Section 24 is short and unqualified. It gives the prosecution a right of appeal against sentence with no requirement of leave, and it defines “sentence” widely.
The provision
(1) In this section “sentence” includes any order made on conviction with reference to the person convicted or his property.
(2) The Public Prosecutor may appeal to the Supreme Court against any decision of the National Court, whether on appeal or sitting as a court of first instance, as to sentence, and the Supreme Court may in its discretion vary the sentence and impose such sentence as it thinks proper.
What the section provides
No leave is required. Contrast section 22(d), under which a convicted person may appeal against sentence only with the leave of the Supreme Court. The Public Prosecutor needs none.
“Any decision … as to sentence.” Not merely a sentence thought too lenient — any decision about sentence, including a suspension, a good behaviour bond, or a refusal to make an ancillary order.
“Whether on appeal or sitting as a court of first instance.” So a National Court decision on a District Court sentence appeal is also open to appeal.
A discretion to vary. The Court may in its discretion vary the sentence and impose such sentence as it thinks proper. That is broader language than section 23(4), which requires the Court to be of opinion that another sentence is warranted in law and should have been passed.
Subsection (1)
The definition extends to orders with reference to the person convicted or his property. That takes in compensation orders, restitution orders, forfeiture, disqualifications, and orders about the disposal of property seized.
So a prosecution appeal may be directed at an ancillary order rather than at the head sentence — for instance, a refusal to order restitution.
Section 30 deals separately with the position of such orders pending an appeal, and Order 11 Rule 8 of the Supreme Court Rules 2012 allows the court or a Judge to make orders for the suspension or payment of any fine and the suspension or variation of any order relating to restitution of property.
Which limit applies
Section 29(1) speaks of a person convicted who desires to appeal. A Public Prosecutor’s appeal is not brought by a person convicted.
The practical position is that a prosecution appeal should be brought promptly, and a respondent to such an appeal should scrutinise its timing closely and take any competency point within the 14 days allowed by Order 7 Rule 15 — remembering the costs consequence in Rule 19 for a respondent who does not object and later succeeds in having the appeal dismissed as incompetent.
Compare section 26(1)(a), which does fix a period for the Principal Legal Adviser’s reference after acquittal: within 40 days after the acquittal.
If your sentence is appealed
1. Enter an appearance. Order 11 Rule 2 requires a person served with an instituting document who wishes to be heard to file an appearance in accordance with Form 16 and serve it, as soon as is practicable.
2. Consider a cross-appeal. If you also wish to challenge the conviction or the sentence, Order 7 Rule 27 requires a notice of cross-appeal within the section 17 period — and section 22 governs whether leave is needed.
3. Check for a competency point. Was the decision one as to sentence? Is the sentence one fixed by law, leaving nothing to vary?
4. Get legal representation. Order 7 Rule 62 requires the Duty Judge to inquire whether an appellant or applicant in criminal proceedings has a lawyer and, if not, to direct the Registrar to notify the Office of the Public Solicitor, with consideration of a direction under section 177(2)(b) of the Constitution.
5. Prepare on the merits of the sentence. The Court is exercising a discretion to impose such sentence as it thinks proper, so the material that supported the sentence below — antecedents, pleas, mitigation, compensation paid — is what answers the appeal.
The asymmetry
A convicted person appealing a sentence must obtain leave under section 22(d), and cannot appeal at all where the sentence is fixed by law. The Public Prosecutor under section 24(2) needs no leave and faces no such exclusion.
The tests differ too. Under section 23(4) the Court must be of opinion that another sentence is warranted in law and should have been passed; under section 24(2) it may in its discretion vary the sentence and impose such sentence as it thinks proper.
The practical consequence is that a person sentenced leniently should not assume the matter is closed once their own time to appeal has run. A prosecution appeal can be brought against a decision the defendant was content with.
Two protections
Section 8(2): the Supreme Court shall not increase a sentence in a criminal proceeding by reason of, or in consideration of, any evidence given under Subsection (1) — that is, evidence received under the supplemental powers.
Section 31(1): on the hearing and determination of an appeal, no costs shall be allowed to either side. A respondent to a Public Prosecutor’s appeal is not exposed to a costs order.
Sources
- Supreme Court Act (Chapter 37) — ss 8, 22, 23, 24, 26, 29, 30, 31
- Supreme Court Rules 2012 — O 7 rr 15, 19, 27, 62; O 11 rr 2, 8; Form 16
- Constitution of the Independent State of Papua New Guinea — s 177(2)(b)
Before relying on anything here, read the current text of the Supreme Court Rules 2012 and check for later amendments. If a decision matters to you, get advice — start with the Office of the Public Solicitor, or find a firm in the law firms directory.