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Supreme Court of Papua New Guinea |
PAPUA NEW GUINEA
[IN THE SUPREME COURT OF JUSTICE]
SCA 56 OF 2010
BETWEEN:
TAMARA PLAYER TOMSCOLL
Appellant
AND:
THE INDEPENDENT STATE OF PAPUA NEW GUINEA
Respondent
Waigani: Kirriwom, Kandakasi & Kawi JJ.
2012: 30th October
15th November
CRIMINAL LAW – Appeal against conviction – Conviction upon guilty plea – No legal defence raised during arraignment or allocutus – Well educated accused fully understanding the charges – No error or omission of trial judge identified – Conviction safe – Appeal against conviction dismissed.
CRIMINAL LAW – Appeal against sentence – Trial judge not specifically considering all of the factors for and against the prisoner – But evidence of weighing them – Unfettered discretion in trial judge to arrive at appropriate sentence – Sentencing not matter of mathematics - Decision on head sentence warranted – Error only in failure to take into account pre-trial and pre- sentence custody period – Appeal upheld to that extent only.
CRIMINAL LAW – Particular offence – Accessory after the fact – Essential elements of – Statute creating offence provide for - Knowledge of known felon not part of essential elements – But knowledge pleaded in indictment – Failure to prove such fact may not be fatal.
CRIMINAL LAW - Particular offences – Accessory after the fact and receiving stolen property – Serious crime of Bank robbery – Accessory after that fact and receiving parts of proceeds of - No cooperation with police – Recovery of stolen property through police work – Part played by prisoner serious – Deterrent sentence called for – Maximum prescribed sentence of 2 years warranted for accessory after the fact and 9 years for receiving stolen property totaling K127,000.00 .
Cases Cited:
Papua New Guinea Cases
William Chilen v. The State (2011) SC1099
Gedai Kairi v. The State (2006) SC831
Jack Peni v The State (2007) SC913
Masolyau Piakali v The State (2004) SC771
Kepa Wanege v. The State (2004) SC742
SCR No 3 of 980: Re Joseph Mavuk [1980] PNGLR 507
Motor Vehicles Insurance (PNG) Trust v. James Pupune [1993] PNGLR 370
Motor Vehicles Insurance (PNG) Trust v. John Etape [1994] PNGLR 596
Papua New Guinea Banking Corporation v. Jeff Tole (2002) SC694
Papua Club Inc v. Nusaum Holdings Ltd and Others (2005) SC812
Cosmos Kutau Kitawal & Christopher Kutau v. The State (2007) SC927
Chief Collector of Taxes v. Bougainville Copper Limited; Bougainville Copper Limited v. Chief Collector of Taxes (2007) SC853
Andrew Trawen v. Steven Pirika Kama; (2) Michael Laimo v Steven Pirika Kama (2010) SC1063
Re Nomination of Governor-General; Application by Sir Pato Kakaraya (No. 2) (2004) SC752
James Marabe v. Tom Tomiape & Anor (No.2) (2007) SC856
Ben Wafia v. The State (2006) SC851
The State v Oa Seseka (1990) N921
Allan Peter Utieng v. The State (Unreported and unnumbered judgment delivered in Wewak on the 23rd of November 2000) SCR 15 of 2000.
Thress Kumbamong v. The State (2008) SC1017
The State v Ben Wafia, George Wena, Simon Konga and Leslie Puka (No 2) (2004) N2547
The State v. Gabriel Or (CR No 380 of 2009) and The State v. Matilda Makeu Ori (CR No 381 of 2009) both decisions delivered on 20th August 2010.
Simon Kama v The State (2004) SC740
Overseas Cases
Dianne McGrath Fingleton v The Queen [2005] HCA 34
R v. Rowley [1948] 1 ALLER 570
Counsel
Mr. H Leahy, for the Appellant
Mr. R Auka, for the Respondent
15 November, 2012
2. The Court has thus been presented with the following main questions of whether or not Tamara made a case for:
(1) Leave for her to adduce fresh evidence concerning her arrest and detention and alleged mistreatments?
(2) Appealing against her conviction upon her guilty plea? and
(3) Appealing against her sentence of 9 years for receiving stolen property to be served concurrently with 2 years for being accessory after the fact?
3. There are more specific questions but they are subsidiary to the above main ones. We will make reference to and consider some of them as we deal with each of the main questions. The first question we turn to is Tamara's application for fresh evidence.
Application for fresh or other evidence
4. Tamara's application for fresh evidence is pursuant to s.6 of the Supreme Court Act and r.60 of the Supreme Court Rules. The evidence she seeks to adduce as noted concerns, beatings, being raped by a policeman and other ill treatment Tamara claims she received from the police, a child being born whilst she was in custody and the period of her pretrial custody. Learned counsel for Tamara argued that these evidences were relevant on both her conviction and sentence because Tamara's confessional statement that was admitted into evidence, was obtained under duress and the period she spent in custody awaiting her trial was not properly taken into account or considered before the decision on sentence. The latter was of particular concern because the offence of accessory after the fact carried a maximum penalty of two years and at the time of her trial, she had been in custody for over two years already and co-offenders tried for the same offence before her upon their pleas of guilty were sentenced to the rising of the court.
5. The law in relation to application for fresh evidence is well settled in our jurisdiction. A recent statement of the relevant principles or test for fresh evidence is stated in the decision of William Chilen v. The State,[1] in these terms:
"By fresh evidence, as referred to in s. 6 (1) (a) Supreme Court Act, what is meant is relevant and material evidence which the party applying could have led at the trial or hearing, which has come to light since the hearing or trial, or evidence which has come to the knowledge of the party applying since that hearing or trial which could not by reasonable means have come to his knowledge before that time: John Peng v. The State [1982] PNGLR 331, Abiari v. The State [1990] PNGLR 250, James Pari v. The State [1993] PNGLR 173, Rawson Construction Ltd v. Department of Works (2005) SC777 and Ben Kairu v. The State (2005) SC782."
