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State v Mamu [2002] PGNC 110; N2228 (16 April 2002)

N2228

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]

CR. NO. 26 OF 2002

THE STATE

-V-

TARERE MAMU

KOKOPO: Lenalia, J.
2002: 9, 11, 16 April

CRIMINAL LAW – Attempted armed robbery – Plea – Matters for consideration – Sentence – Criminal Code s. 387 – (Ch. No. 262).

CAES CITED:
The following cases are cited.
Gimble -v- The State [1988-89] PNGLR 276
Public Prosecutor -v- Don Hale [1998] SC654
The State -v- Frank Kagae [1998] PNGLR 320

Counsel:
C. Sambua, for the State
O. Oiveka, for the Accused

11 April, 2002

SENTENCE

LENALIA, J. This young accused pleaded guilty to one count of attempted armed robbery contrary to s. 387 of the Criminal Code.

The facts to which the accused pleaded clearly demonstrate an attempted armed robbery by the accused and three or four other co-accused on the night of the 8th of August 2001 at Ramalmal Village in Rabaul. The victim William Lapim was returning from the Nonga Base General Hospital with his wife being very sick to their village at Ramalmal along the North Coast and after receiving treatment.

At the junction leading to their residence, William stopped to pick their son Pius Bobongo. After picking him, the victim took off toward their residence and on their way, they notice a torch light being flashed at William and his passengers. He stopped thinking, someone might need assistance. He was surprise when one of the gang members approached him and placed a knife against his neck. The victim quickly reacted by struggling with his assailant but he could not disarm his attacker.

In the course of that struggle, another gang member came and pointed a gun at William. The victim let the knife go and grabbed the end of the gun, which was pointed at him. One of the victim’s passengers at the back grappled with one of the rascals for a while then left him and ran to where a village bell is situated and started to ring the bell, giving an alarm to villagers signalling the victims needed assistance. By this time William Lapim has started to call out shouting for assistance. Villagers came to their rescue. The accused and his accomplices escaped. The accused was later arrested.

The Court notes from the record of interview conducted on investigation between the accused and the interviewer Constable Japhet Baniwab and his corroborator Constable Paul Wapinian on the 15th of August, 2001, the accused said the reason they wanted to rob the victim of his vehicle was to conduct an arm hold-up at Kabakada Village also on the North Coast.

Victim William Lapim sustained injuries during this attack to both his right and left hands. On his left arm, he sustained a 2cm x 6-8 c and 2 – 3 cm deep cut and was heavily bleeding. A second cut measuring 1cm x 3 cm was also noted on the same left hand whilst on his right arm was noted a 2 cm x 3 cm laceration on the right palm.

On allocutus you said, you only used a gun, but the facts reveal quite the opposite. Your co-accused used knives as well. The fact that you alone could use a gun, could not have allowed you to also use a bush knife at the same time.

I noted from the facts you may be a little over 14 years now or even less. It escapes anyone’s understanding as to why you being young was around with armed men that night when you fully knew holding someone up like what you and your accomplices did to William was and is against the law. You deliberately and consciously got yourself involved in the serious crime, despite what your records show. You adopted and actively participated in the attempted armed robbery.

You were all obviously armed with offensive weapons and your presence no doubt gave support and encouragement to your friends. It seems from all these that you are a person who can easily be led and which fact does not speak well for you if you are incarcerated. If the Court was to sentence you to a term of imprisonment you might turn out the worse person than you are.

The difficult task of sentencing a person to any term of imprisonment involves weighing the mitigating and aggravating circumstances. The protection of the community must be considered first and foremost, judicial consideration on the prisoner, the prisoner’s personal circumstances and background, his future opportunities, the demeanour, remorse and precipitating factors causing the offence are relevant considerations. I bear in mind the principles of sentencing in The State -v- Frank Kagai [1987] PNGLR 320 and the Australian case of R –v- Davey [1980] FCA 134; [1980] 2 A Crim R 254 in approaching the prisoner’s sentence.

On the other hand, the Court cannot and will not ignore the seriousness of the crime you have committed. You have obviously embarked on a life beginning with engagement in commission of a serious crime in the early age. Public highways and the motorists must not be subjected to whims, harassments and assaults even death by conduct of criminals who seem to have nothing better than make life miserable for the law abiding majority.

Gangs of young persons who prey on other people and invade their privacy to commit such serious crimes for their own self-gratification are undesirable elements of the community. You being very young had fallen and lowered yourself to that level.

Mr. Oiveka of counsel for the accused submitted that, since the prisoner is young, this Court should exercise its powers under the Juvenile Courts Act of 1991 to sentence the prisoner. The Juvenile Courts Act confers upon this Court power to deal with juveniles pursuant to s.18 of the Act, which provides:

18. Exercise of jurisdiction by National Court.
    

(1) Where a juvenile is charged with homicide, rape or other offence punishable by death or imprisonment for life—

(a) the committal proceedings shall be dealt with by a Juvenile Court; and

(b) subject to Subsection (2), the trial shall be heard and determined by the National Court.

(2) For the purposes of Subsection (1)(b)—

(a) the provisions of this Act with respect to procedure shall have effect; and

(b) the National Court may exercise the sentencing powers conferred by this Act on a Juvenile Court".

