N4514

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR NOS 865 & 701 0F 2006

THE STATE

V

ALPHONSE POLPOLIO AND JEFFERY BARU

Kandrian: Cannings J
2006: 12, 14 July

SENTENCE

CRIMINAL LAW – sentences – armed robbery – guilty plea by two co-offenders – two different robberies of stores – gang robberies – use of firearms and bushknives – innocent people threatened – robberies committed in government station, Kandrian – K2,807.00 stolen in first robbery – K21,530.00 stolen in second robbery.

Two men pleaded guilty to two counts of armed robbery committed at Kandrian government station, West New Britain Province. A store/supermarket was robbed on each occasion. A firearm and bushknives were used to threaten innocent people. In the first robbery the co-offenders were accompanied by one other person. In the second robbery there was a large group of people also involved. Cash and store goods valued at K2,087.00 were stolen in the first robbery. K21,530.00 was stolen in the second robbery. The second robbery was committed several weeks after the first. It was agreed that cumulative sentences were necessary. Application of the totality principle was a major issue. 

Held:

(1)	The starting point for sentencing for armed robbery of a store is eight years imprisonment.

(2)	Both offenders had an equal level of involvement. Strong mitigating factors identified were: nobody was physically harmed; they co-operated with the police (making an early confession); they pleaded guilty; they expressed remorse.

(3)	Strong aggravating factors were: threats of violence; use of firearms and bushknives; no compensation to victims.

(4)	The second robbery was more serious than the first as it led to looting and the value of stolen property was higher.

(5)	Each of the offenders had an equal level of involvement and the head sentence for the first robbery was five (5) years imprisonment; and for the second robbery nine (9) years imprisonment.

(6)	The sentences are to be served cumulatively as there were two separate robberies committed at different times, with different victims. Potentially the total sentence is fourteen (14) years each.

(7)	On application of the totality principle this was reduced to 10 years each.

(8)	Armed robbery is a very serious offence and community expectations are that offenders will be imprisoned. Therefore it is not appropriate to suspend any part of the sentences at this stage. 

(9)	However, as there is good community or family support for each of the offenders, and they have pleaded guilty, they will get the benefit of serving a minimum time in custody of 6 years, after which each will be eligible for early release and suspension of the remainder of the sentence on conditions.

Cases cited

The following cases are cited in the judgment:

Gimble v The State [1988-89] PNGLR 271
Phillip Kassman v The State (2004) SC759
Public Prosecutor v Don Hale (1998) SC564
Saperus Yalibakut v The State SCRA No 52 of 2005, 27.04.06
Tau Jim Anis v The State (2000) SC642
The State v A Juvenile "ET" CR No 1012/ 2003, 09.04.05
The State v A Juvenile, "TAA" (2006) N3017
The State v Aaron Lahu (2005) N2798
The State v David Bandi CR No 729/2003, 20.04.05
The State v Dickson Kauboi CR No 495/2001, 07.06.06
The State v Francis Vau Kamo CR 663-664/1998, 06.04.06
The State v Jacky Vutnamur and Kaki Kialo (No 3) (2005) N2919
The State v James Negol (2005) N2801
The State v Justin Komboli (2005) N2891
The State v Kia Tala Moksy CR 785/2005, 12.08.05
The State v Lucas Soroken Sembengo, Bob Alois Wafu & Raphael Lawrence Mandal (2006) N2801
The State v Mark Kanupio and Others (2005) N2800
The State v Mogi Konda CR No 1316/2005, 19.04.05
The State v Two Juveniles, "MK" & "PSA" CR No 372/2005, 25.08.05

Abbreviations

The following abbreviations appear in the judgment:

CJ – Chief Justice
CR – Criminal
DCJ – Deputy Chief Justice
J – Justice
K – kina
N – National Court judgments
OK – okay; all right
No – number
PNG – Papua New Guinea
PNGLR – Papua New Guinea Law Reports
PSR – pre-sentence report
SC – Supreme Court Judgment
SCRA – Supreme Court Criminal Appeal
WNBP – West New Britain Province
v – versus

PLEA

Two co-accused pleaded guilty to two counts of armed robbery and the following reasons for sentence were given.

