Pushi v State [2015] PGSC 11; SC1415 (26 February 2015)

SC1415

PAPUA NEW GUINEA
[IN THE SUPREME COURT OF JUSTICE]

SCREV Nos 29 & 30 of 2011

BETWEEN

STEVEN PUSHI & ROBERT SONJOA
Applicants

AND

STATE
Respondent

Kokopo: Hartshorn J, Ipang &Toliken, JJ
2014: August 29th
2015: February 26th

SUPREME COURT ACT – s. 29, Appeal filed over prescribed 40 days period – whether applicants should be granted leave to review – s. 155 (2) (b) Constitution.

CRIMINAL LAW – Review against conviction - wilful murder – co accused charged for murder and 2 applicants charged for wilful murder – 2 different sentences imposed on almost same or similar set of facts.

CRIMINAL LAW – Review against disparity of sentence – Principle of considerable disparity – Disparity of 14 years – 2 applicants sentenced to 30 years and a co-accused sentenced to 16 years – whether the court should reduce sentences of 30 years imprisonment to 16 years imprisonment.

Cases Cited:

Wanosa & Ors v The Queen [1971-72] PNGLR 90
Winugini Urugitaru v Regina [1974] PNGLR 283
Secretary For Law v Witrasep Binegim [1975] PNGLR 172
John Beng v State [1977] PNGLR 115
William Norris v State [1979] PNGLR 605
Rex Lialu v State [1987] PNGLR 487
State v Tau Ted Lahui & Ors [1992] PNGLR 325
State v Raphael Kuanande [1994] PNGLR 512
State v Jeffrey Harold Malepo (No. 2) [1996] PGNC 83; N1449
Andrew Uramani & Ors v State [1996] PNGLR 287
Manu Kovi v State (2005) SC 789
Pemu Muro v State [2006] PGSC 11; SC842
State v Kenny Wesley CR No 293 of 2010 Unreported (1 May, 2012)
State v Kiapkot & Ors [2011] PGNC 108; N4381 (14 July, 2011)

Counsel:

P. Kaluwin, for the Applicants
R. Auka, for the State

26th February, 2015

1. HARTSHORN, J: I have had the benefit of reading the draft decision of Justice Ipang. I respectfully agree with the reasoning and conclusions contained therein. I would refuse the review and confirm the conviction and sentence imposed by the National Court.

2. IPANG, J: The applicants were charged that on the 1st of December, 2007 at Patu village, Manus Province they wilfully murdered one James Poiou Kalchi. Both pleaded not guilty and after trial both were found guilty of wilful murder pursuant to s.299 of the Criminal Code Act. On the 19th of November, 2010 they were convicted and sentenced to 30 years imprisonment. They filed appeals against conviction and sentence but they were filed out of time.

3. Counsel for the Respondent consequently raised objection to this appeal. The appeals were filed almost six months after the convictions and sentences. This is contrary to s. 29 of the Supreme Court Act which requires appeals to be filed within 40 days. Counsel for the Respondent further argued that the appellants must show convincing reasons to warrant this court to exercise its inherent powers under s. 155 (2) (b) Constitution to review the appellants' convictions and sentences. The appellants have not shown any convincing reasons. Whilst we agree with this submission we have decided in the interests of justice that leave should be granted to the applicants for them to argue their review.

4. The grounds of the review in essence are:

Convictions:

The applicants contend that:

a) they were at the scene but did not participate in the assault upon the deceased and were not covered by sections 7 and 8 Criminal Code. Further, the co-accused had given evidence that he and not the applicants had committed the offence.

b) the trial judge had erred in not giving sufficient weight to the evidence of the co-accused.

c) the court erred in convicting them of wilful murder instead of murder

Sentences:

The applicants contend that:

a) the disparity of the sentences of 30 years and 16 years imprisonment imposed on the same set of facts was unjust.

b) the Court erred in not giving sufficient weight to the content of the Pre Sentence Report.

c) the sentences were manifestly excessive.

5. Another ground of review, that there was a denial of natural justice in that the appellants were not administered their allocutus, was withdrawn after it was discovered that an allocutus had been administered.

