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State v Fereka [2003] PGNC 137; N2359 (7 April 2003)

N2359

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]

CR NO. 1043 of 2002

THE STATE

-V-

JAMIE CAMPBELL FEREKA

WEWAK: KANDAKASI, J.
2003: 1st and 7th April

CRIMINAL LAW – Sentence – Armed gang robbery with threats and actual violence – Robbery of a wharf warehouse – A firearm and fishing guns used to execute robbery – Property valued over K7,000.00 stolen in the robbery – Partial recovery of property stolen – Guilty plea – No prior convictions – Plea of family suffering if custodial sentence imposed rejected as that is the natural consequence of committing the offence at the first place – Pre-sentence report recommending non-custodial sentence considered but not followed as offender is not a young offender – Prevalence of offence considered – Sentence 12 years imposed – Criminal Code ss.17 and 386.

Cases cited:
The State v. Fabian Kenny (unreported judgement delivered 16/05/02) N2237.
The State v. Damien Anis (unreported judgement delivered 23/05/02) N2236.
The State v. Edward Toude & Ors, CR. No. 964 of 2001 (unreported and unnumbered judgement delivered on 18/10/01) No. 2.
The State v. Vincent Malara (unreported judgement delivered 20/02/02) N2188.
Gimble v. The State [1988-1989] PNGLR 27.
Tau Jim Anis v. The State SC642.
Allan Peter Utieng v. The State (Unreported and unnumbered judgement delivered in Wewak on the 23rd of November 2000) SCR 15 of 2000.
The State v. Raphael Kimba Aki (No.2) (unreported judgement delivered on 28/03/201) N2082.

Acting Public Prosecutor v. Don Hale (1998) SC 564.

Counsel:
Mr. M. Ruari for the State
Mr. M. Bayam for the Accused

7th April, 2003

KANDAKASI J: You pleaded guilty on 1st April 2003, to one charge of armed gang robbery with actual and threats of violence using offensive weapons, which was contrary to s. 386 (2) of the Criminal Code. Your lawyer then applied for a pre-sentence report from the Probation Service and I ordered such a report be provided by the Probation Service.

This morning, the Court received the requested report. I then heard both you and your lawyer on sentence as well as the State. I then reserved a ruling to this afternoon to enable the Court to consider the submission and the pre-sentence report. This is now the Court’s decision.

The offence of armed robbery you pleaded guilty to was committed at the Wewak Wharf on 12th December 2001, by a gang of about 9 men, including yourself. You were armed with a shotgun with live ammunition in it and two fishing guns. All of these weapons came from you. You carried the shot gun while two of your accomplishes carried the two fishing guns. You used these weapons to threaten, and actually caused physical injuries or assaults to security guards employed at the premises.

You gained entry into the premises by cutting the security wire fence. Once inside, you held up three security guards who were on duty at that time. You tied their hands and blind folded them with a masking tape. You then broke into the Sepik Coastal Agencies warehouse and stole 4 bales of second hand clothing, one sharp brand TV set and other properties belonging to Sepik Coastal Agencies. The total estimated value of the property you and your gang stole is put at over K7,000.00. Part of the properties were recovered but it is not clear exactly what was recovered with their estimated value.

Whilst you and your gang were in the process of stealing items of value from Sepik Coastal Agencies, one of the security guard managed to free his hands from your tying them together, and proceeded to free himself as well as his two colleagues. He then attacked you and pulled the gun you were carrying from you. He then caused you some injury consisting of two fractures to your head, lost of two of your teeth and other injuries. Police were eventually alerted and they came and arrested you. You were also taken to the hospital for appropriate medical treatment.

Following your arrest, you admitted to having committed the offence. In line with that, you gave a confessional statement to police. Consistently with that, you freely admitted to this Court of your involvement in the commission of the offence.

Upon being satisfied that there was enough evidence supporting your guilty plea, I accepted your guilty plea and proceeded to convict you of the charge. I then asked you to address me on the question of sentence or penalty. You informed the Court that your lawyer would do that for you on your behalf. Your lawyer as noted, asked for a pre-sentence report and an adjournment of your case to today.

In your lawyer’s submissions on your behalf, he has emphasised your co-operation with the police in terms of admitting your involvement culminating in your guilty plea. In the process, he urged this Court to take into account in your favour that you disclosed the names of your accomplishes. He also emphasised that, you are a first time offender and that you are relatively young although you are married with one child. Further, your lawyer ably argued that your victims seriously dealt with you, resulting in physical injuries to you as already noted. Furthermore, he points to the pre-sentence report and relies on its call for a lenient sentence against you for the reasons already highlighted.

Added to these factors is your family background of one wife and a child. They stand to suffer if you are given a longer imprisonment term for your punishment. There is also the fact that although you are married, you are a relatively young first time offender.

