Sanawi v State [2010] PGSC 31; SC1076 (29 September 2010)

SC1076

PAPUA NEW GUINEA
[IN THE SUPREME COURT OF JUSTICE]

SCRA NO. 19 OF 2008

BETWEEN:

MAX SANAWI
-Appellant-

AND:

THE STATE
-Respondent-

Wewak: Kirriwom, Manuhu & Sawong, JJ.
2010:27 & 29 September

SUPREME COURT – Appeal – Joint criminal offence – Equal justice – Parity (and disparity) principle – Justifiable sense of grieviance – Due proportion in sentence where parity will achieve equal justice in joint criminal offence amongst co-offenders – Disparity in sentence unexplained and therefore not justified – Appeal upheld – Sentence varied.

Cases cited:

Papua New Guinea Cases
Gimble v The State [1988/89] PNGLR 271
Public Prosecutor v Don Hale[1998] SC564.
The State v Avana Gini [2003] N2485
The State v Boat Yokun and eight Others [2002]N2337
The State v Joseph Nimagi and 2 Others [2002] N2312
Winugini Urugitaru v The Queen [1974] PNGLR 283;
Goli Golu v The State [1979] PNGLR 653
Andrew Uramani & Ors v The State [1996] PNGLR 287

Overseas Cases
Mario Postiglione v The Queen [1997] HCA 26; (1997) 189 CLR 295

Counsel:
Appellant in person
C Sambua, for the Respondent/State

REASONS FOR DECISION

29th September, 2010

1. BY THE COURT: This is an appeal against disparity in sentence only. The appellant was amongst a group of people who committed armed robbery and was convicted on 18 September 2008 on his own plea of guilty and sentenced to 10 years imprisonment while two of his friends who had been dealt with earlier by another court were sentenced to much lesser term .

2. The appellant's two accomplices were dealt with in or about February 2004 and sentenced to seven years. At the time of hearing of this appeal, both his co-offenders had served their terms and were discharged from prison. The appellant is believed to have escaped after the crime and was not dealt with together with others until much later following his recapture.

3. The appellant lodged this appeal on 24 September 2008 and his ground of appeal is 'my trouble mates were sentenced for five years in 2004 and released on parole in 2006' and 'no reference was made to Hubert Yanga's sentence when I appeared before the National Court...' In essence, the appellant is questioning the disparity of his sentence with that of his co-offenders.

4. The appellant appended to his submission a photocopy of his co-offender's, Hubert Yanga's Warrant of Commitment dated 23 February 2004 which showed that he was sentenced to seven (7) years imprisonment, 1 year 6 months and 2 weeks were deducted for pre-trial custody and 5 months and 2 weeks were suspended. The co-offender only had to serve five years.

5. The charge against the appellant was that together with five others he stole with actual violence from one Kukishi Nikimura, a Japanese volunteer worker at his residence at Kreer Heights money and other personal properties including an expensive camera valued over K15,000.00 whilst armed with an home-made gun. The offence was committed between 2 and 3am on 3 August 2002.

6. After they were apprehended some of the stolen properties were recovered and returned to the owner. They were remanded in custody on 13 August 2002 but the appellant escaped from custody on 27 April 2003. He was recaptured on 16 October 2007.

7. The issues before us are:

• Was the trial judge obliged by law to appraise himself of the sentences imposed on the co-offenders of the appellant before passing sentence on him?
  
• Was the trial judge aware of the appellant's conviction for the same offence?
  
• Did the trial judge err in not appraising himself of the sentences imposed on the co-offenders prior to sentencing the appellant for purposes of complying with the parity principle or the principle of equal justice?
  

8. The Appellant contended in his written submission and also in his notice of appeal that it was not fair that he was sentenced to 10 years for the same offence and played no greater role than his other accomplices who received sentences less than him. He also expressed concern that the Court that dealt with him was not made aware of the sentences imposed on his co-offenders.

9. Mr Sambua submitted that this was a case of armed robbery of a dwelling house that attracted a starting term of 7 years but later increased to 10 years in a trial. This is what the Supreme Court prescribed in Gimble v The State [1988/89] PNGLR 271 and subsequently reaffirmed in Public Prosecutor v Don Hale [1998] SC564. And this view heavily weighed in his Honour's mind as we note from his judgment.

10. The simple response to Mr Sambua's submission is that guideline judgments assist the court in arriving at fair and just decision, adopting those prescriptions for guidance as provided in the judgments. They do not over-ride any established legal principles evolved over many years and some already form part of the underlying law in both common law and the law of this country.