6. In the case before us, we note that, the evidence which Tamara wishes to adduce were evidence that were essentially placed before the learned trial judge although, not in a detailed sworn affidavit form as the one she deposes to in support of her application. We note also that this was evidence that was available to Tamara at the time of her trial and she could have presented in its entirety if she wanted to. Given that, we find that the application is misconceived. But the legitimate question is what use was made and could be made of this evidence. That is an argument Tamara is entitled to present before this court, without leave for fresh evidence. We will take up those arguments later on in this judgment. For now, we are not satisfied that a proper case for leave to adduce fresh evidence has been made out. Accordingly, we decline the application and order its dismissal.
Appeal against conviction upon plea of guilty
7. The next major question we turn to then is the question of whether Tamara can appeal against her conviction which came about on her guilty plea. We accept the learned counsel for Tamara's submission that a more recent Supreme Court decision stating the relevant law in relation to appeals arising out of convictions on guilty pleas is the decision in Gedai Kairi v. The State.[2] There the Supreme Court said:
"The law on guilty pleas to charges, disclosure of a defence known to law in the evidence or in an accused person's plea or allocutus is very clear and settled.
A member of this Court, Kandakasi J., in our view, correctly considered all of the authorities on point starting with National Court judgment in The State v. Joe Ivoro & Gemora Yavura...to the Supreme Court decisions in Dinge Damane v. The State ...and Martin Ferry v. The State... and summarized the position in this way:
'These lines of cases make it very clear that, once a trial judge finds something inconsistent with a guilty plea either from a perusal of the depositions or in the accused person's allocutus, the plea should be changed to a not guilty plea. That must happen whether or not the defence counsel makes an application under s.563 of the Code in order to accord to the accused his constitutional rights and or guarantees. Once a guilty plea is changed to a not guilty plea, the trial judge must disqualify from conducting a trial of the case. There is than a prerogative for the prosecuting counsel to decide whether or not to proceed with an alternative charge that may be available and supported by the depositions and one which accords well with the accused's statement in allocutus if that stage has been reached. If the prosecution takes that option, the accused must be re-arraigned on the alternative charge and be dealt with in the normal way.'
In His Honour's later judgment in The State v Joe Butema Arua ... he referred to his above judgment and the authorities he considered in that judgment and correctly commented further on the procedure in our view at page 2 as follows:
'[T]hat is the correct procedure to follow if that which makes the guilty plea inconsistent goes to an essential element of the offence with which the Defendant has been charged. Thus, if all that the Defendant does is raise the possibility of a legal defence, then the authorities seem to suggest that, the court must raise that with the defendant's counsel and if a choice is made to maintain the guilty plea that should be allowed. In other words, if a defendant decides to maintain a guilty plea despite having a possible legal defence and that fact being raised with his counsel, the court is not obliged to change the guilty plea.'
There is a good reason for this as was stated in The State v. John Gurave Guba,... at page 3 of the judgment. There the court said:
'What is not clearly expressed one way or the other is, what should be the procedure if the defence decides to forego any defence that may appear to exist or is disclosed in the depositions or in the statement in his allocatus. For clarity on that aspect, in my view, it ought to be stated in clear terms that, just as the court is duty bound to accept an indictment presented following a plea bargain for a lesser charge, when a more serious one is disclosed in the depositions, the court should also be duty bound to accept the defendant's decision to forego any defence he may have and supported by the depositions. ... [A] defendant may take such a position because of the obvious benefits a plea bargain may bring to him in addition to the benefits a guilty plea may bring to him. He may also see difficulties succeeding on the defence that may be disclosed in the depositions or in his statement in allocatus and decide not to raise it.'"
8. In the Gedai Kairi case, the National Court convicted and sentenced the appellant, an uneducated and an unsophisticated woman on her guilty plea to one count of manslaughter. In her allocutus, she raised the possible defences of acting in self defence and causation which was not causing the death of the deceased. The trial judge merely noted what the prisoner said and proceeded to sentence her. On appeal the Supreme Court was of the view that, the trial judge erred in not raising with the defence the possible defences before proceeding to sentencing her. This denied the prisoner her right to a fair trial and final decision on the charge against her. Hence, the Supreme Court quashed both her conviction and sentence and remitted the matter back to the National Court for re-trial before a different judge.
9. Additionally, we note that the Supreme Court has disallowed appeals against convictions based on guilty pleas where the appellants have not raised the arguments in their defence during or at the trial level. An example of that is the decision of the Supreme Court in the matter of Jack Peni v The State.[3] There, Jack sought to overturn his conviction on the basis that poor translation of his plea resulted in the erroneous entry of a guilty plea. There are also other cases, generally going against raising on appeal issues that should have been raised at the trial. This applies to both civil and criminal cases. Specific examples for criminal cases include the decision of the Supreme Court in Masolyau Piakali v The State[4] and Kepa Wanege v. The State.[5] We will elaborate on this a little later.
10. For the present discussions we note that, in the case cited above and others, most of the prisoner appellants were unsophisticated and some even uneducated in the formal sense. We could well understand how they could have allowed something to pass their attention and to their detriment. However, we cannot understand how a well educated person like Tamara could not understand what she was pleading to and what was happening to her. Tamara is a well educated woman who has held many managerial and responsible positions in the private sector.
