Muro v State [2006] PGSC 11; SC842 (30 June 2006)

SC842

PAPUA NEW GUINEA

[IN THE SUPREME COURT OF JUSTICE]

SCA. NO. 36 of 2005

BETWEEN

PEMU MURO
Appellant

AND

THE STATE
Respondent

Lae: Hinchliffe, Gavara -Nanu,
& Lenalia JJ.
2006: 27 and 30 June

CRIMINAL LAW - Appeal - Sentencing disparity - Principle of - Considerable disparity - Unidentifiable error on part of trial judge - Appeal up-held - Sentence of 30 years quashed - Substitution of 15 years.

CRIMINAL LAW - Appeal against disparity of sentence - Disparity of 20 years difference - Considerable disparity - Sentence of 30 for offence of murder - Co accused earlier convicted and sentenced - Co accused earlier sentenced to 10 years Criminal Code s.300.

Cases Cited:
Secretary for Law v Witrasep Binengim [1975] PNGLR 172
Winugini Urugitaru v Regina [1974] PNGLR 283
Norris v The State [1979] PNGLR 605
Simon Kama v The State (2004) SC740
Manu Kovi v The State (2005) SC789
Wanosa & Ors v The Queen [1971-72] PNGLR 90
Andrew Uramani & 4 Ors v The State [1996] PNGLR 287

Counsel:
Appellant in Person.
Mr. J. Pambel, for the Respondent.

30 June, 2006

1. BY THE COURT: The appellant appeals against a sentence of 30 years for the offence of murder imposed on him on 10 May 2005 here in Lae. The appellant was sentenced on the above date together with three other co - accused to the same term. The record of transcript at pages 13 and 14 (on the top of the pages) shows that, the appellant pleaded guilty to the charge. His accomplices also entered guilty pleas.

2. The appellant has one ground of appeal only on which he appeals against the sentence of 30 years on the basis that his co - accused Meta Pirigum was sentenced to 10 years imprisonment for the same offence. He argues that the 30 years term he received was more than his co - accused and rendering his sentence unfair when comparing it with the 10 years received by the other prisoner.

3. The State's case before the trial court was that on 12 November 2002, the appellant and four others conducted a well-planned armed robbery during which a passing motor vehicle was shot at by one of the gang members. The victim Mason Belong was injured on his head from the shot that was fired by a co-accused of this appellant. The victim subsequently died as the result of such injuries.

4. A preliminary matter should be mentioned here. Though Mr. Pambel of counsel for the respondent raised an objection to this appeal submitting that the appeal was filed out of time, and the matter should proceed by way of review, we find that, the appeal was filed on time. The appellant was sentenced on 10 May 2005, he filed his Notice of Appeal on 9 June 2005, which was within 40 days required by s.17 of the Supreme Court Act. When the Court directed Mr. Pambel's attention to the above factor, he abandoned his argument and the matter proceeded by way of an appeal rather than a review.

5. In addition to what the appellant submitted orally, he handed to the Court copies of his written submission. In the written submission, the appellant seems to raise two issues. First he raises the issue of disparity of sentence. On that argument, the appellant argues that, a co - accused who he referred to as Meta Pringum, was an accomplice to the crime he committed was sentenced to an imprisonment term of ten (10) years while the appellant himself was sentenced to 30 years. For records purposes, this judgment only concerns the appellant Pemu Muro and not the three other co - accused (Jomiong Kungo, David Karo Wawarik, and Joanes Mong) (see pages 10 - 15 of the A/B), who were sentenced together with him on 10 May 2005.

6. The appellant further argued that, it is not fair that one of his co - accused was sentenced to a lower term of imprisonment while he himself was sentenced to a very high sentence. The appellant argues that, the part he played in the commission of the crime which they were charged with was similar to that of accused Meta Pringum. Meaning to say that, he did not pull the trigger. He submitted that the person who pulled the trigger in this killing was David Karo Wawarik. That David Wawarik deserved the sentence they received.

7. The Court found out from the appellant when he was making his submissions that, a co - accused Meta Pringum, was dealt with by Sawong, J; in May 2004. Meta Pringum was sentenced to 10 years imprisonment for the same crime committed by the appellant and his three accomplices. The Court requested the Respondent's counsel to confirm if it was true that, the co-accused Mete Pringum had been dealt with in 2004 before a different judge. The matter was adjourned to 1.30 pm on that same day.

8. When the Court resumed at 1.30pm, Mr. Pambel confirmed to the Court that, it was true a co-accused of the appellant had been in fact dealt with in 2004 and was sentenced to 10 years. That co-accused was Meta Pringum.

9. In reply to the appellant's submission, Mr. Pambel conceded to the appellant's argument in submission that there is great disparity in the sentences imposed on the appellant and his co-accused Meta Pringum. Mr. Pambel referred us to some cases which we shall shortly refer to.