6. As to this Court's review of the discretion of a trial judge, in Rex Lialu v The State [1987] PNGLR 487 at p.495 the court stated that:

"The primary role of the Supreme Court is to review the exercise of the discretion by the trial judge within the context of all circumstances in the particular case. In the course of dealing with the case, the court will deal with general principles. These become the guiding principles to be applied in other cases. In this regard the Supreme Court plays a vital role in laying down guidelines for the lower courts."

7. Reference is also made to the following words adopted by Kapi Dep. CJ (as he then was) in Rex Lialu (supra) at p. 496 of Watkins LJ in R v Philips (1985) 7 Cr App CR (s) 235 at p. 237, which I also respectfully adopt:

"The Court has to pay very careful regard to the circumstances of death and especially to the way the death was actually caused, in coming to a conclusion as to what punishment a defendant should receive for whatever it was he did towards bringing that about".

8. Further, in John Beng v State [1977] PNGLR 115 the court stated:

"On an appeal against conviction, the Supreme Court must be satisfied that there is in all the circumstances a reasonable doubt as to the safeness or satisfactoriness of the verdict before the appeal can be allowed".

9. When arguing the first ground of their review against their convictions, the applicants contended that they were present at the crime scene but did not participate in assaulting the deceased and were not covered by sections 7 and 8 of the Criminal Code. Further, the applicants submitted that the prisoner So-on Pusahi who had his case dealt with earlier had admitted that he was the perpetrator and not the applicants.

10. At the trial, the State called only one eye witness. The defence called three witnesses which included the co-accused So-on Pusahi. The trial judge found that the State witness, the 2 applicants and So-on Pusahi are from the same area and are related.

11. From the transcript during the cross examination and re-examination of the State witness Lingau Poiou, the following are the questions asked and answers given:

Mr. Kaluwin (State Counsel) Refer to 22/7/10 at Appeal Book pg 41

Q. And was there anything between you and where they were assaulting – those men assaulting your father; anything between you and them to block your view from seeing them?

A. No, because where I was standing and where my father was being assaulted, there was no obstruction there to block my view. There was nothing there.

Q. Your father and Steven are from the same clan, Mohe?

A. Yes

Mrs. Meten (Defence Counsel) Refer to 22/7/10 at Appeal Book p. 44

Q. I will put it to you that at that time it was So-on Pusahi that hit your father and the two accused came later to stop the fight and help your father – sorry, they came later in the two boats to stop the fight and to help your father?

A. Those two who are now seated, they did not come to stop the fight, they got on the Patu Health Centre boat and came to fight.

Re-examination by Mr. Kaluwin: Appeal Book p. 45 (22/7/14)

Q. That time where was Steven Pushi?

A. At that time Steven Pushi was also there and as I have related earlier in my story, he was the one who hit my father on the head with an iron.

Q. Where was Tagai at that time?

A. Tagai too was there at that time. He was holding a bush knife and was fighting my father with it. (Refer to Transcript dated 26/7/10 at p. 75 of Robert Sonjoa's Appeal Book – Tagai is another name for Robert Sonjoa.)

12. I have gone through the transcript and as to the trial Judge's finding and conclusion that the defence witnesses' evidence consisted of lies, inconsistencies and contradictions; I am of the view that he was entitled to make those findings. The trial judge also stated at Appeal Book page 162:

"I find that the defence of alibi has not been established by independent witnesses and even from any of the persons named in this trial. Only the accused know why they did not call any of these persons to support their non-presence at the scene and their non-involvement in the crime. Instead, they decided to call a convicted Killer, - So-on Pusahi who has been found to be a self-confessed liar. As far as he was concerned, he was the hero and the only person in the killing so he has to come to perjure himself to protect the others. The court does not believe his evidence and rejects it for what it is worth".

13. The trial judge went further and ruled that: "the defence of general denial just does not match the evidence of the only state witness who was the eye witness and whose evidence of what he observed is far more credible than the lies perpetrated by two accused and the convicted prisoner So'on Pusahi".

