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State v Ago [2004] PGNC 92; N2673 (20 May 2004)

N2673

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]

CR. NO. 1649 of 2003

THE STATE

-V-

TERENCE AGO

GOROKA: KANDAKASI, J.
2004: 10th and 20th May

DECISION ON SENTENCE

CRIMINAL LAW – SENTENCING – Armed gang robbery on a street – Use of firearms and other weapons, threats and actual violence – K9,400.00 stolen and not recovered – No prior conviction - Sentence of 13 years imposed - Criminal Code section 386(1) and 19.

Cases cited:
Gimble v. The State [1988-89] PNGLR 27.
The State v. Abel Airi (Unreported judgment delivered on 28/11/00) N2007.
Hawai John v. The State. (unreported judgement delivered on 02/04/98) SCR 09 of 1995.
Tau Jim Anis & Ors v. The State (Unreported judgment delivered 25/05/00) SC642.
Acting Public Prosecutor v. Don Hale (Unreported judgement delivered on (27/08/98) SC564.
Dadly Henry Gorop v. The State (unreported judgement delivered on 03/10/03) SC732.
The State v. Vincent Malara (Unreported judgment delivered on 20/02/02) N2188.

The State v. Edward Toude & Ors, (No. 2) (Unreported judgment delivered on 18/10/01) N2299.

Nobert Maing v. The State (Unreported judgment delivered on 02/10/03)SCRA 29 of 2002.
Nelson N. Ngasele v.The State ( Unreported judgment delivered on3/10/03) SC731.
Ala Peter Utieng v. The State (Unreported and unnumbered judgement of the Supreme Court).

The State v. Nickson Pari (No.2) (10/01/01) N2033.

The State v. Tony Pandua Huahahori (No.2) (21/02/02) N2186.
The State v. Fabian Kenny (Unreported judgement delivered 16/05/02) N2237.

Counsel

N. Miviri for the State
M. Apie’e for the Accused

20th May 2004

KANDAKASI, J: You pleaded guilty to one charge of armed robbery contrary to s.386 (1) and (2) of the Criminal Code.

In your address before sentence, you said sorry for what you have done and asked the Court to exercise mercy toward you. You said you came into Kainantu town in search of employment to support your mother, your wife and six month old baby after a tribal fight in your village resulting in destruction to properties in your village. You also said this is the first time you have committed an offence at the influence of others and asked the Court to consider sending you to Bundaira Correction Service so that you could serve your sentence closer to your families.

In view of what you told the Court, your lawyer asked for a sentence starting at 8 years. He referred the Court to the Supreme Court decision in Gimble v. The State,[1] which provides sentencing guidelines for armed robbery cases. This case recommended a starting sentence of 5 years for robbery at shops, on streets and highways.

The law requires a sentencing judge to carefully consider the circumstances in which an offence has been committed as well as the effect of that on the victim and the community. At the same time, the law requires the judge to ensure that the sentence reflects the particular facts of the case as well as the competing interest of the community to punish offenders and the interest of an offender to be fairly treated and opportunity given to reform. I alluded to these competing interests in a number of cases starting with the case of The State v. Abel Airi.[2]

Hence, to determine an appropriate sentence for you in this case, I need to first consider the circumstances surrounding the commission of the offence. I must also consider whether, the offence is prevalent and the effect of that on the community. Further, I must have regard to the sentencing trends and the effect of the number of the incidents of the offence and determine whether the past sentences have deterred offenders like you. I start that process by considering the relevant facts.

The Facts

On Tuesday 27th May 2003, the victim of your offence, Basil Taru and two others went to the bank in Kainantu and withdrew K9400 in cash to buy coffee. They headed for their destination to buy coffee, when you with five others came onto the road armed with two homemade pistols and a .22 rifle and held them up. Upon seeing the guns pointed at them, the driver of the vehicle stopped the vehicle. You had the guns pointed at the victims, demanded and received the K9,400.00 in cash. Thereafter, you pulled the driver and its crew off from their respective seats in the vehicle and threw them on the ground. You and your gang then took control of the vehicle and drove away in it. Later, you stopped the vehicle on the way at the junction of the road to Aiyura and PS Street and escaped by foot.