11. The parity rule that states that all parties to an offence must be equally punished on the basis of equal justice for all has exceptions but where the court is going to make exception and punish one or more outside the term imposed on the other or the rest, it must give its reasons for doing so. It must justify the disparity otherwise all must receive equal amount of punishment.

12. The issues as we highlighted are not attacking the severity of the punishment per se. The appellant is attacking the disparity in the sentence which is a question of equal justice. Why is he being treated differently from his accomplices? Is he more culpable than them? In his grounds of appeal he asks 'why'? Is it because he escaped from custody and is not entitled to the benefit of leniency that the court would otherwise have accorded to him but for the escape? If so, then is that permissible by law? His Honour was not entitled to take into consideration the escape of the prisoner after detention as an aggravating factor for this crime to have necessitated a heavier sentence in comparison with his co-offenders.

13. We have perused the transcript of the proceedings in the court below and trial judge's judgment and note that no mention was ever made of the fact that the appellant's co-offenders to this joint criminal enterprise had been dealt with, how many were dealt with and what was the term of their sentences except for just a passing remark by the trial judge. He referred to what the Pre Sentence Report recommended and said:

"...The report recommended a partial custodial and non-custodial sentence to be imposed and that the community based correction office would be able to supervise the prisoner. He has asked for non-custodial sentence because his accomplices have served time and are out of prison now".

14. Although none of the lawyers including the appellant's counsel properly assisted the court by placing before the trial judge the sentences imposed on the co-offenders for purpose of equal justice, both lawyers were very well aware that the appellant's co offenders had been dealt with and which the trial judge too was made aware of this fact. But neither the lawyers nor the trial judge made that extra effort to find out about the sentences of those co-offenders. It was not good enough for the State Prosecutor to simply advise the court of the appellant being apprehended after the crime with accomplices and he escaped while in custody and not tell the court about what happened to the accomplices while in custody. If they did not escape like the appellant, then what happened to them. Likewise it was not sufficient for the trial judge to have remarked that the accused wanted a non-custodial sentence because his accomplices had done time and were already released, he should have enquired further to find out how much time were they given for their part in the crime. The trial judge erred as the lawyers failed in their duty to assist the court.

15. When sentencing a prisoner charged with murder committed in the course of robbery from a shot-gun carelessly fired towards the back of a moving vehicle by one of his gang members on the Magi Highway in The State v Avana Gini [2003] N2485 (12 December, 2003), Jalina, J being conscious of the equal justice principle of sentencing where a co-offender had previously been dealt with for the same offence said:

"So from the length of sentences demonstrated in the above murder cases, this case, with the aggravating factor that the murder was committed with a lethal weapon during a robbery, should attract a sentence of between 15 and 25 years. I am however constrained by the sentence of 15 years that was imposed by Gavara-Nanu J, on this prisoner's co-accused Johnson Eru for wilful murder. That is clear from the warrant of commitment which has been tendered by Mr. Tabie for the State. I am constrained because the principle of parity of sentence prevents me from imposing a sentence beyond 15 years even though Mr. Tabie for the State has urged me to do so. Furthermore, murder being less serious than wilful murder, the sentence I impose on this prisoner must not only as a matter of law but also in all fairness to him be less than the sentence for wilful murder."

16. His Honour felt obliged to apply the parity principle regardless of the fact that in the earlier case the co-offender was charged with more serious offence of willful murder but the prisoner before him was charged with murder as long as both crimes were committed under the same set of facts and circumstances.

17. In The State v Boat Yokun and eight Others [2002] N2337 Injia J (as he then was) while observing the principle of parity of sentence of offenders involved in a single criminal enterprise together decided that the sentences he felt necessary to impose on each one of the nine prisoners must be different because of the exceptional circumstances of the case and the offenders involved. We note his Honour's comments:

"As to the issue of parity of sentence, I have decided to impose different sentences based on their plea, youth, and more importantly, the nature and extent of their participation in the killing. I list them in the order of seriousness:

1. Mine Basanu – Although he is aged 21 years old, his case was a trial. As the older brother of the deceased Gessi, he was the most offended by the deceased's actions in causing the death of his brother, and no doubt led the charge. He is also the better educated of them all. He demonstrated his leadership in Court by speaking for the rest of them. He inflicted the most serious injuries with the only shotgun used in the killing.

2. Totonu Kakanana – He is aged 30 years old and the only person who is married. He chopped off the deceased's right hand first. He was obviously the second person in command.

