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Pomaloh v State [2006] PGSC 44; SC834 (27 April 2006)

SC834

PAPUA NEW GUINEA
[IN THE SUPREME COURT OF JUSTICE]

SCRA NO 47 OF 2002

BETWEEN
IGNATIUS NATU POMALOH
Appellant

AND
THE STATE
Respondent

Wewak: Jalina J, Mogish J, Cannings J
2006: 24^th, 27^th April

CRIMINAL LAW – sentencing – unlawful killing – sentencing of co-offenders – whether account should be taken of the different degrees of involvement of co-offenders.

The appellant was one of two men convicted of the manslaughter of another man in the course of a domestic dispute. The appellant’s co-offender stabbed the deceased during the course of the dispute, causing the deceased’s death. The appellant did not stab the deceased. The appellant and his co-offender pleaded guilty and were each sentenced to 14 years imprisonment. The appellant appealed against the severity of his sentence.

Held:

(1) When sentencing co-offenders it is necessary to take account of their different degrees of involvement in the commission of the offence.

(2) Each offender must have their sentence determined by the particular individual circumstances; and this means that the trial judge must make an assessment of their degree of participation in the crime that was committed. The trial judge should specifically address this factor in the course of exercising the discretion as to sentence.

(3) If account is not taken of this factor – especially in cases where co-offenders clearly had differing degrees of involvement – it is likely that an error will be committed in the exercise of the sentencing discretion. The punishment must fit the crime.

(4) In the case of manslaughter, where co-offenders have fought with or attacked the deceased, and one or more of the co-offenders has not done anything to directly kill the deceased, it is necessary to take into account their respective degrees of involvement in order to arrive at a fair sentence.

(5) The trial judge erred by giving the co-offenders the same sentence when the evidence was clear that the appellant did not stab the deceased and did not directly kill him.

(6) The sentence of 14 years was quashed and replaced with a sentence of eight years.

Cases Cited

The following cases are cited in the judgment:

Gimble and Others v The State [1988-89] PNGLR 271
Jim Kas v The State (1999) SC772
Lawrence Hindemba v The State (1998) SC593
Norris v The State [1979] PNGLR 605
State v Rex Lialu [1988-89] PNGLR 449
State v Tom Keroi Gurua, David Laiam Bawai and Joseph Nimagi (2002) N2312
The State v Anos Naime Maraga, Hariki Badi and Gaigo Arua (2002) N2433
The State v Ben Wafia, George Wena, Simon Konga and Leslie Puka (No 2) (2004) N2547
The State v Edward Toude and 3 Others (2001) N2299
The State v Eki Kondi, Mike John, Allan Nemo, Kelly Sop Kondi and Isaac Sip (No 2) (2004) N2543
The State v Garry Sasoropa, John Aremeiko and Mathew Melton (No 2) (2004) N2569
The State v Mark Kanupio, Balwin Kining, Peter Pasikio, Steven Lipilas and Paul Nowor (2005) N2800
The State v Morobet Awui Koma & Peter Kevin [1987] PNGLR 262
The State v Wesley Nobudi, John Lulu Evoa and Franky Yalikiti Fravo (2002) N2510
William Dot Norman Parkop and James A Make v The State (1999) SC621
Winugini Urugitaru v The Queen [1974] PNGLR 283

APPEAL

This was an appeal against sentence for manslaughter and unlawful wounding.

Counsel

I N Pomaloh, the appellant, in person
M Zurenuoc, for the Respondent

27^th April, 2006

1. BY THE COURT: This is an appeal against the sentence passed by the National Court (Sevua J) on the appellant, Ignatius Natu Pomaloh, upon his conviction for manslaughter and unlawful wounding.

2. On 1 December 2001 there was an incident at Saltrack village near Lorengau, Manus Province in which two brothers were stabbed. One of them, Polum Pokep, survived. The other, Polomon Pokep, died. The police investigated the incident. The appellant and another man, Yokin Pokawin, were charged. They were committed for trial by the District Court on 12 April 2002.