Counsel

D Mark, for the State
O Oiveka, for the co-accused

14 July, 2006

1. CANNINGS J: INTRODUCTION: This is a decision on the sentences for two men who pleaded guilty to committing two armed robberies at Kandrian, West New Britain Province, in March and April 2006.

BACKGROUND

2. On 12 July 2006 the co-accused were brought before the National Court, at its first sittings in Kandrian in history, and faced the following indictment, containing two charges:

Count 1
Jeffery Baru of Awar, Bogia, Madang Province and Alphonse Polpolio of Apungi, Kandrian, West New Britain Province, stand charged that they on the 23rd day of March 2006 at Kandrian in Papua New Guinea stole from Tobias Taube and others with actual violence cash and assorted store goods valued at K2,807.00 the property of PC & EH Trading; and at that time they were armed with a home-made gun and bush knives, being offensive weapons and were in company with other persons.

Count 2
Jeffery Baru of Awar, Bogia, Madang Province and Alphonse Polpolio of Apungi, Kandrian, West New Britain Province, stand charged that they on the 12th day of April 2006 at Kandrian in Papua New Guinea stole from Tobias Taube and others with actual violence cash and assorted store goods valued at K21,530.00 the property of Peter & PNG Group; and at that time they were armed with a home-made gun and bush knives, being dangerous weapons and were in company with other persons. 

3. Both charges were laid under Sections 386(1), (2) (a) and (b) of the Criminal Code. 

FACTS

Allegations

4. The following allegations were put to the accused for the purpose of obtaining a plea.

5. The first robbery took place at 4.00 pm on 23 March 2006. The two co-accused, accompanied by one other person, entered the PC & EH Trading store at Kandrian. Alphonse Polpolio was armed with a home-made gun. Jeffery Baru had a bushknife. Their accomplice pointed a knife at the cashier, jumped over the counter, threatened her, then put his hand into the cash box and removed K1,120.00 cash. The two co-accused stood watch and stole various items, including radios and a kitchen knife, on their way out. Those other items were worth K967.00, making the total value of the property stolen K2,087.00.

6. The second robbery took place at 3.15 pm on 12 April 2006. The two co-accused, accompanied by other persons, entered the Peter & PNG store at Kandrian. They were armed with a home-made gun and bush-knives. The gun was pointed at the cashier. Other people walked into the store and helped them steal property worth K21,530.00. 

Conviction

7. The co-accused pleaded guilty to those facts. I entered provisional pleas of guilty and then, after reading the District Court depositions, confirmed their plea and convicted them, as charged. They are now referred to as offenders or prisoners.

ANTECEDENTS

8. Alphonse Polpolio has a prior conviction for armed robbery committed at Kimbe in 2001. He was given a fully suspended sentence, the term of which expired before he committed the two armed robberies for which he is now being sentenced. 

ALLOCUTUS

9. I administered the allocutus, ie each offender was given the opportunity to say what matters the court should take into account when deciding on punishment. This was done on two occasions: immediately after they were convicted, then later, after their pre-sentence reports were presented. A paraphrased summary of their responses follows:

Alphonse Polpolio
I apologise to those who I have committed these offences against. I apologise to the people in court here today. I apologise to the court.

Both my parents are deceased. I am the second-born of four children and I have to look after my younger brother and younger sister.

Since I have been in custody, I have changed my life and turned to God. I have converted to the Baptist Church.

I plead for the mercy of the court. Please put me on probation.

Jeffery Baru
I apologise to Peter PNG and his employees for what I did to their business and to them. I promise I will never commit any offence again. 

When I was in custody, the police went to my place, assaulted my wife, and put her and one of my children in the cells. The police burned down my houses plus the houses of innocent village people who had nothing to do with the robberies. 

I have a wife and five children to care for. I ask for mercy and a non-custodial sentence.

I sustained serious injuries when I was caught. My left hand is now useless and I can no longer work properly. I will never get involved in this sort of trouble ever again. 

I ask for mercy and forgiveness from God and the Judge.

OTHER MATTERS OF FACT

10. Though the prisoners have pleaded guilty there are some issues of fact raised in the depositions and in the allocutus, which, if resolved in their favour, may be relevant to the sentence.

