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State v Tingin [2005] PGNC 5; N2956 (26 September 2005)

N2956

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]

CR NO. 1483 and 1484 of 2005

THE STATE

-V-

MOSES TINGIN & KENNEDY KARA

WEWAK: KANDAKASI, J.
2005: 09th and 26th September

CRIMINAL LAW – SENTENCING – Armed gang robbery on a street – Use of a bush knife – Actual violence used to execute robbery – Money and other personal items stolen not fully recovered - Guilty plea – No prior conviction - Sentence of 11 and 9 years imposed - Criminal Code section 386(1) and 19.

Cases cited:
The State v Irox Winston (13/03/03) N2347.
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 judgment 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 judgment delivered on (27/08/98) SC564.
Dadly Henry Gorop v. The State (Unreported judgment delivered on 03/10/03) SC732.
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 on 3/10/03) SC731.
The State v. Paul Maima Yogol and Dama Teiye (21/05/04) N2583.
The State v. Warip Mondol & Ors. (19/08/04) N2707.
The State v Gilbert Monai (09/06/04) N2617.
The State v. Eki Kondi & 4 Ors (No.2) (24/03/04) N2542.

Counsels:

Mr. A. Kupmain for the State.
Mr. J. Mesa for the Prisoner.

DECISION ON SENTENCE

26th September 2005

KANDAKASI J: The two of you pleaded guilty to one charge of armed robbery with actual violence committed on 13th May 2005, here in Wewak, contrary to s. 386 of the Criminal Code.

The Facts

The relevant facts are straightforward. On Friday 13th May 2005, around 9:00pm, you were amongst a group of young men that walked toward the Windjamer Beach Hotel. At the suggestion of a Chris Kanjubu, your group of boys planned to holdup and rob any person that came along your way. A Mark Daore came by and your group of boys proceeded to execute the plan. Kennedy Kara, you grabbed the victim, pointed a bush knife at him, and called on the others to rob the victim. Your other friends tried to rob him of all that the victim had at the time but the victim put up a struggle. Your gang struggled with the victim into the nearby sea. Your gang eventually overpowered the victim and stole all that he had with him.

The items you stole from the victim included K30.00 cash, his wristwatch, a bush knife, spectacles, a pocketknife, few tools and other personal items. The victim reported the incident to the police, who carried out investigations, which lead to your gang at the Japanese Park where the two of you were apprehended while the others escaped. The police helped the victim to recover from the two of you, his wristwatch, bush knife and spectacles.

Allocutus and Submissions

In your address on sentence, you asked the Court to note and consider your guilty pleas and being first time offenders. You also said sorry for what you have done. You then asked for probation.

Your lawyer added by informing the Court that Moses Tingin, you are 17 years old, having been born on 8th September 1988. You are single and have done up to grade 4 formal education and have not completed schooling due to school fee difficulties. If the Court gives you a custodial sentence, you intend to pursue your studies through extension studies.

Further, you are an unemployed young man dependant on his parents. Your father is an asthmatic and stays home. Your mother is the breadwinner of the family. Recently, she started formal employment with the fish cannery here in Wewak earning about K50.00 a week. Prior to that, your mother used to make and sell Sepik baskets and made little income from that from time to time to support the family.

Kennedy Kara, you are about 22 years old and married with one child. You are the last born of a family of 5 children. Both of your parents are deceased. You live with your parents in-law at Nuigo Settlement here in Wewak. You have gone up to grade 4 primary education and did not go any further due to school fee problems. You are unemployed and have no stable source of income. Earlier on, you had a casual employment with the Windjammer Beach Hotel doing carpentry work.

In your pre-sentence report, you raised some issue of the correctness of the police arresting-officer not arresting and bringing before the courts a Chris Kanjubu, who you say was the main ringleader. That person is related to the police arresting-officer. Further, you claim that the police-arresting officer has grudges against you out of jealously as he also wanted to marry your wife.

Your lawyer urged the Court to take into account, both of your guilty pleas, being first time offenders and your personal and family backgrounds as set out above and impose upon you a non-custodial sentence, without any condition. I drew your counsel’s attention to a recent decision of the Supreme Court out of its sitting in Kokopo, where the Court held that where a Court decides to suspend either the whole or part of a sentence, it must do so on conditions. That decision endorsed what I said in my judgment in The State v Irox Winston.[1]

Having regard to these authorities, I allowed an adjournment to 20th September for additional input from the Community Correction & Rehabilitation Services. The addition information was in terms of whether the community would be happy for you to serve your penalty outside the prison system, what kind of things you could do for or in the community as a form of punishment outside the prison system, where would such work be carried out and who would supervise your performance of the work required of you and enforce any default. This was to enable the Court to decide whether or not to suspend the whole or part of the sentence the Court might eventually decide to impose against you.

When the matter returned before me, not all of the information required by the Court was in. There are inputs from the victim who obviously prefers a restitution of the items he lost to you and a community leader who is prepared to supervise any community based sentence. They however fail to state how they will be able to enforce and ensure all terms and conditions of any suspended sentence would be complied or met. Besides, your pre-sentence reports show that you are used to mixing up with youths and causing trouble in the community.

The Offence and Sentencing Trend

The offence of armed robbery carries a maximum penalty of life imprisonment. In the much celebrated case of Gimble v. The State,[2] 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. According to these guidelines, 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.

Subsequent judgments 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.[3] In that case, the Court considered a sentence of 8 years on a guilty plea by the appellant’s accomplish was too lenient. In the case before the Supreme Court, the appellant 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.

