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Mond v State [2018] PGSC 11; SC1666 (2 May 2018)

SC1666

PAPUA NEW GUINEA
[IN THE SUPREME COURT OF JUSTICE]

SCREV NO 32 OF 2017

ANTON MOND, JOSEPH GEMBA & PETER KEMPA
Applicants

V

THE STATE
Respondent

Mt. Hagen: Salika DCJ, Geita J, Tamate J
2018: 30 April & 2 May

PRACTICE AND PROCEDURE - Judicial review application - Prisoner in person application initially – application now moved by Public Solicitor’s Office - failure to file an appeal within time - appeal converted into an application for judicial review – Section 155(2) (b) of the Constitution - Leave for judicial review must be obtained first.

Cases cited

The following cases are cited in the judgment:

Avia Aihi v The State (No. 2) [1982] PNGLR 44;
In re Application of Sakaire Ambo (2012) SC 1195;
Benjamin Sengi v The State SC 1425 (28 April 2015);
Peter Martin v The State [2018] PGSC4; SC 1655 (2 March 2018).

Counsel

Mr. Fredrick Kirriwom, for the Applicants
Mr. Paul Bannister, for the Respondent

2 May, 2018

1. BY THE COURT: The three (3) applicants seek review by the Supreme Court of their sentence for the crime of murder under s.300 (1) (b) Criminal Code. They all pleaded guilty and were sentenced each to 27 years less pre-trial custody of 4 years with a resultant remaining sentence of 23 years respectively by Kundiawa National Court.

2. The statutory 40 days’ time limit within which to file their Notice of Appeal fell due on 1^st of November 2016 from the date they were sentenced on 22 September 2016. They were out of time by four months.

3. The applicant/appellants now apply to this Court for leave pursuant to Section 155 (2) (b) of the Constitution. This Constitutional provision vests the Supreme Court with inherent powers to review all judicial acts of the National Court. Numerous case laws have emerged over time reaffirming this proportion including the satisfactory demonstration of three basic criterion before leave can be granted: Avia Aihi v The State (No. 2) [1982] PNGLR 44; In re Application of Sakaire Ambo (2012) SC 1195; Benjamin Sengi v The State SC 1425 (28 April 2015); Peter Martin v The State [2018] PGSC4; SC 1655 (2 March 2018). These are:

a) it is in the interests of justice to grant leave; and

b) there are cogent and convincing reasons and exceptional circumstances, e.g. some substantial injustice is manifest or the case is of special gravity; and

c) there are clear legal grounds meriting a review of the decision.

4. We heard both Counsel. Mr. Kirriwom submitted that the applicants original Notice of Appeal was filed some three weeks before the due date with the Correctional Service reception Clerk but was misplaced. No evidence was put before us from Correctional Service officials to substantiate this contention. As regards the merits of the case in support of the leave application we are not convinced that the reasons advanced were exceptional. It follows that no cogent and or convincing or exceptional circumstances was demonstrated to us to warrant the grant of leave. Similarly nothing was put before us to show that it was in the interest of justice to grant such leave.

5. The appellant contends that there were some mitigating factors in their favour which were not adequately given weight by the trial Judge, including the element of de facto provocation.

6. It became apparent during the course of the leave application that Mr Kirriwom for the applicants had somewhat deviated from the primary reasons why such leave application was moved from those recorded in the applicants application: “It’s the community involvement where the accused is a (sic) instigator of the whole of the cause of death the trial judge did not consider.”

7. Mr Bannister for the respondent argued that none of the three criteria required to apply for leave were met by the applicants. Reliance had on the case of Benjamin Sengi v The State (2015) SC 1425 in which the three criteria were re-affirmed and adopted. Furthermore no evidence was put before the Court from Correctional Service and or The SC Registry on the existence of their original Notice of Appeal said to be misplaced. As regards the grounds of de facto provocation and the trial judge giving little or no weight to their mitigating factors, Mr Bannister argued that the trial judge took into consideration all mitigating and aggravating factors including any extenuating facts and formed the view that the aggravating factors outweigh the mitigating factors.

8. As to the appellant’s sentence being excessive Mr Bannister argued that the sentencing tariff was within range being influenced by the aggravating factors and mitigating factors including his assessment of a number of cases on point.

Determination

9. We uphold the submission of Mr Bannister for the State that none of the three requirements before grant of leave were successfully made out by the applicants. Consequently it was not necessary for us to consider the other submissions of counsel for the applicants. This proceedings is dismissed.

ORDER

(1) The application for leave for review is declined.
(2) The sentence of the National Court is affirmed.

________________________________________________________________
Public Solicitor: Lawyer for the Applicants
Public Prosecutor: Lawyer for the Respondent