Principles

11. In two cases last year I set out the principles to apply whenever there are significant issues of fact arising from the depositions or the allocutus that were not in the prosecutor's summary of facts. 

12. In The State v Mark Kanupio and Others (2005) N2800, five men pleaded guilty to manslaughter committed near Kandrian. They each said in their police interviews that they attacked the deceased as they thought he had a gun and was about to fire at them. That case dealt with issues arising from the depositions. I accepted what they said at face value as it was not contested by the prosecution and considered it as a mitigating factor for sentencing purposes. 

13. In The State v Aaron Lahu (2005) N2798, a man pleaded guilty to armed robbery of the main store at Hoskins but said in his allocutus that he only got involved by accident as he thought he was going fishing with his friends; he did not realise that the boat in which he travelled to Hoskins with his friends had weapons in it – he thought they had fishing tackle; and he did not enter the store when the gang charged in. That case dealt with issues arising from the allocutus. Though the story told by the offender seemed far-fetched the prosecution did not take issue with it and I considered it as a mitigating factor for sentencing purposes. 

14. Those principles were recently endorsed by the Supreme Court (Jalina J, Mogish J and Cannings J) in Saperus Yalibakut v The State SCRA No 52 of 2005, 27.04.06. The rationale is that giving the benefit of the doubt provides an incentive for an accused person to plead guilty and is a benefit accorded to them for saving the State's extra resources that would have been committed to the case if a trial were necessary.

15. The principles are:

1	The effect of a plea of guilty is that an accused person admits to the elements of the offence and the facts that have been put to the accused.

2	Once the court considers the depositions, accepts the plea and enters a conviction, the accused must then be given the benefit of any reasonable doubt on matters of penalty.

3	If the judge detects any significant mitigating matters in the depositions or in the allocutus that were not put to the accused in the prosecutor's summary of the facts the judge should ascertain whether there is agreement between the prosecution and the defence on those matters.

4	If there is agreement, the judge should work on what has been agreed to unless the claims made in the depositions or allocutus are so beyond the bounds of possibility as to be unbelievable.

5	If there is a dispute between the parties about those matters, it would be appropriate for the court to take sworn evidence on them. The accused can be invited to give evidence, but cannot be forced into the witness box.

6	If, however, the court does not take sworn evidence and there is no agreement between the parties as to the contentious matters, the court must act on the version of the facts which, within the bounds of possibility, is most favourable to the accused.

7	To those principles I would add another related one, which is applicable to the present case: if the defence counsel draws the Judge's attention to a mitigating matter not in the depositions or allocutus, or the Judge himself has knowledge of something that may be mitigating, it can be taken into account subject to the provisos set out above.

16. I will now apply the above principles to the present case.

Depositions 

17. Mitigating matters arising from the depositions, which the prosecution does not take issue with, are: 

•	Neither of the co-offenders was the ringleader or instigator of the robberies. The instigator was the third person, William Tokon, said to be involved with them. He is a convicted prisoner who escaped from Lakiemata Jail some time ago. The police have mounted a special operation in the Kandrian District to capture him.

•	Both offenders were detained soon after the second robbery and soon confessed to the police. Alphonse surrendered on Sunday 30 April 2006 – 18 days after the second robbery. Jeffery was detained on the day of the second robbery – 12 April 2006. Alphonse made a confessional statement on 9 May 2006. Jeffery made a confessional statement on 20 April 2006. 

Allocutus 

18. Mitigating matters arising from the allocutus, which the prosecution does not take issue with, are:

•	Jeffery Baru was badly injured by an angry mob who set upon him when he was making his escape from the scene of the second robbery. His left arm was sliced with a bushknife and almost severed.

•	Jeffery Baru's wife and child were detained by the police after the second robbery. His wife was assaulted. The police raided his village and burned down houses of innocent people. 

Within Judge's knowledge

19. A mitigating matter of which I have knowledge, which the prosecution does not take issue with, is:

•	Alphonse Polpolio was unlawfully kept in solitary confinement at Lakiemata Jail for an extended period when he was remanded in custody there, until I granted an application for him to be detained in the remand compound with other remandees as an enforcement of human rights under Section 57 of the Constitution on 22 June 2006.