I do not find your claim in the record of interview credible, where you say you saw the other boys conducting the hold up and you just got on the vehicle and later received K700 from the proceeds of the robbery. There is no evidence that you returned any of the money you and your gang stole from the victims. From the evidence on file, I find by inference that this was a well-executed robbery of a well-planned robbery.

Eventually, your victims reported the robbery to the police. Thereafter due to good police work, they arrested and eventually charged you for the robbery. You admitted your involvement when the police questioned you, a position you continue to take up to this Court.

The Law

The offence of armed robbery carries a maximum penalty of life imprisonment. In the much celebrated case of Gimble v. The State,[3] the Supreme Court however, set sentencing guidelines for armed robbery cases lower than that in the exercise of the sentencing discretion vested in the Courts by s.19 of the Criminal Code. Higher up on the sentences it recommends, is 7 years for robbery of a dwelling house and at the lower end, robbery of a person on the street at 3 years.

These guidelines also provide for an increase or decrease from these starting points depending on the factors in aggravation and mitigation. Where there are features of aggravation such as actual violence, the amount stolen or its value is large, or where the robber is in a position of trust towards the victim, a higher sentence may be justified. On the other hand, a plea of guilty and an absence of any of these aggravating factors may justify a lower sentence.

Subsequent judgements of the Supreme Court have held that these guidelines, particularly the recommended sentences are outdated and have increased them. This started on 2nd April 1998, in Hawai John v. The State.[4] In that case, the Court considered a sentence of 8 years on a guilty plea was too lenient. There, the appellant’s accomplish pleaded guilty and was given a sentence of life imprisonment. On appeal, the Supreme Court reduced the sentence to 15 years. The reduction was because of a huge disparity between the appellant and his co-offender. Otherwise, the Court found that the offence was most serious because it was a planned robbery carried out with reckless disregard for others using firearms resulting in one of the victims of the offence being rendered blind. In the Court’s own words, it said at pages 2 to 3:

"We agree that this was a most serious offence – a planned robbery carried out with reckless disregard of others. The carrying of firearms is always seen as serious aggravation of an offence because of the danger to life. As this offence shows that danger was realised with the blinding of the company driver. It was the appellant who fired the shot.

We are of the view that in such a case as this the imposition of a life sentence might well have been open to the Court. Despite there being no loss of life, the blinding of a young man-breadwinner of his family has effectively imprisoned him for life in a world of darkness.

... [W]hile the sentence viewed in isolation may not be said to be manifestly excessive on its own, the Court on the occasion was dealing with the second of two co-offenders."

That was a case of robbery on a street, which falls in the last category under the Gimble v. The State,[5] guidelines. The victim was transporting bags of money in cash totalling K1,798.00 and cheques totalling K215,000. 00 in a company vehicle. The appellant and his accomplishes followed the victim and shot into the screen of the vehicle on the driver’s side. That injured the driver rendering him fully blind. The money was stolen with the cash distributed and the cheques destroyed. Therefore, the company lost financially.

Subsequent judgments of the Supreme Court, did not consider this judgment, perhaps due to it not being numbered and circulated amongst the judges. A judgment that does not take into account that judgment is Tau Jim Anis & Ors v. The State[6] citing Acting Public Prosecutor v. Don Hale.[7] Neither of these cases cited Hawai John v. The State.[8] In the first of these two cases, the Supreme Court increased the range of sentences. It did so by a factor of 3 years going by the judgment in Acting Public Prosecutor v. Don Hale.[9] That saw an increase of the previous highest recommended sentence of 7 years to 10 years for robbery of a dwelling house and other categories also increased by the same factor with the last category of robbery on a street, increased to 6 years.

