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State v Waluta [2005] PGNC 52; N2911 (17 August 2005)

N2911

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]

CR.NO. 1759 OF 2003

THE STATE

-V-

ALLAN ESRI WALUTA

KOKOPO: LENALIA, J.
2005: 15th & 17th August

Criminal Law – Aggravated armed robbery – Plea - Sentence – Criminal Code, s.386 (1) (2) (a) (b) & (c), Ch. No. 262.

Cases cited:

Gimble v The State [1988– 1989] PNGLR 271
Public Prosecutor v Don Hale (1998) SC564
John Arua Peter v The State (1.6.00) SC638
Dadly Henry Gorop v The State (2003) SC732
Richard Sebastian v The State (2003) CR. No 43 of 2002
Secretary for Law v Witrasep Binengim [1975] PNGLR 172

Counsel:
L. Rangan, for the State.
T. Potoura for Accused.

17th August 2005.

LENALIA, J. The prisoner pleaded guilty to one count of aggravated armed robbery pursuant to s.386 (1) (2) (a) (b) and (c) of the Criminal Code.

The circumstances of the offence are contained in witnesses statements and the record of interview. On 5th of January 2002 about 7pm in the evening, the victim of this case Ruth Mondol was preparing dinner for her family at Kabagap village on the southern side of Tokua airport.

In the course of her cooking the meal, eight suspects came to her premises and held her up with her children. In their possession that evening, the suspects had with them three shotguns and one SLR rifle. Ruth Mondol recalls that, other offensive weapons such as bush knives and axes were also in the possession of the rest of the group members.

Four of the gang members came straight to Ruth and demanded the ignition keys to the victims’ Toyota Land/Cruiser. Whilst these four were harassing Ruth in the kitchen, three of the gang members went up to the house where the children were and started to terrorize them by demanding for the car keys and searched the house for money.

Ruth went up the house to get the car keys and gave them to the accused and his gang. After they were given the car keys, they searched the floor mats and lifted up beddings looking for money. They demanded Ruth to give the money. She gave them about K1, 000. While searching the floor mats, they found another K1, 000 and took it away with them.

All the money stolen in the hold-up amounted to K2, 300 cash. A part from the cash money, the gang stole a BMX Bicycle, a vehicle key for the family’s PMV bus and a lawnmower. After the gang robbed the family, they loaded all stolen items into Ruth’s private car, the Toyota Land/Cruiser, Registration No RAD 787 and drove away.

After the robbery, one of the gang members drove them away heading toward Gelegele. The accused was left at Gelegele and his accomplices drove further up to Vimmy Plantation where they abandoned the vehicle and fled with the stolen properties the property of Ruth Mondol.

On sentence, the Court will take into account what you said in allocutus together with what was submitted in your favour by your lawyer. It will also take into account you pleaded guilty to this very serious charge as well as the fact that you have no previous convictions.

The charge with which you have been charged with is very serious indeed because it was aggravated by a number of factors. Before I mention those aggravations, I wish to refer to the section charged because the latter part of that proviso contains such aggravation as s.386 (1) (2) (a) (b) and (c) of the Code states:

"386. The offence of robbery.

(1) A person who commits robbery is guilty of a

crime.

Penalty: Subject to Subsection (2),

imprisonment for a term not exceeding 14 years.

(2) If a person charged with an offence against

Subsection (1)-

(a) is armed with a dangerous or offensive

weapon or instrument;

(b) is in company with one or more other persons; or

(c) at, immediately before or immediately after, the time of the robbery, wounds or uses any other personal violence to any person,

he is liable subject to Section 19, to imprisonment for life."

The prisoner’s case falls into Subsection (2) which was aggravated by first, the offensive weapons which were used that night. There were three shot-guns and an SLR rifle. The facts also show that, other gang members had in their possessions bush-knives and axes.

Secondly, the accused was in a group of other seven other accomplices. Where there is a group of people in company of each other, it is a show of strength as it is usually said that, where there are more than one person, there is a lot of strength to commit offences without fear as the eight of you did in this case. You were bold and you approached the victim and her children very confident of what you were going to do.

The third aggravating factor is this. When you and you accomplices were in the premises of the victim, you threatened to use actual violence against the occupants. They were told that if the victim, her children and those who were with them could not give you what you demanded, you were to shoot them with the guns. No wonder why the poor victim gave up her vehicle keys and the hard-earned money belonging to her and her family.