SUBMISSIONS BY DEFENCE COUNSEL

20. Mr Oiveka highlighted the following mitigating factors regarding both offenders: they pleaded guilty; they expressed remorse; they were led astray by a hardened criminal.

21. As to Alphonse Polpolio: he is a young offender; his prior conviction was for something he did as a juvenile; he was mistreated while he was in custody at Lakiemata.

22. As to Jeffery Baru: he has a wife and five children to care for; he is a first-time offender; he was badly wounded by bystanders immediately after the second robbery.

23. Fair head sentences to impose for each offender would be 4 years for the first robbery; 8 years for the second, which should be reduced by applying the totality principle to 2 years and 6 years respectively, a total of 8 years.

SUBMISSIONS BY THE STATE

24. Mr Mark, for the State, submitted that each prisoner was guilty of two serious offences. He, however, agreed with Mr Oiveka that each offender should get the same sentences: 4 years for the first robbery and 8 years for the second robbery, a total of 12 years, which should by applying the totality principle be reduced to 8 years each. 

PRE-SENTENCE REPORT

25. To help me make a decision on the appropriate sentence I requested and received pre-sentence reports under Section 13(2) of the Probation Act in relation to the offenders. The reports were prepared by Ms E Passingan of the Kimbe office of the Community Corrections and Rehabilitation Service, who travelled with the court party to Kandrian. A summary of her reports follow.

Alphonse Polpolio

20-year-old male.

Background – he is from Sara village, Kandrian District, WNBP. 

Family – both his parents are deceased – Alphonse is the second born of four children – his older brother is married and lives in Kimbe; his other brother and his sister attend Kandrian High School. After his parents died some years ago, Alphonse was taken in by an uncle, Leo Giru, a pastor of Anchor Baptist Church, Kandrian. Pastor Giru looked after him for a while and sent him to his mother's village, Sara. He was doing well there before getting himself into trouble. Alphonse has a cousin, Michael Tikai, in Kandrian, who says he is willing to look after him for a while if he is given a non-custodial sentence.

Marital status: single.

Education: grade 4 (1996); which is when his mother died.

Work: never been employed. 

Financial status: he has no means of support – relies on wantoks.

Plans: wants to return to Sara and look after his block, so he can provide for his younger brother and sister.

Health: excellent.

Community support: no record of any trouble at his village, says Andrew Yupel, Village Court Magistrate, Sara. 

Community reaction to the crimes: the robberies were major events in Kandrian and the people want to see justice done.

Victim reaction: the proprietors of both businesses are keen to see the court sort out the problems so that their businesses can be allowed to run properly.

Probation history: he complied with probation conditions imposed re his previous conviction. 

Recommendation: there is no recommendation for a non-custodial sentence; he may continue to be a threat to the community unless he changes for the better.

Jeffery Baru

32-year-old male.

Background: he is from Awar village, Bogia, Madang Province but grew up in Kimbe – married his wife, Elizabeth, there – then came to his wife's village on Apugi Island, near Kandrian, to live – has been on Apugi for six years.

Family: father died in 1989; mother alive, living in Kimbe..

Marital status: married with five children – four girls; one boy; oldest child aged 12, doing grade 5 – good marriage – Elizabeth was interviewed for the purposes of the report and spoke favourably of Jeffery.

Education: grade 6 at Kimbe Primary School (1987).

Work: has been employed doing various jobs in Kimbe (tally clerk; carpenter; PMV crew) from 1990 to 1999.

Financial status: survives by selling fish and cash crops – cash income low.

Plans: wants to return to Apugi and look after his family.

Health: badly injured immediately after the second robbery and feels that he is permanently handicapped.

Community support: Jeffery is well regarded on Apugi

Community reaction to the crimes: the robberies were major events in Kandrian and the people want to see justice done.

Victim reaction: the proprietors of both businesses are keen to see the court sort out the problems so that their businesses can be allowed to run properly.

Allegations of police misconduct: his wife Elizabeth says that after Jeffery was arrested and detained, the police raided their home at Apugi, burned it down; destroyed their canoe; killed their pig – thus left homeless. Elizabeth also claims that she was placed in the police cell with her youngest child, together with two other women – the police verbally abused and insulted her, using obscene language.

