Unreported National Court Decisions
N949
PAPUA NEW GUINEA
[NATIONAL COURT OF JUSTICE]
CR941/90, CR610/90
THE STATE
V
WALLEN YAMEVI & KEM DANO
Goroka
Brunton J
2 November 1990
5 November 1990
CRIMINAL LAW- Criminal Code s300(1)(b) - sentencing - killing during an armed robbery - shotgun - relatively young first offenders - plea of guilty.
Sentence:
Fourteen years in hard labour, less six months on remand. To serve thirteen years and six months.
Cases cited:
William Ukukul Gimble -v- The State [1989] Unreported Judgement SC.369.
R -v- Steward and Williams [1979] 1 Cr App 793
The State -v- John Gapaiho [1990] Unreported Judgement N880.
The State -v- Eddie Kava Laura [1989] Unreported Judgement N693.
The State -v- Kenneth Baupo and Fabian Girida [1989] Unreported Judgement N795.
The State -v- Mark Keroa Nentepa, Dokta Kewa and Wat Pena [1990] Unreported Judgement of 18th of April 1990.
Counsel:
Mrs C Ashton-Lewis: For the State
Ms R Johnson: For the prisoners
JUDGEMENT ON SENTENCE
BRUNTON J:
THE INDICTMENT
The prisoners pleaded guilty to one count each of the murder of Rose Bobola, contrary to s300 of the Criminal Code.
THE FACTS
The brief facts on which the prisoners were arraigned (which were altered following the allocutus when the State made certain factual concessions) were that in the middle of April this year Kem Dano borrowed a Winchester Shot-gun from a villager. At about 2pm on the 15th of April he met with five other persons, including Wallen Yamevi and made a plan to hold up a coffee-buyer and steal the monies. Later that day they all went to the entrance of Bobola Coffee Plantation. The prisoners were in a group of watchmen away from a separate group who had the shot-gun, and another home-made gun. When a vehicle was seen to approach, the prisoner’s group whistled to the other group a warning. Two armed men then tried to flag the vehicle down. The vehicle did not stop - it sounded its horn and drove on; as the vehicle passed the armed men the Winchester Shot-gun was discharged into the driver’s side of the vehicle. The shot went through the driver’s side window and hit the driver on the right side of the face and neck. She died more or less instantly.
At about 5.30pm Rose Bobola had dropped Patricia Bobola off at the Hospital. She then went to the Bena Vista restaurant to drop off a person call Paul. She went back to the hospital after doing some shopping, collected Patricia, and with her two children began to drive to her house at Magia Farm. Near Kama it was getting dark, she put on her lights and as they began to climb a hill passed the Medecine Bridge, two armed men appeared from round a corner. Patricia told Rose Bobola to stop - Rose Bobola said “No way” and kept on driving. As the vehicle came level with the robbers a shot was fired and Rose Bobola was killed.
The cause of death was given as respiratory arrest from a shattered windpipe and exsanguination to death from haemorrage as a result of severed cartid arteries and internal jugular veins, caused by a shotgun wound.
SENTENCING PATTERNS AND PRINCIPLES:
The sentencing patterns for killings that have taken place during armed robbery have risen sharply in the past two years. Whereas in 1988, a killing in the course of a highway robbery would attract a sentence of six years, by 1990 a killing in the robbery of a house attracted a sentence of 22 years (robbery 10 years, cumulatively on a sentence of 12 years for manslaughter).
Brutal and deliberate killing in the course of a robbery, as distinct from incidental killings in robberies which sadly go wrong as when a criminal panics, or a victim offers unexpected resistance, have always attracted the highest tariff life imprisonment.
The sentencing practice is a reflection of the times. Although on average the sentence for an armed robbery in which no one was hurt is about three to four years imprisonment, sentences for robbery with aggrevating circumstances have risen to around six to eight years, with sentences of up to twelve years being imposed were the robbery shows sophisticated planning and large amounts of money having been stolen, or where excessive violence, or rape have occured.
The following is a schedule of sentencing practice over the past two years for offences of killing during an armed robbery, and of armed robbery itself.
