on a street. The decision in The State v. Paul Maima Yogol and Dama Teiye[17] is an example of that. There, the Court imposed a sentence of 12 years on a guilty plea. The prisoners were part of an armed gang that held up a motor vehicle and stole from its driver and others, cash and goods valued at about K1, 300.00. That was on a guilty plea by two first time young offenders.

36. Other examples include the judgments in The State v. Warip Mondol & Ors.[18] and The State v Gilbert Monai.[19] In the former, the National Court imposed on a guilty plea a sentence of 12 years for armed gang robbery on a street. That was for robbery of a vehicle on a highway with the use of bush knives with actual violence where a victim was cut by a bush knife. In the later, the National Court imposed a sentence of 12 years and 15 years respectively for two separate counts of arm gang robbery with serious aggravating factors, which included the unlawful detention of the victims of the first of the two counts and physical injury to the victims of the second count

37. Bearing this sentencing trends and tariffs in mind, we now turn to your case. You received a sentence of 8 years for armed gang robbery. The court found you guilty and convicted you of the offence after trial. You are an adult person married with children. You were in the employ of the State as a policeman to safe guard the community against the very kind of offence you committed. Yet, you broke the trust and confidence placed in you by the people of our beautiful country through the Police Force. The courts usually take a breach of trust as in your case, as a serious aggravating factor.[20]

38. In the circumstances, we are of the view that, a sentence beyond 8 years was warranted. However, the learned trial Judge decided to impose the sentence he imposed. The main reason his Honour advanced was the fact that, no personal injuries were occasioned to any person and the fact that, you have served the Police Force for about 8 to 9 years. In so doing, his Honour with respect, did not give due and sufficient weight to the fact that, you were a policeman at the time of the commission of the offence and so therefore you acted in breach of the trust placed in you. Similarly, his Honour failed to give due weight and consideration to the fact that, you were convicted after a trial and the use of a firearm as well as being an adult as opposed to a first time young offender pleading guilty to an offence. If the learned trial Judge took these factors into account, he could have found that, the aggravating factors outweighed the mitigating factors and he would have arrived at a sentence higher than 8 years. Accordingly, we find that, the learned trial Judge fell into a serious and identifiable error by imposing a sentence which was manifestly low.

39. Further we find that, the learned trial Judge continued erroneously when he decided to suspend 3 years of the 8 years sentence he decided to impose against you. The learned trial Judge did not provide any reason for that decision. The law on suspension of either a part or the whole of any sentence is settled. Section 19(1)(d) of the Criminal Code confers that power, which can only be exercised on some proper basis.[21] In Acting Public Prosecutor v. Don Hale,[22] this Court elaborated on that, in this way:

"If a judge is to consider some leniency on sentence ... it is incumbent on him to obtain the relevant report such as a pre-sentence report, especially around the age of 17 to 19. ... Then for such a drastic suspension of sentence a further help to the court would be a community report from the community to which the offender belongs and whether the community, seeing that the incident happened within that community, has any views on an appropriate punishment or whether the community is prepared to assist with any community management of any bond period. The Courts are bound under the philosophy of the Constitution to be in touch with the aspirations and attitudes of the people of PNG and the punishment of criminals definitely has an effect on the ordinary people. So community involvement with the punishment of offenders should be considered especially if the court wishes to return an offender to the community instead of imposing imprisonment."

40. Subsequently, the Supreme Court endorsed these views in its judgment in Edmund Gima v. The State & Siune Arnold v. The State.[23] That decision also emphasized the point that, there can be no suspension of sentence without imposing any condition. After all, a suspension of either the whole or part of any sentence is not an exercise of discretion in leniency but is a form of punishment.[24] As such, conditions must be imposed to demonstrate that, it is an alternative to punishment within the prison system in appropriate cases.[25]

41. In your case, there is no record of the learned trial Judge calling for and having before him a pre-sentence report supportive of his decision to suspend the 3 years. Likewise, there is no record of what factors His Honour took into account before arriving at his decision to suspend the three years. Further, if His Honour was entitled on some authority (which he has failed to disclose), to suspend, he did not impose any conditions for the suspension.

42. In the end we find that, the learned trial Judge imposed a head sentence that was manifestly low and disproportionate to the offence and the particular circumstances of your case. After having fallen into that error, the learned trial Judge fell into further error when he decided to suspend part of that sentence without attaching any conditions.