3. On 10 May 2002 they were jointly indicted for the unlawful wounding of Polum Pokep and the unlawful killing (manslaughter) of Polomon Pokep. They pleaded guilty and Sevua J accepted their pleas and convicted them the same day. The allocutus was administered and submissions were received on 13 May 2002. Sevua J sentenced each of them to 14 years imprisonment on 16 May 2002.

4. On 25 June 2002 the appellant gave notice of his application for leave to appeal and his appeal against sentence. This was within the 40-day period permitted by Section 29(1) of the Supreme Court Act. We are satisfied that the appeal is properly before this court.

5. The appeal was heard at Wewak in April 2006. It has taken a long time to be heard. We are not sure of the reason for this but the respondent has not taken issue with any delay on the part of the appellant.

THE NATIONAL COURT PROCEEDINGS

6. It was put to the appellant and his co-accused at the start of the proceedings that between 11.00 am and 12 midday on the day in question they were at Saltrack consuming alcohol. After drinking, the appellant was walking to his house and on the way saw his aunty, Rebecca Pomaki, in her house. He claimed that Rebecca had cursed him and he assaulted her. Rebecca’s brother, Polum Pokep, came to her rescue and punched the appellant in the mouth, causing bleeding. The appellant went back and informed Yokin Pokawin what had happened. Yokin and the appellant went to Rebecca’s house and Yokin assaulted Rebecca. She was Yokin’s aunty as well as the appellant’s.

7. After that second assault on Rebecca, the appellant and Yokin went out and saw Polum Pokep and fought him. In the fight Yokin pulled out a knife from his waist and stabbed Polum in the back. It was a black-handled steel-bladed dagger, six inches in length. Polum was wounded but not fatally. Polum’s elder brother, the deceased Polomon Pokep, came to assist Polum. Yokin and the appellant fought with him too. In the course of that fight Yokin pulled out the same knife with which he had stabbed Polum and stabbed the deceased in the abdomen. The deceased was rushed to hospital and operated on but died a few hours later from a massive haemorrhage caused by the knife wound.

8. The State alleged that Yokin caused the deceased’s death by slashing him with the knife, causing internal bleeding. The State did not allege that the appellant stabbed the deceased but that he aided and abetted Yokin. The State invoked Section 7 of the Criminal Code to claim that he, together with Yokin, was guilty of manslaughter.

9. Section 7 (principal offenders) states:

(1) When an offence is committed, each of the following persons shall be deemed to have taken part in committing the offence and to be guilty of the offence, and may be charged with actually committing it:—

(a) every person who actually does the act or makes the omission that constitutes the offence; and

(b) every person who does or omits to do any act for the purpose of enabling or aiding another person to commit the offence; and

(c) every person who aids another person in committing the offence; and

(d) any person who counsels or procures any other person to commit the offence.

(2) In Subsection (1)(d), the person may be charged with—

(a) committing the offence; or

(b) counselling or procuring its commission.

(3) A conviction of counselling or procuring the commission of an offence entails the same consequences in all respects as a conviction of committing the offence.

(4) Any person who procures another to do or omit to do any act of such a nature that, if he had himself done the act or made the omission, it would have constituted an offence on his part, is—

(a) guilty of an offence of the same kind; and

(b) liable to the same punishment,

as if he had done the act or made the omission, and may be charged with himself doing the act or making the omission.

10. The State alleged that neither the appellant nor Yokin had any lawful justification or excuse for what they did.

11. They both pleaded guilty to those allegations. The trial judge accepted their pleas and convicted them of one count each of manslaughter under Section 300 of the Criminal Code (for the death of Polomon Pokep) and one count each of unlawful wounding under Section 322 of the Criminal Code (for the injury to Polum Pokep).

12. Neither offender had any prior conviction. In allocutus the appellant said sorry to his relatives and to his community. He would not have committed these offences if his aunty, Rebecca, had not cursed him. Yokin Pokawin said sorry for wounding Polum and sorry to Polomon’s family for causing this trouble.

