N2151

PAPUA NEW GUINEA

[In the National Court of Justice]

CR NO. 764 OF 1999

THE STATE

v.

KEVIN KAROA

LAE: INJIA, J.
2001: September 11

Criminal Law – Sentence – Robbery – Conviction after trial – Prisoner under disability – amputated right leg – Injury inflicted by law enforcement officers in the course of re-capturing prisoner escapee – Injury unrelated to present offence –Mitigating factor – Weight to be accorded – whether wholly suspended sentence appropriate.

Cases cited:
Gimble v. The State [1988-89] PNGLR 172
Bafe Quati v. The State [1990] PNGLR 57
The State v. Smith Ondari, Unreported National Court judgment No. N867 (1990).
Don Halle v. The State SC602
Tau Jim Anis v. The State SC635

Counsel:
L. Rangan for the State
A. Raymond for the accused

11 September, 2001

INJIA J: The prisoner appears before me for sentence following his conviction for aggravated robbery pursuant to S.386 of the Criminal Code. I found him guilty of committing the offence after I found that he was the principal actor in a group of 6 men who held up Kevin Sohoru and his friends at gunpoint, at East Taraka, on 31/12/98 at about 9.30a.m. in the morning, and stole from him a Toyota Kijang motor vehicle, station wagon, reg. No. CAH.356, white in colour, belonging to Mr. Sohoru’s employer, Burns Philip Shipping Agencies. I found that the accused was armed with a home-made shotgun which he used to point at Mr. Sohoru and his friend Laurie Tomdi and threatened to hurt them. But no shots were fired and no one was physically assaulted and injured in the process.

The prisoner is not a young first offender. He is 23 years old and has two prior convictions for serious offences. On 14/11/00, the National Court, Gavara-Nanu J presiding, convicted him on a charge of unlawful escape under S.139 of the Criminal Code and sentenced him to 5 years IHL but suspended 4 years and 9 months of that sentence and placed him on good behaviour bond for 2 years. He was ordered to serve 3 months of that sentence. Then on 13 July, 2001, the National Court, Kirriwom J presiding, convicted him on a charge of aggravated robbery and sentenced him to 4 years imprisonment. Of the 4 years, the period of 2 years 8 months and 24 days he spent in pre-trial custody was deducted. The balance of 1 year 3 months and 6 days was wholly suspended and he was placed on good behaviour bond for 2 years. The principal reason for suspension was that the prisoner carried the disability of an amputated right leg just above the knee, inflicted by law-enforcement authorities when they re-captured him after he escaped from prison. His Honour was convinced that the purpose of sentence and preservation of the State’s scarce resources would be best achieved if he was not incarcerated.

I am requested by the prisoner and his counsel to follow course with their Honours. Mr. Rangan of counsel for the State submits that a term of imprisonment is appropriate to deter him and others and punish him for the serious crime he committed on innocent victims. 

The issue is whether personal injuries inflicted on a prisoner escapee by law-enforcement officers in recapturing him ought to be taken into account in the prisoner’s favour in mitigation of sentence for another offence. 

After reading the decision of Doherty AJ in Bafe Quati v. The State [1990] PNGLR 57 and that of Justice Jalina in The State v. Smith Ondari, Unreported National Court judgment No. N867(1990), I am in agreement with their Honour’s that personal injuries inflicted by the law enforcement officers in the course of performing their lawful duties, is a relevant mitigating factor which reduces punishment. This relief is in addition to any other relief which the prisoner may have against law enforcement officers or their employer, the State, either under the common law or under S.57 of the Constitution. 

In the present case, the injury inflicted on the prisoner was sustained after he committed the present offence in connection with another crime. The question then arises as to whether the injuries inflicted on the prisoner ought to have any connection with the crime for which he is to be sentenced in order for this factor to take into account in mitigation. 

In my view, as with any other prisoner under a disability who comes before the sentencing judge, the prisoner’s disability per se may be a relevant ground for exercising leniency on sentence. But in the absence of any proof by the prisoner as to whether the injuries inflicted involved some excess or gross abuse of power by the law enforcement officers, committed upon the prisoner in the course of performing their duties in respect of the offence for which he is to be sentenced, it ought not be given any greater weight than it ordinarily ought to receive. In the present case, there is no such proper evidence before me to support the prisoner’s assertion that police shot him after he surrendered. There is a procedure for this. I would agree with the ad hoc procedure suggested by Doherty AJ, in Bate Quati as to proof of facts asserted by the prisoner. That procedure has not been utilized in the present case.

In considering sentence, I take into account his disability per se. But unlike my other two brother judges, I am faced with the same prisoner who has a third conviction for serious crimes and the only mitigating factor is his disability, which disability has no connection with the crime he is to be punished for. Also unlike the present case, in the case before Kirriwom J, a major mitigating factor was this prisoner’s confession of the offence to police, which formed the main basis for his conviction upon trial. 

Each case must be decided on its own facts. The sentence imposed must reflect the delicate balance between the interest of the community at large and the victims of the crime on the one hand and the interest of the accused on the other. The Court must be careful not to be overly preoccupied with the interests of the prisoner that the community’s interest in ensuring that an offender of a serious crime of violence is adequately punished is trampled under the carpet. 

Aggravated robbery, like many other serious offences involving violence to the person or property of another, is a prevalent offence which carries the maximum of life imprisonment. The community expects tough punishment on law-breakers to punish them and deter others. And sentences for serious offences like aggravated robbery have progressively increased as a response to the dramatic increase in these offences: see Gimble v. The State [1988-89] PNGLR 172; Don Halle v. The State SC602 and Tau Jim Anis v. The State SC635. It is my view that a term in prison is necessary for this prisoner. I think his disability per se in the circumstances is not a proper ground for exercising my discretion to suspend any part or the whole of the sentence. This means that the present sentence is a far cry from the sentences imposed by my two brother judges in regard to suspension. But then if one were to look at the total sentence for those two offences and the sentence I am about to give, and if one were to suspend a part or the whole of the sentence, then such sentence would be manifestly low. 

This present case is a robbery of a motor vehicle with the use of a home-made gun. Apart from this, there were no other special aggravating circumstances. No one was shot at and injured and the stolen motor vehicle appears to have been recovered. I consider that a sentence of 4 years imprisonment is appropriate and I impose the same. No pre-trial custody period prior to13/7/01 will be deducted form this period because pre-custody period prior to this date was already deducted by Justice Kirriwom. I deduct 1 month only for pre-trial custody thereafter. He will serve 3 years and 11 months in light labour.
______________________________________________________________________
Lawyer for the State		:	Public Prosecutor
Lawyer for the accused	:	Public Solicitor