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State v Upena [2002] PGNC 116; N2222 (18 April 2002)

N2222

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]

CR 832 OF 2000

THE STATE

-V-

AUSTIN UPENA
RODNEY UPENA
PRICHARD ORESA
OSBORNE UPENA

POPONDETTA : JALINA, J.
17TH & 18TH APRIL 2002

CRIMINAL LAW – Robbery – Sentence – Robbery in village – Robbery of K660.75 cash – Robbery in a village – Robbery of village within ambit of dwelling house - No physical violence – Plea of guilty – First Offenders – Prevalence of robbery – Custodial sentence necessary as deterrent – Criminal Code s.386 (2).

Counsel:

Ms. M. Boni for the State
Mr. P. N’dranoh for the Prisoners

18th April 2002

JALINA, J. These prisoners have pleaded guilty to one count of robbery of cash from Philip Hero and others at Poro Village, Oro Bay at about 4:30 am on 29th October 1999. The victim Philip Hero was robbed of K660.75 in cash while other villagers who were playing cards were robbed of unspecified amount of cash but such cash was not as large as that of Philip Hero. There is no allegation by the state of physical violence to the victims nor does it allege that they discharged firearms with which they were armed. They fled to their village after the robbery. None of the cash has been recovered. Interestingly, the prisoners Austin Upena, Rodney Upena and Osborne Upena are brothers.

The maximum penalty for armed robbery is life imprisonment under s.386 (2) of the Criminal Code subject to the Court’s discretion to impose a lesser sentence under s.19 of the Code.

As I said a while a go in The State –v- Benjamin Nabate and Jefferey Jayata CR 1554/01 and CR 1555/01 the practice of the Court has been to impose a term of years. Hence the sentencing guidelines which were set by the Supreme Court in Gimble –v- The State [1988-89] PNGLR 271. The robbery of someone in a village does not appear to fall under any of the categories in Gimble’s case but since someone is supposed to feel safe in his village, I would consider it as falling within the ambit of category one which is the robbery of a dwelling house. The sentence suggested for that category in a contested case with no aggravating factors was 7 years. That period can of course be increased even in an uncontested case where the offender pleads guilty if there are aggravating factors such as use of actual violence or a firearm is discharged or the amount stolen is large.

Again relying on Gimble’s case and Tau Jim Anis –v- The State and the personnel antecedents of these prisoners as well as mitigating factors such as their plea of guilty, their expression of remorse, the amount of money being small, Defence Counsel Mr. N’dranoh has submitted that a more lenient sentence be imposed on these prisoners.

I again stress that a subsequent Supreme Court did consider the sentencing guidelines in Gimble’s case to be out of date by 10 years in 1999. It would now be out of date by almost 13 years and the occurrence of violent crimes such as robberies have not gone down if not completely stopped in our towns and cities. People are still too frightened to go out in the night even in Popondetta. During the day people move around with fear of being robbed. Even here in Popondetta you find an armed policeman outside the Papua New Guinea Banking Corporation. The main gate at the Lamington Lodge is manned by security guards 24 hours a day 7 days a week. This is all because of fear of robberies and other violent crimes.

I was one of the judges in Tau Jim Anis –v- The State (2000) Unreported SC642 who did not agree with Don Hale’s case but that was on the basis that Don Hale involved the robbery of a house which was considered most serious whereas Tau Jim Anis was not so we reduced the sentence of 10 years imposed by the trial judge when he relied on Don Hale.

As I have said above, the present case, though not concerned with robbery of a dwelling house, robbery in a village falls within the ambit of a dwelling house where one should feel safe from being robbed as one would expect a village to be respected and be left alone. On this basis I would impose a sentence in the vicinity of 10 years considering the prevalence of this violent crime as suggested in Don Hale.

In all the circumstances of this case and taking into account the mitigating factors put to me by Defence Counsel, I would sentence each prisoner to 8 years imprisonment in hard labour which I do.

With regard to time spent in custody Mr. N’dranoh, has submitted that they were in custody from 1st October 1999 till now which is a period of 2 years and 4 months.

With respect, that cannot be correct in view of the statement of Hamilton Vendari which shows that he reported the matter to police on 1st November 1999, after speaking to the prisoner A. Upena. Then he went on to say at the bottom of page 2 of his statement that they were arrested and taken to police custody a week later which would be around 8th November 1999.

Records from their respective file at Biru Corrective Institution show that they escaped on 12th November 2000, during a major breakout. It would appear from this that they escaped after 1 year in custody. They then were re-captured through their own voluntary surrender on 17th March 2001 for which they were sentenced to 3 months. That sentence would have expired on 17th June 2001. The additional period in custody awaiting trial in the National Court to today from 18th June 2001, would be 8 months. So the total period spent in custody by each prisoner would be 1 year, 8 months.

I deduct that period from the 8 years sentence which leaves 6 years and 4 months.

For their voluntary surrender and also to encourage others to surrender voluntarily so that the long bench warrant list throughout the country can be reduced, I deduct 2 years and 4 months leaving 4 years for each of them to serve in hard labour.

____________________________________________________________________
Lawyer for the State: Public Prosecutor

Lawyer for the Prisoner: Public Solicitor