Sentence

13. The trial judge began his judgment on sentence by describing the personal particulars of the two offenders. The appellant, Ignatius Pomaloh, was then (in May 2002) aged 22 years. He attended Ecom High School and completed grade 10. He did not secure a place in a tertiary institution so he returned to the village where he had been living with his family. He was unemployed when he committed the offence. The other offender, Yokin Pokawin, is the son of the then member for Manus Provincial and Governor of Manus, Stephen Pokawin MP. His Honour mentioned that fact as it showed that the offender did not consider the office his father held and had therefore not respected his father and brought great shame and pain to him. He was educated to grade 10 at Ecom High School and then completed a correspondence course in automotive mechanics. He completed trade testing at Port Moresby Technical College and had some work experience with Lorengau Engineering. The trial judge considered character evidence from village elders and Yokin Pokawin’s father, who suggested that what they did was totally out of character. His Honour took that evidence into account but highlighted the gravity of the offence and the fact that a life had been lost. He noted that sentences for all homicide cases had been increasing over the years. In his Honour’s view the National Court has been for far too long too lenient in its sentencing for manslaughter. He rejected outright the submission by the defence counsel, Mr Titus, that a sentence of five years should be imposed.

14. His Honour cited with approval the statement by Amet J as he then was, in The State v Rex Lialu [1988-89] PNGLR 449, that:

... Sentences for manslaughter must be relatively higher than sentences for rape and robbery to reflect the importance and sanctity of the lives given by God which no man has the right to take or deprive prematurely.

15. His Honour highlighted the following mitigating factors:

· they were young, but not juvenile, offenders;
· they are first time offenders;
· they readily admitted their guilt;
· they surrendered to the police;
· they co-operated with the police by admitting their guilt;
· they expressed remorse in court;
· they had participated in a ceremonial feast known as Takono, given food and other goods plus K16,000.00 cash to the deceased’s family, which has restored peace and normalcy in the village and between family members.

16. Though the amount of compensation was large his Honour said that this was not a significant mitigating factor:

The primary purpose of customary compensation is to restore a harmonious relationship and peace. While it may be considered in mitigation, it should never be allowed to be a substitute for criminal sanctions because in doing so, we would be creating a very dangerous precedent where the rich and powerful will escape criminal culpability whilst the poor and the weak languish in prison. In my view this is not the purpose of the criminal law.

17. As to the fact that both the offenders were intoxicated at the time of the incident his Honour rejected any notion that this could be a mitigating factor. Their intoxication was self-induced and therefore it was an aggravating factor.

18. Another aggravating factor was that a weapon, a knife, was used to inflict the injuries that caused the death of the deceased. His Honour reiterated that it was the fact that a life had been lost that meant that the sentence had to be high:

No amount of compensation or no degree of expression of remorse will restore the life that has been taken. Life is precious and it is the sanctity of life that must rule paramount in considering what is appropriate in a given case.

19. His Honour did not discuss the possibility of giving the offenders different sentences due to their respective degrees of involvement in the deceased’s death; and the defence counsel did not make a submission to that effect. His Honour concluded that they should each be sentenced to 14 years imprisonment on the manslaughter conviction.

20. As for the unlawful wounding, his Honour imposed a sentence of one year each, which was made concurrent with the 14 years sentence. The total sentence for each offender was therefore 14 years, less their pre-sentence period in custody of three months and 10 days. They were ordered to serve the balance of 13 years, eight months and 20 days in custody.

THE APPEAL

21. The grounds of appeal are that the trial judge erred in fact and law by failing to give consideration to:

1 the nature and frequency of the attack on the deceased in that the appellant did not touch or strike the deceased and the appellant did not deliberately set out or plan to hurt the deceased;

2 the crushing effect that a sentence may have on the appellant given his age;

3 the appellant’s good background and previous good record;

4 the appellant’s lack of prior convictions;

5 the appellant’s co-operation with the police;

6 the guilty plea and expression of remorse;

7 the loss of a cousin-brother and relative, ie the deceased was the appellant’s cousin-brother;

8 the traditional compensation and restoration ceremony initiated by the appellant and his family;

9 the fact that the confrontation arose from provocation in the non-legal sense in that the appellant genuinely believed that he had been cursed;

10 the punitive effect of the apprehension, arrest, appearances in court, publicity and shame to the appellant’s family and kinsmen;

11 the aggregate effect of the aggravating and mitigating factors;

12 the lack of evidence that alcohol was consumed for the purpose of facilitating the attack on the deceased;

13 the proper principles governing sentencing in manslaughter cases in that his Honour gave too much emphasis to increases in sentences and the perceived leniency of the courts in sentencing for manslaughter.