43. Having identified the errors made by the learned trial Judge in relation to the exercise of his sentencing powers, we now need to consider whether we should exercise the powers vested in this Court by s. 23 (4) of the Supreme Court Act in terms of increasing your sentence to correct the apparent errors. In the decision this Court handed down in Kokopo on 30 August 2006, in the case of the two separate appeals by James Pangnan and Patrick Ponat v. The State,[26] this Court fully reviewed the cases on point. That started with the judgment of this Court in Lawrence Hindemba v. The State,[27] and ended with the decision in Sakarowa Koe v. The State.[28] It is not necessary for us to repeat the discussion here. We will summarize the principles that emerge from the discussions in that judgment.

44. The first point that emerges is the fact that, pursuant to Schedule 2.9 (1) of the Constitution, the National Court is bound by the decisions of this Court. Where this Court provides some guidelines as to how a power vested in the National Court can be exercised, they have similar force, unless there are good reasons that are sound in law exists that warrant a departure. Secondly, where the National Court clearly falls into an identifiable error, say for example, by imposing a sentence that is manifestly low or the National Court makes a decision in relation to sentence without any legal authority, the Court can exercise its powers under s. 23 (4) of the Supreme Court Act. Thirdly, going by the authority of the decision in the Lawrence Hindemba v. The State,[29] this Court can exercise that power with or without any cross appeal by the State or the Public Prosecutor. Finally, this Court has given sufficient warning of its intention to exercise that power in appropriate cases. Thus, it is time now to give effect to that warning in the cases that warrant an exercise of the power in question.

45. In your case, as we have earlier indicated, the learned trial judge, down played the effect of the fact that, you were convicted after a trial, you acted in association with others, you acted in breach of a trust placed in you as a policeman and you committed the offence using a firearm with threats of force. These were serious aggravating factors. His Honour however, gave far more weight to the fact that, you have given between 8 to 9 years of service to the State as a policeman, and that, although there were threats of violence there was no actual violence resulting in any personal injuries. A proper weighing of the factors for and against you, in our view, dictated a sentence between 13 and 15 years. Hence, the 8 years sentence imposed by the learned trial Judge was manifestly low. He also erroneously decided to suspend 3 years of the head sentence of eight years without any authority and legal basis. His Honour failed to

46. In the circumstances, we are of the view that, this is an appropriate case for us to exercise the powers vested in this Court under s. 23(4) of the Supreme Court Act. Accordingly, we quash the National Court decision and order that the 8 years be substituted with a sentence of 15 years. We also quash the decision to suspend 3 years of the 8 years sentence now quashed. That would leave you with the new sentence of 15 years. From that, we order a deduction of the period you have already spend in custody awaiting your trial as well as the time you have already served under the 8 years sentence imposed by the National Court, leaving you with the balance to serve in hard labour at Kerevat Correction Services.

Question 1:	Was the learned trial Judge correct in accepting the prosecution evidence and found you guilty on the charge of armed gang robbery?
Answer:	Yes the learned trial correctly accepted the prosecutions evidence and found you guilty.
Question 2:	Did the learned trial Judge fall into any error when he decided to impose the sentence of 8 years for armed gang robbery following the establishment of your guilt after a trial?
Answer:	Yes the learned trial Judge did fall into some identifiable errors.
Question 3:	If the answer to the second question is in the affirmative, is it appropriate for this Court to exercise its powers under s. 23 (4) of the Supreme Court Act in terms of increasing the sentence the National Court imposed against you?
Answer:	Yes this is an appropriate case to increase the sentence.

2. The sentence of 8 years with 3 years suspended by the National Court is quashed and is hereby substituted by a sentence of 15 years.

3. The pre-trial custody period of 3 years and 7 months and 1 year 8 months, 2 weeks and 3 days being the time served under the sentence now substituted is deducted.

4. The Appellant shall serve the balance of 9 years, 9 months, 2 weeks and 4 days in hard labour.

49. GABI, J (Dissenting): Introduction: The appellant was charged together with a Steven Liu for aggravated armed robbery contrary to section 386(1) of the Criminal Code Act. Both pleaded not guilty so a trial was run. At the conclusion of the State case the lawyer for the co-accused, made a "no case" submission. On 24th October 2005, His Honour Lenalia J, upheld the no case to answer submission and acquitted the said Steven Liu.

50. I have had the opportunity of reading the reasons and the conclusions in this matter of my learned brethren on the Court, Sevua and Kandakasi JJ. In the words hallowed by tradition, I have the misfortune to disagree.

