PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR NO. 1522 of 2005

THE STATE

-V-

TOMKUK HERMAN ITAGAU

Kerema: Kandakasi, J.
2006: 4th and 24th October

DECISION ON SENTENCE

CRIMINAL LAW – SENTENCING – Armed robbery of a hotel – Use of firearms and discharge of – threat of and actual use of violence – Cash and goods stolen totalling K1,550 not recovered - Guilty plea – Prior conviction for similar offence - Sentence of 16 years imposed - Criminal Code Sections 386(1) (2) and 19. 

Cases cited:
Gimble v. The State [1988-89] PNGLR 27.
The State v. Moses Tingin & Kennedy Kara CR 1483 and 1484 of 2005 (judgment delivered on 26th September 2005)
Hawai John v. The State. (unreported judgment delivered on 02/04/98) SCR 09 of 1995.
Dadly Henry Gorop v. The State (unreported judgment delivered on 03/10/03) SC732.
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.
Bosco Bedy v. The State SCR 45 of 2004, (per Sevua, Kandakasi and Gabi JJ.) delivered on 30th August 2006.
Acting Public Prosecutor v. Don Hale (Unreported judgment delivered on (27/08/98) SC564.
The State v Kalama Daniel (14/07/03) N2476.
In The State v. Donald Angavia, Paulus Moi and Clement Samoka (No 2) (29/04/04) N2590.
The State v. James Yali (19/01/06) N2989.
The State v. Terence Ago (20/05/04) N2673.
The State v. James Gatana & 3 Ors (19/04/01) N2127.

Counsels:
Mr. D. Mark, for the State.
Mr. G. Gorua, for the Prisoner.

24 October, 2006

1. KANDAKASI J: On the 4th of this instant, the State presented and you pleaded guilty to a charge of armed robbery contrary to Section 386 (1) and (2) of the Criminal Code. 

The Facts

2. The relevant facts giving rise to the charge and your guilty plea are these. On Friday 24 June 2005, around 10:00 pm, you and one other man went to Lavai Hotel here in Kerema. At the time, you armed yourself with a homemade pistol whilst your accomplice armed himself with a long barrel gun. You had both of these weapons loaded with live ammunition. Using these weapons, you held up the hotel’s security guard and caused him to go to the hotel’s bar. At the bar was an Aileen Awhong who was manning the cash register. You and your accomplice threatened Ms Awhong and forced her to leave the cash register. As soon as she complied, you and your accomplice helped yourself to the cash that were in the cash register and some smoke products. The combine estimated value of the cash and goods was K1, 550. You then left the scene of the robbery firing a shot into the air as you did to make your get away easy.

3. The victims and the witnesses had no difficulty identifying you as one of the offenders. That made it possible for the police to arrest you. In your record of interview with the police, you freely admitted to committing the offence. You also informed the police that you shared the proceeds of the robbery with your accomplice. Further, you told the police that you used the cash proceeds of the robbery to purchase and consume alcoholic drinks.

Allocutus and Submissions

4. In your address on sentence, you asked the Court to note and consider your guilty plea. You went on to say that family problems caused you to commit the offence and a similar offence in Madang. Also, you said you were sorry for committing the offence. 

5. Your lawyer added by informing the Court that you are 29 years old and the first born of your family. He then referred to a number of armed robbery cases in which the prisoners pleaded guilty and the Court imposed sentences ranging from 9 years to mostly 12 years and one case going up to 17 and 20 years. Then whilst noting that Parliament has prescribed life imprisonment as the maximum penalty for armed robbery, the courts have imposed the kinds of sentences imposed in the cases your lawyer has referred the Court to in the exercise of the discretion vested in the courts by s. 19 of the Criminal Code. Your lawyer concluded with the submission that a sentence of 10 years would be appropriate in your case.

6. In making those submissions, your lawyer did acknowledge that the factors in your aggravation outweighed those in your mitigation. He identified correctly the following aggravating factors:

•	You were armed with two firearms, one homemade;
•	Use of violence and threats of violence to commit the offence;
•	A fire was shot from the gun you had;
•	Stole cash and goods having a total value of K1, 550 which were not recovered;
•	You have a prior conviction; and 
•	That you are an adult.

