N2186

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]

CR. NO. 472 of 1999

THE STATE

-V-

TONY PANDAU HAHUAHORU (N0.2)

WEWAK: KANDAKASI, J.
2002: 19th, 21st, February

DECISION ON SENTENCE

CRIMINAL LAW – Sentence – Murder – Death resulting from failed robbery – Two gun shots fired at driver and passengers on highway – Six people including deceased seriously injured – One of them loss total use of one of his eyes – Prisoner with prior convictions – No good mitigating factors – Co-accused received 30 years on guilty pleas – Parity of sentence considered – Appropriate case to impose sentence over and above sentences received by co-accused – Life imprisonment imposed 

Facts:

The prisoner was found guilty and convicted of murder following a failed robbery. That was after a trial. Five others were seriously injured in the incident leading to the murder including the total loss of one eye by one of the victims. His co-accused and him were rounded up by village leaders and handed over to police. The co-accused pleaded guilty and were sentenced to 30 years imprisonment. They were first time offenders. The Prisoner had a prior conviction for arson and failed to show by any evidence that the village leaders were wrong in including him in their round up of the offenders.

Held:
1.	Given his prior conviction and not guilty plea resulting in a trial and having no mitigating factors in his favour he must be treated differently from his co-accused for the purposes of sentencing.
2.	The crime of armed robbery is on the increase resulting in calls for stiffer penalties and as such, sentences higher than those already imposed must be given.
3.	In the particular circumstances of the case, with the prisoner having no mitigating factor in his favour the maximum sentence of life imprisonment is appropriate and is therefore imposed.

Cases cited:
The State v. Laura (No. 2) [1988-89] PNGLR 98
The State v. Raphael Kimba Aki (N0.2) (Unreported judgement) N2082
The State v. Vincent Malara (CR 58 of 2000) unreported and unnumbered judgement delivered 20/2/2)
Winugini Urugitaru v. The Queen [1974] PNGLR 283 
Andrew Uramani & Ors v. The State [1996] PNGLR 287
Goli Golu v. The State [1979] PNGLR 653
The State v. Jason Dongoma (unreported judgement) N2038
The State v. Peter Yawoma (unreported judgement) N 2032

Counsels:
Mr. M. Ruari for the State
Mr. M. Mwawesi for the Accused

21st February 2002

KANDAKASI J:	On Tuesday the 19th of this month, I found you guilty on one count of murder contrary to s.300(1)(a) of the Criminal Code and convicted you for the murder of one Freddy Bill at Japaraka No.1 village on the 9th of March 1999.

The Relevant Facts

The relevant facts are set out in my judgement on the verdict handed down on the 19th February 2002. For the purposes of sentencing, the pertinent parts of the facts are these. On the night of the 8th of March 1999, you, Ben Wango and Nick Sengi Pori planned the robbery of a PMV armed with shotguns. The next morning you wake up early in the morning and after seeing your wife off to town, you and your gang proceeded with your plan against a PMV truck owned by Hama Brothers. That PMV was loaded with passengers and was heading for Wewak town. 

You could not succeed on your robbery plan. So you used the guns to shoot at the driver and the passengers in a bid to stop them. The first shot was from the front of the vehicle, which penetrated the front windscreen all the way to the back shattering the glasses along the way. This did not make the driver stop the vehicle, so you fired a second shot at the vehicle. By this time the vehicle had passed you so you shot at it from the back.

The gun shots resulted in 6 people being seriously injured. They were rushed to the Boram Hospital for medical treatment. Of the 6 injured, 5 managed to recover. Unfortunately, one of them could not survive despite medical intervention as his brain was damaged by a gun shot injury to his head just above one of his eyes. Out of the 5 that recovered, one of them lost the total use of one of his eyes. 

The Offence and Sentencing Trend

The offence with which you have been charged and found guilty and convicted of is provided for by section 300(1)(a) in these terms:

"(1)	Subject to the succeeding provisions of this Code, a person who kills another person under any of the following circumstances is guilty of murder:-

(a)	if the offender intended to do grievous bodily harm to the person killed or to some other person …
….

Penalty:	Subject to Section 19, imprisonment for life."

The case of The State v. Laura (No. 2) [1988-89] PNGLR 98 sets out the appropriate guidelines to be followed for sentencing in murder cases and they are: 

1.	On a plea of guilty where there are no special aggravating factors, a sentence of six years; 

2.	Sentences of less than six years may be imposed only where there are special mitigating factors such as youthfulness or very advanced age of the accused;

3.	On a plea of not guilty, a range of sentences from eight to twelve years or more in a case where aggravating factors are evidenced.