51. The issue for the trial judge was that of identification. Moses Elias and Peter Urami gave evidence of the robbery at the Rabaul Yacht Club. Julie Wesley and Augustine Kupepe saw the accused in the early hours of Sunday, the 2nd of February 2003 at Kadat Club. Their evidence was not relevant to the question of the robbery. The evidence, however, was relevant to the defence of alibi raised by the appellant. A defence of alibi puts every matter in issue and if the evidence creates a reasonable doubt in the mind of the trial judge the accused should be acquitted (see John Jaminan v The State (No.2) [1983] PNGLR 318).

52. The first State witness was Moses Elias. He was the manager and owner of Palatirip Club. On 2nd February 2003, at about 12.10am he was with Peter Urami in the car park outside the Rabaul Yacht Club. As he came out of his vehicle he noticed another vehicle, a grey Nissan Patrol, pulled in and parked behind him. He heard the slamming of the doors of that other vehicle, looked over and saw a tall and slim man walk over towards him and Peter Urami. He identified this tall and slim man as the appellant. He said the appellant wanted him to go to the Police Station but he refused as he had just been to the Police Station. At that point, the appellant produced a pump action shotgun and insisted that the witness go to the Police Station with him. He said that he again refused and told the appellant that he would not go the Police Station, but if they wanted to they could take his vehicle. He handed the keys to the appellant and they drove away. He said that the exchange of words or argument between them took about two (2) and half minutes. He said that he was concentrating on the appellant as he had a gun. According to him, the lighting at that time was good in that they were close to the spotlight and it was a bright moonlit night. He said that the appellant was not masked and that he had seen the appellant previously in the club. He knew the appellant as he was a former policeman. He identified the appellant at the identification parade conducted on 4th February 2003 at the Police Station.

53. The second witness was Peter Urami, who said that they were held up in front of the spotlight and it was a bright moonlit night. He said the appellant was not wearing a mask and he could see his face clearly. According to him the robbery took about 15 to 20 minutes. Like Moses Elias, he identified the appellant at the identification parade.

54. Dangers inherent in accepting or relying on eye witness identification evidence are well recognized in Papua New Guinea (see John Beng v The State [1977] PNGLR 115 and Bewa Gita v The State (1988-89) PNGLR 153). A judge is required to warn himself that mistakes had been made in the past in regard to identification of an accused and that he should be very careful in accepting such evidence. There is no rule of law that requires that in every case a warning must be given. It is, however, a good practice to warn oneself and be cautious and extra careful when considering the guilt or otherwise of an accused person. The learned trial judge was aware of those legal principles. At page 307 of the Appeal Book he said:

55. This is a case where the appellant was known by sight to Moses Elias. He is not a stranger to Moses Elias in that he had been seen previously in the club. It is not clear from the evidence which club Moses Elias refers to. However, what is clear is that that evidence was not contested. The appellant was not masked and that the area was well lit. Moses Elias said that he came face to face with the appellant as there was an exchange of words or argument for 2 ½ minutes. Peter Urami’s account was that the incident took about 15 to 20 minutes. Though there is inconsistency, it is not of great significance. It is evidence of the fact that the observation of the appellant at the scene of the crime was not a "fleeting glance". In addition, both witnesses identified the appellant at an identification parade held on 4th February 2003 at Kokopo Police Station.

56. The appellant denied being involved in the robbery and raised a defence of alibi. A notice of alibi was served on the State and filed on 18th May 2005. The defence of alibi was put to the State witnesses during cross-examination.

57. The appellant gave evidence. His evidence was that he was sick and was with his wife and children at Togoro village. He said that he got to the village in the afternoon on Saturday, 1st February 2003 and remained there until Monday, 3rd February 2003 when he went into town for the National Court call over for the previous charge of armed robbery. His wife, Lynette Liri, gave similar evidence. The third witness for the defence was Andrew Arom, who testified that the appellant was at home on the night in question. He visited the family between 9 and 9.30pm to pray for the appellant and his daughter as both were sick. He left for a Church meeting at Birar village and returned to his home by 2.30am on Sunday, 2nd February 2006. On his return he walked past the house and heard people talking and formed the opinion that the appellant was in the house.

58. Julie Wesley and Augustine Kupepe saw the appellant in the early hours of Sunday, 2nd February, 2003 at Kadat Club. Julie Wesley observed the appellant at close range. She said that she had a dance with the appellant during which an argument developed as a result of the appellant touching her on the buttocks. She also conversed with the appellant, who asked her to go out with him. She again saw the appellant outside the Club. Augustine Kupepe, a barman at the Club, saw the appellant during the dance in the Club and also outside the Club after the dance.