In my view, if the Court in these cases were aware of the judgment in Hawai John v. The State,[10] there would have been a greater increase in the sentence than the ones recommended in the Tau Jim Anis & Ors v. The State.[11] The Supreme Court recently confirmed this in Dadly Henry Gorop v. The State.[12] There, the Court said:

"... [W]e of the view that if that was done [considered the judgement in the Hawai John’s case] the sentence ranges recommended in the subsequent judgements could have been beyond what the Court was prepared to settle at. But because that has not happened everyone has been proceeding on the basis of the judgements in Tau Jim Anis & Ors v. The State ...and Acting Public Prosecutor v. Don Hale.... This has resulted in sentences after a trial reaching as high has 20 years as demonstrated by The State v. Edward Toude, & Ors (No 2)..."

The Supreme Court has taken this position because of the prevalence of this offence and the past sentences appearing not to deter other would be offenders from committing armed robberies.

In recent years, the National Court has been imposing sentences of up 15 years on a guilty plea for robbery falling in the third category, per the Gimble v. The State.[13] An example of that is the sentence I imposed in The State v. Vincent Malara.[14] In that case, the prisoner who had a prior conviction for arson pleaded guilty to one count of armed gang robbery. The arms included a gun, bush knives, a crow bar and a pinch bar. They used these weapons to execute the robbery of a store. In the process, they cut one of the security guards on his head twice. The total amount and value of goods or property stolen was about K18,228.80 in cash, K2,660.46 in cheques and K5,831.08 in cigarettes.

In other cases, I imposed sentences beyond 15 years but these were after a trial. An example of that is my judgement in The State v. Edward Toude & Ors (No 2), [15] which was cited in the Dadly Henry Gorop v. The State[16] where I imposed a sentence of 20 years against a prisoner whom I found was the leader. That was in a case of an armed robbery on a ship, which I placed in the same category as a robbery of a dwelling house, because a ship often serves as a house. Additionally, it involved the breach of an employer/employee trust relationship by an employee who was the leader of the armed gang robbers.

Having regard to this sentencing trend, the Supreme Court in the Dadly Henry Gorop v. The State[17] case reduced a sentence of 20 years to 18 years. In that case, the prisoner pleaded guilty to one charge of armed robbery. The amount of property stolen was not substantial, but the injuries to the victims were very serious. The victims were a Canadian couple, touring the country at the time. The prisoner seriously assaulted the victims with a hockey stick. This resulted in fractured head injuries to both victims. The prisoner also knocked them down unconscious, with one of them almost dying but for swift medical intervention.

In arriving at that decision, the Supreme Court said:

"Given these, the sentence of 20 years in your case would appear not to be manifestly excessive going by the guidance of the judgement in Hawai John’s[18] case. At the same time however, given the kind of sentence the offenders have received in cases like that of The State v. Vincent Malara[19] following a guilty plea in the particular circumstances in those cases with a sentence after a trial as in The State v. Edward Toude, & Ors (No 2),[20] reaching 20 years, we are of the view that you would have a justified feeling of the sentence being excessive. We are therefore of the view that your sentence should be reduced to 18 years."

If anything is clearer from these judgments is the fact that, sentences in armed robbery cases have increased since the guidelines in Gimble v. The State.[21] The prevalence of the offence is the main contributing factor for the increase in the sentences. The lowest starting point for a simple robbery of a dwelling house is now 10 years. This sentence may be increased or decreased depending on the factors in aggravation as well as those in mitigation. However, if this is reconsidered in the light of the judgment in Hawai John v. The State,[22] the sentence could well start at 13 to 15 years. Indeed two recent judgments of the Supreme Court in Norbert Maing v. The State (Unreported judgment delivered on 02/10/03) SCRA 29 of 2002 and Nelson Ngasale v. The State (Unreported judgment delivered on 02/10/03) SC731, endorsed a number of judgments increasing sentences, most of them mine by indicating a preparedness to increase sentences from 10 years to 13 years for armed robberies on a street on a plea of guilty.