Mr. Potoura of counsel for the accused submitted cases of Gimble v The State [1988-1989] PNGLR 271 and Public Prosecutor v Don Hale (1998) SC 564 for the Court to consider.

In the former case, there the Supreme Court set out the appropriate sentencing guidelines for offences of aggravated armed robbery contrary to s. 386 (2) (a) (b) and (c) of the Code. There the Court suggested that for a robbery in a house, the starting point in a not guilty plea would be seven (7) years.

For a robbery in a bank the starting point would be six (6) years. For a vehicle on the street, hotel, club or a robbery in a store, a starting point of five (5) years. And for a robbery on the street, the starting point would be three (3) years.

But starting with the case of Public Prosecutor v Don Hale (supra) the Supreme Court pronounced the warning that due to the prevalence of the crime of robbery the range of sentences recommended in the case of Gimble v The State (supra) are having no effect and are no longer relevant to circumstances of armed robberies committed today.

I adopt comments made by the Supreme Court in Don Hale’s case and apply them to the circumstances of this case and I would further say that, the Parliament’s intention on the imposition of life imprisonment for aggravated armed robbery speaks for itself. People like the accused who choose to commit offences of armed robberies against their country men and country-women must face the consequences of being sent to prison for long terms of imprisonment even it may mean imposition of the life sentence prescribed by the legislature.

I will quote a number of authorities in which the Supreme Court has either up-held or dismissed appeals for reasons stated therein on cases of armed robberies. In John Arua Peter v The State (1.6.00) SC 638, the appellant was sentenced to a term of ten (10) years imprisonment by the National Court. An additional term of 2 years was imposed for unlawful use of a motor vehicle, with sentences ordered to be served concurrently.

The above case was an aggravated armed robbery where the appellant and his accomplices used a gun to hold up the victim. When the victim could not open the door to let the robbers in, they used a stone to smash the windscreen and thereafter, they used bottles of beer to assault the victim over his head which broke and cut his head. On appeal, on the grounds of severity and the fact that the trial judge did not consider certain factors on mitigation.

The Supreme Court dismissed the appeal and said, all mitigating circumstances were taken into account and since it was an aggravated armed robbery, the sentence imposed by the trial Court was proportionate to the serious nature of the offence.

In McKenzie Bonny v The State (28.11.03) SCRA 78 of 2002 a case of aggravated armed robbery in Lae, the appellant was sentenced to eight (8) years imprisonment. His grounds of appeal were that, the trial Court did not consider the fact that the appellant was a student studying at Madang Uni Centre and secondly that he was only a watchman. The Supreme Court there dismissed the appeal as it found the appeal had no merits.

In Dadly Henry Gorop v The State (2003) SC732, the National Court sitting in Kokopo sentenced the appellant to twenty (20) years for an aggravated armed robbery. That case involved a Canadian couple who were led by the appellant up the Namanula Hill on Rabaul posing to be a tour-guide. On the way up the hill, the appellant attacked the couple by using a hockey stick to viciously attack them. The male partner was severely beaten resulting in him being unconscious. He was air-lifted to Australia for urgent medical treatment.

The appellant appealed to the Supreme Court, and the sentence of twenty years was reduced by two years. He is serving eighteen (18) years.

In Richard Sebastian v The State (2003) CR. No. 43 of 2002, the appellant appealed against a sentence of nine (years) for a well planned armed robbery along the highway between Pagwi and Maprik Districts. He entered a guilty plea and was sentenced accordingly. His appeal was dismissed on the basis that although no violence was used, passengers were harassed and robbed of their valuable items valuing K579.00.

Mr. Rangan of counsel for the prosecution submitted that, an accomplice of the accused had been previously sentenced by this Court. That case is The State v Valvalu Lane CR. No. 34 of 2003 who was sentenced to on 20th of May 2004 to a term of eight (8) years imprisonment. I am required by law to consider the principle of sentencing disparity. Under such principle, the sentencing judge must take into account on sentence a co-accused or any number of accomplices who had been earlier sentenced to make sure that the latter co-accused receives much the same sentence as the accused who was first sentenced: Secretary for Law –v- Witrasep Binengim [1975] PNGLR 172.

Taking into account all mitigations together on one hand including your guilty plea and taking into account the aggravating circumstances of this case, I sentence the prisoner to eight (8) years imprisonment. The time spent in custody shall be deducted from the sentence and the accused shall serve the balance. Sentence accordingly.
_________________________________________________

Lawyer for the State: The Public Prosecutor
Lawyer for Accused: The Public Solicitor