3. Karao Kakanana – He is aged 25 years old. He chopped the same right hand chopped by Totonu.

4. Tawan Yasaling & Bagon Yokum – They are young aged between 16 – 18 years old. They entered the house and dragged out the deceased and held him on both sides for others to attack him.

5. Boat Yokum, Arabau Kakanana and Bayuwe Eli – they are aged between 16 – 18 years old. They stood on guard whilst the others attacked the deceased.

6. John Yowa – He is aged 15, and the youngest of them all. He stood on guard. He obviously would have been pressured by the rest to join.

I now impose the following sentence. I sentence Mine Basanu to 10 years imprisonment IHL; Totonu Kakanana and Karao Kakanana to 9 years; Tawan Yasaling and Bagon Yokum to 8 years; Boat Yokum, Arabau Kakanana and Bayuwe Eli to 7 years and John Yowa to 6 years. I deduct the period of 2 years 3 months for pre-trial custody in respect of each prisoner's sentence."

18. There are justifiable grounds or reasons for disparity in sentences as long as this is clearly explained by the sentencing authority as did the trial judge in the above case. It is the failure to explain the disparity often smacks of injustice and unfairness when two people or groups of people charged with the same offence and appearing at the same time or at different times but are punished differently from each other that give rise to justifiable grievance that this Court must rectify upon being satisfied that there was a clear error.

19. The law on the issue of parity of sentence was quite elaborately discussed in a National Court case of The State v Joseph Nimagi and 2 Others[2002] N2312 where after reviewing case law authorities on the subject in both local and overseas case precedents the following extract is noted in his judgment:

".....There is no dispute that these three acted in concert. The difficulty that faces me now is whether I impose the same sentence on all of them or must I punish each of them individually according to the level of their criminal culpability and their respective circumstances.....

27. The law on sentencing of two or more persons charged and convicted together for the same offence is largely determined according to the level of their criminal culpability or the degree of their participation and their individual circumstances. This is referred to as the parity principle ..... A grave injustice could result. Take for example an extreme case scenario involving say, a group of six people who are found guilty of committing a crime, one of whom is aged about 16 years and a first offender and another is aged 60 years and also a first offender. The only part in the crime was that they are engaged is simply, say, to divert attention of the passers-by away from the four active perpetrators who were physically involved in the unlawful act. No doubt they are guilty under s. 7 of the Code. But given their role and their ages compared with the four key perpetrators who are aged between 20 and 30, will it be justified for the court to impose the same length of sentence on all six of them?

28. In the case of The State v Tony Pandau Hahuahoru (supra) I referred to above discussed the parity principle and the following remarks made by the trial judge are worthy of noting, as they seem to correctly reflect the law. After referring to a number of Papua New Guinea cases like Winugini Urugitaru v The Queen [1974] PNGLR 283; Goli Golu v The State [1979] PNGLR 653 and Andrew Uramani & Ors v The State [1996] PNGLR 287 Kandakasi, J concludes:

"A consideration of all these authorities shows that, a court can impose a sentence that is in disparity with a sentence received by an offender's co accused. That can only happen if there are good reasons such as prior conviction, conviction after a trial, and playing a more active and leading role in the commission of an offence. Such factors need not exist in the one case at the same time. There could be just one such factor or there could be a combination of them."

29. I note that the view His Honour expressed represents the current legal position not only in this jurisdiction but universally. In Mario Postiglione v The Queen [1997] HCA 26; (1997) 189 CLR 295, Dawson and Gaudron, JJ said at 301 – 302:

"The parity principle upon which the argument in this Court was mainly based is an aspect of equal justice. Equal justice requires that like should be alike but that, if there are relevant differences, due allowances must be made for them. In the case of co-offenders, different sentences may reflect different degrees of culpability or their different circumstances. If so, the notion of equal justice is not violated. On some occasions, different sentences may indicate that one or other of them is infected with error. Ordinarily correction of the error will result in there being a due proportion between the sentences and there will then be equal justice. However the parity principle, as identified and expounded in Lowe v The Queen [1984] HCA 46; (1984) 154 CLR 606, recognises that equal justice requires that, as between co-offenders, there should not be a marked disparity which gives rise to 'a justifiable sense of grievance'. ..

Discrepancy or disparity is not simply a question of imposition of different sentences for the same offence. Rather, it is a question of due proportion between those sentences, that being a matter to be determined having regard to the different circumstances of the co-offenders in question and their degrees of criminality..."