11. When asked if she understood the charges for the purposes of her arraignment, she answered in the affirmative. She gave a similar answer during her allocutus. In particular, she said sorry to the Court, BSP (Bank of South Pacific) and her family who have been through a lot. Then she spoke of the birth of her child whilst in custody, her child and her medical conditions and their needs. At no stage, did she indicate or hinted at her innocence or something going wrong in her trial. Clearly, she was able to properly understand and apply the English language. According to her own statements to the police which were all in evidence before the trial court and now before us, she also knew her rights and the law, although not clear to what extent. Both of the charges were read to her with the facts in support in plain and simple English. The record bears witness to this. Despite that, in her affidavit sworn on 12th December 2010 at paragraph 209, Tamara claims the trial judge did not read the charges to her. This questions her credibility as a person and witness as well as the credibility of her allegations on appeal. All proceedings are recorded on tape and every word uttered is on record and subsequently typed and produced as evidence. On appeals to the Supreme Court, this transcript is before the Supreme Court. Every indication is there in this record that she understood everything that was happening at the trial level. Hence, if the entry of guilty plea was without her instructions or that her confessional statement which was admitted into evidence was obtained under duress or something was not right, she could and should have raised the necessary alarm in the neutral and secure settings of the court presided over by the neutral judge. That she did not do for no apparent and good reason.
12. The present case contrasts with other less educated and unsophisticated appellants like the one in Gedai Kairi's case, where a simple uneducated and unsophisticated woman was able to raise a possible defence at the allocutus stage. Here, Tamara did or said absolutely nothing that indicated a defence or something seriously affecting her ability to fully understand what was transpiring in Court and she took the position she took at the trial, with full knowledge and understanding.
13. Learned counsel for Tamara tried to justify that lack of appropriate action by his client by trying to show that his client was under enormous pressure to shorten her case by pleading guilty because she had been subjected to a lot of atrocities at the hands of the police. As we said in our decision in respect of her application for fresh evidence, the evidence was always available and was with her. If what she is claiming as any truth, she could have adduced them into evidence but she did not. She could have even contested the admission into evidence her confessional statement but she did not. Similarly, she could have immediately reacted against the entry of guilty plea if that was without her instructions, but she did not do that. Instead she conducted the rest of the case, on a full acceptance of guilt.
14. Learned counsel for Tamara in the appeal went on further and tried to make a case for his client's innocence, which concerned her not getting a lawyer of her choice from the Public Solicitor's Office, not knowing William Kapris Nanua as a felon and not knowing a large sum of money she received from William Kapris Nanua was stolen. Further, learned counsel for Tamara finally tried to make a case for his client not freely pleading guilty to the charges against her.
(a) Accused Counsel of Choice
15. We have given consideration to each of these points and have arrived at the decision that they cannot be sustained. First in relation to the choice of counsel the starting point is s. 37 (4) (e) of the Constitution. This provision reads:
"(4) A person charged with an offence:
...
(e) shall be permitted to defend himself before the court in person or, at his own expense, by a legal representative of his own choice, or if he is a person entitled to legal aid, by the Public Solicitor or another legal representative assigned to him in accordance with law..."
16. The Supreme Court first had that question of legal representation of choice for an accused person in the matter of SCR No 3 of 980: Re Joseph Mavuk.[6] Having due regard to the provisions of s. 37 (4) (e) the Supreme Court said of the right:
"The right in question cannot be an absolute right. For example the right of an accused person cannot extend to a right to have counsel who is employed as a State prosecutor to defend him, or who is employed as an officer of the Public Solicitor's Office if he is not entitled to legal aid, or the Public Solicitor himself instead of one of the Public Solicitor's Officers if he is entitled to legal aid, or a particular officer of the Public Solicitor's Office, or a counsel who has by acceptance of a prior brief engaged himself so as to be unavailable at the time of the trial, or who, as in this case, is disqualified on ethical (see Halsbury's Laws of England (4th ed.) vol. 3, par. 1143) and other grounds in respect of appearing as defence counsel in the trial in question. The aforestated exceptions are not exhaustive.
What an accused person is entitled to is to counsel of his choice but not necessarily his first choice. His choice is subject to all proper exceptions. One thing that the right conferred by the provision in question would do would be to prevent an accused person being against his will assigned by the State a defence counsel whom he did not want. Having said that, we think we should not explore the effect, generally, of the provision further in this reference."
(Underlining supplied)
17. We are of the humble view that, the provisions of s. 37(4) (3) are clear. Accused persons have the right to defend themselves in either of four ways: (1) in person or; (2) at their own expense, a legal representative of their choice or; (3) a lawyer assigned by the Public Solicitor if they are entitled to legal aid or; (4) any other legal representative assigned to them in accordance with the law. This means, if accused persons want a particular legal representative of their choice, they must meet the costs involved. If however, they are not able to afford the costs and are able to get a legal representative under options (3) and (4), they have no choice. They are simply assigned a lawyer. Over such assignment, which is a free gift, the recipients have no right of choice save only to accept or reject what they are given. Hence accused persons do not have a right to say as to who should be their lawyer, although they might indicate their preferences.
18. It is in the absolute discretion of the Public Solicitor or the entity that is providing free legal representation to assign a lawyer whom the Public Solicitor or the head of the organization that is providing the free legal representative considers well suited to represent a particular accused person in any particular case. Accused persons may have the right to indicate their preferences and which of the lawyers they are opposed to, which the Public Solicitor or the organization assigning free lawyers may take into account when deciding who to assign to a particular case. Such indications by accused persons should not and cannot bind the free lawyer assigning authority. That is for a number of good reasons. First, the service is provided for free and not at the expense of the accused. Second, the assigning authority would be in a better position to know who within his or her establishment is better experienced and well suited to provide legal representation in a particular case. Thirdly, the resource of the assigning organization like the Public Solicitor is often very limited, so much so that accused persons may not be able to get their choices. Finally, the Public Solicitor or other assigning authorities need to be fair and equitable in their distribution of work load and opportunity being given to their legal officers to have the necessary exposure and experience in the kinds or types of cases being handled by them. Hence, they alone would be in a better position to know, keep the records and make the relevant and necessary decisions.