22. When the appeal was argued the appellant placed greatest emphasis on two grounds:

·No 1 – that he did not assault or attack the deceased and had no plan to hurt the deceased or his brother;

·No 9 – that he was provoked as his aunty, Rebecca, had put a curse on him.

23. He did not abandon the other grounds of appeal but did not elaborate on them and left it to the court to determine them.

24. Are the grounds of appeal properly before the Court?

25. The appellant is appealing against the sentence passed on conviction. According to Section 22(d) of the Supreme Court Act he needs the leave of this court to do that. However, in Jim Kas v The State (1999) SC772 the Supreme Court apparently decided by a 3:2 majority (Amet CJ, Woods J, Los J; Kapi DCJ, Sakora J dissenting) that Section 22(d) is unconstitutional; which means that leave to appeal against sentence is not required. That view was followed in William Dot Norman Parkop and James A Make v The State (1999) SC621, Jalina J, Sevua J, Kirriwom J. However, there has been little judicial comment on the position taken by the majority in Kas. That would not matter much if the judgments of the majority in Kas had been published. But they have not been. Only the dissenting judgments of Kapi DCJ (as he then was), and Sakora J have been published. We tend to think that this issue needs a thorough re-examination. We will presume for the purposes of the present case that leave is required. The sentence of 14 years imprisonment is a substantial one and at least one of the grounds of appeal (No 1) raises an important point of principle regarding sentencing co-offenders for manslaughter. It would be in the interests of justice to assess the appropriateness of the sentence. We grant leave to the appellant under Section 22(d) of the Supreme Court Act to prosecute the appeal. The appeal is therefore properly before the court.

PRINCIPLES REGARDING APPEALS AGAINST SENTENCE
26. Before determining the grounds of appeal we will set out the principles that this court must apply when deciding whether an appeal against sentence should be allowed. The governing provision is Section 23(4) of the Supreme Court Act, which states:

On an appeal against sentence, if the Supreme Court is of opinion that some other sentence, whether more or less severe, is warranted in law and should have been passed, it shall quash the sentence and pass the other sentence in substitution for it, and in any other case shall dismiss the appeal.

27. The approach to take when hearing appeals against sentence was set out by Kearney J in Norris v The State [1979] PNGLR 605 (at 612-613):

So the question in practice on a sentence appeal is usually this — has the appellant shown that an error occurred which has the effect of vitiating the trial judge's discretion on sentencing? Such an error may be identifiable: thus, the trial judge may have made a mistake as to the facts; or acted on a wrong principle of law; or taken into account matters which he should not have taken into account; or failed to take into account matters which he should have taken into account; or clearly given not enough weight or too much weight to a matter he properly took into account. There will also be vitiating errors if upon the proved facts and making the fullest allowance for the advantaged position of the trial judge, the sentence is obviously (and not merely arguably) excessive, although no identifiable error can be shown; for, if a sentence is out of reasonable proportion to the circumstances of the crime, even though no particular error can be identified, this Court will infer that some error must have occurred in the exercise of the sentencing discretion.

28. Thus there are two steps involved.

Question 1 – Has the trial judge made an identifiable error which has the effect of vitiating (making invalid) the sentence? That is, has the trial judge made a mistake on the facts? Applied a wrong law or taken account of an irrelevant consideration? Failed to take account of a relevant consideration? Clearly given too much weight or too little weight to a relevant factor?

If yes, the Supreme Court is entitled to quash the sentence and substitute it with the sentence which in its opinion is warranted in law and should have been passed. The new sentence can be more or less severe than the original sentence. (See Lawrence Hindemba v The State (1998) SC593, Supreme Court, Woods J, Injia J, Sawong J, discussed below.) If no, the Supreme Court should proceed to question 2.

