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State v Toude (No 2) [2001] PGNC 13; N2299 (18 October 2001)

N2299

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]

CR NO. 964 of 2001

THE STATE

-V-

EDWARD TOUDE, WALTER YOGANA,
TANA BARINDA & JOHN TAYLOR ANANI (No.2)

ALOTAU: KANDAKASI, J.
2001: 18th October

CRIMINAL LAW – PRACTICE & PROCEDURE – Sentencing – Sentencing need to be guided by the purposes of sentencing – The sentence must reflect the seriousness of the offence and the effects of past sentences – Disparity of sentences between co-offenders not prohibited – Different and an higher sentence imposed against co-offenders following a trial

CRIMINAL LAW – SENTENCING – Aiding and abetting armed robbery on a ship or boat – Robbery planned and executed with assistance of crew and employees on the boat – Breach of trust – Vital roles played for offenders – Robbery on a boat, ship or seagoing craft more serious that robbery of a dwelling house – sentence has to be higher than sentences in robbery of a dwelling house because of serious risks to victims’ lives – sentence of 20 years of main facilitator and 17 years each for others imposed evidence is admitted by consent – Criminal Code ss. 386 (1), (2) (a) and (b) and 17.

Cases cited:

The State v. Jimmy Yasasa Lep (unreported judgement) N1495.

The State v. Abel Airi (unreported judgement delivered 28/11/00) N2007.

Gimble v. The State [1988-89] PNGLR 27.

Tau Jim Anis & Others v. The State SC642.

The State v. Nickson Pari (No.2) (unreported judgement 10/01/01) N2033.

The State v. Eddie Peter (unreported judgement delivered 12/10/01) CR 1446 of 1998.

The State v. Foxsy Awonipa (unreported judgement 30/07/99) N1910.

Andrew Uramani & 4 Others v. The State [1996] PNGLR 287.
Thomas Waim v. The State (unreported judgement SC519.
The State v. Don Hale (unreported judgement) SC564.

The State v. Mitige Neheya [1988-89] PNGLR 174.

Counsel:

K. Popeu for the State
D. Kari for the Accused

DECISION ON SENTENCE[∗]

18th October 2001

KANDAKASI, J: Yesterday the Court found all of you guilty on one count each of armed robbery contrary to s. 386 (1), (2), (a) and (b) of the Criminal Code, by virtue of s. 7 also of the Code.
The offence of armed robbery carries a maximum of life imprisonment. In the much-celebrated case of Gimble v. The State [1988-89] PNGLR 27, the Supreme Court enunciated the relevant sentencing guidelines for armed robbery cases. On a plea of not guilty by a young first offender carrying weapons and threatening violence the starting sentence for the robbery of a:

(a) dwelling house 7 years;
(b) bank 6 years;
(c) store, hotel, club, vehicle on the road or the like 5 years; and
(d) person on the street 3 years.

Where there are features of aggravation such as actual violence, the amount stolen or its value is large, or where the robber is in a position of trust towards the victim, may justify a higher sentence. Of course, a plea of guilty may justify a lower sentence.

It is now accepted that these guidelines especially the tariffs are considered well out dated: see The State v. Jimmy Yasasa Lep (unreported judgement) N1495. In The State v. Abel Airi (unreported judgement delivered 28/11/00) N2007, I examined the sentencing trends in armed robbery cases on a guilty plea starting with the Gimble (supra) and ended up with the Supreme Court decision in Tau Jim Anis & Others v. The State SC642. In that case, the Supreme Court increases the guidelines set by the Gimble (supra) case for armed robbery cases falling in the third category to 8 years on an appeal against a sentence of 10 years by the National Court. That was a case of planned robbery of a factory with actual violence involving just over K20,000.00. There were mitigating factors like young first offenders and a guilty plea.