19. If an accused person is not able to get their preferred legal representative and get someone they do not like, they have a choice of either one of two options. Accept the lawyer assigned to them or refuse to accept the assigned legal representative and either secure a lawyer of their own choice at their own expenses or represent themselves.
20. In this case, Tamara says through her learned counsel that the Public Solicitor did not assign her, her preferred lawyer. Instead, she was assigned a lawyer whom she did not like or accept. Yet the records of the proceedings before the learned trial judge do not bear witness, to any of what she has submitted before us. The records show however, that she went along with the legal representative the Public Solicitor assigned her. She is raising the issue only after her conviction and sentence. This is consistent with a trend that has come to bear in PNG where convicted prisoners on appeal raise all sorts of arguments against the conduct of counsel and the trial judge most of which have been found to be unmeritorious. This Tamara or any other convicted prisoner cannot do. Whilst we accept that every person who is convicted and sentenced have a right of appeal or review of their conviction and sentence, that right is not a license to raise all manner of issues. Rather, they are restricted to raising matters that were raised, fully argued over at the trial level and have merit.
21. There is ample authority in our jurisdiction which state clearly that, an appellant cannot raise and succeed on a point not previously raised at the trial Court. Some of the often cited authorities are the decisions of the Supreme Court in Motor Vehicles Insurance (PNG) Trust v. James Pupune[7] and Motor Vehicles Insurance (PNG) Trust v. John Etape.[8] Many subsequent decisions of the Supreme Court like the one in Papua New Guinea Banking Corporation v. Jeff Tole[9] follow that line of authorities. These principles equally apply to criminal cases, as earlier noted. A number of decisions of the Supreme Court as in Jimmy Ono v. The State,[10] Jack Peni v. The State (supra) and Masolyau Piakali v. The State (supra) confirm that position.
22. At the same time we note that, despite these clear authorities at least a few decisions have gone against the grain of the above and other authorities. The first case we mention is the decision in Papua Club Inc v. Nusaum Holdings Ltd and Others.[11] The second decision is in the matter of Cosmos Kutau Kitawal & Christopher Kutau v. The State.[12] The latter case cited the earlier as authority for the position it took. All that the Court said about the point in issue was as follows:
"We point out that the Section 20 issue was not put to the trial judge, so his Honour did not obtain the benefit of argument on it. However, it was an important point of law that should have been addressed. It was set out in the notice of appeal and it does not concern a question of fact only. It was therefore appropriate to allow the point to be argued. There is no hard and fast rule that prevents appellants raising new points of law that were not raised in the National Court (Papua Club Inc v Nusaum Holdings Ltd and Others (2005) SC812)."
23. In the Papua Club Inc case, the Supreme Court discussed the point at some length pointing to a number of PNG and overseas decisions and concluded that, an appellant more so in a criminal case should be allowed with leave of the Court to raise a point of law that was not earlier raised in the trial court, provided exceptional circumstances exist warranting such an allowance. The court referred to and was persuaded amongst others by the decision of the Australian High Court decision in Dianne McGrath Fingleton v. The Queen.[13] In so doing, the Court distinguished the James Pupune and John Etape line of cases and said those cases concerned civil cases and matters of pleadings and what evidence is permissible and not points of law.
24. Subsequently, the Supreme Court in Chief Collector of Taxes v. Bougainville Copper Limited; Bougainville Copper Limited v. Chief Collector of Taxes,[14] had the issue before it. That case gave reason for the Court to consider the authorities on point. The Court noted what one of the parties was seeking to do in the cases and said:
"A careful perusal of what transpired in the Court below shows that the issues raised by these claims were not fairly raised and put before the trial Judge. They are therefore, raised for the first time before this Court, which BCL is not entitled to do. The reason for this is simple; an appeal lies to the Supreme Court to examine and where warranted, correct an alleged error of a trial judge and not the failures of parties to raise issues, factual or legal, they should have first raised in the Court below. An appellate court does not and cannot sit as a court of original jurisdiction. Further, there is always the need for finality in litigation. Additionally, fairness to a trial judge and the parties themselves, the need for proper and timely management and disposition of cases and the need to minimize costs of litigation to the parties and the Court, demands that an appellate Court should not hear and determine issues not first raised in the trial court, except with the consent of the parties or with special leave of the Court in very exceptional circumstances such as want of jurisdiction.
....
A long list of Supreme Court decisions from MVIT v. James Pupune ... PNGBC v. Jeff Tole,... Fly River Provincial Government v. Pioneer Health Services Limited...and Curtain Brothers (PNG) Limited & Curtain Brothers (Qld) Pty Limited v. University of Papua New Guinea ... bring these principles out very clearly. On the basis of those principles these line of authorities preclude an appellant from raising on appeal an issue he or she failed to raise before the trial court. A contrary view has however, been expressed in the decision of the Supreme Court in The Papua Club Inc. v. Nasaum Holdings Limited & Ors.73 That decision relied on a number of earlier decisions of the Court including Van Der Kreek v. Van Der Kreek.. and the Australian High Court decision in Dianne McGrath Fingleton v. The Queen... In those cases, the respective Courts held that an appellant can be allowed to raise a legal point and succeed without first raising the issue in the trial court. They neither considered nor discussed any of the reasons we advanced above, which we consider are very important. On a proper consideration of those reasons, we are of the view that the MVIT v. James Pupune line of authorities is correct and appropriate and we endorse them."