Question 2 – Is the sentence obviously (not merely arguably) excessive (or lenient)? That is, even though no particular error by the trial judge can be identified, is the sentence out of reasonable proportion to the circumstances of the crime?

29. If yes, the Supreme Court is entitled to quash the sentence and substitute it with the sentence which in its opinion is warranted in law and should have been passed. The new sentence can be more or less severe than the original sentence. (See Hindemba’s case, discussed below.) If no, the trial judge will have imposed a correct sentence. The appeal against sentence will be dismissed.

THE MAJOR ISSUES IN THIS CASE

30. In light of the 13 grounds of appeal and the way in which the appellant asked the court to address them, the major issues are:

·Did the trial judge err by failing to consider the crushing effect of the sentence, the appellant’s good background etc?

·Did the trial judge err by failing to consider that there was provocation in the non-legal sense?

·Did the trial judge err by failing to consider the lower degree of involvement of the appellant in the killing of the deceased?

·Should the sentence be varied?

APPELLANT’S SUBMISSIONS

31. The appellant’s main argument was that he should have got a lesser sentence than his co-offender, Yokin Pokawin, as he, the appellant, was not the one who stabbed the deceased. Nor, he says, did he assault or attack the deceased in any way. His other main argument is that the trial judge took no account of his genuine belief that his aunty had put a curse on him. His other arguments were to do with the trial judge’s failure, he submitted, to consider all the circumstances of the case.

RESPONDENT’S SUBMISSIONS

32. Ms Zurenuoc, for the State, submitted that the trial judge had considered all the circumstances of the case and made no errors in the exercise of his sentencing discretion. As for the argument that the appellant had a lesser degree of involvement in the killing of the decreased, that may be so but he was convicted of the same crime as his co-offender so he should receive the same sentence. Ms Zurenuoc relied on the judgment of the Supreme Court in Gimble v The State [1988-89] PNGLR 271 in support of that proposition.

FIRST ISSUE: DID THE TRIAL JUDGE ERR BY FAILING TO CONSIDER THE CRUSHING EFFECT OF THE SENTENCE, THE APPELLANT’S GOOD BACKGROUND ETC?

33. This issue relates to the 11 grounds of appeal that were not pressed strongly at the hearing of the appeal.

34. Ground No 2 – the crushing effect of the sentence – was not necessary to consider as the sentence of 14 years on a person aged only 22 at the time of the sentence cannot be considered crushing. Even if he serves the full period of the sentence he would still be a young man of 36 when he is released.

35. Ground No 3 – failure to consider previous good record – cannot be sustained as his Honour expressly took that into account. In fact he said he found it hard to believe that so many distinguished people were saying such good things about the appellant, yet he had committed a violent crime; the only explanation being that he was under the influence of alcohol.

36. Ground No 4 – failure to consider lack of a criminal record – was expressly considered by the trial judge.

37. Ground No 5 – failure to consider co-operation with police – was expressly considered by the trial judge.

38. Ground No 6 – failure to consider guilty plea and expression of remorse – was expressly considered by the trial judge.

39. Ground No 7 – failure to consider loss of cousin-brother – is a spurious ground of appeal. The appellant had been convicted of unlawfully killing his cousin-brother so it is illogical for this to be put forward as a mitigating factor.

40. Ground No 8 – failure to consider compensation and reconciliation – was carefully considered by the trial judge. We agree with and endorse his Honour’s comments.

41. Ground No 10 – failing to consider the punitive effect of the appellant’s arrest and trial – is another spurious ground of appeal. Publicity and shame of offenders and their families are a natural consequence of criminal proceedings. There was no need for the trial judge to consider this as a mitigating factor.

42. Ground No 11 – failing to assess the aggregate effect of the aggravating and mitigating factors – is a difficult ground to grasp. It seems to be suggested that the trial judge failed to exercise his discretion judicially by failing to weigh the aggravating and mitigating factors. That being the case, we reject this ground of appeal as his Honour clearly gave this case careful consideration. The deceased met a violent death and the sanctity of his life was violated needlessly.

