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State v Kumai (No 2) [2004] PGNC 78; N2699 (4 October 2004)

N2699

PAPUA NEW GUINEA

IN THE NATIONAL COURT OF JUSTICE

CR. 1664 of 2002

THE STATE

-v-

TERENCE KUMAI (No. 2)

Lae: Manuhu, AJ

2004: September 30 & October 4.

JUDGMENT ON SENTENCE

CRIMINAL LAW – Particular offence – Attempted robbery – Relevant considerations – Circumstances of aggravation.

Cases cited:
State v. Timothy Thomas Moriloma (No 2) (2003) N2395.
Gimble v. The State [1988-89] PNGLR 271.
Tau Jim Anis v. The State (2000) SC642.
Don Hale v. The State (1998) SC564.
State v. Joe Rex Steven Basu (1997) N1537.
State v. Chris Daniel Levatoro (1997) N1547.
The State v Tarere Mamu (2002) N228.
The State v. Atau Gore, CR 394 of 2002.

Counsel:

Mr. R. Gangkarch, for the State.
Mr. R. Yombon, for the Prisoner.

4th October 2004.

MANUHU, AJ: The Prisoner, Terence Kumai, after a trial on an armed robbery charge, was convicted for attempted robbery. The Prisoner was in the company of others and, by virtue of s. 7 of the Criminal Code, was armed with dangerous weapons. Under section 387, therefore, the Prisoner could be sentenced to a maximum imprisonment term of 14 years.

At about 8.00 am on 6th May 2002, the Prisoner and a friend drove in his friend’s white tinted car, registration number LAK 490, to Lae Courthouse where his friend got off, leaving the car to the Prisoner. The Prisoner proceeded to pick up a gang of four armed men and proceeded to ADN Cash and Carry shop in Lae. At ADN, the gang went into the shop while the Prisoner waited in the car. The gang pointed a pump action short gun and two factory made pistols at the security guards and forced them out of the shop.

At that time, cashier Kivu Yagamu and Janet had cash spread upon the table in the cash office for banking preparations. The gang knocked and then broke into the cash office where Kivu and Janet were counting the money. Fortunately, Kivu and Janet had by then escaped through the back door and hidden themselves in the liquor room. It is not revealed in the evidence if any money was stolen. The four robbers then got into the car and fled.

The Prisoner is 21 years old. He was 18 or 19 at the time of the offence. He comes from Mambum, Mumeng, Morobe Province. He is single and was residing with his parents at East Taraka. The Prisoner was unemployed at the time of his apprehension. He completed Grade 6 at Kiam Primary School and is a Lutheran follower.

Sentencing is essentially the act of balancing the factors both for and against the Prisoner. Where the factors for the Prisoner outweigh the factors against him, he may be given a lenient sentence. If the factors of aggravation prevail the Prisoner should not expect a lenient sentence. In such a situation, a deterrent sentence may be considered to demonstrate to the Prisoner the community’s strong disapproval of his actions.

In this case, the Prisoner has told me about his family situation. He is the only male child and is concerned about the livelihood of his sisters and mother who still live in East Taraka. The high cost of living in Lae will hurt his sisters and mother. These, however, are not mitigating factors. The Prisoner should have had his sisters and mother’s livelihood in mind when he and his accomplices were planning to rob ADN, but he chose to ignore them. For ignoring them, his mother and sisters should be cursing him for not showing concern for them at the fist instance. The Prisoner says that he has realized the dire consequences of his actions and how dreadful it is to be in jail. I think the Prisoner will appreciate also that every wrongdoing must be met with a just penalty, and all crimes have their penalties already prescribed. Most of the penalties will result in a jail term.

It is also noted that the Prisoner is a first offender but he behaved during the commission of the crime as if he has had some experience. The gang was armed with guns and pistols. Discharging those weapons and someone getting hurt or killed was a reasonable possibility. The Prisoner must have appreciated the dangers of the operation but he had the strength and courage to stick to the plan. Fortunately, no one was hurt, injured or killed.

The crime was premeditated. Some planning was put into how the gang would approach ADN and how they would escape. It was decided that a vehicle would be used and the Prisoner knew how to obtain the right vehicle. The gang must have noted the set up of the shop and where the cash office was located. The gang must have also taken into account the banking practices of the shop. Premeditation is a serious factor of aggravation.

The crime of armed robbery is a serious crime in the country and in Lae. The whole of the Papua New Guinea community is fed up of it. The Prisoner is from Mumeng in Morobe Province. Morobe Province is richly blessed with good soil for gardens and general agriculture. There are many garden produce growing everywhere. No one should be hungry in Morobe. You can only be hungry in Morobe if you are lazy. I see women and old people sell their produce in the market. I do not see young men doing the same and I do not know why young men like the Prisoner cannot turn to the land to help themselves. Instead, they spend their time aimlessly and purposely living in and roaming the streets of Lae on a daily basis. Sooner or later, they find themselves thinking about and trying to deprive another person of the fruits of his or her hard work. There is simply no excuse for this sort of behaviour.

Counsel for the Prisoner has referred me to my judgment in the case of State v. Timothy Thomas Moriloma (No 2)[1] where I said that "if the State has, consequently mismanaged the country, which is the root cause of the recent state of lawlessness, why should it pass the buck onto a defendant, a mere by-product of the State’s failure, by increasing his or her sentence". However, the paragraph relied upon was relevant to my discussion on quantum leaps in the tariffs for armed robbery cases; and the need for consistency with the appropriate tariffs established in Gimble v. The State[2], Tau Jim Anis v. The State[3] and Don Hale v. The State[4]. In any event, while lawlessness could be seen as a by-product of the State’s management failures, the State, which is an abstract entity, is only as good as the people themselves. And some of us, like the Prisoner, cannot blame the State when we should not be hungry and poor in Morobe.

Sentences for attempted robbery have generally been less than those for armed robbery. In State v. Joe Rex Steven Basu[5], where the offender used a pistol and attempted to steal a vehicle, three years was imposed. In State v. Chris Daniel Levatoro[6], three years was imposed for attempted stealing of a vehicle. In The State v Tarere Mamu[7], a suspended sentence of four years was imposed. In The State v. Atau Gore[8], I imposed a sentence of five years for attempted robbery of a vehicle. Thus, the current sentencing tariffs for attempted armed robbery have been between three and five, sometimes more.

In this case, I am of the view that the factors of aggravation outweigh the mitigating features of the case. This attempted armed robbery was a premeditated major operation. The gang was fully armed and a vehicle was used. In the circumstances, the Prisoner should be given a sentence that will demonstrate to him and like minded persons that stealing from other people should stop. Such crimes should stop in Morobe. The maximum sentence is fourteen years. I will impose a sentence of 6 years in hard labour. Taking into account the custody period of 2 years and 5 months, the Prisoner has 3 years 7 months to serve in hard labour.

Sentenced accordingly.
__________________________________________________________________
Lawyer for the State : Public Prosecutor
Lawyer for the Prisoner : Paraka Lawyers

^[1] (2003) N2395.
^[2] [1988-89] PNGLR 271.
^[3] (2000) SC 642.
^[4] (1998) SC 564.
^[5] (1997) N1537.
^[6] (1997) N1547.
^[7] (2002) N228.
^[8] CR 394 of 2002.