10. The principle of law in relation to disparity of sentences was stated by the Supreme Court in cases such as Secretary for Law v Witrasep Binengim [1975] PNGLR 172 is that if an accused appears before one judge and is sentenced to a substantially higher sentence than a co-accused who appeared before a different judge, the second judge should award much the same sentence as awarded earlier. In Winugini Urugitaru v Regina [1974] PNGLR 283, the Supreme Court also said that, if one of the several co-accused jointly indicted has received a shorter sentence is not a ground to lead a Court necessarily to interfere with the longer sentence passed on a co-accused or a number of them. On the same page of the above judgment at footnote number (2) the Court in the above case held that:

"The fact that one of 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 considerable disparity between the sentences such that a justifiable feeling of dissatisfaction and sense of injustice will occur".

11. The learned authors of the book, Criminal Law and Practice in Papua New Guinea (2nd Edition) express the principles in a case similar to the present appeal in the following terms at page 650:

"Where one co-accused had not acted with any greater degree of participation in the crime than others but received a higher sentence of life imprisonment due to a prior conviction for wilful murder; the court is justified in differentiating in the treatment of the person for the same crime if, in considering the public interest, it has regard to the differences in the characters and antecedents of the convicted men, and discriminates between them because of these differences."

(See also Andrew Uramani & 4 Ors v The State [1996] PNGLR 287)

12. While we accept the fact that there is a considerable feeling of dissatisfaction on the disparity of sentences between the appellant and his co-accused Meta Pringum, we also note that, the appellant in this case was charged with a serious crime of murder under s.300 of the Criminal Code for which he could have been sentenced to life imprisonment.

13. The sentencing trends for cases of wilful murder, murder and manslaughter have been significantly increased due to the sharp increase in committing such offences. Due to this, the Supreme Court has recently in a number of cases tried to set sentencing guidelines to guide the National Court judges in sentencing offenders not only in homicide cases but other crimes defined under the Code.

14. The appellant in this appeal was sentenced on 10 May 2005, twenty-one (21) days prior to the sentencing guidelines for homicide cases were pronounced by the Supreme Court in Manu Kovi v The State (31.5.05) SC789. The guidelines set in the above case could not be applied to the instant appellant's case as the current appellant was sentenced three weeks before the decision was pronounced. However, according to the case of Simon Kama v The State (1.4.04) SC740, the offence committed by the appellant in this appeal falls into category (c), where the Court in that case said that in a guilty plea with aggravating factors such as the use of firearms or other offensive or dangerous weapons in the course of committing another serious crime as was in the appellant's case, a sentence of 31 years to life imprisonment should be appropriate. The ranges of sentences reflect the serious view taken by the legislature when it fixed the maximum penalty at life imprisonment.

15. The crime committed by the appellant and his co - accused is very serious indeed in law. If it was not for the issue of disparity of sentence, this Court would not disturb the sentence imposed by the trial judge. We say this because, sentences for homicide cases have been increased significantly in the recent past as discussed in Manu Kovi v The State (supra) and many more National and Supreme Courts cases.

16. At the second page of the appellant's submission, he seems to raise the issue of the length of the sentence he was given by the trial Court. We note particularly that he tried to compare the sentences given by other judges on other murder cases. We cannot accept that argument as that is not the ground of appeal on the Notice of Appeal. We are only required to answer in our decision to the ground of appeal put to us by Notice.

17. We find from the Appeal Book that, the trial judge did not have the benefit of being addressed on the appellant's co-accused earlier conviction and sentence of 10 years. On this point, the appellant submitted that, though he instructed his lawyer about the co-accused being sentenced to 10 years, his lawyer did not raise the issue with the trial judge. We are therefore of the view that, the appellant had demonstrated to us that there was an unidentifiable error on the part of the trial judge on the issue of a co-accused being earlier sentenced: (see William Norris v The State [1979] PNGLR 605). We find that, there is a considerable disparity between the sentences of 10 years and 30 years imposed on the co-accused and the appellant and therefore such disparity must be corrected.

18. Having come to the above conclusion, we also remind ourselves of the principle that a sentence imposed by the trial judge should not be readily disturbed unless shown to be manifestly excessive, and if it is manifestly excessive which is not the case in this appeal, it must be shown to the appellate Court that the trial judge erred or that he acted on a wrong principle of law or that he overlooked, undervalued, over-estimated or whether the trial judge has misunderstood some silence features of the evidence before him: Wanosa & Ors v The Queen [1971-72] PNGLR 90. We are satisfied that, there was a silent feature in the case of the appellant before His Honour, the trial judge. The silent feature in the circumstance of the appellant's case was the issue of disparity which was not addressed by either the accused in allocutus or by the defence counsel on mitigation or even the State prosecutor on aggravation on the date the appellant was convicted.

19. Given the above factual circumstances, and considering the serious nature with which the crime of murder was committed that is the use of a gun, we quash the sentence of 30 years and in lieu thereof substitute such sentence with a sentence of 15 years. The time he has served from the date he was sentenced and even prior to that (10.5.05, date sentenced to today i.e. 30.6.06) shall be deducted from 15 years and the appellant shall serve the balance.
_______________________________________________________________________
Appellant in Person
The Public Prosecutor: Lawyer for the Respondent