25. We add to the point being made about, an appellate court is not a court of original jurisdiction. At the original jurisdiction level, there are requirements for pleading an issue and any defence thereto, discovery, opportunity for possible out of court settlement discussions including mediation, calling of evidence if need be, regarding the issue, submissions for and against the issue and the trial court coming to a decision. If the trial judge does not get it right, both or either of the parties have the right to appeal to the Supreme Court. Allowing a party to raise an issue not raised at the trial denies the parties of all of that which takes place at the trial and the right of appeal against a decision on the issue.
26. One might argue that, a slip rule application can easily take the place of right of appeal. Unfortunately, that argument would fail because of the very basis on which there can be a slip rule application, which succinctly expressed in terms of:
"A slip rule application is to correct a glaring error or mistake in a judgment or order of the Court. Such a mistake would be either clerical, an accidental omission in a judgment or order or would be a misapprehension of fact or law"[15]
27. The Supreme Court has now specifically highlighted that, anyone applying for review under the slip rule must satisfy the following, from the decisions of in Re Nomination of Governor-General; Application by Sir Pato Kakaraya (No. 2)[16] and James Marabe v. Tom Tomiape & Anor (No.2)[17]:
(1) There is a substantial public interest in the finality of litigation;
(2) On the other hand, any injustice should be corrected;
(3) The Court must have proceeded on a misapprehension of fact or law;
(4) The misapprehension must not be of the applicant's making;
(5) The purpose is not to allow rehashing of arguments already raised;
(6) Also, the purpose is not to allow new arguments that could have been put to the Court below; and
(7) The Court must, before setting aside its previous decision, be satisfied that it made a clear and manifest, not an arguable, error of law or fact on a critical issue.
28. There are other subsequent decisions of the Supreme Court, which merely follow or apply the decision in the Papua Club Inc case, without noting the two different views of the Supreme Court. Only the decision of the Court in the Chief Collector of Taxes and Bougainville Copper Limited case gave some detailed consideration to that position as noted above. That seems to be the latest considered judgment on point. For the reasons the Court gave in that judgment and the point we have just elaborated above, we consider the correct and applicable law is as was determined by the Supreme Court in the Chief Collector of Taxes and Bougainville Copper Limited. This we are prepared to follow until a 5 or more member Supreme Court settles the issue.
(b) Not knowing William Kapris Nanua as a felon and stolen property
29. We now turn to a consideration of the argument around Tamara not knowing William Kapris Nanua for purposes of the charges against her, starting first with the charge of accessory after the fact. There is no contest between the parties that, knowing someone as a felon is an essential element for the charge of accessory after the fact. The point being made was that, Tamara did not know that, William Kapris Nanua was a felon. Therefore the argument is that, she was wrongly convicted of the charge on her guilty plea.
30. To support her case, her learned counsel Mr. Leahy drew the Courts attention to the decision of an old English Court of Criminal Appeal case in R v. Rowley.[18] There the Court said:
"Where a man is charged with the offence of being an accessory after the fact, which involves knowledge on his part of the person he has received and comforted has committed a felony, it is always improper to accept a plea of Guilty until the fact has been tried by a jury whether the other persons are felons or not, unless, of course they also plead guilty to the felony. While they are awaiting trial and stoutly protesting their innocence, it is wrong to accept a plea of Guilty from a person who is indicted for an offence which involves his knowledge of their guilt."
31. Provided knowledge of a felon is an essential element of the offence of accessory after the fact, this statement makes sense. A guilty plea by a person charged with accessory after the fact might prejudice a hearing and determination of the related charge against the alleged felon. Subject to the particular wording of section 519 under our Criminal Code, which creates the offence of accessory after the fact, we consider the above statement of the law sound. We would thus adopt and apply them pursuant to schedule 2.2 of the Constitution.
32. In terms of its application, we note that, the transcript of proceedings before the trial court clearly shows that the State charged Tamara with one count of accessory after the fact pursuant to s. 519 of the Criminal Code. That provision reads:
"519. Accessories after the fact to crimes.
A person who becomes an accessory after the fact to a crime is guilty of a crime.
Penalty: If no other punishment is provided, imprisonment for a term not exceeding two years."
33. The essential elements for a charge under this section in our view therefore are these:
(1) A person who;
(2) becomes an accessory after the fact; and
(3) to a crime.
34. As can be seen s.519 does not show that, knowledge of a felon is an essential part of the offence of accessory after the fact created by this section. Usually, the essential elements of a criminal offence are spelt out and can be ascertained from the particular provision or provisions in the law that creates the offence. In this case, s. 519 creates the offence of accessory after the fact. It does not specifically require knowledge of a known felon as a necessary element for the purpose of the offence. The law is as per s. 37 (2) of the Constitution. A person can only be charged and if proven, convicted and sentenced only on the basis of a written law (excepting only for contempt of court) which clearly sets out the essential elements of the offence and its penalty.[19]
35. The aspect of knowledge in this case was introduced by the indictment against Tamara which reads in relevant parts that "knowing that one William Kapris was a prison escapee and also knowing that he is alleged to have stolen with actual violence...". The indictment does not create the offence but it must cover each of the essential elements of the offence. In the actual drafting of a charge, words other than those going into the essential elements of an offence may be used for completeness in addition to covering each of the essential elements. Where that, occurs, in our respectful view does not mean that the addition wording becomes essential elements of the offence. They instead give context to a charge and a failure to establish those facts cannot be fatal to the prosecution.