14. I am of the view that the ground of review in relation to the convictions of both applicants should fail. This is because all the issues raised under this ground have been adequately and satisfactorily addressed by the trial judge. Evidence produced before the trial judge clearly and sufficiently revealed that the applicants were not mere by-standers or spectators. The applicants did participate in assaulting the deceased resulting in his death. There was overwhelming evidence to prove that the applicant Steven Pusahi hit the deceased's head with an iron rod. Medical evidence revealed two cracks in the deceased's skull. The applicant Robert Tagai Sonja was also involved – as he was the one who held a bush knife and assaulted the deceased. Taking all the circumstances of this case together under this ground of appeal, I am satisfied with the safeness and satisfactoriness of the verdict: John Beng –v- State (supra). I would therefore dismiss this ground of the review.

Court erred in convicting appellants on wilful murder instead of murder

15. The applicants submitted that the trial judge had erred when he relied on the evidence of the State witness to find that the applicants had formed an intention to kill. Counsel for the respondent counter submitted that the trial judge carefully considered the evidence and issues relating to credibility and demeanour of the witnesses in finding the applicants guilty and convicted them. The Respondent's counsel therefore submitted that applicants' grounds of appeal against conviction are meritless.

16. What is intention and how can an intention be accomplished? I find some assistance in State v Raphael Kuanande [1994] PNGLR 512 at p. 514 where Injia, AJ (as he then was) stated;

"Intention is a matter which goes to the state of mind of the accused at the time he acted. It may be proven by direct evidence of the accused's expression of intention followed by the act itself or by circumstantial evidence. In either situation, it is necessary to examine the course of conduct of the accused prior to, at the time and subsequent to the act of constitution of the offence".

(my underlining)

17. The issue of intention in my view has been sufficiently addressed by the trial judge. I refer to the trial judge's finding that when the deceased went to the accused Steven Pushi's premises, Steven Pushi's wife Nahau called out to the deceased that she would get her relatives to go and fight the deceased. The evidence also before the trial judge was that the accused Steven Pushi had called out to the deceased that he would go and get his relatives to go and fight the deceased. After that, two boats loaded with people arrived at the jetty at Chapiliyeh. From there James Tau, the Peace Officer issued orders to the armed men to break arms and legs of the deceased and to kill him. Refer to the Appeal Book p. 164 (15/11/10).

18. After the order to kill was issued by James Tau, the applicant Steven Pusahi hit the deceased on the head with a piece of iron rod. His co-accused Robert Sonja assaulted the deceased with a bush knife. The deceased died from bodily injuries he sustained. I am satisfied that this evidence is sufficient to establish the requisite intention. I also would dismiss this ground of appeal in relation to intention and say that I am satisfied that the trial judge was able to form the view that he did as to intention on the evidence before him.

Appellants argue the principle of disparity of sentences

19. Sentencing disparity can be defined as a form of unequal treatment that is often of unexplained cause and is at least incongruous and unfair. This can happen in a situation where similar cases are not treated similarly.

20. The Supreme Court in Secretary for Law v Witrasep Binengim [1975] PNGLR 172 stated the principle of law in relation to disparity of sentences. The principle is that if an accused person 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. See also the Supreme Court case of Pemu Muro v State [2006] PGSC 11; SC 842 (30 June, 2006) and Winugini Urugitaru v Regina [1974] PNGLR 283, Acting Public Prosecutor v Joe Mailai [1981] PNGLR 258, Goli Golu v State [1979] PNGLR 653

21. In State v Tau Ted Lahui & Ors [1992] PNGLR 325 the accused and his accomplices George Hetau, Maraki Noho and Jeffery Eki who had pleaded not guilty to a charge of murder were each convicted after trial and sentenced to life imprisonment by Hinchliffe, J. In 1996 one of their co-accused Jeffery Harold Malepo was convicted of wilful murder after trial by Passingan, AJ and was also sentenced to life imprisonment. Refer to State v Malepo (No. 2) [1996] PGNC 83; N1449 (23 April, 1996).