7. Against these aggravating factors, your lawyer also pointed out the following factors in your mitigation:

•	You pleaded guilty to a serious crime, thereby saving the State the costs of a trial and of course, time for the Court to hear your case;
•	You apologized for committing the offence; and
•	That family issue caused you to commit the offence.

8. The State agreed with your lawyer’s outline of the factors in your aggravation and mitigation. Counsel for the State then submitted that the factors in aggravation, in particular, you having a prior conviction for armed robbery, being armed and in the company of another, far outweigh those in your mitigation. Accordingly, he submitted that your sentence should be above those imposed in guilty plea cases by first time armed robbers.

9. These submissions gives rise to the one issue for this Court to determine and that is. What is the appropriate sentence in your case having regard to the factors in your aggravation as well as those in your mitigation? This issue can only be decided by having regard to the sentence prescribed by Parliament, the sentencing guidelines and trends per the Supreme and National Court judgments and the particular circumstances in which you committed the offence from which, comes the factors in your aggravation as well as those in your mitigation. I will therefore first turn to a consideration of the offence and its sentencing guidelines, trend and tariffs. 

The Offence and Sentencing Trend

10. The offence of armed robbery carries a maximum penalty of life imprisonment. Nevertheless, in the often cited case of Gimble v. The State, the Supreme Court set sentencing guidelines and tariffs 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 are robberies of a person on the street at 3 years.

11. In The State v. Moses Tingin & Kennedy Kara, I reviewed the Supreme and National Court’s approach to sentence since the decision in the Gimble case. I started that process with the decision of the Supreme Court delivered on 2 April 1998, in Hawai John v. The State, to the Supreme Court decision in Dadly Henry Gorop v. The State and the National Court decisions in The State v. Paul Maima Yogol and Dama Teiye, The State v. Warip Mondol & Ors., and The State v Gilbert Monai. 

12.	The review revealed that, due to the prevalence of the offence of armed robbery, the courts have now come to accept that the past sentences have failed to deter offenders like you. Having regard to that fact, and the relevant sentencing trend and or tariffs, the Supreme Court in Dadly Henry Gorop v. The State (supra), in the context of a sentence of 20 years said: 

"Given these, the sentence of 20 years in your case would appear not to be manifestly excessive going by the guidance of the judgment 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."

13. 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. 

14. I concluded in the Moses Tingin & Kennedy Kara case that: 

"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 … 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,… the sentence could well start at 13 to 15 years. Indeed two recent judgments of the Supreme Court in Norbert Maing v. The State … and Nelson Ngasale v. The State,… 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." 

15. I noted the judgment of the National Court in The State v. Paul Maima Yogol and Dama Teiye, (supra) The State v. Warip Mondol & Ors.(supra) and The State v Gilbert Monai (supra) were examples of the courts imposing sentences beyond the 10 years mark for robbery on a street. 

16. In the first of these cases, 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. 

17. In the second of these cases, the National Court per Lenalia J., 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. 

18. In the final case, the National Court imposed a sentence of 12 years and 15 years respectively. That was for two separate counts of armed gang robbery with serious aggravating factors, which included the unlawful detention of the victims of the first of the two counts and physical injuries to the victims of the second count.

19. More recently, the Supreme Court in Bosco Bedy v. The State, endorsed the sentiments expressed by the Supreme Court in Dadly Henry Gorop v. The State (supra). Then in the case before it, the Supreme Court expressed the view that a sentence of 8 years for armed robbery with threats and actual violence at a dwelling house, a generator set, a chain saw frame, a TV screen, 3 radios, a bag of clothes, K400.00 cash and other personal effects, all valued at K11, 429.05. It held that the starting sentence should have been 10 years following its earlier decision in Public Prosecutor v. Don Hale.