43. His Honour’s judgment was overall a careful and considered one.

44. Ground No 12 – finding that alcohol was consumed for the purposes of facilitating the attack on the deceased – is misconceived as the trial judge did not say that. His Honour said that the fact that the appellant was drunk could not be a mitigating factor. In fact it was an aggravating factor as the appellant’s intoxication was self-induced and he remained responsible for his actions even though he was intoxicated. We agree with and endorse his Honour’s treatment of this issue.

45. Ground No 13 – too much emphasis to increases in sentences for manslaughter – is misconceived. His Honour was stating a fact by commenting that the sentences being imposed these days for the crimes of manslaughter, murder and wilful murder are higher than they ever have been. It was something that he properly took into account.

46. We have thus considered each of the above grounds and can find no error by the trial judge in the ways contended for by the appellant.

SECOND ISSUE: DID THE TRIAL JUDGE ERR BY FAILING TO CONSIDER THAT THERE WAS PROVOCATION IN THE NON-LEGAL SENSE?

47. If an offender wants to rely on some form of provocation in the non-legal sense, he or she will usually need to show that the deceased did or said something that provoked the killing, falling short of raising a defence of provocation. Here the appellant argues that his aunty, Rebecca, provoked him by putting a curse on him. Assuming that she did put a curse on him, that did not entitle him to assault her. If he genuinely believed that she had cursed him then he should have resolved that grievance by peaceful means through normal customary procedures in the village; or taken the matter to the Village Court. The other problem with the argument is that the deceased offered no provocation to the appellant or his co-offender.

48. This ground of appeal is misconceived. The trial judge did not err by failing to consider that there was provocation in the non-legal sense.

THIRD ISSUE: DID THE TRIAL JUDGE ERR BY FAILING TO CONSIDER THE LOWER DEGREE OF INVOLVEMENT OF THE APPELLANT IN THE KILLING OF THE DECEASED?

49. This is an important issue. There was a significant difference in the degrees of involvement of the appellant and his co-offender, Yokin Pokawin, in the killing of the deceased. The appellant started the chain of events that led to the death of the deceased. He assaulted his aunty and fought with Polum. He then informed Yokin what had happened. Yokin and the appellant then went to Rebecca’s house and Yokin assaulted Rebecca. The appellant and Yokin fought with Polum. In the fight Yokin pulled out a knife from his waist and stabbed Polum in the back. Polum was wounded but not fatally. The appellant then, together with Yokin, fought with the deceased, Polomon Pokep. However, the appellant did not stab the deceased, and it was the stabbing that directly caused his death. Yokin’s degree of involvement was much greater. He was the one who stabbed Polum and then Polomon.

50. The trial judge evidently did not consider that the difference in the degrees of involvement was a relevant factor to take into account in the exercise of his sentencing discretion. In taking that approach his Honour acted consistently with the approach he took in The State v Wesley Nobudi, John Lulu Evoa and Franky Yalikiti Fravo (2002) N2510. In that case the three co-offenders were convicted after pleading not guilty of wilful murder of a man preparing to go to work at Gerehu in the National Capital District. The co-offenders were members of an armed gang who stole the deceased’s vehicle. One member of the gang – not one of the co-offenders – shot and killed the deceased in the course of the robbery. His Honour held that though their degree of participation in the crime was less than the main perpetrator they should receive the same sentence, life imprisonment.

51. Support for that sort of approach is also to be found in the Supreme Court’s judgment in Gimble and Others v The State [1988-89] PNGLR 271. That case concerned an armed gang robbery of the San Remo Club at Kimbe, West New Britain. The court held that all members of the gang should receive the same sentence irrespective of whether they actually charged into the club, terrorised, and stole from members and guests or whether they were watchmen outside, playing a relatively passive role in the robbery:
The general rule is that all active participants in the crime shall be sentenced on the same basis. The Court does not normally stop to consider whether a particular prisoner actually held up the victim, or held the gun, or the iron bar, or was a watchman outside, or was the driver of the get-away vehicle. All are equally guilty because without each playing his part the crime could not be perpetrated.

