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State v Tai [1997] PGNC 91; N1756 (1 August 1997)

Unreported National Court Decisions

N1756

PAPUA NEW GUINEA

[NATIONAL COURT OF JUSTICE]

CR. NO. 754 OF 1997
THE STATE
V
FRANCIS J. TAI

Waigani

Kirriwom J
30 July 1997
1 August 1997

CRIMINAL LAW – Armed robbery and abduction – Sentence – Circumstances of aggravation – Youthful offenders – Prevalence of offence – Need for deterrence.

Counsel

Mr Pitpit Lawyer for the Defence

Mr Wetao Lawyer for the State

SENTENCE

1 August 1997

KIRRIWOM J: Francis John Tai of InisiaVillage, Okapa, Eastern Highlands Province pleaded guilty to one count of robbery under section 386 (1) & (2) of the Criminal Code and one cof a abduction under section 350 (1) (a) (i) of the Criminal Code.

The facts of this case are as follows: On the evening of 29th January, 1997 at Morata, the accused and his four friends after drinking some beer decided to walk to Erima Settlement via Morata No. 2. It was about 12 mid-night. Along the way they saw a tucker-box just closing down for business. They all rushed towards the tucker-shop with the intention of holding-up the occupants in it. They tried to force open the door but to no avail because those inside successfully forced back the door. They then gave up and turned onto the dwelling house at the back of or near the tucker-shop. They pushed open the door and entered and found only two helpless women. They demanded money from them but both had no money so instead the accused and his friends stole two bilums (string bags) and some clothing items, totalling in value of K84.00.

The accused and his friends were armed with a home-made pistol, bush-knives and a iron bar. The accused was armed with a iron bar.

The person with the home-made pistol indecently assaulted the woman known as Magdalene Jerry by putting his fingers into her private parts. He then forced her out of the house and took her further away with the intention of raping her but did not get his wish fulfilled because the woman called out to the occupant of a near-by house, at which instance the boy hit him on the mouth and ran away. The other woman Agnes Angawi fought with her assailants as they tried to pull her away. In the course of this fight she was hit on the head with a iron bar by the accused Francis John Tai and she received a cut. She managed to escaped from them and returned to the tucker-box where she alerted the men who immediately set out looking for Magdalene Jerry and the gang. The accused Francis John Tai was captured sleeping in his house at Erima in the early hours of the morning of 29th January, 1997 with the co-operation of his father.

On the facts before me the accused could also be criminally liable for break enter and steal and unlawful wounding or assault occasioning grievous bodily harm. The State decided to proceed against him on only two charges, vis-a-vis, armed robbery and abduction. The accused therefore pleaded guilty to these two counts in the indictment and I shall deal with him accordingly.

The offence of armed robbery carries a maximum penalty of life imprisonment under s. 386(2) Criminal Code. In Gimble -v- The State (1988-89) PNGLR 271, robbery of a dwelling house by young first offenders armed with dangerous weapons, the starting point is seven years imprisonment with hard labour. This is in a contested case. However, if it is a plea, the sentence may be lessen. The Supreme Court considered robbery of a house as the most serious category of robbery cases and says:

“We consider that the robbery of the occupant of a house is more serious than robbery of a store or business because it is an invasion of privacy and family life. One of the basic rights enshrined in the Constitution is ‘protection for the privacy of their homes.’ A man’s home, whether a mansion or a shack, is his castle and we think the punishment for robbery of a home should reflect those community values.”

This particular robbery is further aggravated by the fact that the occupants were indecently assaulted with the use of force and serious grievous bodily harm was inflicted upon them. In other words there was actual violence used. So the fact that the accused pleaded guilty to the charge does not make much impact as if the offence is unattended by aggravation.

Offences of armed robbery by young first offenders is on the rapid climb particularly by person between the ages of 13 - 22, not only in Port Moresby but throughout the country. People have the God-given and constitutional right to enjoy the comfort and peace that the sanctuary of their own homes afford them. They don’t deserve to be attacked indiscriminately in the privacy of their homes at anytime at all. The law must be very tough on criminals who think they are above the law and can break into dwelling homes and terrorise and cause harm to the occupants. Criminals are not above the law. This offence requires a strong deterrent sentence.

As I stated earlier this robbery offence is accompanied by circumstances of aggravation which includes use of actual violence and causing bodily harm upon the two female victims. Both victims suffered not only physically but emotionally as well out of fear of being raped or even seriously injured.

I also find the accused guilty of abduction of the victim Magdalene Jerry pursuant to s 7 of the Criminal Code Act. This woman was indecently assaulted before she was taken away by one of the men with the intention of raping her. She was quite fortunate to have escaped. This offence carries a maximum of seven years imprisonment.

In determining the appropriate punishment for both these charges, I take into account those matters submitted on behalf of the prisoner, including what the prisoner himself said in the allocutus. In particular I take note of the following:

1. &##160; Plea of guilty

2. ـ҈ A60; Admissimission and co-operation with the police.

3. Yfung orstndefeof 1 yea> yea>

60;&##160; essed remorse

5

5. ʔ&160;  nt ou value of rroperty stoy stolen from the vs is ubsta.

In the up-shot, I consider a custodial sentence is warr warrantedanted to d to deter not only this prisoner himself, elf, but others as well with similar inclinations. Although the prisoner is only 16 years, he has already taken up some very bad habits such as consuming liquor which the law only allows adults over the age of 18 to indulge in. He is already doing things that adults are doing and coupled with the seriousness of these two charges he faces, I shall treat him accordingly.

For the charge of armed robbery, I sentence the prisoner to five (5) years imprisonment in hard labour. And for the charge of abduction, I sentence him to two years imprisonment. As both offences occurred close together in time and place and arose from the same or closely related facts, the sentences are to be served concurrently. I deduct six months pre-trial period spent in custody, the prisoner serves four years six months in prison. I order that the prisoner be remanded in the juvenile section of the Bomana Prison.

Lawyer for the Defence: Public Solicitor

Lawyer for the State: Public Prosecutor