59. The appellant was seen twice in two different places in the early hours of Sunday, 2nd February, 2003. The learned trial judge considered the evidence and found the State witnesses to be credible. He also warned himself of the dangers of identification evidence and proceeded to convict the accused. This was open to him. He said at page 308 of the Appeal Book:

"The evidence of Augustine Kupepe is much the same as that of Julie. He observed the accused at close range. Both Julie and Augustine gave credible evidence and the court accepts their evidence as circumstantial in nature. Their evidence has the effect of rendering the accused alibi defence less effective."

60. It is settled law that on an appeal against conviction, the Supreme Court must be satisfied that in all circumstances there has to be a reasonable doubt as to the safeness or satisfactoriness of the verdict before the appeal will be allowed (see John Beng v The State (supra)).

61. Considering the evidence in its entirety, I am of the view that the appellant has not shown that there was an error in the conviction. I am satisfied that the verdict is safe and satisfactory.

62. The appellant argues that the sentence is manifestly excessive and does not fall within the appropriate category of sentencing guidelines prescribed by the Supreme Court. The appellant appears to rely on Gimble v The State [1988 -1989] PNGLR 271.

63. From time to time the Supreme Court gives sentencing guidelines for various types of offences. These guidelines suggest what is often referred to as "starting point" for various types of offences. Sentencing is a discretionary matter and a sentencing judge may impose a sentence above, below or the same as the starting point depending on the circumstances of a particular case. I endorse the views of my brother, Justice Cannings in CR NOS 701 & 865 OF 2006 The State v Alphonse Polpolio and Jeffery Baru (2006) unreported, where he said "that sentencing is not an exact science. It is a discretionary process." And it must be exercised according to the recognized principles of law.

64. The Supreme Court has given sentencing guidelines for armed robbery commencing with Gimble v The State (supra). The suggested starting points were:

robbery of a house	– seven years;
robbery of a bank	– six years;
robbery of a store, hotel, club, vehicle on the road etc	– five years;
robbery of a person on the street	– three years.

65. Since Gimble’s case, there has been an increase or an upward trend in sentencing as a result of the increased use of firearms in robbery in Papua New Guinea today. The cases of Public Prosecutor v Don Hale (1998) SC 564, Tau Jim Anis v The State (2000) SC642 and Phillip Kassman v The State (2004) SC759 have increased the starting points by three years for each category. At present the starting points are:

robbery of a house	– ten years;
robbery of a bank	– nine years;
robbery of a store, hotel, club, vehicle on the road etc	– eight years;
robbery of a person on the street	– six years

66. Statistics for the years 2004 and 2005 relating to robbery with violence on trial provided to me by the Transcription Service show the following:

(i) that in 2004, the minimum and maximum sentences imposed were six (6) years and ten (10) years respectively. The average was 8.75 years; and

(ii) in 2005 the maximum sentence was twelve (12) years while the minimum was four (4) years with an average of eight (8) years. In addition, a general survey of sentences for armed robbery since 2005 indicate that sentences range between three (3) and thirteen (13) years depending on whether it is a plea or trial. For plea the range is between three (3) years and twelve (12) years while for trial the range is between four (4) and thirteen (13) years.

67. The sentence imposed by the trial judge should not be readily disturbed unless it is shown to be manifestly excessive or manifestly inadequate. A sentence may be disturbed if there is a clear error or mistake in the exercise of the trial judge’s judicial sentencing discretion, for instance, the trial judge has acted on a wrong principle of law, or has clearly overlooked, undervalued, overestimated or misunderstood some salient feature of the evidence (see Wanosa & others v The Queen [1971 - 72] PNGLR 90). Unless it is clearly demonstrated that the trial judge erred, which has the effect of vitiating the trial judge’s discretion on sentence, the sentence imposed must not be changed (see William Norris v The State [1979] PNGLR 605 and Ian Setep Napoleon v The State (2000) SC666).