I also note from the pre-sentence report that you were forced into committing the offence by difficult time your family minus your father were going through. You were trying to make ends meet and got involved in this robbery. But that is not the only solution there is, to find ways to overcome your difficulties. Lawlessness is not and can not be the answer to any difficulty however great that might be. There are always lawful means through which one could arrive at solutions. For example, in your case there was nothing stopping you from returning to your mother’s village and work the land, something you are now prepared to do.

I take these factors into account in your favour. At the same time, I am duty bound to contrast these factors against those that clearly operate against you.

The main factor against you is the fact that the crime of armed robbery is a very prevalent offence. It is being committed everyday throughout most parts of the country. People are living in fear and that is preventing the free conduct of business. Many people who would come with their skills, knowledge and money to help build our country, both economically and socially, are scared off by this kind of offence. I noted this in many of my judgements already as in The State v. Fabian Kenny (unreported judgement delivered 16/05/02) N2237 on page 5. Indeed, the offence you committed was against a business at its warehouse. There is no evidence that despite this robbery, the business, the victim of your robbery continues to exist and or is functioning today.

Again, as I have noted in many of my own judgements as very recently as in The State v. Damien Anis (unreported judgement delivered 23/05/02) N2236, on page 11, there are repeated calls for stiffer penalties against armed robbers. This is the response from the community because of the serious bad effects of the crime on it. I have responded to that by imposing sentences as high as 20 years as in The State v. Edward Toude & Ors, CR. No. 964 of 2001 (unreported and unnumbered judgement delivered on 18/10/01) (No. 2), after a trial for an armed robbery on a ship. In the case of a guilty plea, I have imposed sentences as high has 15 years as in The State v. Vincent Malara (unreported judgement delivered 20/02/02) N2188. In arriving at such sentences, I noted and accepted that although Parliament has prescribed life imprisonment as the maximum penalty, the Supreme Court has come up with guidelines for sentences in armed robbery cases as in Gimble v. The State [1988-89] PNGLR 27 for sentences far below that.

They allow for sentences of up to 7 years at the top end for robbery of a dwelling house and 3 years for a robbery on a street at the lower end. These are for cases of guilty pleas by first time young offenders with no aggravating features. The actual sentence in anyone case may be over or below those recommended. I have also noted that these guidelines have been varied by subsequent judgements of the Supreme Court such as the decision in Tau Jim Anis v. The State SC642. Numerous warnings have been given in many judgements of both the National and the Supreme Courts that the Courts will impose more higher or stiffer penalties, given the higher and frequent occurrence of the offence.

A period of more than two years have passed since my judgement in The State v. Edward Toude & Ors (supra) and a period of over one year has passed since the judgement in the case of The State v. Vincent Malara (supra). I do not consider the period that has lapsed since these judgements is sufficient to enable offenders like you to become aware of the sentences. More importantly however, you committed the offences before the pronouncements of the sentences in Vincent Malara case and just a few months after the sentence in the Edward Toude & Ors case. This means your sentence must not exceed the sentences I had imposed in the cases mentioned, as you would not reasonably be expected to be aware of the sentences in those cases.

In The State v. Edward Toude & Ors (supra), the robbery was on a ship at a wharf. The prisoners did not actually carry out the robbery. They only facilitated the robbery. A substantial amount of money was stolen. The prisoners were found guilty after a trial and they were all first time offenders. In the other case of The State v. Vincent Malara (supra), there was a guilty plea. However, the prisoner had a prior conviction for arson. He committed a robbery against a super market here in the township of Wewak in the company of a large number of youths armed with dangerous weapons.

In another case, The State v. Fabian Kenny (supra), here in Wewak also, I imposed a sentence of 9 years on a guilty plea. That was for armed robbery of a PMV and its passengers on the highway. The offender was a first time offender. A gun was involved but the prisoner did not personally carry it and used it.

In your case, you argue that you are a first time offender and have fully cooperated with the police and this Court by your admission or plea of guilty. You therefore, argue for a more lenient sentence so you could return to your family and support them. But this plea must be seen in its proper context. You were apprehended at the scene by the very security guards you and your accomplishes had held up. You were therefore caught red handed. There was therefore no way for you to succeed in a denial of your involvement. Nevertheless, I note that your guilty plea has saved substantial time and money that could have been thrown away if you denied your involvement. To that extent, I note your guilty plea operates in your favour.