22. In State v Gregory Kiapot & 4 others N4381 (14.7.12) a multiple wilful murder case, Sawong, J sentenced the 5 accused to death. One of their co-accused Kenny Wesley in State v Kenny Wesley Unreported Judgment CR. No. 293 of 2010 (1.05.12) was sentenced by Maliku, AJ (as he then was) to death.

23. The sentencing pattern in State v Ted Lahui & Ors (supra), State v Malepo (No. 2) (supra) is similar to State v Gregory Kiapkot & 4 Ors (supra) and State v Kenny Wesley (supra). Although the matters were trialled by different judges, there was parity in the sentences. The situations in these cases can be contrasted with the case of Secretary For Law v Witrasep Binegim (supra) where the court found that there was a great disparity between the sentences imposed upon Thomas and Tari, and also in the Pemu Muro v State case (supra).

24. In Pemu Muso v State (supra), the appellant was sentenced to 30 years imprisonment and his other accomplice was sentenced to 10 years only. The facts are that the appellant and four others conducted a well planned arm robbery during which a passing motor vehicle was shot at by one of the gang members. The appellant argued that there was a disparity in the sentences. The sentence of 30 years was quashed and substituted for 15 years.

25. Saldaha, J in Secretary for Law v Wirasep Binegim (supra) p. 175 stated;

"There appears to have been established in recent years a principle that an accused who, all other things being equal, has been awarded a sentence substantially higher than those imposed upon his co-offenders, is entitled on an appeal by him to have the sentence reduced on grounds of parity."

26. In this case the applicants were sentenced to 30 years imprisonment on the charge of wilful murder while their co-accused So'on Pusahi who was convicted after pleading guilty to murder was sentenced to 16 years. The applicants argued that this is unfair and unjust.

27. The issue that arises now is, should this court reduce the sentences of 30 years imprisonment imposed on the applicants by Sevua, J so that they are on a par with or similar to the sentence of 16 years imposed by Gabi, J upon their co-accused So'on Pusahi's.

28. The Supreme Court in Urugitaru v Regina (supra) held amongst others 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."

(my underlining)

29. Counsel for the respondent was unable to assist the Court as to whether the term of imprisonment of 16 years imposed upon the co-accused was suggested by the prosecution as a consequence of a plea bargain.

30. We also do not have the benefit of reading the transcript of the proceeding of State v So'on Pusahi. I note however that co-accused So'on Pusahi was present before the National Court giving evidence in support of the applicants. Further, it is apparent that the trial judge did address his mind to the sentence that the co-accused So'on Pusahi had received.

31. So'on Pusahi was sentenced to 16 years on a plea of guilty to the charge of murder. I find the trial judge had the benefit of being addressed on the co-accused's earlier conviction and sentence of 16 years. Here, both applicants were indicted for the very serious charge of wilful murder based on the nature and degree of their participation in the commission of the offence. On this basis I find there is no identifiable error on the part of the trial judge.

32. I have also cautioned myself on the principle that a sentence imposed by the trial judge should not be readily disturbed unless shown to be manifestly excessive. As in this case, it was argued that the sentence is manifestly excessive, the applicants must show that the trial judge erred or that he acted on a wrong principle of law or that he overlooked, undervalued, over-estimated or misunderstood some salient features of the evidence before him (see Wanosa & Ors v Queen [1971-72] PNGLR 90; Muro v State (supra).

33. The issue before us is; whether the sentence of 30 years imposed on both applicants is manifestly excessive? Both counsel before the trial judge submitted for sentences between 20 – 30 years. The trial judge considered 30 years was appropriate due to the nature of the applicants' participation in the commission of the offence. The sentence of 30 years is within the category 2 sentence range in Manu Kovi v State (2005) SC 789. I do not consider the sentence of 30 years imprisonment to be manifestly excessive in the circumstances of this case. I am of the view that this review should be refused. The convictions and sentences of 30 years each are confirmed.

TOLIKEN, J: I too have read the draft judgment of my brother Ipang J. and I concur with His Honour's reasons and conclusions. These reviews should be dismissed and the convictions and sentences of the National Court affirmed.

_______________________________________________________________
Public Solicitor: Lawyer for the Appellants
Public Prosecutor: Lawyer for the Respondent