68. The power to disturb a trial judge’s discretion on sentences must be exercised in accordance with proper legal principles, not on the basis that members of the Court would have imposed a different sentence. In Harris v The Queen [1954] HCA 51; [1953-54] 90 CLR 652 at 655 the Court said:

"The jurisdiction to revise such a discretion must be exercised in accordance with recognised principles. It is not enough that the members of the court would themselves have imposed a less or different sentence, or that they think the sentence over-severe. There must be some reason for regarding the discretion confided to the court of first instance as improperly exercised. This may appear from the circumstances which that court has taken into account. They may include some considerations which ought not to have affected the discretion, or may exclude others which ought to have done so. The court may have mistaken or been misled as to the facts, or an error of law may have been made. Effects may have been given to views or opinions which are extreme or misguided. But it is not necessary that some definite or specific error should be assigned. The nature of the sentence itself, when considered in relation to the offence and the circumstances of the case, may be such as to afford convincing evidence that in some way the exercise of the discretion has been unsound. In short, the principles which guide courts of appeal in dealing with matters resting in the discretion of the court of first instance restrain the intervention of this court to cases where the sentence appears unreasonable, or has not been fixed in the due and proper exercise of the court’s authority." (Emphasis mine)

69. In the present case, the trial judge imposed a term of eight (8) years after a trial. The starting point for robbery of a vehicle on the road is eight (8) years. The learned trial judge considered the relevant authorities. He said:

"... if this crime was committed at the time of Gimble – v- The State, the prisoner would be sentenced to 5 years according to category (c ) as set by the Supreme Court . However, this Court must consider the prevalence of the crime of armed robbery". (See page 322 of the Appeal Book)."

70. He found that no violence was used although threats were made to the vehicle owner and that this case fell into the third category according to the guidelines set out in Gimble v The State (supra). Accordingly, he imposed a sentence of eight (8) years. This sentence is clearly within the range for aggravated robbery. It may well be that eight (8) years is at the lower end of the range. However, that is no basis for disturbing the sentencing discretion of the trial judge. I am of the view that the learned trial judge is correct in his approach to sentence. It has not been shown that the trial judge has committed an error in the exercise of his sentencing discretion.

71. This Court has in the past refused to interfere with sentences on the basis that the Public Prosecutor has not cross-appealed (see The State v Nelson Ngasele (2003) SC731; Mary Bomai Michael v The State (2004) SC737; and Simon Kama v The State (2004) SC740). The Public Prosecutor has not cross-appealed in this matter. I am mindful that this Court has the power to interfere with a sentence with or without any cross appeal by the State or the Public Prosecutor (see Lawrence Hindemba v The State (1998) SC593). However, I am not convinced that the sentence is manifestly inadequate that it needs to be interfered with.

72. I find that the sentence of eight (8) years is within the range for robbery with violence on trial. Accordingly, the appeal against sentence should fail.

73. The learned trial judge imposed eight (8) years and then suspended three (3) years from the head sentence. The suspension of part of the sentence was done without any conditions or reasons. With respect, I am of the view that the suspension of three (3) years without any conditions is an error.

"(1) In the construction of this Code, it is to be taken that, except when it is otherwise expressly provided .....

(d) a person convicted on indictment of an offence not punishable with death may –

(6) When a court sentences any person convicted under Subsection (1) (d) to a term of imprisonment, it may further order that –

the execution of the sentence for the remaining portion of the sentence be suspended on his entering into recognizance, with sureties if so directed, in accordance with Subsection

(1) (d) but further conditioned that, if called on, he shall appear and receive the judgment in respect of his service of the portion of the sentence."

75. A part of a sentence may be suspended upon the offender entering into a recognizance. The principles applicable to suspension of part of a sentence under s 19 (6) were discussed in Public Prosecutor v William Bruce Tardrew [1986] PNGLR 91. The court held that suspension may be appropriate in three broad categories:(i) where suspension will promote the personal deterrence, reformation or rehabilitation of the offender; (ii) where suspension will promote the repayment or restitution of stolen money or goods; and (iii) where imprisonment will cause an excessive degree of suffering to the particular offender, for example because of bad physical or mental health.

76. In Public Prosecutor v Thomas Vola [1981] PNGLR 412, the Supreme Court said at page 415:

"We wish to remark on the procedure to be adopted by a sentencing judge who proposes to suspend portion of a sentence pursuant to the proviso to s 19 (f) of the Criminal Code. As the suspension is effective only upon the offender entering into the recognizance proposed, it would normally be advisable for the sentencing judge to give the offender the opportunity of entering into the recognizance before commencing to serve the portion of the term ordered to be served."

77. A similar observation was made in the case of Acting Public Prosecutor v John Airi (1981) SC214. The Court said:

s 19 (f) of the Criminal Code. Portion of the sentence may be suspended upon the offender entering into a recognisance. The terms of the recognisance may be acceptable to the offender or they may not. If the offender declines to enter into a recognisance, he is obliged to serve the whole of the term of the sentence."