Recently, in my judgement in The State v. Raphael Kimba Aki (N0.2) (Unreported Judgement) N2082, I said at pages 4-5 after reviewing sentences in these types of cases that:

"Clearly, the guidelines set in the Laura No. 2 case, has to be reviewed in the light of the sentencing trends in manslaughter cases as well as the increase in murder cases since those guidelines were set. The guidelines were given on the 3rd of April 1989. That was more than 11 years ago and may now be out dated especially in the number of years to be imposed for each of the categories. Going by the sentences currently being imposed in manslaughter cases, the starting period for murder cases should now be increased to 10 years or more. Thus the guidelines in the Laura No. 2 case should be varied in the following way:

1.	On a plea of guilty where there are no special aggravating factors, a sentence of ten years; 
2.	Sentences of less than ten years may be imposed only where there are special mitigating factors such as youthfulness or very advanced age of the accused;
3.	On a plea of not guilty, a range of sentences from twelve years to fourteen years and more in a case where aggravating factors are evidenced would be appropriate."

That was in the context of an ordinary murder case. In your case, you murdered the deceased in the pursuance of another illegal activity, armed robbery. You and your gang not only shot once but twice using two guns. That resulted in the death of one person and 5 other persons sustained serious injuries including the loss of the use of one eye by one of the victims. There is no evidence before me that you or any of your co-accused had a valid license to carry a gun. Therefore, I find that you were also committing an offence when you carried a gun without license. 

As I said just yesterday in my decision on sentence in the case of The State v. Vincent Malara CR. 58 of 2000, (unreported and unnumbered judgement delivered 20/2/2), the crime of armed robbery is on a very sharp increase. There are about 100 pending robbery cases here on the Wewak circuit listed alone. People are living in great fear because of people like you who are terrorizing and stealing indiscriminately from innocent people who are trying to make a living amidst difficult economic times. There are ugly scenes through the cities and towns of the country with all kinds of security wires and fences to keep away people like you. Our streets and highways are becoming very unsafe and risky to travel on. We are supposed to be a free and democratic society living in peace with one another. Yet, people of your kind are imprisoning our people. Your kind of people are preventing our country from progressing because of fears of armed robbers like you who are prepared to kill if they do not get what they set out to get unlawfully with the use of force and with threats or actual use of violence. 

Given this situation I said in that case that, the Courts are now faced with a constant call for stiffer penalties to respond to the big increase in crimes of violence such as armed robbery, rape and murder. The Courts have a constitutional and social responsibility to appropriately punish bad elements in society like you after Parliament has prescribed a maximum penalty of life imprisonment for crimes like armed robbery, murder and rape.

Fully appreciating the responsibility placed on it, I consider the Court in the case of your co-accused imposed the sentence of 30 years each in the light of their guilty pleas and having no prior convictions (since there is no evidence of that).

For the purpose of your sentencing, I am required to note and take into account the sentence already received by your co-accused, Ben Wango and Nick Sengi Pori. They both received 30 years each, less time already spent in custody awaiting their trials. That was on their guilty pleas, which meant that the State did not had to call witnesses and thereby incur substantial costs and take up the Court’s time. They had no prior convictions (in the absence of any evidence to the contrary) but the Court considered the offence they committed with you was very serious. Accordingly, it imposed the 30 years sentence against them.

The law is, unless there are special reasons like there is a denial by a co-accused which necessitates a trial and a conviction or a prior conviction, the sentence of a co-accused as in your case, must be similar to the one received earlier by a co-accused. The pre-independence Supreme Court stated that principle in Winugini Urugitaru v. The Queen [1974] PNGLR 283, as follows:

"It is, of course, accepted that the court is justified in differentiating in the treatment of persons for the same crime 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. per Hilbery J. The court may also have regard to factors connected with the actual commission of the crime. But the fact that one of several prisoners 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 the others. What generally has to be shown is that the applicant on appeal has received too long a sentence. Reg. v. Richards (1955) 39 Cr. App. R. 191, at p. 192 per Lord Goddard. But as it also appears from that case if there is a very considerable disparity between the sentences, an appellate court may take it into account (ibid.)." 

That was in a case where the sentences received by a number of co-accused varied from a range of five to seven years to life imprisonment upon the applicant, a man of twenty-eight years. The Court found that all of the co-accused were convicted and sentenced after a trial. The only factor differentiating the applicant from the others was that he had a prior conviction for wilful murder in association with others, where he served as a guardsman for the purpose of committing the offence. His sentence of life imprisonment was reduced to 12 years to remove what the Court described as a feeling of grievance caused by the substantial difference between the sentences received by his co-accused. 