36. In any case, in this matter, the Court drew to the attention of the learned counsel for Tamara evidence adduced before the trial Court and now before us on appeal which was directly on the issue of knowledge of a felon. The evidence revealed that, the State had made 32 announcements through the EMTV's Crime Stoppers prime time program and repeated those announcements that William Kapris Nanua was a known felon. He had escaped from prison and was at large. He was wanted by the authorities for escaping from lawful detention after committing several bank robberies which were serious crimes. These announcements commenced on 7th March 2007 and ended on 21st May 2008, which was a sustained period running over a year. On this evidence being drawn to the learned counsel's attention, learned counsel for Tamara correctly decided not to press further on the issue of lack of knowledge as a felon argument. That effectively ended the argument based on the lack of knowledge argument for both offences, thereby rendering a decision on that point unnecessary.
Whether Tamara's concurrent sentence of 9 years is manifestly excessive?
37. We now turn to a consideration of the final major question of whether Tamara made out a case of excessiveness of her concurrent sentence of 9 years for the one count each of accessory after the fact and receiving stolen goods. For this part of her appeal, we note that Tamara pleaded guilty to one count of accessory after the fact and another for receiving stolen property. The maximum sentence of the first count is 2 years while the second count carries a maximum penalty of 14 years under s. 410 (1) and (2) of the Criminal Code.
38. Before arriving at any decision on sentence, sentencing authorities are required to carefully weigh all of the factors for and against an offender. Where the factors in mitigation outweigh those in aggravation, an offender would get a lenient sentence. However, where the factors against an offender outweigh the factors in favour of the offender, a heavier sentence would be warranted. Hence, the question is what factors operated for and against Tamara and what kind of sentence was appropriate in the whole of the circumstances?
39. Noting first the factors in Tamara's favour, we note firstly that she was a first time offender with no prior convictions of any sort. Given her age, training and the various responsible positions she has held over the years, she was a good law abiding person until the commission of these offences.
40. Secondly, she pleaded guilty to two charges against her. That made both the prosecution and the Courts task easier in terms of less costs and trial time. At the same time, we note that, there was overwhelming evidence against her, including her confessional statement. Hence, she would not have escaped with a not guilty plea.
41. Thirdly, she appears to have come from a good family background although she came from a broken family and her own marriage was in trouble at the time of her commission of the offences. Surely, her children and the rest of her family were and did get affected. That is the unfortunate, consequence of committing a crime.
42. Fourthly, the properties, Tamara received from William Kapris Nanua and his gang was fully recovered. However, this we note was not done voluntarily. It was through good police work that led to and resulted in the recovery of the stolen properties. Included in the recovered properties were cash and firearms. This meant that, Tamara did not make use and therefore gain from the stolen properties.
43. Finally, few matters pertaining to her health and that of her child, who was born in prison, were raised as factors in mitigation. Tamara alleged she was subjected to various atrocities and ill treatments whist under the control of the police. From our close examination of the material or evidence that was before the trial court and now before us, we are not too sure whether these claims are credible. One thing we know for sure is the fact that she is making a number of claims in her sworn affidavits filed in this Court in support of her application for fresh evidence. Some of her claims are clearly not correct. Her claims of what did or did not occur at the trial court, which are in the transcript of proceedings are not correct. For example, as we already noted, she claims the trial judge did not read the charges to her. The record however shows from page 224 – 227 of the Appeal Book that the learned trial judge did take the time and trouble to read out both of the charges and the brief facts to her. She was then asked "do you understand the charges?" and her answer was "Yes, your Honour." This again as we already noted, seriously questions her credibility as a witness and the claims she is making. Hence, little or no weight should be placed on this.
44. In relation to the plea for Tamara's own and that of her children and her families' needs, we do sympathize with her, her children and family. However, these can have no consequence on the sentence she should receive as an offender. Indeed numerous cases say that an offender should think of the possible consequences that could flow against themselves and their family, friends and or business on account of their choosing to commit a crime before committing it. After the commission of an offence, it is a little too late to plead personal or family needs.
45. One of the earlier decision of the courts on this point in our country is the decision by Amet J (as he then was) in The State v Oa Seseka.[20] That was a case of fraud. There His Honour said:
"I said before and I repeat that all of these factors and matters ought always to be in the minds of fathers and all offenders when they are tempted and begin offending in this way. Educated, intelligent adults who knowingly and yet deliberately over a long period of time, such as 17 months, embark upon a life of fraud have no excuse whatsoever. They bear full responsibility for the suffering occasioned to their families as a result of their actions."
46. Later in 2000, the Supreme Court consisting of the late Jalina, Kirriwom and Kandakasi JJ., in the matter of Allan Peter Utieng v. The State,[21] re-echoed this principle by saying an offender should consider his background first before committing any offence. Implicit in that is the fact that, it is a little too late to talk about an offender's personal background including the needs of his family and concerns once he is proven guilty according to law. His background and concerns should have little or no weight against the need to impose a sentence or punishment that best befits an offence he has committed and the particular circumstances in which the offence was committed.
47. This position has been and is consistently applied in our Courts when offenders plead their personal needs including medical needs and that of their respective families. The Supreme Court's decision in Thress Kumbamong v. The State[22] is one of the latest Supreme Court decisions on point. That decision reaffirmed this position in these terms:
"It is now settled law that, an offender should consider his or her personal and family backgrounds and needs before committing an offence. It follows therefore that, once a person is found guilty of committing an offence, it is a little too late for the offenders to raise their personal and family backgrounds and needs with a view to getting a more lenient sentence. This was made clear by this Court's decision in Allan Peter Utieng v. The State,...which has been followed in a long list of National Court judgments including the recent decision in The State v. Danny Makao...