78. Suspension of sentence is not a "soft option" or an exercise in leniency but an order made in the interest of the community and designed to prevent re-offending (see The State v Frank Kangai [1987] PNGLR 320). The Community must necessarily have an input in the sentencing process.

79. This Court in The Acting Public Prosecutor v Don Hale (supra) made these observations:

"The judge having set a sentence of imprisonment then proceeded to suspend the term. Whilst we agree that a judge has a discretion in sentencing convicted persons such a discretion must be exercised according to normal principles. We agree that there are many circumstances which should be applied in the consideration of an appropriate punishment for a particular offender and a judge should refer to these circumstances. There are first of all a number of circumstances of aggravations such as the amount of violence used in a robbery, and the amount of damage done and property taken and whether victims were further injured apart from the fear of the threats. Then there are matters that may be considered in mitigation of the punishment. Of course the first factor in mitigation is whether there have been any admissions of guilt however in this case before us to-day the appellant pleaded not guilty so the State and the Court was put to the time and expense of a trial with the calling of witnesses. So any mitigation for admissions and remorse have limited application.......

[F] or ......a..... suspension of sentence a further help to the court would be a community report from the community to which the offender belongs and whether the community, seeing that the incident happened within that community, has any views on an appropriate punishment or whether the community is prepared to assist with any community management of any bond period. The Courts are bound under the philosophy of the Constitution to be in touch with the aspirations and attitudes of the people of PNG and the punishment of criminals definitely has an effect on the ordinary people. So community involvement with the punishment of offenders should be considered especially if the court wishes to return an offender to the community instead of imposing imprisonment. And we note here the relevance of the Criminal Law (Compensation) Act 1991. A return to the community should mean an appropriate report of the attitude of the community and whether the community is prepared to take some responsibility for their own offending members and supervise any alternate punishment.

However in this case before us now the trial judge had no pre-sentence report nor any report from the community and sought no help from the community in the supervision of this suspended sentence. This is a clear error if he was to suspend a sentence for this kind of aggravated robbery"

80. I agree with the sentiments expressed therein, although I note that this is not a case of suspended sentence. Here the appellant is a policeman and has served for some nine (9) years in the Police Force. He is duty bound, to say the least, to uphold the law. I am of the view that the crime is serious and the seriousness of the crime should be appropriately reflected in the sentence. No reasons have been given for the suspension of three (3) years nor conditions attached to such suspension pursuant to s.19 (1) and (6) of the Criminal Code Act. The appellant was not required to enter into a recognizance in this case. I would set aside the three (3) year suspension. The appellant is to serve 8 years less the time already spent in custody.

^[1] David Coyle & 2 Ors v. Loani Henao (30/11/00) SC655.
^[2] (chp. 37)
^[3] See John Beng v. the State [1977] PNGCR 115.
^[4] (04/10/02) SC698.
^[5] (01/08/02) N2256.
^[6] [1988-89] PNGLR 27.
^[7] (unreported judgment delivered on 02/04/98) SCR 09 of 1995.
^[8] Supra note 2.
^[9] Opt cit. n. 8.
^[10] (Unreported judgment delivered 25/05/00) SC642.
^[11] Opt cit.n. 8.
^[12] (unreported judgment delivered on 02/04/98) SCR 09 of 1995.
^[13] Ibid.
^[14] (unreported judgment delivered on 03/10/03) SC732.
^[15] Opt cit note 3.
^[16] Opt cit note 5.
^[17] (21/05/04) N2583, per Kandakasi J.
^[18] (19/08/04) N2707, per Lenalia J.
^[19] (09/06/04) N2617, per Sevua J; see also the Supreme Court decisions in Nelson Ngasale v. The State (02/10/03) SC731
^[20] See for examples , the decision in John Aubuku v. The State [1987] PNGLR 267 and James Mora Meaoa v. The State [1996] PNGLR 280.
^[21] Public Prosecutor v. Thomas Vola [1981] PNGLR 412
^[22] (27/08/98) SC564.
^[23](03/10/03) SC730.
^[24]See State v. Frank Kagai [1987] PNGLR 320.
^[25] The State v. Guise Jopping (24/09/04) N2678.
^[26] SCRA SCRA 39 & 54 OF 2004, per Sevua, Kandakasi, and Manuhu JJ.
^[27] (27/10/98) SC593, per Woods, Injia, and Sawong JJ .
^[28] (01/04/04) SC739, per Sevua, Kandakasi and Lenalia JJ.
^[29] Opt cit. n. 29.

Supreme Court of Papua New Guinea

Liri v State [2007] PGSC 3; SC883 (22 February 2007)