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Urugitaru v Regina [1974] PNGLR 283 (29 November 1974)

Papua New Guinea Law Reports - 1974

[1974] PNGLR 283 - Winugini Urugitaru v Regina

[1974] PNGLR 283

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] VicRp 68; , [1961] V.R. 432 at p. 433, R. v. Goldberg[1959] VicRp 52; , [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 for instance the trial judge has acted on a wrong principle or has clearly overlooked, undervalued, overestimated or misunderstood some salient features of the evidence. Wanosa & Others v. The Queen [ccclxxii]¹; Reg. v. McGrath [ccclxxiii]².

As appears from the judgment of the trial judge the crime was committed in a remote part of the hinterland between the Gulf of Papua and Erave in the Southern Highlands. A woman whose husband had gone to Port Moresby formed an attachment with the deceased man. This attachment was regarded by some of the men of the village of Saketau as adulterous, and on behalf of their absent kinsman they resented it bitterly. A plan was made to deal with the couple. Two village policemen were induced to accompany the party with a view to a prosecution before a government court. The route taken was up country towards the Erave Patrol Post rather than towards Kikori which was the appropriate post on the coast. The matter was taken out of the hands of the policemen by another village policeman named Soro who, together with some men at Saketau, tied both Kuri and also the woman to posts placed in the ground in that village and proceeded to beat them—in the case of Kuri—until he died.

The applicant was one of three men charged at the trial with murder. All denied being present at the scene. However the trial judge acting on the evidence of eyewitnesses was satisfied that each was present and participated in the attack, and that that attack was intended to cause bodily injury of such a nature as to endanger life. Each of the accused was therefore convicted.

Earlier during 1973 five other persons were charged before the Supreme Court at Kerema with the same crime and were duly convicted. One prisoner, the village policeman and the apparent ring-leader, was sentenced to seven years’ imprisonment, three others to six years’ imprisonment and one to five years’ imprisonment.

In the second trial the trial judge felt constrained to take these sentences into account in sentencing the two prisoners other than the applicant, and these accused were thus sentenced to six years’ imprisonment. The circumstances which were said to have been taken into account by the trial judge in the first trial in imposing sentences were that the murder was committed in the process of submitting the deceased and the woman to traditional punishment for what was regarded as a grave violation of clan custom, and also the still somewhat primitive state of the people in the area. However the first sentences do seem on the lenient side.

So far as the applicant is concerned, the trial judge expressly found that the evidence had not established any greater degree of participation in the crime on his part than by the other accused. The consideration which led the judge to impose a sentence of life imprisonment was the applicant’s prior conviction in 1965 for wilful murder. The previous crime was indeed a terrible one. In a dawn raid twelve people were done to death in a line against line payback. They were all very primitive people. In the applicant’s favour he had been recruited by the war party from a neighbouring village and had joined it because of the fear of reprisals. Also he was not one of the principal offenders. He had merely accompanied the others and had kept guard outside the hut occupied by the victims. The applicant, together with 13 others all had sentences of death recorded against them. The death sentence was commuted to a sentence of six years’ imprisonment of which four and a half years approximately was served. The main reasons for clemency were the primitive condition of the prisoners coming from this remote area of the Gulf District, and also because there was no real presence of the Administration in the area. The applicant’s conviction was not challenged in this court.

A number of grounds were argued but the main ground was based on the degree of disparity between the sentences imposed upon those convicted of the crime. These sentences varied from a range of five to seven years to life imprisonment upon the applicant, a man of twenty-eight years. 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[ccclxxiv]³ 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 [ccclxxv]⁴. 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.).

Since that case Lord Parker has said that the Court of Appeal has on many occasions reduced a sentence to bring it more in line with the sentence imposed on a co-accused, upon the basis “that only thereby can a sense of grievance be averted”. R. v. Coe [ccclxxvi]⁵. See also R. v. Pitson [ccclxxvii]⁶. In Victoria there have been cases where the Full Court has had occasion to refer to cases of discrepancy between sentences imposed by two courts upon different offenders acting in concert to commit the same crime. It was stated by the Full Court, as a factor to be taken into account, that “Such discrepancies cannot fail to give rise to dissatisfaction and a feeling of injustice done by those concerned”. R. v. D’Ortenzio & Burns [ccclxxviii]⁷. See also R. v. Goldberg [ccclxxix]⁸. In South Australia the Full Court has stated that it was only in exceptional cases that the Court had acted to reduce a sentence because of excessive disparity between sentences if the sentence complained of was otherwise appropriate. The Queen v. Kite [ccclxxx]⁹. In New Zealand a similar strict test has been propounded. The Court of Appeal has noted “an increased willingness to take disparity of sentence into account when the disparity cannot be justified and is gross”. R. v. Rameka [ccclxxxi]¹⁰. In New South Wales the Court of Criminal Appeal has adjusted a sentence where it has been of the opinion that having regard to the disparity of sentence, “it is right and proper in the interests of justice to vary the sentence”. R. v. Coyle [ccclxxxii]¹¹.

If the case of the applicant stood alone it could not be said that he had upon his second conviction of murder received too long a sentence. He has been convicted of complicity in two murders both committed by multiple offenders. The previous sentence was not a sufficient deterrent in his case. But we have reached the conclusion that the disparity in the sentences is of such an order that unless they are adjusted a justifiable feeling of dissatisfaction and sense of injustice will occur. We are of the opinion that the degree of disparity is such that an error has been made and the prior conviction has been overvalued in the sense that the sentence may savour of additional punishment for that conviction.

We would therefore formally give leave to appeal and treat the application as the hearing of the appeal. We would reduce the sentence to twelve years six months which, in our opinion, served as the Regulations now provide without any remission, will be a sufficient protection to the public, and this is the paramount consideration.

Leave to appeal granted.

Sentence reduced to a period of twelve years six months in hard labour.

Solicitor for the applicant: G. R. Keenan, Acting Public Solicitor.

Solicitor for the respondent: P. J. Clay, Crown Solicitor.

[ccclxxiii][1971-72] P. & N.G.L.R. 247.

[ccclxxiv] (1951) 35 Cr. App. R. 164, at p. 164.

[ccclxxv] (1955) 39 Cr. App. R. 191, at p. 192 per Lord Goddard.

[ccclxxvi] (1968) 53 Cr. App. R. 66 per Lord Parker, L.C.J., at p. 71.

[ccclxxvii](1972) 56 Cr. App. R. 391.

[ccclxxviii][1961] VicRp 68; [1961] V.R. 432, at p. 433.

[ccclxxix][1959] V.R. 311.

[ccclxxx] (1971) 2 S.A.S.R. 94, at p. 96.

[ccclxxxi][1973] 2 N.Z.L.R. 592.

[ccclxxxii][1969] 2 N.S.W.R. 83.

[ccclxxxiii] (1970) 54 C.A.R. 176.