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State ats Ingia [2004] PGNC 150; N2615 (4 June 2004)

N2615

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR 597 of 2004

THE STATE

-ats-

ROBIN RICHARD INGIA

Kimbe: Sevua, J
2004: 3rd & 4th June

CRIMINAL LAW – Sentence – Armed robbery – Plea of guilty – Aggravating circumstances Threats and actual violence – Victim slashed with bush knife – Plea for good behaviour bond or probation inappropriate – Immediate punitive custodial sentence appropriate – Heavy sentence warranted to reflect prevalence and use of violence resulting in injury to victim – Sentence 10 years

Criminal Code; ss 386, 19

Held:

1. Robbery, being s crime of violence, must be punished with immediate punitive custodial sentence upon conviction, unless exceptional circumstances exist to warrant a partial suspension.
   
2. Sentence must reflect prevalence of the crime and use of violence resulting in personal injuries to the victim.
   

Cases cited:
Gimble v The State [1988-89] PNGLR 271.
Jimmy Amos Rake v The State and Wena Pokarop v The State; unreported and unnumbered, (SCRA 42/2003 & SCRA 44/2003), 25th May 2004.
John Mare v The State and Avivi Bulu v The State; unreported and unnumbered, (SCR 53/2003 & SCR 54/2003), 26th May 2004

Counsel:
F. Popeu for State
O. Oiveka for Prisoner

4th June 2004

SEVUA, J: The accused was convicted yesterday morning after pleading guilty to one count of armed robbery, and it is my task now to sentence him on that charge.

The facts are that at approximately 9 am on 24th March 2004 the prisoner with four others held up a van owned by Southwest Bakery which was delivering fresh bread and buns to Kapore Oil Palm Settlement. They were armed with a home made shotgun and a bush knife. After threatening the driver and crew and assaulting the driver, they forced them out of the vehicle and drove the van away. They stole the sum of K200.00 in cash and fresh bread and buns valued at K2, 025.00.

On mitigation and sentence, counsel for the prisoner, Mr. Oiveka asked the Court to take into account the prisoner’s plea of guilty; his prior good character; that he is a first offender; he is 20 years old from Nimboku village in Kubalia, East Sepik Province; he spent 4 months in custody awaiting trial and that this period should be deducted from the sentence to be imposed; there were others who were involved but have not been charged and only the prisoner was charged; the sentence should not be a crushing one but one that will do justice, to deter others but also rehabilitate the prisoner.

The Court has considered all these matters and taken them into account in considering the kind of sentence that should be imposed on the prisoner.

However, Mr. Oiveka also submitted, quite correctly, in my view, that there are aggravating circumstances in this case. It involved the use of a home made gun and a bush knife. This is the aspect that concerns the Court and the Court is of the view that the use of violence warrants a heavier sentence to reflect the Court’s attitude to violent offenders who use dangerous weapons to injure or harm innocent law abiding citizens in the perpetration of crimes of violence. The prisoner was the one out of the gang of five who attacked the crew of the delivery van and I refer to Questions and Answers 21 and 23 of the record of interview.

Q 21. Is it true that you yourself wounded the crew of the Southwest Bakery car?

ANS. Yes

Q 23. When you held up the vehicle, what did you do?

ANS. When we held up the vehicle it came to an (sic) halt. I then ordered the crew to come out. He did not hear me so I wound (sic) him with the bush knife.

This evidence is consistent with the evidence of Damien Arumbi, the victim of the attack who said when they were stopped by five men, the person armed with the gun, went to the driver’s side while the one with the bush knife came to his (Arumbi’s) side. The man with the bush knife then called out to the victim to come out then struck the door of the van with the knife. The victim then told the armed man that the money and bread were in the van and they should get them but not harm him. The victim then opened the door and as he alighted from the vehicle, the man with the bush knife swung the knife at the victim’s head and wounded him and just before the victim ran away, he was struck again on his back with the bush knife. The victim ran with blood running down his face for about 50 metres then stopped. The man with the gun aimed the gun at the victim and ordered him to run. The victim then called out to the man with the bush knife, "I know you".