20. Your lawyer drew my attention to other cases like that of The State v Kalama Daniel, where the Court imposed an effective sentence of 12 years with three years suspended for 4 separate robberies committed with violence and threats of violence using firearms. But these were far more serious case, which warranted, in my view, higher sentences than the ones the offenders received. With respect, the sentences were not in line with the sentencing trends and tariffs as outlined in the list of cases I had reviewed. Accordingly, I am not prepared to follow those decisions, which are not binding on me anyway. I am also not persuaded to follow some other cases which your lawyer referred to in his submission. This is because, those cases have not been published in terms of the numbering and or copies not being readily available. Indeed your lawyer did not provide me with copies of any of these cases. 

21. I note that in all of the cases, I have referred to above, there were guilty pleas by first time youthful offenders in most of the cases. Also, I note that none of those cases discussed the possible effect of the wording in s. 386 of the Criminal Code. That provision reads:

"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; or
(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."

22. In The State v. Donald Angavia, Paulus Moi and Clement Samoka (No 2, and other cases, I considered the provisions of s. 347 of the Criminal Code which deals with rape. That provision is in similar terms and arrangement as s. 386. There, I said the division between the two categories of the offence of rape and the respective sentences prescribed means that, an aggravated rape should attract sentences beyond the maximum prescribed sentence for rape simpliciter. In other words, a sentence for aggravated rape should be beyond the prescribe maximum for a simple rape case caught by subsection (1) of s. 347. That view has been referred to by Cannings J who decided not to express any views in the case of The State v. James Yali. I invited your lawyer to make submission as to whether I should arrive at a different and conflicting view in relation to the provisions of s. 386. Counsel was however of the view that, the views I have expressed in those cases were in order and that he was not able to argue for a different interpretation and meaning to be given to the provisions of s.386. Nevertheless, he submitted that the Court still has the discretion.

23. In the circumstances, I continue to subscribe to the view that, once there is a case of aggravated robbery, sentences should be considered in the range of 15 years to life imprisonment, unless very good mitigating factors exist and they warrant a sentence below that range. Such cases would be an exception rather than the norm given the prevalence of the offence and the ready use of dangerous weapons like guns and bush knives in the commission of these kinds of serious offences.

Your Sentence

24. Bearing the above in mind, I now need to decide the issue presented, namely, what is an appropriate sentence for you? In order to determine that issue, I note and take into account your family background as outlined by your lawyer in his submission. In addition, I need to take into account both the factors for and against you. I do that by first considering the factors in your favour. 

25. First, I take into account the fact that you pleaded guilty to a serious offence which carries a maximum penalty of life imprisonment. That saved the State the time and money it could have spent to successfully have you tried and convicted. It also saved the Court the time it could have spent in conducting a trial on the issue of your guilt or innocence. 

26. Secondly, I take into account the fact that you did cooperate with the police from the point of your arrest up to this point in time. This kind of attitude by offenders has been displayed only in a few cases. In most cases however, offenders choose to deny even in cases where they know they are guilty and make police work unnecessarily hard and force the Court to spend hours to conduct trials. In the end, the State pays a lot of money to secure the conviction of an offender.

27. Thirdly, I take into account the fact that, consistent with your cooperation with the police and eventually this Court, you have expressed your remorse. There is no evidence however, that you communicated that position to the victims of your offence and they have accepted it. Similarly, there is no evidence of you paying compensation or returning the cash and goods you stole from the victims. As I have said in a number of other cases already, an expression of remorse means nothing to an offender unless it is accompanied by say a payment of compensation or a restitution of the cash and property stolen in the case of an armed robbery.

28. Finally, I take into account your claim that family problems have caused you to commit the offence. Nevertheless, you did not elaborate on this. You did not specify what the problems were and how they caused you to commit the offence. What is clear however, on the evidence before the Court is that you used the proceeds of the robbery on alcoholic drinks. You did not apply them to fixing any family problem. Hence, this plea of yours remains unsubstantiated in any way. Accordingly, this cannot be of any assistance to you.

29. Against the above factors in your favour, I take into account the various aggravating factors against you. First, you have a prior conviction by this Court in Madang in 2002 for the same offence. You were given a sentence of 3 years. Getting involved and committing the present offence, demonstrates, in my view, that the first sentence did not serve any deterrence on you. It means therefore that your sentence in this present case must have an element of deterrence.