Recommendation: there is no recommendation for a non-custodial sentence; however if a non-custodial sentence is imposed, there should be a long period of probation and community work conditions imposed.

OTHER MATERIALS

26. I have had regard to a letter from Pastor Bryan Girard, Baptist Missionary, Kandrian, dated 13 July 2006, regarding Alphonse Polpolio. This confirms that Alphonse attended Anchor Baptist Church last Sunday, listened attentively to the preaching and responded positively to the invitation to repent and turn to the Lord Jesus Christ. Pastor Girard said, however, that it is too early to tell whether a person in Alphonse's position is sincere in his confession to Christ. Only time will tell if he is sincere and the best time to assess that would perhaps be after he has spent some time in custody.

DECISION MAKING PROCESS

27. To determine the appropriate penalty I will adopt the following decision making process:

•	step 1: what is the maximum penalty?

•	step 2: what is a proper starting point?

•	step 3: what other sentences have been imposed recently in West New Britain for equivalent offences? 

•	step 4: what considerations should be taken into account in determining the head sentence, in terms of years?

•	step 5: what is the head sentence for each offender, for each offence?

•	step 6: should the sentences be served concurrently or cumulatively?

•	step 7: what is the effect of the totality principle?

•	step 8: should the pre-sentence period in custody be deducted from the term of imprisonment?

•	step 9: should all or part of the sentence be suspended?

STEP 1: WHAT IS THE MAXIMUM PENALTY?

Armed robbery

28. Section 386 (the offence of robbery) of the Criminal Code states:

(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.

29. The indictment charged both offenders with being armed with dangerous or offensive weapons and being in company with each other and at least one other person. They are circumstances of aggravation prescribed by Sections 386(2)(a) and (b). The maximum penalty facing each offender is therefore life imprisonment. 

Discretion 

30. That is the maximum penalty. The court has a considerable discretion whether to impose the maximum penalty by virtue of Section 19 of the Criminal Code. For example:

•	a shorter term of imprisonment may be imposed (Section 19(1)(a)); or

•	a fine of up to K2,000.00 may be imposed instead of or in addition to a term of imprisonment and the prisoner can be imprisoned until the fine is paid (Sections 19(1)(b), 19(1)(c)); or

•	the prisoner may be given a 'good behaviour bond' (Section 19(1)(d)); or

•	the prisoner can be discharged and the sentence postponed (Section 19(1)(f)); or

•	the court can suspend all or any portion of the sentence imposed, subject to conditions (Section 19(6)).

STEP 2: WHAT IS A PROPER STARTING POINT?

31. From time to time the Supreme Court gives sentencing guidelines in the course of deciding criminal appeals or reviews. These guidelines are often expressed in terms of a 'starting point' for various types of cases. The National Court then applies those starting points in the course of looking at each case on its merits and identifying the aggravating and mitigating circumstances. The actual sentence imposed can be above, below or the same as the starting point depending on whether the aggravating factors outweigh the mitigating factors (resulting in a sentence above the starting point); the mitigating factors outweigh the aggravating factors (resulting in a sentence below the starting point); or the mitigating and aggravating factors are balanced (resulting in the starting point being the sentence). 

32. The Supreme Court cases giving sentencing guidelines for armed robbery are as follows:

•	Gimble v The State [1988-1989] PNGLR 271, Bredmeyer J, Los J, Hinchliffe J. The court suggested sentencing guidelines for cases of aggravated armed robbery on a plea of not guilty by a young first offender carrying weapons and threatening violence. The robbery in this case was of the San Remo Club, Kimbe. The court considered that a family home, when compared to other places such as a bank, a store or a street, was the most serious place in which an armed robbery can occur. The following starting points were suggested:

•	robbery of a house – seven years;

•	robbery of a bank – six years;

•	robbery of a store, hotel, club, vehicle on the road etc – five years;

•	robbery of a person on the street – three years.

•	Public Prosecutor v Don Hale (1998) SC564, Amet CJ, Woods J, Kirriwom J. The court upheld an appeal by the Public Prosecutor against a sentence of five years imposed on a man who was part of a gang, which broke into a house at Nine Mile, Lae, and threatened the family with a shotgun and fired shots. The court stated:

We feel that the starting point to an appropriate sentence involving the robbery of home owners at night with the use of firearms to threaten victims should be ten years. 