30. This statement of the High Court was subsequently cited with approval by Templeman J in the Court of Criminal Appeal of Western Australia in Van der Worp v The Queen [2000] WASCA 154 where His Honour was discussing the justification of disparity in sentences of co-offenders. His Honour stressed that the question of due proportion between those sentences is a matter to be determined having regard to the different circumstances of the co-offenders in question and their different degrees of criminality.

31. A further approval and acceptance of this principle is found in another Western Australian Court of Criminal Appeal case of MacPherson v The Queen [2002] WASCA 287 (October 22, 2002) delivered by Parker, J. His Honour refers to the same passage I have quoted from Postiglione v The Queen (supra) and further discusses the totality principle, which often in sentences involving two or more offenders charged with multiple counts, piggybacks or vice versa with the parity or disparity issue. But in this case this is not so.

32. It is my respectful view therefore that the sentences for each of the prisoners in this case must reflect strictly the degree of criminality of each one of them, and more particularly so, for the reason that from the time that the prisoners were inside the premises to the time the deceased was shot and killed, there appears to have been a change in the criminal design of their unlawful purpose which ultimately was the cause of the struggle between David Bawai and Tom Girua and the deceased. If the prisoners had confined themselves to robbery only, there would not have been this dreadful eventuality."

20. The trial judge in that case found there to exist good justification for the principle of equal justice to be departed from in favour of disparity in the sentence. We cannot make the same analysis in this case because the factual circumstances in this case are very restricted to this appellant only and do not extend to the other accomplices.

21. Consequently, in this case before us, there are good grounds for the appeal to be upheld in that whilst it was acknowledged that the appellant was one of a group of persons who committed the offence and his accomplices had been convicted and served their time and had been discharged while he was at large after escaping from custody, no mention was made of what the co-offenders received as their punishment. And we now note from the warrant of commitment handed up by the appellant of one of the co-offenders who received a lesser term of imprisonment, despite the authority in Gimble v The State (supra) that was further adjusted upward in Public Prosecutor v Don Hale (supra).

22. Other than the appellant escaping from lawful custody of Corrective Institution and remaining at large for close to five years before being rearrested and taken into custody again for this offence, there is no marked difference in the personal particulars and background between the appellant and Hubert Yanga who we note were both of the same age at the time of this offence and lived in Mani Settlement here in Wewak and both come from Angoram District but different villages. Of the five who were charged with this offence, only one was under 20 years, this appellant and the others were above 20 and one was in his late 40s. They were all adults.

23. Other than escaping from lawful custody which is no reason for giving him a heavier sentence, there is no suggestion that he was a repeat offender, he has no priors and is a family man with two wives and several children. Since his escape he tried to change from a bad person to a law-abiding one where he got married and settled down, became an auxillary policeman and contributed to the law and order in the community. These attributes should have mitigated heavily in his favour if the trial judge gave proper consideration to the appellant's back ground since his escape. But his Honour could not and did not bring himself around to consider this because his mind appears to have been preoccupied by the fact of the appellant's escape and being at large for 4 years.

24. In summary we conclude that the fact that it was obvious from the start that the appellant was a member of a group of offenders jointly charged for the offence he was remanded for, there was clearly obligation on the trial judge to consider and bear in mind the sentences imposed on the co-offenders when he sentenced the appellant. It is evident from the transcript at pages 15, 16 and 30 of the Appeal Book that he knew as he was made aware of the co-offenders in this joint criminal act and he made mention of it in his judgment. However, His Honour's failure to appraise himself of the co-offenders' sentences before sentencing the appellant was a clear error because there is no justification for him imposing 10 years on the appellant and a co-offender received 7 years before another bench.

25. In the circumstances, we uphold the appeal quash the sentence imposed by the trial judge and substitute a sentence of seven years. We deduct time already spent in custody both awaiting trial since the initial arrest in August 13, 2002 and while serving time since the conviction on 18 September 2008 which amounts to a period of 3 years 7 months 3 weeks and 5 days. This leaves the prisoner to serve the remaining balance of 3 years 4 months and 2 days.

26. In the exercise of the Supreme Court's inherent jurisdiction and sentencing powers and discretion, we suspend 4 months and 2 days thus leaving 3 years clear for the prisoner to serve. We issue fresh warrant of commitment accordingly which supersedes the one issued by the National Court.

Orders accordingly.

Lawyer for the Appellant: Nil
Public Prosecutor: Lawyer for the Respondent/State