52. By contrast, there is a series of cases, mostly decided in the National Court, in which various judges have expressed misgivings about treating all co-offenders in the same way, irrespective of their degree of involvement in the crime. In those cases different sentences have been imposed that take account of the different antecedents of the co-offenders (whether each one is a juvenile, whether they have prior convictions etc) and their level of involvement in commission of the crime. Support for this sort of differential sentencing can be found in the pre-Independence Supreme Court decision in Winugini Urugitaru v The Queen [1974] PNGLR 283, where it was held:

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. ... The court may also have regard to factors connected with the actual commission of the crime. [Emphasis added.]

53. In The State v Morobet Awui Koma & Peter Kevin [1987] PNGLR 262, Wilson, J stated:

... the essential starting point in determining punishment is to fix the culpability or blame worthiness of the prisoner.

54. In The State v Tom Keroi Gurua, David Laiam Bawai and Joseph Nimagi (2002) N2312 Kirriwom J sentenced three young men for a murder committed at Wau, Morobe Province, in the course of robbery of a church gathering. Two of them were directly involved in killing the deceased, while the other had a more passive involvement. His Honour examined the competing approaches to sentencing in some detail and noted the passage from Gimble’s case quoted above and stated:

There is no question that the decision of the Supreme Court is binding on the National Court. But, with all due respect, I think that passage is misleading in that it gives the impression that all co-offenders in joint criminal ventures or enterprises must be sentenced equally, which could be construed to mean that they must all receive the same sentence regardless of their degree of participation or criminality and personal circumstances. If this interpretation is correct, with respect, it would not auger well with accepted sentencing principles and practices that this court has always followed and adhered to in offences involving multiple offenders with varying degrees of criminal culpability. ...

The law on sentencing of two or more persons charged and convicted together for the same offence is largely determined according to the level of their criminal culpability or the degree of their participation and their individual circumstances. This is referred to as the parity principle and the passage in Gimble’s case needs to be clarified. There is no doubt that it applies more appropriately to the issue of guilt or innocence but not so in sentence. A grave injustice could result. ...

In the case of The State v Tony Pandau Hahuahoru (No 2) (2002) N2186 ... the following remarks made by the trial judge are worthy of noting, as they seem to correctly reflect the law. After referring to a number of Papua New Guinea cases like Winugini Urugitaru v The Queen [1974] PNGLR 283; Goli Golu v The State [1979] PNGLR 653 and Andrew Uramani & Ors v The State [1996] PNGLR 287 Kandakasi, J concludes:

A consideration of all these authorities shows 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 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.

I note that the view his Honour expressed represents the current legal position not only in this jurisdiction but universally. In Mario Postiglione v The Queen [1997] HCA 26; (1997) 189 CLR 295, Dawson and Gaudron, JJ said at 301 – 302:

The parity principle upon which the argument in this Court was mainly based is an aspect of equal justice. Equal justice requires that like should be alike but that, if there are relevant differences, due allowances must be made for them. In the case of co-offenders, different sentences may reflect different degrees of culpability or their different circumstances. If so, the notion of equal justice is not violated. ...

55. Kirriwom J sentenced two of the offenders to 50 years imprisonment and the other one to 20 years; the different sentences being due to their different degrees of involvement in the murder.

56. The table below summarises a number of other recent National Court cases in which different sentences have been imposed on co-offenders.

TABLE 1: EXAMPLES OF DIFFERENTIAL SENTENCING FOR CO-OFFENDERS, TAKING INTO ACCOUNT DIFFERENT DEGREES OF INVOLVEMENT

No Case Details Sentences (years)

1 The State v Edward Toude and 3 Others (2001) N2299
Kandakasi J Robbery of a ship – trial judge identified ringleader of gang and gave him higher sentence. 20, 17,17, 17

2 The State v Ben Wafia, George Wena, Simon Konga and Leslie Puka (No 2) (2004) N2547. Kandakasi J Inciting mutiny – trial judge took into account the degrees of involvement of the co-offenders as well as their personal antecedents. 15, 15,5, 5.

