Uramani, Yagindu, Steven, Kelly and Wagi v The State [1996] PGLawRp 736; [1996] PNGLR 287 (2 August 1996)

PNG Law Reports 1996

[1996] PNGLR 287 - Andrew Uramani, John Yagindu, Gabriel Steven, Linus Kelly and Jacob Wagi v The State

[1996] PNGLR 287

SC503

PAPUA NEW GUINEA

[SUPREME COURT OF JUSTICE]

ANDREW URAMANI;

JOHN YAGINDU;

GABRIEL STEVEN;

LINUS KELLY;

AND JACOB WAGI

V

THE STATE

Wewak

Kapi DCJ Los Salika JJ

2 August 1996

CRIMINAL LAW - Appeal against sentence - Disparity of sentence - General grounds of interference - Sense of injustice ground for adjustment of Sentences.

APPEAL - Disparity of sentence - Sentence of grievance - Co-defendants.

Facts:

The appellants appeared in person to argue their own respective appeals. They were all convicted for armed robbery and were convicted at different times and with varying sentences.

Held:

N1>1.       Where the conduct and part played by the co-accused in the crime is different from the others he is entitled to a different sentence.

N1>2.       Sentences must be adjusted to reflect co-accuseds’ involvement and to dispel any grievances.

N1>3.       Sentences thus adjusted accordingly.

Cases Cited:

Golu v The State [1979] PNGLR 653

Urugitaru v The Queen [1974] PNGLR 283

Counsel

Appellants in person

K Manek for the respondent

2 August 1996

KAPI DCJ LOS SALIKA JJ: The brief facts are that on 9th November 1993 the appellants and four others held up a Department of Works bus and stole from the driver and the paymaster K41,533.63 belonging to the State.

The robbery occurred along the Vanimo airport road. The appellants and their mates had been armed with a machine gun, a home made gun and a bush knife. The driver of the bus was assaulted before they escaped.

The appellants co-accused Gabriel Steven, Linus Kelly and Jacob Wagi had pleaded guilty on an earlier circuit before Hinchliffe, J and were sentenced by him on 21 April 1994, to 6 years imprisonment with hard labour. They have filed separate appeals but the appeals are being considered here together. Another co-accused Jacob Abai pleaded not guilty before Hinchliffe, J then and his matter was adjourned by him to another circuit.

On 11 July 1994, the appellants in this matter together with Jacob Abai appeared before Andrew, J. Jacob Abai pleaded guilty on that occasion.

The appellants Uramani and Yakindu both entered pleas of not guilty. Jacob Abai’s matter was adjourned until the appellants trial was completed.

After the trial both appellants were found guilty by the trial judge. The trial judge then went on to consider the sentences of the appellants and Jacob Abai together. In the end he sentenced Andrew Uramani and John Yaginduo to 7 years and 8 years respectively and sentenced Jacob Abai to 2 years but suspended the whole of the sentence on condition that he be of good behaviour for 2 years and placed him on probation to do community work for 12 months. The appellants including Gabriel Steven, Linus Kelly and Jacob Wagi who filed separate appeals were aggrieved by the lesser sentence given to Jacob Abai.

They each filed their appeals on the forms provided by the court for prisoners who wish to appeal in person.

Their respective appeal forms were received at the Supreme court registry on the 28 July 1994.

Initially both had appealed against sentences only. On the day of hearing of the appeal the appellant Uramani sought to amend his grounds of appeal to include appeal against conviction as well.

The lawyer for the respondent did not object to the amendment, the reason being that the prisoner was not represented by a lawyer. The appellants have all argued that it was not fair and just that Jacob Abai had gotten off lightly and that he too played a major role in the robbery.

They are now asking this court to treat them the same way as the National Court treated Jacob Abai.

The argument would be founded on s 55(1) of the Constitution. It reads:

N2>“(1)    Subject to this constitution, all citizens have the same rights privilege, obligation, and duties irrespective of race, false, place of origin, political opinion, colour, creed, religion and sex”.

The appellants have not specifically pleaded s 55(1) of the constitution and that may be because they are not represented by lawyers.

Their arguments however, raise the question of disparity in sentencing.

This question of disparity of sentences has arisen before in the case of Golu v The State [1979] PNGLR 653.

Raine DCJ in that case said:

“The most usual situation that arises in disparity cases is as described by me in Secretary for Law v Binengim [1975] PNGLR 1972 where I said:

‘The situation often arise where Mr Justice A deals with one of a group of co-offenders one month, and Mr Justice B deals with the remainder subsequently.