Whilst I accept that there is no medial evidence of the injury sustained by Damien Arumbi, the use of the knife to cause injury to the victim is a very serious circumstance of aggravation. The absence of medical evidence does not mean the victim was not injured. Of course, the nature of the injury would be relevant to the consideration of penalty. However, the Court is satisfied that the prisoner did cause personal injuries to the victim and this is a serious matter. It is bad enough to steal with threats of violence, but it is worse still to use violence to steal and where there is bodily injury, the sentence must reflect that aspect of aggravation.

It is the opinion of the Court that the prisoner’s guilty plea and prior good record are insignificant when, without any legal justification, he used violence to injure an innocent person who was going about his lawful business to make a living. There was no reason at all for the prisoner to do what he did. He knew it was wrong and he admitted this in his interview with police, but yet went ahead and did it. The prisoner and his gang had already succeeded in stopping the vehicle and threatening the two occupants. Why use the knife to harm the victim? There was no need at all. The use of the knife just simply demonstrated the fact that the prisoner and his companions had no respect at all for the lives and property of others and that they would do anything and everything to achieve their criminal intentions and objectives. The prisoner must be punished severely for his crime.

The fact that the other offenders have not been arrested and charged is no bar to punishing him. The others must be arrested and charged as their names are known. In answer to Question 13 of the record of interview, the prisoner named the others as Kolen Samuel, Julius Felix, Nelson Paul and Ben Java. The State, through the police must bring these people to justice immediately.

This offence is one of the very serious crimes of violence. It is very prevalent and it seems to be committed at will without due regard and respect for human lives and the property of others. The prisoner had asked for a good behaviour bond or probation however, as I said on Wednesday, 2nd June when sentencing Augustine Aililo for armed robbery, good behaviour bond and or probation is not an appropriate form of punishment for armed robbery, not when there are serious circumstances of aggravation. Again I will adopt what the Supreme Court said in Kokopo last week in Jimmy Amos Rake v The State and Wena Pokarop v The State; (SCRA 42/2003 & SCRA 44/2003) unreported and unnumbered, 25th May 2004; and John Mare v The State and Avivi Bulu v The State; (SCR 53/2003 and SCR 54/2003) unreported and unnumbered, 26th May 2004 – "robbery, being a crime of violence, must be punished with an immediate punitive custodial sentence upon conviction, unless exceptional circumstances exist to warrant a partial suspension." This is a Supreme Court pronouncement of a legal principle on sentencing for armed robbery, which is binding on the National Court and this Court cannot ignore it.

Unfortunately, there are no exceptional circumstances present in this case for the Court to accede to the prisoner’s plea for a good behaviour bond or a release on probation. With respect, it is my view that the aggravating features of this case warrant a serious consideration of a severe penalty. In my view, an offender who wounds an innocent citizen in an armed robbery deserves a long prison term. As I alluded to, the crime of armed robbery is a very prevalent offence, and it is committed almost every day right through out the country. There does not seem to be an end to this violent crime so the Courts, in my respectful view, cannot continue to impose light sentences in the face of growing concerns by the community.

As I have alluded to, the Court has taken into account everything that counsel for the prisoner has urged the Court to. However, I consider that this is one case in which no other form of punishment except immediate punitive custodial sentence is appropriate. When you have a case like this, where there are circumstances of aggravation, it will be quite absurd to impose a sentence that does nothing but makes a mockery of the sentencing powers of the Court. This is a case, too serious, to even think about a good behaviour bond let alone probation. In my view, the sentence in this case must reflect the prevalent aspect of this crime and the use of violence which results in personal injuries.

In all the circumstances, I sentence the prisoner to 10 years imprisonment in hard labour. I order that 4 months be deducted from that term for time spent in custody awaiting trial. The prisoner will serve the balance of 9 years and 8 months.

Orders accordingly.

Lawyer for State : Public Prosecutor
Lawyer for Prisoner: Public Solicitor