In nearly all of the cases to date, the Courts have expressed hope or considered either expressly or by implication that the sentences they were imposing would deter the offenders and other would be offenders from committing such offences. Unfortunately, as nearly all judgements to date on this kind of offences acknowledge, the kinds of sentences that have been imposed to date have failed to meet that hope. The effect of that is as I said in The State v. Nickson Pari (No.2) (unreported judgement 10/01/01) N2033, offences such as "armed robberies are on the increase." Yet as I noted just last week in The State v. Eddie Peter (unreported and unnumbered judgement delivered on the 12th of October 2001) CR 1446 of 1998 and The State v. James Donald Keimou (unreported and unnumbered judgement delivered on 12th October 2001) CR 430 of 1999, the Courts to date have failed in my view to also increase sentences to correspond with the increase in the offences. Although I said this in the context of two different offences, they equally apply to armed robbery cases. With the greatest respect a good and recent example of that, in my view, is the case of The State v. Foxsy Awonipa (unreported judgement 30/07/99) N1910. The Court in that case noted:

"This is a very serious case of armed robbery. It is not a case of this prisoner and his accomplices holding the victims and stealing from them some monies amounting to K80.70. It is far worse than that. This is a case of stealing a motor vehicle (although in law this is a separable offence both in the Code and under the Summary Offences Act) and furthermore crashing that vehicle. The vehicle owner therefore not only sustained personal injuries but also suffered huge financial loss as the result. And this is a further aggravating factor that this Court must bear in mind. Sentence in this case must therefore be sufficiently firm to show the community’s condemnation these attacks apart from both personal and general deterrence.

Armed robbery along the road is becoming prevalent. Not long ago I sentenced two young men who held up a motor vehicle near the Bena bridge which resulted in one village being raided by another village in search for the robbers. That raid successfully turned out the culprits who got their due desserts from this court following their convictions.

Emergence of vigilante groups amongst concerned people of the general law abiding people clearly demonstrates just how much innocent people are getting sick and tired and fed up of today’s youngsters turning to crime and bringing evil and pain upon others who are quietly living their own lives and minding their own business."

Despite noting the seriousness of the offence the Court decided on the appropriate sentence for that case in these terms:

"In all the circumstances of the case before me and taking into account those factors both for and against the prisoner, I sentence him to eight years imprisonment in hard labour. I deduct pre-trial custody period of ten and half months (custody since 23/10/98) and he will now serve the balance of seven years, one month and two weeks in hard labour."

After having correctly described how bad the crime is, the sentence in my view with respect does not reflect the seriousness of the offence and the need to imposes sentences that best reflects the seriousness of the crime. What I am unable to comprehend easily is, how does sentence such as 8 years compare to the suffering and the loss a robbery brings upon the victims specifically or the society at large as described in that case or even Tau Jim Anis v. The State (supra). This in, my view, does not compare and or reflect easily to the pain and suffering both physically and psychologically such frightening experiences and loss, offences like armed robbery or rape brings upon, the immediate victims and the society at large. Logically, if all it would take is a few short years, one could afford to commit such serious crimes because the offender would know that, they would get away lightly. This in my view is partly contributing to the increase in this kind of offences. Parliament after having considered all things prescribed the maximum penalty of life imprisonment. It is the Courts that have started with sentences such as 5 years per Gimble’s guidelines and 6 years with 2 years suspended as in Andrew Uramani & 4 Others v. The State [1996] PNGLR 287, by the Supreme Court because of the principle of no disparity of sentences between co-accused.

In my view the Courts have been unnecessarily restricted in the proper exercise of their sentencing discretion by principles such as "no disparity of sentence between co-accused" as is shown by Andrew Uramani & 4 Others v. The State (supra) and "quantum leap" as in the Tau Jim Anis v. The State (supra) and Thomas Waim v. The State (unreported judgement) SC519. Such concepts as these, as I also said in The State v. Eddie Peter (supra) and The State v. James Donald Keimou (supra) has no statutory prohibition against say a judge imposing a sentence that represents a "quantum leap" or disparity of sentences. It is the courts that have come up with these concepts in the exercise of their sentencing discretion. I also observed that the application of such principles do not reflect the particular circumstances or the particular facts of a case. This inevitably allows for ignorance or paying lip service to the purpose of sentencing in criminal cases such as, deterrence and retribution.

