Pemu Muro v The State (2006) SC842

• Jurisdiction: Papua New Guinea
• Judge: Hinchliffe J Gavara-Nanu J & Lenalia J
• Judgment Date: 30 June 2006
• Citation: (2006) SC842
• Docket Number: SCA.No. 36 of 2005
• Court: High Court
• Year: 2006
• Judgement Number: SC842

Full Title: SCA.No. 36 of 2005; Pemu Muro v The State (2006) SC842

High Court: Hinchliffe J, Gavara-Nanu J, & Lenalia J

Judgment Delivered: 30 June 2006

SC 842

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) SC 740

Manu Kovi v The State (2005) SC 789

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...