Max Sanawi v The State (2010) SC1076

• Jurisdiction: Papua New Guinea
• Date: 29 September 2010
• Citation: (2010) SC1076
• Docket Number: SCRA NO. 19 OF 2008
• Court: Supreme Court
• Year: 2010

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

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 Yokum (2002) N2337; The State v Tom Keroi Gurua (2002) N2312; Winugini Urugitaru v R [1974] PNGLR 283; Goli Golu v The State [1979] PNGLR 653; Andrew Uramani v The State [1996] PNGLR 287

Overseas Cases

Mario Postiglione v The Queen (1997) 189 CLR 295

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...