•	Tau Jim Anis v The State (2000) SC642, Sheehan J, Jalina J, Kirriwom J. The court upheld an appeal against a sentence of 10 years imposed by Injia J. The offenders robbed a coffee factory of K20,000.00. They were young (aged 15) first offenders, there was little physical violence and they pleaded guilty. The Supreme Court felt that the sentence imposed by the trial judge had involved too big a jump in the applicable tariffs. The court felt that the Gimble categories (which set different starting points depending on where the robbery took place) were still valid. As this robbery happened at a factory, it fell into the third category. The Gimble starting point was five years. But the court said it should now be eight. The court felt that the trial judge had not given sufficient consideration to mitigating factors, eg the age of the offenders and their guilty plea. It substituted a sentence of 7 years. 

•	Phillip Kassman v The State (2004) SC759. The court heard an appeal against sentence by a man involved in an armed robbery of an ANZ Bank customer, in the bank car park, at Waigani. The prisoner was in a gang of four who robbed the victim at gunpoint of more than K120,000.00 cash, the takings of the company he worked for. The trial judge imposed a sentence of ten years. The Supreme Court noted that if the Gimble categories were used the starting point would be (for an armed robbery of or near a bank) five years. But times have changed. The court considered the previous Supreme Court decisions in Hale and Anis and agreed that a "three year increase denominator" should be applied. That meant the starting point was eight years. The court said that the trial judge had properly considered the aggravating factors. The robbery was committed in broad daylight at the doorsteps of the bank at a time and location where many people would be expected to be present. There was a high risk of injury to innocent bystanders. The Court did not disturb the ten years sentence.

33. The upshot of those cases is that the Gimble categories are still relevant, however the starting points have increased by three years for each category. Nowadays the starting points are:

•	robbery of a house – ten years;

•	robbery of a bank – nine years;

•	robbery of a store, hotel, club, vehicle on the road etc – eight years;

•	robbery of a person on the street – six years.

34. In the present case, each of the robberies was of a store. The starting point for each sentence is therefore eight years. 

35. I will be arriving at four head sentences (two for each offender) before deciding whether the sentences will be cumulative or concurrent and how the totality principle should be applied.

STEP 3: WHAT OTHER SENTENCES HAVE BEEN IMPOSED RECENTLY IN WEST NEW BRITAIN FOR EQUIVALENT OFFENCES?

36. Before I fix a sentence, I will consider other armed robbery sentences I have imposed in 2005 and 2006 in West New Britain. These cases are shown in the following table.

TABLE 1: NATIONAL COURT SENTENCES FOR ARMED ROBBERY, 
WEST NEW BRITAIN, CANNINGS J, 2005-2006

No	Case	Details	Sentence	
1	The State v 
James Negol (2005) N2801	Guilty plea – home invasion, Section 15, Kimbe – young offender – gang robbery – firearms used – K5,300.00 stolen	7 years 
	
2	The State v 
Aaron Lahu 
(2005) N2798	Guilty plea – Hoskins Mart store – large gang – gun and bushknives – offender got involved by accident – had minimal involvement 	3 years 
	
3	The State v 
A Juvenile "ET" 
CR No 1012/ 2003,
09.04.05	Guilty plea – kai bar in Kimbe – juvenile – in company with two others – firearms – K400.00 stolen	4 years 
	
4	The State v 
Mogi Konda
CR No 1316/2005,
19.04.05	Guilty plea – home invasion, Kapore, near Kimbe – in company with one other person – mature aged man – K22.00 stolen	5 years 
	