 	Schedule	 	
1988	 	 	
Murder	 	 	
1.	Bredmeyer J during armed hold-up of Plantation Manager	Life	
2.	Woods J stabbing highway hold-up of a PMV, accused not principles	6 yrs	
3.	Los J highway robbery of wages vehicles	6 yrs	
Robbery, highest sentences	 	 	
4.	Kidu CJ armed hold-up of PMB	6 yrs	
5.	Kidu CJ armed hold-up stole victims personal belongings	6 yrs	
6.	Woods J coffee buyer robbed and assaulted	7 yrs	
7.	Woods J stopped car robbed occupants of cash and car. No violence	6 yrs	
8.	Woods J gang held up storekeeper and stole from his house and store	8 yrs	
9.	Hinchliffe J held up PMV on the highway	6 yrs	
10.	King AJ held up car as it stopped at house gates	7 yrs	
11.	Woods J Lae airport robbery	12 yrs	
1989	 	 	
Wilful Murder	 	 	
12.	Hinchliffe J Policeman and BMS Clerk killed at Garaina; followed sentence of a co-accused by another judge	12 yrs	
Murder	 	 	
13.	Hinchliffe J plea/trial old man killed during plantation robbery	Life	
Robbery, highest sentence	 	 	
14.	Amet J armed gang, escapees, held up truck, stole it, and crashed it	7 yrs	
15.	Woods J tradestore held up; guns used	7 yrs	
16.	Woods J armed robbery of plantation manager, violence used	9 yrs	
18.	Hinchliffe J armed robbery in home shotgun used	7 yrs	
19.	Miriung J armed robbery of private house	6 1/3 yrs	
20.	Andrew J att holdup in a home; shot victim	6 yrs	
21.	Andrew J broke into house and robbed victim	6 yrs	
1990	 	 	
Murder	 	 	
22.	Ellis J plea attempted break in victim stabbed	6 1/2 yrs	
Attempted Murder	 	 	
23.	Konilio J trial; robbery of shop; Manager shot and stabbed	8 yrs	
Manslaughter	 	 	
24.	Amet J plea; robbery 10 years, cumulatively on 12 year manslaughter	22 yrs	
25.	Brunton J plea co-accused of Case 2 (above); young offender already served 2 yrs for possession of firearm used in the holdup; total to be served 6 years	4 yrs	
Robbery: highest sentences	 	 	
26.	Amet J trial; robbery of supermarket	6 1/2 yrs	
27.	Woods J gang blocked road; shotguns used; robbery driver, abducted passenger and raped her	10 yrs	
28.	Konilio J armed with guns and knives held up plantation labour	6 yrs	
29.	Ellis J trial; robbery of trade store; bystander cut with a knife	6 yrs	
30.	Ellis J plea; armed hold up of Pine Lodge accused with a prior conviction	7 yrs	
31.	Brown J plea; robbery of Works and Supply pay office; gun fired; prior	7 1/2 yrs	
32.	Jalina J trial; robbery of Westpac agency Waigani	6 yrs	
33.	Doherty J trial; large gang held up and robbed a store	6 yrs	
34.	Doherty J plea; drunk with others robbed a club and store; 2 counts	6 yrs	
35.	Andrew J trial; robbery of a store by a large gang	6 yrs	
36.	Andrew J trial; robbery of a coffee buyer, shotgun used	6 yrs	
37.	Salika J plea; bank robbery	6 yrs	
38.	Ellis J trial; gang robbery of a club	6 yrs	
39.	Sheehan J bank robbery	6 yrs	
In William Ukukul Gimble -v- the State [1989] Unreported Judgement SC.369 the Supreme Court set down guidelines for sentencing in cases of armed robbery. The robbery of a vehicle on the road, by a group of young first offenders, on a trial, was indicated to attract a sentence of five years imprisonment. A lesser sentence was appropriate in uncontested cases. Where actual violence was used, large amounts of property stolen, or there were other aggravating circumstances, higher sentences were consider to be appropriate.
One way of approaching the sentence in a case of killing in the course of an armed robbery would be to apply the principles of Gimble’s case, and then add an appropriate increment, on top of the tariff for robbery, to reflect the fact that a life has been taken. The increment could be ascertained by analogy to the principles in R -v- Steward and Williams [1979] 1 Cr App 793, which deals with the sentencing of manslaughter cases, and was cited in my judgement The State -v- John Gapaiho [1990] Unreported Judgement N800. The size of the increment would be determined by the nature of the killing; for a brutal and or deliberate killing a larger increment cumulating somewhere around the maximum available sentence of life imprisonment, or in the worst cases, life imprisonment. A killing that did not have deliberation, planning, cruelty, but rather had an element of the incidental, accident, stupidity, or negligence, a somewhat lower, increment would be justified.
The word “somewhat” is used deliberately, because I have the view that where guns are used in a robbery the chances that some one will get hurt, or killed are quite real, and that even if the offenders did not expect to kill, if a killing does occur incidently, then they cannot expect too much leniency or mercy. The gap between a deliberate killing, as with wilful murder, and an incidental killing as when the accused armed with pistols and shotguns hold up a PMV is not great. The likelihood of someone getting killed is real.