Offenders have taken advantage of such principles, which as far as they are concerned, means a shorter term of years regardless of the many calls for stiffer penalties to correspond to the particular circumstances of the offences they commit. Offenders are now becoming more sophisticated as was shown in what has become known as the "failed millennium robbery." This in my view calls for the Courts to be prepared to depart from the traditional methods of sentencing with a view to substantially increasing sentences to send stronger messages from the Courts to offenders that they now stand the risk of much higher or severe sentences.

The present case is an example of offenders become more organised and carrying out robberies at places never touched before. This is the first case as far as I am aware which is also the case for counsel, involving robbery on a ship or a boat involving a number of people each playing critical parts to allow for a successful robbery. This is also a case of insiders working with robbers to effect the robbery. In the Court’s decision on verdict each of you were found to have played the following respective parts:

• Edward – you were the supercargo on the boat and were in charge of the money on the boat. When the captain of the boat left the boat the day before, you were in charge of the boat as well as the money stolen in the robbery. You allowed or arranged for Walter to hold onto the key to the cabin where the money was kept purposely to open it for the robbers. After having ensured that was in place you hurried of to Tana and told him that the stage was set for the robbery to take place. That is why you said to both this Court and the police that you were in a hurry.
• Tana, you then went and informed Gerald of what Edward told you and told Gerald that it was now the right time to rob. So Gerald got his gang organised and went to his uncle, John and asked for his gun in exchange for a share in the proceeds of the robbery for his gun.
• John you gave your gun to your nephew and therefore the gang in exchange for the gun gave you cash in payment from the proceeds of the robbery. Gerald’s gang then equipped with that gun and the other weapons boarded the boat and held up Jerome and Inia.
• Walter you then opened the door for the robbers to enter the cabin and then showed them to the trunk box containing the money and they took it and escaped.
  

The robbery took place between 12:00 pm and 1:00 am on a boat. Going by the fact that Inia William and Jerome Kunsoro were sleeping on the boat, I find that the boat also served as a house for the crew and any passengers like Inia William. The State submits and I accept that, by reason of this, the robbery was of a dwelling house. Hence it is in the first category per Gimbles for sentencing purposes. Even then, in my view, robbery on a boat, canoe, dinghy, or ship is more serious. The reason for this is simple. Given their location, the victims of crimes at such places are placed in a much more vulnerable position because, should anything go wrong, their lives would be in some real danger. This could even include the boat, ship, dinghy or canoe, which could mean substantial financial loss to the owner.

It is already becoming to common for robberies on land. This is the first case of robbery on a boat. People on the land are being forced to incur substantial amount of costs to build fences to keep out criminals. All people in our country have the right to move around freely but the criminals are locking them in. Most of our people have to travel between places by boats, aeroplanes and motor vehicles. For the obvious risks associated with being on such transportation means, it is a very serious matter for a robbery to take place on any of them. It is not reasonable nor should our people be forced to incur further unnecessary costs in fencing of their shorelines and any sea going crafts. Most of our people are sea going people. Criminals should not prevent them from continuing their lifestyles. I am therefore, of the view that, robberies of these types should be in the worse or serious category and attract the maximum prescribed penalty, unless very good mitigating factors exist. This is to eliminate if possible such offences from ever being committed in the future if it were all possible.

In the present case, before I sentence each of you, I note in your favour that you are all first-time offenders. No one has been physically injured, though this does not mean that the individuals that were held have not and will not suffer any mental or psychological injury as a result of dangerous weapons being pointed at them. Part of the money that was stolen was recovered. I also note your pleas for mercy because of your respective family backgrounds and needs. I however, reject these pleas. This is because you should have taken those factors into account first before you committed the offence or played the parts you were found to have played. By your conduct you chose to ignore them. As such, it makes no sense for this Court to be asked and it take those into account in your mitigation.

However, a mention has to be made in relation to the plea for youthfulness for Walter Yogana. The Supreme Court said in The State v. Don Hale (unreported judgement) SC564 that, for a court to take such a plea into account, it must be provided with evidence. You have not provided this Court with any material to show that you are what you claim. Besides, you did not plead your youthfulness during the robbery or the planning and refused to play any part. Instead you played an important part in the robbery. I therefore reject your youthfulness plea.