5	The State v 
David Bandi
CR No 729/2003,
20.04.05	Trial – PMV robbery, Kumbango, near Kimbe – mature aged offender – in company with one other – firearm used – K300.00 stolen	6 years 	
6	The State v 
Kia Tala Moksy
CR 785/2005,
12.08.05	Guilty plea – Kimbe Mega Mart store – sole offender – firearm discharged – K1,120.00 stolen	10 years 	
7	The State v 
Two Juveniles, "MK" & "PSA"
CR No 372/2005,
25.08.05	Guilty pleas – robbery on street, Section 10, Kimbe – juveniles – in company with others – firearms – K30.00 stolen	3 years 	
8	The State v 
Justin Komboli
(2005) N2891	Trial conducted and sentence passed in absence of offender, who had escaped from custody – trade store robbery, Kavui, near Hoskins – armed with beer bottles, sticks and stones – store goods stolen – sole offender	4 years	
9	The State v 
Jacky Vutnamur & Kaki Kialo (No 3)
(2005) N2919	Guilty pleas – two offences – in company with others – mature aged offenders – firearms used – first robbery of family home, Salelebu (police weapons and uniforms stolen) – second robbery of Kapiura Trading Supermarket (K40,000.00 stolen)	12 years;
	
10	The State v 
Lucas Soroken Sembengo, Bob Alois Wafu & Raphael Lawrence Mandal 
(2006) N2801	Trial – home invasion, Barema – young offenders – gang robbery – firearms used – K460.00 stolen	12 years 	
11	The State v 
A Juvenile, "TAA"
(2006) N3017	Guilty plea – juvenile – Shopper's Choice store robbery, Kimbe – offender had minimal involvement 	4 years 	
12	The State v 
Francis Vau Kamo
CR 663-664/1998,
06.04.06	Trial – robbery of bank cash shipment, Hoskins Airport – young offender – in company with three others – firearms – K380,000.00 stolen	13 years 	
13	The State v Dickson Kauboi 
CR No 495/2001,
07.06.06	Trial – Commodore Bay Company payroll robbery, Kimbe – in company with three other persons – mature aged man – K3,000.00 stolen	8 years 	

STEP 4: WHAT ARE THE RELEVANT CONSIDERATIONS TO TAKE INTO ACCOUNT IN DETERMINING THE HEAD SENTENCE?

37. I regard the following as considerations to take into account in deciding whether the sentence should be above or below the starting point:

1	Did the offender and other members of his gang not commit actual violence during the course of the robbery?

2	Did the offender and other members of his gang not threaten the victims of the robbery with violence?

3	Did the offender and other members of his gang not put the victims or innocent bystanders in real danger of being injured or killed?

4	Did the offender and other members of his gang ensure that especially vulnerable victims such as children, women or older people were not threatened or treated badly?

5	Did the offender and other members of his gang steal money or property of a relatively small value?

6	Did the offender play a relatively minor role in the robbery?

7	Did the offender give himself up after the robbery?

8	Did the offender cooperate with the police in their investigations?

9	Has the offender done anything tangible towards repairing his wrong, eg offering compensation to the victims, repaying what he has stolen, personally or publicly apologising for what he did?

10	Has the offender pleaded guilty?

11	Has the offender genuinely expressed remorse?

12	Is this his first offence?

13	Can the offender be regarded as a youthful offender or are his personal circumstances such that they should mitigate the sentence?

14	Are there any other circumstances of the robbery or the offender that warrant mitigation of the head sentence?

Rationale 

38. The above considerations have been framed so that an affirmative (yes) answer to any one can be regarded as a mitigating factor, a negative (no) answer will be an aggravating factor and a neutral answer will be a neutral factor. The more mitigating factors that are present, the more likely it is that the head sentence will be reduced. The more aggravating factors present, the more likely it is that the head sentence will be lifted above the starting point. However, sentencing is not an exact science. It is a discretionary process. When a factor is marked as mitigating or aggravating it does not mean necessarily that it is given the same weight as another mitigating or aggravating factor. Some mitigating factors may be 'strongly mitigating'. Others may be 'mildly mitigating'. The same goes for aggravating factors.

39. Another thing to note is that there are, in general, three sorts of considerations listed. 

40. Numbers 1 to 6 focus on the circumstances of the robbery. All armed robberies are bad and their effect on the victims can be traumatic, devastating and long lasting. But the gravity and the circumstances of each robbery are different. Some are worse than others. These considerations are intended to capture the circumstances of the incident. 

41. Numbers 7 to 11 focus on what the offender has done since the robbery and how he has conducted himself. 

42. Numbers 12 to 14 look at the personal circumstances of the offender and take account of other factors not previously considered.