That was a case of robbery on a street, which falls in the last category under the Gimble v. The State,[4] guidelines. The victim was transporting bags of money in cash totaling K1,798.00 and cheques totaling 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. An example of this is the judgment in Tau Jim Anis & Ors v. The State[5] citing Acting Public Prosecutor v. Don Hale.[6] 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.[7] 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.

Recently, the Supreme Court in Dadly Henry Gorop v. The State[8] held that if the courts in the earlier judgments were aware of the decision in Hawai John v. The State,[9] there would have been greater increases in the sentence than the ones recommended in Tau Jim Anis & Ors v. The State.[10] This is how the Supreme Court expressed it:

"...[W]e are of the view that if that was done [considered the judgment in the Hawai John’s case] the sentence ranges recommended in the subsequent judgments 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 judgments 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 prevalence in the offence of armed gang and other forms of robbery caused the Supreme Court to take this position, as the past sentences appeared not to deter other would be offenders from committing armed robberies. In so doing, the Supreme Court acknowledged that there have been increases in the sentences imposed by the National Court, most of them my own judgments.

In the case before the Supreme Court, the Court had regard to the increase in sentences for armed robbery and 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 ... 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 ... 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), ... 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."

What is clear from all of this is the fact that, sentences in armed robbery cases have increased since the guidelines in Gimble v. The State.[11] 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,[12] the sentence could well start at 13 to 15 years. Indeed two recent judgments of the Supreme Court in Norbert Maing v. The State[13] and Nelson Ngasale v. The State,[14] 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.

In very recent times since the above Supreme Court decisions, the National Court has imposed sentences beyond the 10 years mark for robbery on a street. An example of that is my own judgment in The State v. Paul Maima Yogol and Dama Teiye,[15] where I imposed a sentence of 12 years on guilty plea. The prisoners were part of an armed gang that held up a motor vehicle and stole from its driver and others, cash and goods valued at about K1, 300.00. That was on a guilty plea by two first time young offenders.

Other examples include the judgment of my brother, Lenalia J., in The State v. Warip Mondol & Ors.[16] and Sevua J., in The State v Gilbert Monai.[17] In the former, the National Court imposed on a guilty plea a sentence of 12 years for armed gang robbery on a street. That was for robbery of a vehicle on a highway with the use of bush knives with actual violence where a victim was cut by a bush knife. In the later, the National Court imposed a sentence of 12 years and 15 years respectively for two separate counts of arm gang robbery with serious aggravating factors, which included the unlawful detention of the victims of the first of the two counts and physical injury to the victims of the second count.

Bearing the above sentencing trend in mind as well as the particular circumstances in your case, your guilty plea and having no prior convictions, I consider a sentence up to but not exceeding 12 years is appropriate and I propose to impose it. In arriving at that view, I note that the amounts of money or value of goods involved in your case is not substantial. Nevertheless, I note that the victim was shaken by what you did to him and that is an experience he will have to live with for the rest of his life. He recovered only part of what your gang stole from him. From the evidence on file, it is clear that the money you stole from the victim went to buying and drinking of beer. You did nothing useful with the money, not that, that would free you of your criminal responsibility.

In the circumstances, I consider a sentence of 11 years is appropriate and I impose it against you, Kennedy Kara. However, given that, Moses Tingin you are much younger than your co-accused and possibly others, I consider your sentence should be lower than that of Kennedy Kara. This is an accepted principle in our jurisdiction. I applied that principle in The State v. Eki Kondi & 4 Ors (No.2),[18] where I imposed a sentence lower than the ones received by the adult mature offenders in that case. In this case, I find that, Moses Tingin, you were a very young boy who was lead and encouraged into committing the offence by you, Kennedy and the other mature offenders at the time. I consider a reduced sentence of 9 years for Moses Tingin is appropriate and I impose that sentence.

From the head sentences of 11 years and 9 years respectively, I order a deduction of the period already spent in custody awaiting your trials. This will leave you to serve the balance of your sentence in hard labour at the Boram Correction Services for Kennedy Kara and the Wewak Boystown for Moses Tingin.

In arriving at that decision, I note that the offence of armed gang robbery by youthful offenders like the two of you is prevalent and it requires an immediate punitive and custodial sentence to send a message to the community that such conduct is unacceptable and that the courts will deal with such offenders severely. I note from your pre-sentence report that the two of you have been in the company of others and got into some mischief in the past. Hence, sending you to prison will tell your friends that getting into groups and committing offences will result in prison terms. In that way, it will help deter your kind of conduct and help boost the efforts of the auxiliary police in your immediate community at Nuigo Settlement.
___________________________

Lawyers for the State: Public Prosecutor
Lawyers for the Accused: Public Solicitor

^[1] (13/03/03) N2347.
^[2] [1988-89] PNGLR 27.
^[3] (Unreported judgment delivered on 02/04/98) SCR 09 of 1995.
^[4] Supra note 2.
^[5] (Unreported judgment delivered 25/05/00) SC642.
^[6] (Unreported judgment delivered on 27/08/98) SC564.

^[7] Ibid.
^[8] (Unreported judgment delivered on 03/10/03) SC732.
^[9] Opt cit note 3.
^[10] Opt cit note 5.
^[11] Opt Cit note 2.
^[12] Opt Cit note 3.
^[13] (Unreported judgment delivered on 02/10/03) SCRA 29 of 2002.
^[14] (Unreported judgment delivered on 02/10/03) SC731.
^[15] (21/05/04) N2583.
^[16] (19/08/04) N2707.
^[17] (09/06/04) N2617.
^[18] (24/03/04) N2542