There is now a generally accepted tariff for murder. The principles are that there should be some difference between the sentences for unintentional killings, manslaughter, and for murder. In the case of murder where there are no special aggravating factors, and the accused pleads guilty the starting point is six years imprisonment. The State -v- Eddie Kava Laura [1989] Unreported Judgement N693 Kidu CJ. In that case, on a trial, a seventeen year old youth, a first offender stabbed an unarmed man to death. The accused showed no remorse. The sentence was eight years. In cases where there are aggravating circumstances a higher sentence will be imposed. Armed robbery is an aggravating circumstances, and in particularly brutal armed robberies the maximum sentence will be imposed. In the State -v- Kenneth Baupo and Fabian Girida [1989] Unreported Judgement N795 a sixty-three year old man was stabbed in the course of a robbery and when another victim attempted to go to his aid he was threatened and ordered at the point of a gun to get the money out of the safe. Later a shot was fired at this victim. Hinchliffe. J imposed life sentence on the two young offenders.
In the case of the State -v- Mek Keroa Nentepa, Dokta Kewa and Wat Pena [1990] Unreported Judgement 18th of April per Amet J the prisoners pleaded guilty to robbing a house and stealing a motor vehicle, the unlawful use of the motor vehicle, and to the manslaughter of the owner, the Minister for Communications Malipu Balakau. They were sentenced to ten years for the armed robbery and twelve years for the manslaughter, sentences to be served cumulatively. The unlawful use of the vehicle attracted a one year sentence which was made concurrent to the robbery sentence. The total sentence was twenty-two years.
It may well be that the severity of this sentence was a result of the State deciding to charge the prisoners with three separate but related offences, and that the cumulative effect of that on the sentencing process was to result in a high term of years. Whatever else may be thought about that, and with respect to His Honour I say nothing more, the case did represent a significant increase in the effective sentence that could be imposed in cases of killings that arise from armed robbery. On that general point, with respect, I agree. His Honour went to some lengths to stress that the sentence did not reflect the fact that the victim was a cabinet minister, and in my view the increase in tariff is of general applicability, when seen in rounded-off terms.
In the case before me both prisoners have pleaded guilty to a single count of murder. It is not one of the ‘worst cases’. Both are relatively young first offenders. They were not the person who pulled the trigger. But they were involved in a plan to hold up the Babola coffee plantation payroll. They say they never intended to kill anybody. They have said in open court that they are genuinely sorry for what they have done, and I accept they are now truly sorry. They have assisted the police.
I am prepared to accept that this is a case of a group of youngsters embarking on a venture to carry out a holdup. That there was an element of adventure, of bravado about it, and that in the way of some young men in this province, they thought it was to be exciting. This is part of the mentality met in other cases, and in the Corrective Institutions, an unthinking, unreflective, simplistic, ideal about crime and its consequences held by youth.
But against this is the untimely death of Rose Bobola. She was a mother and a businesswoman, well-known in and around Goroka. A family has lost a mother, a sister, a daughter, and a community has lost a woman who had made a mark for herself. To these people it is not enough to point out that the killing was unintentional, or that it was nothing more than the consequences of unreflective youth.
Then there is the community at large. First there is the need to protect people from the fear of being held up on the roads as they go about their lives. The community are entitled to think that the courts will not be lenient when some one is killed as the result of a planned highway robbery.
Also there is a need to deter other youths who think that “hansap” is something akin to a game. Armed robbery is a deadly activity; the chances are that some one will be hurt or killed. While it is my view that the court can afford to be lenient in cases which do not have circumstances of aggrevation, clearly in those cases in which a person is killed that cannot be the case.
The principles upon which the sentence is based, are the need for deterence and the need to punish the prisoners for what they have done. I take into account that they have pleaded guilty. In my view this is significant because the system cannot function if it is overloaded with trials, and it is a matter of major assistance to the State and the Community when offenders admit their guilt. Had the prisoners been convicted on a trial I would have considered a sentence of about sixteen years would be appropriate. Here they have pleaded guilty and shown genuine remorse. They are both sentenced to fourteen years imprisonment with hard labour. A period of six months is deducted, being approximately the period they have spent on remand. They are to serve another period of thirteen and a half years.
The prisoners have a right to appeal this sentence to the Supreme Court. If they wish to appeal they must lodge the appeal applications within forty days of today’s date.
Lawyer for the State: The Public Prosecutor
Lawyer for the Prisoner: The Public Solicitor