After independence, the Supreme Court in Andrew Uramani & Ors v. The State [1996] PNGLR 287, considered and applied those principles. That was a case of armed robbery. In that case there were a number of co-accused. All but one pleaded not guilty. After a trial, sentences of 8, 7, and 6 years were given. The one who pleaded guilty was given a suspended sentence of 2 years. The trial judge found that he was not the ringleader and that he was forced to commit the offence and also, he was the one who made it possible for the arrest of the others.

The Supreme Court found nothing wrong with the trial judge treating the appellants differently from the one who pleaded guilty. It was however of the view that the disparity was too great that it would give the appellants "a justifiable feeling of dissatisfaction and sense of injustice." It therefore reduced their sentences to 6 years and suspended two years each.

A different result however was reached in Goli Golu v. The State [1979] PNGLR 653. There the Supreme Court rejected an argument for a reduction of appellant’s sentence on the parity principle. The appellant received a sentence of life imprisonment and his co-accused received an effective sentence of 10 years. The Supreme Court per Justice Raine DCJ (as he then was), found that, although the person receiving the effective 10 years was an active participant in a willful murder case, he did not use the weapon he was armed with despite having every opportunity to use it. In so doing, His Honour noted that there could be situations where there might well be a feeling of dissatisfaction but that could not automatically mean that the sentence must be reduced. This is how His Honour put it:

"The most usual situation that arises in disparity cases is as described by me in Secretary for Law v. Witrasep Binengim [1975] PNGLR 172, at p. 175, where I said:

‘The situation often arises where Mr. Justice A. deals with one of a group of co-offenders one month, and Mr. Justice B. deals with the remainder subsequently. The second judge might feel that the first judge was lenient, but the principle is, so I believe, that the second judge, albeit rather unwillingly, ought to award much the same sentence as awarded earlier.’

"However, the situation can arise where a co-offender is dealt with before his comrade or comrades, and the latter, when dealt with later, receive far less punishment, such as might reasonably leave the first man dealt with a sense of grievance. R. v. Pitson (1972) 56 Cr. App. R. 391, is an example of this."

I have on a number of occasions alluded to the need to avoid imposing a sentence that would be in disparity with a co-accused. Examples of these are the cases of, The State v. Jason Dongoma (unreported judgement) N2038 and The State v. Peter Yawoma (unreported judgement) N 2032. 

A consideration of all these authorities show that, a court can impose a sentence that is in disparity with a sentence received by an offender’s co-accused. That can only happen if there are good reasons such as prior conviction, conviction after a trial, and playing a more active and or a leading role in the commission of an offence. Such factors need not exist in the one case at the same time. There could be just one such factor or there could be a combination of them.

Your Case

In your case, the factors that operate against you are that, you have a prior conviction for arson, which you accept is a crime of violence. That conviction and sentence appears not to have deterred you from committing this offence. Next is the fact that you denied the charge and that necessitated a trial resulting in your being found guilty and convicted of murder out of a failed robbery attempt. This is a very serious offence and murders in this kind of setting has attracted life imprisonment or a substantial term of years, such as the 30 years each received by your co-accused, Ben Wango and Nick Sengi Pori. There are numerous calls now for stiffer penalties of this kind of offence. Finally, the village leaders rounded the all three of you, as the persons responsible for the murder and handed you over to the police. Your co-accused pleaded guilty but you denied your involvement, without any good evidence or basis to show that the village leaders were wrong in rounding you up with the other two. In taking that position, in my view, you showed contempt for the efforts of the community or village leaders in their endeavour to maintain law and order and assist in the apprehension of offenders like you. In my judgement on verdict, I went at length to explain why the role village or community leaders play must be respected. 

Against these, you have absolutely no factor in mitigation providing a reason not to impose the maximum penalty prescribe by Parliament for the offence you committed in the circumstances and in the way describe. This accords well with my view that, Parliament in prescribing life imprisonment subject to section 19 of the Criminal Code intended that, such a sentence should be imposed unless circumstances exist in favour of an offender, justifying the imposition of a lesser sentence.

For these reasons, you need to be treated differently from your co-accused, Ben Wango and Nick Sengi Pori, who did not have these factors going against them. You might as well feel or have a sense of grievance because of the difference in the sentence I am shortly to pronounce against you and those received by your co-accused. Nevertheless, for the reasons already stated above and my general impression of you that you appear not to take the whole law enforcement seriously, by for example smiling and giggling in Court in your allocutus, the difference will in my view, be justified. 

Having regard to all of these factors, I consider a sentence of life imprisonment appropriate. I therefore sentence you to life to be served at the Boram CIS. A warrant of commitment shall be issued in those terms.
________________________________________________________________________
Lawyers for the State:			Public Prosecutor
Lawyers for the Prisoner:			Public Solicitor