Your Case

For the purposes of sentencing, I note in your favour that, you are a first time offender with no prior convictions. You have pleaded guilty to the charge, something you did following your arrest through to the committal process and this Court. Your guilty plea has of course meant less expenses for the State and less time for the Court.

Following on from that, you have said sorry to this Court for having committed this offence. At the same time, you asked this Court to treat you leniently by giving you a lighter sentence for you to serve at Bundaira Correction Service, Kainantu. This is to enable you to be closer to your family.

In relation to your saying sorry, I note there is no evidence of you having said sorry to the victims of your offence. They are the ones who suffered directly from your unlawful acts. Whilst I agree that it is an offence against the people collectively through the State and that your saying sorry could mean saying sorry to the people, the person who directly and immediately suffered at your hands should be the first persons to whom such expression should be directed at. There is no evidence of you paying any compensation to the victims of your offence or saying sorry to them. Instead the evidence is clear; you used up your share of the money K700.00, out of the K9,400.00, you stole from them. You wasted these in alcohol.

I adopt and reiterate what the Supreme Court said in Ala Peter Utieng v. The State,[23] in relation to offenders’ saying sorry in Court that such:

"... utterance of sorry must be accompanied by something tangible which befits the wrong he has brought upon the victim, her family and relatives, if such utterances are to be of any value and meaning. In the present case, there is no evidence of the Appellant paying any compensation or has taken any step to correct the wrong he has perpetrated. This Court or any other court for that matter should be slow to act on such meaningless and or valueless pleas for mercy or leniency."

In your case, without any evidence of you saying sorry to the victims of your offence, or paying any compensation and without a return of the money you stole from them, means nothing.

I also note that you are 20 years old and married with a child. You are therefore not a young offender. You were therefore in a position to know that, what you set out to do with your friends was wrong but carried it out anyway. You had no useful purpose in mind, nor did you utilize the money you stole for any good purpose. This was a completely inexcusable criminal act on you and your friends’ part. Accordingly there can be no exercise of mercy or leniency in these circumstances.

Further, I note that, you are unemployed villager. In your allocutus, you said your father is deceased and you reside in the village with your mother, your wife and your small child. You also said you came into town to look for work to support your family members because of destructions caused to them by a tribal fight. However, your actions, in particular the way in which you used your share of the stolen money contradicts your claims.

Against you I note are number of factors. Firstly, you committed the offence in the company of others. It is clear now that acting in the company of another and more seriously a group, provides more strength and encouragement. This makes the commission of an offence by a group more serious than a case in which only one person is the offender. As such, those who act in a group deserve a higher penalty.[24]

Next, you used two homemade pistols and a .22 rifle, all offensive weapons, to commit the robbery and in the cause of that, you assaulted the driver and his crew. As the Supreme Court said in Hawai John v. The State,[25] the involvement of firearms and the use of it is a serious aggravating factor, because it has the serious risk of claiming human life.

Another factor against you is the amount of money involved. You stole a total of K9,400.00 intended for the purchase of coffee directly off from villagers along the road side. In this way, the growers would have avoided the costs and trouble of going directly to a factory and selling their produce. Your actions therefore, affected the small coffee producers as well as the immediate victims of your offence. There is no evidence of a recovery of either the whole or part of the money you stole. The evidence instead shows your using the money in the wasteful pursuit of alcohol.

Another factor against you is that, the crime of armed gang robbery on our highways, roads, streets and in towns, as in this case, is on the rise. That is why in nearly all of the cases that have gone before the Courts, the Courts have expressed hope or considered either, expressly or by implication that the sentences they were imposing would deter the offenders themselves and other would be offenders from committing such offences. Unfortunately, as nearly all judgements to date on this kind of offences acknowledge, the kinds of sentences imposed to date have failed to meet that hope. The effect of that is, as I said in The State v. Nickson Pari (No.2),[26] the offence is on the increase. They are everyday occurrences throughout the country.

