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State v Songul [1997] PGNC 92; N1757 (1 August 1997)

Unreported National Court Decisions

N1757

PAPUA NEW GUINEA

[NATIONAL COURT OF JUSTICE]

CR. NO. 771 OF 1997
THE STATE
V
WILLIE PAUL SONGUL

Waigani

Kirriwom J
30 July 1997
1 August 1997

CRIMINAL LAW – Highway robbery – Sentence – Young offender – Prevalence of offence by youthful offenders from as low as 13 years. Need for deterrence.

Cases Cited

Gimble v The State (1988-89) PNGLR, 271

R v Togart (1993) 17 Cr. Ap R.136

Counsel

Miss Waiwai for the Defence

Mr Sambua for the State

SENTENCE

1 August 1997

KIRRIWOM J: You pleaded guilty to one count of armed robbery under section 386 (1) & (2) of the Criminal Code. This offence carries a maximum of life imprisonment.

The facts of this case are that on 18 January, 1997 along the Sogeri Highway, near the Sogeri National High School, one Mathew Yapa was in a stationary 25 seater Coaster PMV bus counting the money the vehicle made in the day’s runs. He was alone at the time because the driver had gone into the bush to relieve himself. The accused and his companions who were walking along the road suddenly came upon the vehicle and the solitary man. For reasons known to themselves, the accused and his friends began attacking the lone person when he prevented them from seizing the bus key which was in the ignition still. One of the accused’s companions was armed with a bush-knife. In the course of this attack, the victim suffered two cuts on his right arm which was caused by a bush-knife, his head was cut when a bottle was smashed on it and bitten on his back as well. The victim was saved from more serious threats to his life when the public nearby came to his aid upon hearing his screams for help. The accused and his companions escaped upon seeing the public converging on them. But unfortunately for them one of them was caught by the members of the public and badly assaulted. He was handed over to the Police at Sogeri who took him to the hospital at Port Moresby. None of the others were captured . The accused surrendered voluntarily a few days later escorted by his mother to the Police. He was interviewed by the Police regarding this offence and he confessed willingly. According to the accused’s story, they had consumed some alcohol that day and were on the road in search for more when they came upon the PMV. However, prior to reaching that particular scene of trouble, they had an argument with another person along the way who assaulted the accused through some misunderstanding. The accused claims that the PMV and its sole passenger happened to be parked at the wrong place at the wrong time because they took out their anger relating to the earlier fight upon the lone person in the bus. In the course of the attack on the driver one of them may have got the money. He says this was not a planned robbery.

The accused is a 16 year old from Unjamp Village, Mendi, Southern Highlands Province who lives in Sogeri with his mother. He is the 3rd born from a family of four. Unfortunately, I cannot treat him as a first young offender because he has a prior conviction for break enter and steal in 1993 for which he was sentenced to six months juvenile detention at the Salvation Army Boys Town at Sogeri. I was asked to consider a non-custodial sentence for the prisoner but without a pre-sentence report and detailed family background information on the prisoner, I don't think it will be a wise thing to do in the circumstances of this offender. It seems to me that there is lack of parental control over the prisoner and he mixes around with bad companions and at his age he is already into some of those bad vices such as drinking alcohol that only adults are allowed to do under the law. Drinking alcohol at his age is against the law and it is sad to see such a young boy like him start his life on the wrong side of the law. I would think that liquor had a lot to play in what happened on the day of this incident. But this does not excuse his or their conduct. They had no reason whatsoever to attack an innocent person on the road minding his own business. Such aggressive and violent acts upon innocent people in public places is becoming far too common and the assailants are usually within the ages ranging from 13-25. I appreciate the remark made in R -v- Taggart (1923) 17 Cr. App. R. 132 which was cited often times in many decisions of this Court and the Supreme Court which says that “a Judge or Magistrate who sends a young man to prison for the first time takes on a grave responsibility.” Such sentiment is not out of place even today but we must also face the reality that most of the violent crimes against persons and property involving use of offensive weapons are orchestrated by juvenile offenders within the age group 13-25 years. They must be made to realise that peace-loving and innocent citizens are fed-up and tired of living in fear. Why can’t a person go about his daily business without the fear of being attacked by someone? The prisoner in this case appears to have little regard or respect for the law. I think a deterrent sentence is called for here. I agree in principle that imprisonment should be used as last resort when sentencing youthful offenders, but that can only bear weight if he is a first offender.

I have been referred to the case of Gimble -v- The State [1988-89] PNGLR 271 in which the Supreme Court suggested some guidelines in the sentencing tariffs on armed robbery cases involving youthful first offenders. There were four broad categories of robbery offences proposed attracting different minimum sentences. For robbery of a house by a group of young first offenders carrying weapons and threatening violence and where the offender is convicted after a trial, the starting sentence is seven years. If the offender pleads guilty, the sentence may be less. However if there are aggravating factors and the offender is convicted after a trial, the sentence may be more than the starting mark of seven years.

This particular robbery falls under the category of robbery of a vehicle on the road which automatically attracts a starting point of five years in a plea of not guilty applying the guidelines in Gimble’s case (supra). However, as this is a plea of guilty, no doubt the sentence ought to be lower. Counsel for the accused also stressed upon me to treat this crime as a street robbery which has a staring point of three years or lesser if it is a plea. This suggestion was made on the basis that this offence is not pre-meditated. It was a spur of the moment reaction by the prisoner and his friends upon seeing the victim alone in the car on a public highway. I do not subscribe to this view because in my mind, it is immaterial whether the prisoner and his friends did not plan before attacking the lone person in the PMV. The fact that they all converged on him, assaulted and wounded him with an offensive weapon on a public highway does clearly amount to robbery of a vehicle on the road.

In favour of the prisoner, I take into account that the prisoner pleaded guilty, he is 16 years old, barely a man, voluntarily surrendered to the Police and co-operated fully with them. Both his plea and his co-operation with the police is a clear expression of his remorse. In the light of all these matters and what his lawyer addressed in mitigation, I sentence the prisoner to three years imprisonment in light labour and deduct 6 months pre-trial custody. He serves only two years 6 months.

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