Now in relation to your plea for mercy or leniency because of a likelihood of your family suffering if sent to prison, I note what the Supreme Court said Allan Peter Utieng v. The State (Unreported judgement delivered in Wewak on 23/11/00) SCR 15 of 2000 is relevant. In that case, the Court observed that an offender should consider his background first before committing any offence. Implicit in that is the fact that it is a little too late to talk about an offenders personal background, including the needs of his family concerns once he is proven guilty according to law. His background and concerns should have little or no weight against the need to impose a sentence or punishment that best befits an offence he has committed and the particular circumstances in which the offence was committed. I have followed this principle in a number of cases already. An example of that is the case of The State v. Raphael Kimba Aki (No.2) (28/03/01) N2082. Following this line of authorities and the reasoning behind them, your plea for leniency to avoid suffering to you family has no place. If at all, that plea has little or no weight in determining an appropriate sentence for you.

The other factor against you is that you supplied the dangerous weapons that were used in the robbery. The robbery was carefully planned and executed and you could have easily gotten away with it, but for the bravery of one of the security guards you held up. You were personally armed with a shot gun and used it to inflict personal injuries to your victims, as well as putting them under great fear for their lives. You took guard against the security guard to enable your accomplishes to steal the properties of another person, a company. It is therefore clear to me that you did play a leading role in the robbery.

I find this factor distinguishing your case from that of The State v. Fabian Kenny (supra). In that case, there was no evidence of the prisoner taking the lead in organizing and taking the lead in executing the robbery. In your case, there is evidence of you supplying the guns that were used in the robbery. There is also evidence of you using one of the guns to assault one of your victims and keep guard over him and the other victims while your accomplishes stole properties belonging to another person. It follows therefore that you sentence have to be above the sentence in The State v. Fabian Kenny (supra) but below the one imposed in The State v. Vincent Malara (supra).

Another factor that distinguishes your case from that of The State v. Fabian Kenny (supra) is value of the properties stolen. The total value of items stolen from the driver and passengers in that case was well below K1, 000.00. In this case the total value of the items stolen is estimated to be well over K7, 000.00. That is substantial.

At this juncture, I might also note that this Court granted you bail in relation to this offence. It seems you have breached the bail conditions and ended up committing another serious offence. You are alleged to have burnt down the Wewak Court House. That is only an allegation and is not a factor that should be taken against you. It is only relevant to the extent that it enables this Court to note that you have an allegation against you. This is nevertheless important in the context of the pre-sentence report. The report is not supported by any person with any standing in the community, who is prepared to oversee and ensure you complying with any terms and or conditions this Court might be minded to impose for a more lenient sentence of the type argued for.

The Supreme Court, in Acting Public Prosecutor v. Don Hale (1998) SC 564, made it clear that criminal sentencing is a community responsibility. If this Court is desirous of sending an offender back to the community, then there must be a pre-sentence report demonstrating preparedness on the part of the community to assist in the supervision of compliance of any terms the Court may impose toward an offender’s rehabilitation. What this means is that, when there is no such a report, the Court does not have any option by to impose a custodial sentence in a serious offence such as armed robbery.

Further, although you claim to be a Seventh Day Adventist Christian, your conduct was contrary to that church’s teachings and the Ten Commandments in the Bible, in particular the eighth commandment. That commandment says, "thou shall not steal." Your church also teaches in line with Romans 6:23 that the wages of sin is death. The Bible defines sin as a transgression of the law, which are the Ten Commandments. So even from your church’s viewpoint, you committed a very serious sin, which can only be punished by death unless saved by the grace of God if you truly confess and repent of your sin and accept Jesus Christ as your personal saviour. But that is a matter between you and your God.

The laws of Papua New Guinea requires this Court to impose a sentence of up to life imprisonment unless there a good mitigating factors to reduce it to a determinate term of years. The cases that have already dealt with similar armed robbery cases have imposed sentences between 8 to 15 years on a guilty plea. So, as I already intimated, I am obliged to give you a sentence within that range.

Turning now onto your claim of being young, I note that that is defeated by the fact that you are married with one child. The Supreme Court in Acting Public Prosecutor v. Don Hale (supra), held that leniency toward offenders is preferable to offenders who are aged below 20 years with a support of a pre-sentence report. In your case you are below 20 years old but you are already an adult, in that you are married with one child. You were therefore in a better position to appreciate what you were doing in relation to the robbery and its consequence on you and your family.

Taking into account both the factors in your favour, as well as those against you, I am of the view that a custodial sentence is called for. This is to serve both as a personal and a general deterrence to armed robbery with actual threats of violence, regardless of the pre-sentence report’s recommendation for the reasons already stated. I consider a sentence of 12 years in hard labour appropriate and I make orders in those terms.

Of the 12 years, the period of 3 months you have already spend in custody awaiting your trial and sentence shall be deducted. This will leave you with a balance 11 years 9 months. I order that you serve that term in hard labour at Boram CIS. A warrant of commitment in those terms shall be issued forthwith.
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Lawyers for the State: Public Prosecutor
Lawyers for the Prisoner: Tongi Lawyers