Max Sanawi v The State (2010) SC1076

• Jurisdiction: Papua New Guinea
• Judge: Kirriwom, Manuhu & Sawong, JJ
• Judgment Date: 29 September 2010
• Citation: (2010) SC1076
• Docket Number: SCRA NO. 19 OF 2008
• Court: Supreme Court
• Year: 2010
• Judgement Number: SC1076

Full Title: SCRA NO. 19 OF 2008; Max Sanawi v The State (2010) SC1076

Supreme Court: Kirriwom, Manuhu & Sawong, JJ

Judgment Delivered: 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) 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...