‘The second judge might feel that the first judge was lenient, but the principle is, so I believe, that the second judge, albeit, rather unwillingly, out to award much the same as awarded earlier.

“However, the situation can arise where a co-offender is dealt with before his comrade or comrades, and the latter when dealt with later receive far less punishment, such as might reasonably leave the first man dealt with a sense of grievance”.

This is what has happened in this case in so far as appellants Gabriel Steven, Linus Kelly and Jacob Wagi are concerned.

They were dealt with earlier before another judge and received sentences of six years imprisonment.

Appellants Andrew Uramani and John Yagindu were sentenced at the same time as Jacob Abai who received a much lighter sentence than them.

The Public Prosecutor did not appeal against the inadequacy of the sentence against Jacob Abai. In his address on sentence the State Prosecutor submitted that Jacob Abai be given a non custodial sentence. That might explain why the Public Prosecutor did not appeal against the inadequacy.

The question then is can this court reduce the sentences imposed on the co-offenders who were dealt with earlier and those who were dealt with together with Jacob Abai?

Raine DCJ in the Golu case (supra) said that the argument was open as to whether the court can reduce sentences imposed on those who were dealt with earlier to be on par with those imposed later.

The sentences imposed on the other appellants by the National Courts appear to be within the sentencing range for offences of armed robbery of this nature. See Gimble case.

To reduce the sentence to equal that of Jacob Abai would drastically reduce the sentence for a very serious crime.

In the case of Urugitaru v The Queen [1974] PNGLR 283 the Supreme Court held inter alia that the fact that one of the several co-accused jointly indicted has received too short a sentence is not a ground to lead a court necessarily to interfere with a longer sentence passed on another or others. What has to be shown is that the applicant on appeal has received too long a sentence or that there is a very considerate disparity between the sentences such that a justifiable feeling of dissatisfaction and sense of injustice will occur.

The trial court when determining sentences would ordinarily consider the part played by each of the co-accused. Where the conduct of a co-accused is such that a co-accused sentence should be lower than another co-accused the trial court is entitled to differentiate sentences of co-accused jointly indicted if in the public interest it is just to do so, taking into account the differences in character and antecedents and what part they have played in the commission of the crime.

The appellants in this matter have expressed feelings that injustice has been caused to them because they received long prison terms while one of their co-accused received a non custodial term. They have submitted that the co-accused who had received the shortest sentence was the ring leader and that he was the planner of the robbery, because he had an outstanding bank loan to be repaid thus the reason for the robbery.

On the other hand Andrew J found the appellant John Yakindu the ring leader of the enterprise.

In relation to Jacob Abai he found that his case was different to the others in that some pressure was put on him to use his vehicle in the robbery. He also took into account his plea of guilty and that he was the one who reported to the police the robbery and make it possible to arrest the rest of the gang members. For those reasons the trial judge had imposed a suspended sentence. The trial judge was entitled to do that. However, in so doing the other co-accused are aggrieved that their sentences of 8 years, 7 years and 6 years are too long and that there is considerable disparity between the sentences they received and the sentence their co-accused Jacob Abai received.

In the circumstances we are of the view that while the sentences are in line with the range of sentences being imposed for robberies of the type the disparity shown in the sentences are such that unless adjusted, a justifiable feeling of dissatisfaction and a sense of injustice would linger in the minds of the appellants. To simmer that justifiable feeling of dissatisfaction we are of the view that the sentences be adjusted.

Andrew Uramani has appealed against conviction arguing that there was no or insufficient evidence upon which the trial judge had convicted him. We are however of the view that on the evidence it was open to the trial judge to convict him. We therefore reject this ground of appeal by Uramani.

Accordingly we make the following adjustments:

Gabirel Seven	6 years in hard labour – 2 years suspended on condition that you be of good behaviour for 12 months after your release.
Linus Kelly	6 year in hard labour – 2 years suspended on condition that you be of good behaviour for 12 months after your release.
Jacob Wagi	6 years in hard labour - 2 years suspended on condition that you be of good behaviour for 12 months after your release.
Andrew Uramani	6 years in hard labour - 2 years suspended on condition that you be of good behaviour for 12 months after your release.
John Yakindu	6 years in hard labour - 2 years suspended on condition that you be of good behaviour for 12 months after your release.

Appellants in person

Lawyer for respondent: Public Prosecutor