As I observed elsewhere, despite correctly describing how bad the crime is, the sentence imposed do not compare with the suffering and the loss a robbery brings upon the victims specifically or the society as described in the various judgments such as Tau Jim Anis v. The State.[27] On the long term, if we allow this to continue by imposing lenient sentences, services provided by law-abiding people might shut down and the entire community could suffer the consequences of such criminal conducts. Logically, if all it would take is a few 5 to 8 years, one could afford to commit such serious crimes because offenders would know that, they would get away lightly. This, in my view, is partly contributing to the increase in this kind of offences.

As noted, the crime of armed hold up and robbery is now a common occurrence almost everyday. It is happening not only here in the Eastern Highlands Province but throughout the country. In some cases, there are even deaths both in successful and unsuccessful robberies as in the case of The State v. Tony Pandua Huahahori (No.2).[28]

I started to respond to this serous and prevalent crime against society by imposing sentences beyond those recommended by the earlier Supreme Court judgments. An example of my doing that is in the case of The State v. Fabian Kenny.[29] That was a case of robbery on a highway in Wewak. The prisoner was a first time young offender. I imposed a sentence of 9 years.

The Supreme Court implicitly approved the sentence in the above case and several others in three of its recent decisions. The decisions in question are those of in Norbert Maing v. The State (supra), Nelson Ngasale v. The State (supra) and Dadly Henry Gorop v. The State (supra).[30]

Against these is your guilty plea and not having any prior conviction as noted already. I also find that this is not a worse case of armed robbery. In these circumstances, an imposition of the maximum prescribed sentence is inappropriate. It will therefore have to be a determinate term of years. Having regard to above discussions particularly in relation to the offence, its effect on the society and the victims of the offence and the sentencing trend which is one of progressive increase in the sentence to respond to an ever increase in the crime, I consider a sentence of 13 years appropriate. Of that sentence, I order a deduction of the 5 months you have already spent in custody. Accordingly, I order that, you serve the balance of 12 years 7 months in hard labour.

I note you have asked the Court to order you to serve your sentence at the Bundaira CS. Rather than making an order in those terms, I will leave that to the discretion of the Correction Services to transfer you there, whenever they consider it appropriate.
__________________________________________________________
Lawyer for the State: Public Prosecutor

Lawyer for the Accused': The Public Solicitor

^[1] [1988-89] PNGLR 27.
^[2] (unreported judgment delivered 28/11/00) N2007.

^[3] Supra note 1.
^[4] (unreported judgement delivered on 02/04/98) SCR 09 of 1995.
^[5] Supra note 1.
^[6] (Unreported judgement delivered 25/05/00) SC642.
^[7] (Unreported judgment delivered on (27/08/98) SC564.
^[8] Supra note 5.
^[9]Supra note7.
^[10] Supra note 5.
^[11] Supra note 7.
^[12] (unreported judgement delivered on 03/10/03) SC732.
^[13] Supra note 1
^[14](Unreported judgment delivered on 20/02/02) N2188 and cited in Dadly Henry Gorop v. The State supra).
^[15] Supra note 13.
^[16] Supra note 11.
^[17] Supra note 11.
^[18] Supra note 6.
^[19] Supra note 14.
^[20] Supra note 15.
^[21] Supra note 1.
^[22] Supra note 5.
^[23] (unreported and unnumbered judgement of the Supreme Court delivered in Wewak on the 23rd of November 2000) SCRA 15 of 2000 at page 5
^[24] See The State v. James Gatana & 3 Ors (Unreported judgement delivered on 19/04/01) N2127 for example of a case formerly stating that.
^[25] Supra note 5.
^[26] (Unreported judgment delivered on 10/01/01) N2033.
^[27] Supra note
^[28] (Unreported judgment delivered on 21/02/02) N2186.

^[29] (Unreported judgement delivered 16/05/02) N2237.
^[30] Supra note