What this means is that, the medical conditions or other personal and family backgrounds and needs of an offender should not form any foundation for a lenient sentence unless, it is a case of life and death and no arrangements can be made administratively by the Correction Services for a prisoner with a medical condition to access and receive appropriate medical attention and treatment."
48. Bearing the above in mind we now turn to a consideration of the factors that operated and now operate against Tamara. William Kapris Nanua was a known prison escapee and was at large. The State through the EMTV's prime time program, Crime Stoppers, put out a total of 32 announcements from 7th March 2007 to 21st May 2008. These announcements pleaded for help from the public for his re-capture by reporting any sightings or coming into contact him. He was wanted amongst other for an armed robbery of the Bank South Pacific in Madang. Despite that, Tamara became an accessory after the fact and received proceeds of the robbery from William Kapris Nanua.
49. Tamara claims she does not watch television. Therefore she did not know about the announcements in the Crime Stoppers program. We do not consider this credible. Having found that, she was not being truthful and therefore not a credible witness, we do not find what she is claiming credible. Additionally, with the level of crime in the city of Port Moresby and the country generally, most people watch the Crime Stoppers program to know who is at large for their own safety and protection and for those who are good citizens concerned with the deteriorating law and order situation, report the criminals to police upon their sighting. Someone, like Tamara could have made it her business, if not all the time, at least once in awhile, watch the program, given her position as a female company executive. It is also clear from the other evidence placed before the National Court and are in the appeal book show that, Tamara did not fully cooperate with the police but she did go out of her way to help William Kapris Nanua. A good example is in her booking, hiring, picking up and deliver a hired vehicle to William Kapris Nanua and his gang for their use. Further, some of the stolen properties were recovered from Tamara's residence through the police's own efforts. Tamara did not voluntarily hand them over.
50. In our view the part Tamara played is very serious and is adverse to the fight against the growing crime problem in the country. As hinted in the foregoing, the Crime Stopper program and others are aimed at causing, equipping or enabling the members of the public with appropriate information to help police enforce law and order and to bring offenders to justice. Maintaining law and order is everyone's duty and responsibility and not just the police. All thinking and reasonable members of the community, who respect law and order and appreciate the fight against crime, need no encouragement or urging from anybody. They would be voluntarily reporting crimes to the police as and when they are committed and assist police in handing over criminals to them for prosecution. The least that can be expected of citizens and residence alike is aiding and abetting or otherwise assisting criminals to commit crimes and or also get away from being caught and being dealt with according to law. What Tamara did in this case is indeed a serious affront to law enforcement, peace and good order which is badly needed in our country now. Hence this is a serious aggravating factor against her.
51. Secondly, as noted in the course of the foregoing, Tamara's guilty plea was a belated one even though she earlier confessed. The State had been put to a lot of expenses to investigate, and secure evidence against Tamara. A lot of witness statements were admitted into evidence, which ultimately suggest Tamara's guilt. In other words, if Tamara did not plead guilty, the State would have had no difficulty putting the matter through trial and secure a conviction. In this regard we can see why counsel for Tamara at the trial recommended a guilty plea which she eventually accepted and pleaded guilty to the charges.
52. Thirdly, the value of the property that was stole and received by Tamara is K127, 000. In her record of interview, Tamara admitted to receiving only K6, 000.00, during her arraignment and throughout the process she allegedly received K127, 000.00 and she admitted. This is a substantial amount. However, the seriousness of this factor is immediately mitigated by their recovery. When considering the effect of this aspect on what sentence is appropriate for Tamara, the trial judge was obliged and we do take into account the fact that, through good police work, the money totaling K127, 000 along with other properties including firearms were recovered from Tamara's residence. As already noted, the recovery came through good police work. Tamara did not voluntarily return them or lead police to their recovery. Hence, she does not get full benefit for the full recovery.
53. Finally, we note that, the crime of receiving stolen property and as well as accessory after the fact are that which gives encouragement, support and energy for criminals to get into crime. These kinds of offences are on the increase. Hence if society is to improve in its efforts to minimize the frequency and number of serious crimes like armed robbery, penalty against people who encourage and support criminals should be stronger. This will have the effect of stopping if not reduce the number of offences that are committed.
54. The Court has already taken such steps against people who encourage others to commit offences. Kandakasi J., in The State v Ben Wafia, George Wena, Simon Konga and Leslie Puka (No 2),[23] in the context of encouraging the commission of the crime of mutiny said this:
It follows therefore that it is a serious offence for a person to incite a mutiny by a soldier. In this context, it is important to note that, in some cases, an offender may not be inclined toward the commission of an offence on his own. Such a person may be encouraged if not forced to commit an offence by another person. In a case like that, the encourager deserves a more severe punishment than the one who actually commits the offence."
55. On appeal, the Supreme Court in its judgment in Ben Wafia, Simon Konga and George Wena v. The State,[24] endorsed that view in the following terms:
"We agree with the observations of the trial judge that an inciter ought to receive higher punishment than the mutineer, where that incitement has been successful in commencing or encouraging the continuation of a mutiny."
56. In Tamara's case, weighing the factors for and against her, we are of the view that the factors against her outweigh those in her favour. The learned trial judge came to that conclusion. We agree with His Honour that, this case called for a deterrent sentence as a statement and pronouncement by the society against Tamara's kind of conduct in the particular settings of this case. The learned trial judge duly took into account sentences given in similar cases in the past most of which were less serious in terms of the amounts of money or value of property involved. But cases of particular relevance were the decisions in The State v. Gabriel Or[25] and The State v. Matilda Makeu Ori[26] both decisions delivered on 20th August 2010.
