Winugini Urugitaru v The Queen [1974] PNGLR 283

• Jurisdiction: Papua New Guinea
• Judge: Frost ACJ, Raine J, Denton AJ
• Judgment Date: 29 November 1974
• Court: Supreme Court
• Year: 1974
• Citation: [1974] PNGLR 283
• Judgement Number: FC72

Full Title: Winugini Urugitaru v The Queen [1974] PNGLR 283

Full Court: Frost ACJ, Raine J, Denton AJ

Judgment Delivered: 29 November 1974

PAPUA NEW GUINEA

[SUPREME COURT OF JUSTICE]

WINUGINI URUGITARU

V

THE QUEEN

Port Moresby

Frost ACJ Raine J Denton AJ

29 October 1974

29 November 1974

CRIMINAL LAW AND PROCEDURE — Sentence — Joint offenders — Discrimination between persons convicted of same crime — Matters for consideration — Public interest — Antecedents — When differentiation justified — Sense of injustice ground for adjustment of sentences.

CRIMINAL LAW AND PROCEDURE — Appeal against sentence — General grounds for interference — Joint offenders — Sense of injustice.

The applicant for leave to appeal and two others were tried together and convicted on a murder charge, the murder having been committed in the process of submitting the deceased and a woman to traditional punishment for what was regarded as a grave violation of clan custom. The applicant was sentenced to life imprisonment, the trial judge taking into account a prior conviction for wilful murder; each of the other co-accused were sentenced to six years' imprisonment, the trial judge taking into account sentences ranging from five to seven years' imprisonment given at a previous trial of five others for the same offence.

Held

(1) In sentencing co-accused jointly indicted the Court is justified in differentiating 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, (R. v. Ball (1951), 35 Cr. App. R. 164, at p. 164 applied) and may also have regard to factors connected with the actual commission of the crime.

(2) 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.

R. v. Richards (1955), 39 Cr. App. R. 191 at p. 192 applied; R. v. Coe (1968), 53 Cr. App. R. 66 at p. 71, R. v. Pitson (1972), 56 Cr. App. R. 391; R. v. D'Ortenzio & Burns, [1961] V.R. 432 at p. 433, R. v. Goldberg, [1959] V.R. 311; The Queen v. Kite, (1971) 2 S.A.S.R. 94 at p. 96; R. v. Rameka, [1973] 2 N.Z.L.R. 592 and R. v. Coyle [1969], 2 N.S.W.R. 83 referred to.

(3) In the circumstances the disparity in sentences was of such an order that unless adjusted a justifiable feeling of dissatisfaction and sense of injustice would occur; and was such that an error had been made, the prior conviction having been overvalued in the sense of savouring of additional punishment for that conviction. Accordingly the term of life imprisonment should be reduced to a sentence of twelve years six months.

Application For Leave To Appeal

This was an application for leave to appeal under ss. 27 (d) and 28 (4) of the Supreme Court (Full Court) Act 1968, against a sentence of life imprisonment imposed upon the applicant upon his conviction with two co-accused on 3rd July, 1974, at the Supreme Court sittings at Kerema, on a charge of murder.

Counsel

C. F. Wall and G. Toop, for the applicant.

L. W. Roberts-Smith and P. C. White, for the respondent (Crown).

Cur. adv. vult.

29 November 1974

FROST ACJ RAINE J DENTON AJ: This is an application for leave, on the ground of severity, to appeal against a sentence of life imprisonment imposed upon the applicant upon his conviction on 3rd July, 1974 at the Supreme Court sittings at Kerema for the murder of one Kuri.

The application is brought under the Supreme Court (Full Court) Act 1968 ss. 27 (d) and 28 (4). The principle applicable is that the sentence imposed by the trial judge should not be disturbed unless it is shown to be manifestly excessive because...