30. Secondly, you committed the offence in the company of another. As I said in The State v. Terence Ago:

"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." 

31. In your case you acted in association with your accomplice. The two of you gave courage to each other and the necessary willpower to commit the offence. If it were not for each other’s company, I do not think that you alone would have easily committed the offence. 

32. Thirdly, your accomplice and you were armed with two dangerous weapons, a homemade pistol and a long barrel gun. The use of firearms in the commission of any offence is always a serious aggravating factor either on its own or in association with other aggravating factors. The actual firing of live ammunition as you did out of such weapons make the case even worse. Further, there is no evidence that neither you nor your accomplice had a license to carry either of the guns you had. Also there is no evidence that neither of you were authorized to manufacture homemade guns. In fact it is illegal to make guns and carry guns without a license. The use of such dangerous weapons to commit serious crimes like armed robbery and rape and such other serious offences are on the increase. Accordingly, it behooves the courts to impose sentences that have an element of deterring the use of such dangerous weapons.

33. Fourthly, you stole cash and goods valued at about K1, 550.00. None of the cash or the goods were recovered or returned to their owner. You used your share of the proceeds of your crime to purchase and drink it all up on alcohol. Surely this was by no means a resolution of any family problems that may have caused you to commit the offence as you claimed in your allocatus. There can be no doubt that the owner of the hotel had to suffer that financial loss.

34. Fifthly, the employees of the hotel that you held up would have no doubt suffered some shock and panic and possibly some trauma. It is not a good thing for a person to be placed under gun point and force to do things against his or her own will. Every person in the country has the God given right to go about doing his or her business without any fear of being attacked, let alone placed under gunpoint. You violated the hotel and its staff’s right to go about doing their lawful business and you treated them as if they have no right of existence.

35. Further, I note that the offence of armed robbery is a very prevalent offence. Instead of freely enjoying the beauty and the blessings the good Lord in Heaven, the Creator of Heaven and Earth has blessed our country with, many people of your calibre are senselessly committing such serious crimes against our people, our visitors and hence our country. Instead of advancing in the direction of a more prosperous and progressive country, people like you are killing the desire and interests of our citizens and people to help develop our country. Your kind of behaviour is unnecessarily driving fear into our own people, our visitors and developmental partners from carrying out their lawful business and or activities for the betterment of us all as a nation. The courts have therefore decided to increase the kind of penalties they have being imposing against offenders like you.

36. Finally, I note that you are a mature young man. Therefore you were in a better position to appreciate that, what you set out to do was wrong. It had the potential to contribute negatively to our desire as a nation to develop and advance into a peace loving, care free and more enjoyable country. Having undergone the sentence in your prior case, you were in a position to appreciate that what you set out to do was clearly against the law and does attract severe penalties. Yet you proceeded to commit the same offence again.

37. Carefully weighing the factors in your favour and those against you, I note that, those in your aggravation far outweigh the factors in your mitigation. In my view, therefore, a custodial sentence is called for. I have considered a pre-sentence report that is before me. There is nothing in there that would justify a non custodial sentence. There is a suggestion that you have TB, something you have inherited from your grandparents. Similarly, there is a suggestion that you have been assaulted whilst in police custody by other inmates. Unfortunately, there is no evidence to substantiate these claims. 

38. In determining a sentence for you, I note that this is not a simple case of robbery falling under s. 386 (1) but is one caught by subsection (2) committed by an armed repeat offender in the company of another. Accordingly, your sentence should be one going beyond 15 years, having regard to the wording, and in particular, the sentencing regime that has been prescribed in Section 386 as well as the sentencing trend and tariffs as discussed in the foregoing and the serious aggravating factors against you. I consider a sentence of 16 years is appropriate and impose it. 

39. Of the sentence of 16 years, I deduct the period of 1 year 3 months and 27 days as of today you have spent in custody awaiting your trial. That leaves you with the balance of 14 years 8 months and 3 days to serve in hard labour. A warrant of commitment in those terms shall issue forthwith. 

___________________________

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