I also make mention of John Taylor Anani’s plea of old age. What Brunton AJ said though in an incest case, in The State v. Mitige Neheya [1988-89] PNGLR 174, in terms of the following relevant and applicable with substitution of the reference to the "children" and the "young" to the "society."

"The prisoner is getting to be an old man, he is 50 years old or perhaps older. Judges do not like sending old men to gaol for long periods because of the inhumanity of the likelihood of an old person dying in gaol. Here I weigh the social value of that likelihood against the social need to stamp this crime with society’s condemnation and deter others. In my view the rights of children are superior to the rights of those people who are older and should know better. The prime duty is to protect the young."

Being an elderly person, you should have acted more responsibly. You should not have supplied your gun to the robbers knowing well that they were going to use it to carry out the robbery. You should either have called out or reported the matter to the relevant authorities or those on the boat of the pending robbery but you did not. Instead, you wanted to benefit from the robbery and did not try to avert it. It is the encouragement by people like you that is, in my view, seeing an increase in crimes like this. In fact I find that, if it were not for the gun you supplied, the robbery could not have taken place. This was a very serous criminal conduct on your part despite being a senior citizen. In order to send a message to people, who are or might become inclined toward assisting robbers, you deserve to be sentence without any discounts on the basis of your age.

Tana Barida, you are an adult person with two children. You were therefore mature enough to act sensibly in all circumstances. You said you knew of the plan to rob but did nothing. Every citizen like yourself is obliged to respect the law and protect any possible breaches. Grown-ups like you should take the lead in fighting against crime instead of encouraging it. Again without your part, the robbery could not have taken placed.

Edward Toude, you were in a position of trust, which you betrayed. Your kinds of offenders are on the increase in association with the increasing robbery cases. It therefore calls for a much stronger sentence against you. I find you played an important part. Indeed, you played the key role whilst in position of having access to the key to the cabin of the boat and the boat as well as the money. I consider therefore appropriate that, your sentence should be higher than the others.

Now having regard to all that I have said above, I impose the following sentences:

1. Edward Toude 20 years in hard labour;
2. Walter Yogana 17 years in hard labour;
3. Tana Barida 17 years in hard labour; and
4. John Taylor Anani 17 years in hard labour.
   

I note that this may appear to be in disparity with the sentences received by the actual robbers executing your plan and play the parts they were to play who received 6 years imprisonment in August of this year. The difference in my view is justified and in accordance with the relevant law and practice because unlike the robbers who pleaded guilty, you denied the charge against you and that meant extra expenses and troubles of a trial. Also, without the parts you played there would have been no robbery on MV 434. Further, I consider robbing a ship or boat more serious and a sentence has to be higher. Furthermore, I note that the Court when sentencing the actual robbers did not take these factors into account. Additionally, the notion of disparity of sentence should not come in the way of the primary responsibility of this Court to impose a sentence befitting the particular facts of the case and the parts you all played with a view to deterring all of you from re-offending and anybody else from committing similar offences. Finally, Parliament after having considered all of the relevant factors, prescribed a maximum penalty of life imprisonment. At the same time, it enacted section 19 of the Code, vesting the discretion in the Courts to impose sentences shorter than that. In so doing it did not prohibit the imposition of sentences that may be in disparity with co-offenders or amounts to quantum leaps.

I order each of you to serve your respective sentences in hard labour less the times you have spend in custody awaiting your trial.
______________________________________________________________________
Lawyer for the State: Public Prosecutor
Lawyer for the Accused: The Public Solicitor

^[∗] This is the detailed version of the draft I read out in Court on the 18^th of October 2001. This was necessitated by an electricity blackout. That black out meant I could not correct minor errors and print out my judgement and deliver it with copies to the parties on the day of the announcement of my decision. I did promise that I will correct my judgement then in draft and as soon as that is done to make available the final version and this is it.