The offence committed by the prisoner is attempted armed robbery on a public street pursuant to s. 387 of the Code.

This section sets out three separate penalty provisions for three categories of attempted armed robbery defined by the section in the following terms:

"387. Attempted robbery accompanied by wounding, or in company.

(1) A person who assaults a person with intent to steal any thing, and, at, immediately before or immediately after, the time of the assault, uses or threatens to use actual violence to any person or property in order—

(a) to obtain the thing intended to be stolen; or

(b) to prevent or overcome resistance to its being stolen,

is guilty of a crime.

Penalty: Imprisonment for a term not exceeding seven years.

(2) If the offender—

(a) is armed with a dangerous or offensive weapon or instrument; or

(b) is in company with one or more other persons,

he is liable to imprisonment for a term not exceeding 14 years.

(3) If the offender—

(a) is armed with any loaded arms; and

(b) at, immediately before or immediately after, the time of the assault wounds any person by discharging the loaded arms,

he is liable subject to Section 19, to imprisonment for life".

As noted from s. 18 of the Juvenile Courts Act, this Court would only dealt with a juvenile case where it involves a charge of homicide, rape or other offences punishable by death or life imprisonment, and the Court may then exercise the sentencing powers conferred by the Juvenile Court Act which powers are detailed in ss. 30-32 of the Act.

Perhaps the Committal Court Magistrate had in mind Subsection (3) of the section charged when it committed the accused to the National Court. Had the facts been properly analysed by the committal Court, there was no discharge of the firearm used in this offence and the matter could have been dealt with by the Juvenile Court. Despite this, I now assume jurisdiction conferred upon this Court by ss.18 and 30-32 of the Juvenile Courts Act to proceed to sentence the prisoner.

Having considered the above provisions, I am of the view that despite the matter being adjourned to today (11.4.02) for sentence the Court instead give direction to Probation Officer Mrs. Suzie Uware Vuvut to prepare a Pre-Sentence Report pursuant to ss. 30 (2) (c) (iii) and 32 of the Juvenile Courts Act and ss. 13 & 25 of the Probation Act (Ch. No. 381).

The reason I have taken such course is because I am of the view that if a long term of imprisonment is given to the prisoner due to the serious nature of the offence he committed, it might be quite destructive to his future. I accept that the prisoner’s plea of guilty indicates expression of remorse on his part. The Probation Report suggests he may not be a violent person. I have formed that view from the PSR that the prisoner is not likely to re-offend as well as being a suitable candidate for probation.

The Court has concluded that it should sentence you in such a way that, the punishment for you will not destroy your prospect of rehabilitation, but one, which on the other hand, will also satisfy the interest of the community. Such punishment must also ensure you are not involved in anti-social behaviours.

I have therefore decided to release you on a suspended term of imprisonment on you entering into a period of probation with a number of conditions to be attached. I have only come to such conclusion after having carefully considered the written Pre-Sentence Report compiled by Mrs. Suzie Uvare Vuvut, the Community Correction and Rehabilitation Officer in this Province.

After having considered the seriousness of this offence and the mitigation mentioned in your favour together with the PSR and the sentencing guidelines in Gimble -v- The State [1988-89] PNGLR 271 and that of the Public Prosecutor –v- Don Hale [1998] SC564 together with sentencing options given this Court pursuant to s. 32 (2)(i) of the Juvenile Courts Act 1991, the sentence of this Court is four (4) years imprisonment. I deduct eight (8) months for the pre-sentence custody period. The Court suspends three (3) years, four (4) months upon you entering into probationary period of two (2) years. The following orders and condition shall apply:

1. You shall upon your release be in the custody of your mother Ruth Kavanamur at Raluana Village.
   
2. You shall join the Youth Group of the Raluana United Church if there is one under the Youth Leader there or alternatively actively engage in Youth and Church related activities under Pastor Robinson ToPue and shall attend Church services during Sundays.
   
3. For the duration of the suspended sentence you shall not consume liquor nor take any form of drug whatsoever.
   
4. You shall not associate yourself with the co-accused who still remain at large.
   
5. For the whole Probation period of two (2) years you are to allow the Probation Officer of this Province or an Officer under him or her to enter your premises at anytime without prior notice.
   
6. For purposes of maintaining compliance with the terms and conditions of this order, you shall by the end of each quarter report to the Provincial Community Correctional Rehabilitation Officer at the time appointed by the Correction Rehabilitation Officer to notify him or her Office about your presence. The first reporting shall be made by the last week of June 2002, and thence continue on quarterly basis until the terms of this order expires.
   
7. A review of these orders and conditions shall be reviewed made by the end of every quarter in this case commencing in the month of June 2002.
   
8. Part of the orders and conditions of the terms of this warrant is you shall pay to the victim compensation in the sum of two hundred kina (K200.00) within three months from today (16.4.4004). By the 16th of July 2002, you shall have paid all the compensation to the victim Mr. William Lapin.
   
9. A breach of any of the conditions shall result in the accused being arrested to serve the suspended term with the period named in these Probation Orders.

_____________________________________________________________________
Lawyer for the State : The Public Prosecutor
Lawyer for the Accused : The Public Solicitor