57. The above two cases involving a husband and wife respectively, we do not have much information except that they related to the Bank of South Pacific Robbery in Kerema. The prisoners receive a 7 years and 5 years respectively. In the first case, the prisoner was an employee of the bank who received K50, 000.00, while his wife in the second case received K5, 000.00. Neither counsel was able to assist us either with a copy of the decisions or with more information around, whether the prisoners pleaded guilty, what parts each of them played in the commission of the offence or after the commission of their offence and whether all or any part of the money they received were recovered and if so, whether that was voluntarily done or through good police efforts. In the circumstances, we find these decisions are of no assistance, save only to note that sentences for the offence of receiving stolen property have gone up where the total value of the goods stolen have increased up to a maximum of 7 years for a case involving K50, 000.00 in stolen property.
58. The learned trial judge duly noted and appreciated Tamara's guilty plea, her being a first time offender and the police recovering the stolen property. He had that weighed against the factors in aggravation, namely the large sum of money involved, the way in which Tamara committed the offences and His Honour was of the view that, a strong deterrent sentence was called for even up to the maximum prescribed sentence of 14 years. However after further consideration of other relevant sentencing principles such as reserving the maximum penalty of the worse offence of its kind, His Honour decided to impose the sentence of 9 years. That was after His Honour had determined that a sentence of 2 years was appropriate for the charge of accessory after the fact.
59. As the Supreme Court said in the case of Thress Kumbamong v. The State (supra) Parliament has not provided for any fettering of the sentencing discretion vested in trial judges except to exercise it judicially in accordance with the law. Hence, the Courts should be careful not to prescribe or regiment the way in which sentencing judges should exercise their sentencing discretion in the particular circumstances of cases before them. The Court reasoned there that, prescribing the way in which sentencing judges should exercise their discretion would have the effect of usurping the powers and functions of Parliament. The Court also reasoned that, leaving the exercise of sentencing discretion to sentencing judges recognizes a number of important factors. First is the need to determine a case on its own merits. Secondly, therefore, criminal sentencing is not a matter of mathematics or precise science. Instead, thirdly it is a matter of logic and common sense and what is considered fair and reasonable in a given set of circumstances. Finally by reason of that, there may well be difference of opinions and the kinds of sentences imposed.
60. Given the above, it is settled law that, the Supreme Court cannot readily interfere or disturb a trial judge's decision on sentence. The relevant principles are well settled in our jurisdiction. The decision of the Supreme Court in Simon Kama v. The State,[27] restated those principles in this way:
"... the law is clear; the Supreme Court cannot readily disturb a sentence imposed by a trial judge unless an appellant demonstrates a sentence to be manifestly excessive. A sentence could be manifestly excessive where, for example, the trial judge has acted on a wrong principle of law or has clearly overlooked, undervalued, overestimated or misunderstood some salient features of the evidence... That means, this Court must be satisfied that the learned trial judge fell into some demonstrable error, which has the effect of vitiating the trial judge's discretion on sentence before it can change a sentence imposed by the National Court. ..."[28]
61. In this case, although the learned trial judge did not specifically go through each of the factors for and against Tamara, as well as we have, we can clearly see that the learned trial judge did carefully consider factors for and against Tamara and arrived at the final decision on sentence. Duly, noting the relevant principles on sentencing and this Court's power on review of a sentence on appeal as well as a consideration of the factors for and against Tamara, we are of the view that the sentence the learned trial judge ultimately arrived at for each of the offences were in order, and was warranted in the particular circumstances of this case.
62. The only error the learned trial judge appears to have clearly made in our view is where His Honour did not allow for the pretrial custody period in the final sentence Tamara was to receive. If learned trial judge did that, His Honour would have sentenced Tamara to the rising of the Court given that, she had spent 2 years 1 month and 9 days in custody awaiting her trial and decision on sentence. With regard to the offence of receiving stolen property, the period of 2 years, 1 month and 9 days should have been deducted from the head sentence of 9 years. This should have left her with 6 years 10 months and 21 days to serve in light labour. A warrant of commitment should have been given for that period.
Final Decision on Appeal
63. Ultimately therefore, we would dismiss the appeal against conviction and uphold the appeal against sentence only in part. Accordingly, we make the following orders:
_________________________________________
H.J Leahy Lawyers: Lawyers for the Appellant
Public Prosecutor: Lawyers for the Respondent
[1] (2011) SC1099.
[2] (2006) SC831.
[3] (2007) SC913.
[4] (2004) SC771.
[5] (2004) SC742.
[6] [1980] PNGLR 507.
[7] [1993] PNGLR 370.
[8] [1994] PNGLR 596.
[9] (2002) SC694.
[10] (2002) SC698.
[11] (2005) SC812.
[12] (2007) SC927.
[13] [2005] HCA 34.
[14] (2007) SC853.
[15] Andrew Trawen v. Steven Pirika Kama; (2) Michael Laimo v Steven Pirika Kama (2010) SC1063
[16] (2004) SC752.
[17] (2007) SC856.
[18] [1948] 1 ALLER 570.
[19] See: Ben Wafia v. The State (2006) SC851 for a case on point.
[20] (1990) N921.
[21] (Unreported and unnumbered judgment delivered in Wewak on the 23rd of November 2000) SCR 15 of 2000.
[22] (2008) SC1017.
[23] (2004) N2547.
[24] (2006) SC851.
[25] (CR No 380 of 2009).
[26] (CR No 381 of 2009).
[27] (2004) SC740.
[28]Quoted with approval in Denden Tom v. The State (2008) SC967
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