3 The State v Eki Kondi, Mike John, Allan Nemo, Kelly Sop Kondi and Isaac Sip (No 2) (2004) N2543. Kandakasi J Gang abduction and rape – broad daylight – offenders armed with bush knives – threats of violence to third parties and commission of other offences – conviction after trial – sentences varied depending on degree of participation and age.25, 22, 20, 18
4 The State v Garry Sasoropa, John Aremeiko and Mathew Melton (No 2) (2004) N2569. Kandakasi J. Gang rape of girlfriend and relative – repeated acts of rape – conviction after trial – two first time offenders –one with prior conviction. 25, 22, 22.

5 The State v Mark Kanupio, Balwin Kining, Peter Pasikio, Steven Lipilas and Paul Nowor (2005) N2800. Cannings J Manslaughter – gang attack on an unarmed man – different sentences imposed due to different levels of involvement – two of the co-offenders stabbed the deceased, the others hit him with non-lethal blows.15, 7,4, 4,3.

6 The State v Anos Naime Maraga, Hariki Badi and Gaigo Arua (2002) N2433. Gavara-Nanu J Wilful murder – deceased killed by detonation of explosive device at Tatana/Baruni junction, National Capital District – different sentences due to degree of involvement. 21, 19,16

57. We believe that the approach taken in the above National Court decisions is the preferable one. Each person who has been convicted of an offence must have their sentence determined by the particular individual circumstances; and this means that the trial judge must make an assessment of their degree of participation in the crime that was committed. The trial judge should specifically address this factor in the course of exercising his or her discretion as to an appropriate sentence. If account is not taken of this factor – especially in cases where co-offenders clearly have had differing degrees of involvement – it is likely that an error will have been committed in the exercise of the sentencing discretion. The punishment must fit the crime.

58. In the case of manslaughter, where co-offenders have fought with or attacked the deceased, and one or more of the co-offenders has not done anything to directly kill the deceased, it is necessary to take into account their respective degrees of involvement in order to arrive at a fair sentence.

59. In the present case, the trial judge did not take account of the different degrees of involvement of the co-offenders. With respect, his Honour erred in that regard as the two co-offenders had markedly differing levels of involvement. One of them directly killed the deceased by stabbing him. The other – the appellant – was involved in the fight with the deceased but did not stab him. In fact, he claimed that he did not even strike him in any way. As he had pleaded guilty the appellant should have been given the benefit of the doubt on that issue of fact. We conclude that the trial judge failed to take account of a relevant consideration. His Honour with respect made an identifiable error which has the effect of vitiating the sentence.

FOURTH ISSUE: SHOULD THE SENTENCE BE VARIED?

60. Yes, we consider the appellant’s sentence should be varied. It should be reduced to a number of years below that of the co-offender. In determining the amount of the reduction, we will first of all comment on the sentence imposed on the appellant’s co-offender. Fourteen years for the unlawful killing, by stabbing, of an innocent man who had in no way provoked the attack upon him was not an excessive sentence. If anything it was a lenient sentence. However, the sentence on the co-offender is not the subject of this appeal and in any event we can detect no error by the trial judge in the course of arriving at that sentence. It was a correct sentence for the co-offender.

61. When a comparison is made between what the co-offender and the appellant did, we consider that the degree of culpability of the appellant is only about half of that of the co-offender. On the other hand, it is important not to lose sight of the fact that it was the appellant who started the chain of events that led to the tragic death of the deceased. In all the circumstances, we are of the opinion that a less severe sentence for the appellant is warranted in law and should have been passed. We will quash the sentence of 14 years and pass in substitution for it a sentence of eight years imprisonment.

JUDGMENT

62. The Supreme Court upholds the appeal and directs entry of judgment in the following terms:

1 allows the appeal against sentence by the appellant Ignatius Natu Pomaloh;

2 quashes the sentence of 14 years imprisonment; and

3 passes in substitution for it a sentence of eight years imprisonment.

Judgment accordingly.
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Public Prosecutor: Lawyer for the Respondent