STEP 5: WHAT IS THE HEAD SENTENCE FOR EACH OFFENDER FOR EACH OFFENCE?

43. I will now apply the fourteen (14) considerations to each offender, for each offence. As a result of this process I will arrive at four notional head sentences. Each offender had an equal degree of involvement in each robbery, so I will deal with each robbery separately and indicate where the offenders should be treated differently.

The robbery of PC & EH Trading, Kandrian, 23 March 2006

1	Yes, there was no actual physical violence. 

2	No there were threats of violence. 

3	No the gang had weapons, and Alphonse Polpolio had a homemade gun (an intrinsically dangerous and unreliable weapon) so there was a real danger that someone would be injured or killed.

4	No, there was a female shop assistant present; she being a vulnerable victim. 

5	Yes the amount of money and property stolen was relatively small: K2,087.00. 

6	No, they both played a major role in the robbery. However, neither of them was the ringleader.

7	Yes, Alphonse surrendered 18 days after the second robbery. Jeffery did not surrender, as such, but he was caught straight after the second robbery and attacked and suffered serious injuries.

8	Yes, they co-operated with the police soon after they were in custody. They each made a confessional statement and admitted to their crimes in their police interviews. 

9	No, no compensation paid. 

10	Yes they each pleaded guilty. However, there were eyewitnesses to each robbery and in Jeffery Baru's case he was apprehended immediately after the second robbery. The strength of their guilty plea is not as great as it would have been if there had been no eyewitnesses. 

11	Yes, they each expressed remorse. 

12	For Alphonse Polpolio – no, this was not his first offence. He has a prior conviction for armed robbery in Kimbe. In his favour is that he was a juvenile (about 15 years old) when he committed that offence. 

As for Jeffery Baru – yes, this is his first offence. 

13	For Alphonse Polpolio – yes, he is only 20 years old, so he can be regarded as a youthful offender. 

For Jeffery Baru – no, he is aged 32, he is a mature aged man who should have known better than to get involved in serious crime.

14	Yes, there are aspects of each offender's personal circumstances that warrant mitigating the head sentence. 

For Alphonse Polpolio – he is a young man and both of his parents are deceased; he has fallen into the wrong company; his upbringing has not been good. He was mistreated while in remand at Lakiemata Jail.

For Jeffery Baru – he has a wife and five children to care for; his wife was assaulted and detained together with one of his children; innocent people at his village suffered when the police raided it.

Recap

44. I regard the following as strong mitigating factors:

•	No 1– no actual physical violence;

•	No 5 – relatively small amount of money;

•	No 8 – high degree of co-operation with the police;

•	No 10 – pleaded guilty; 

•	No 11 – expressed remorse;

•	No 12 – for Jeffery Baru only – he is a first offender;

•	No 13 – for Alphonse Polpolio only – he is a young offender;

•	No 14 – personal circumstances.

45. I regard the following as strong aggravating factors:

•	No 2 – threats of violence;

•	No 3 – gang had weapons;

•	No 4 – threats to vulnerable victim;

•	No 9 – no compensation paid.

46. The other factors (Nos 6 and 7) are neutral.

47. After weighing all these factors and bearing in mind that there are eight strong mitigating factors compared to four strong aggravating factors, and comparing this case with the 13 other armed robbery sentences I have recently imposed in West New Britain, the head sentence should be below the starting point of eight years. 

48. They will be both given the same head sentence of five (5) years.

The robbery of Peter & PNG Group Store, Kandrian, 12 April 2006

49. This was a more serious offence than the first robbery. There were more people involved and the actions of the offenders seem to have triggered looting of the store, signalling a serious breakdown in law and order in Kandrian. The value of properties stolen was in excess of K20,000.00. There are more aggravating factors than for the first robbery. However, the strong mitigating factors identified earlier continue to apply. In particular, they confessed to the police very early, they have continued to co-operate and expressed remorse and they have pleaded guilty. They have been dealt with in the community in which they committed the offence. The store they robbed is only a few hundred metres from the courthouse. 

50. I have taken into account that Jeffery Baru was badly cut up immediately after the robbery but in all the circumstances I do not think it is appropriate to give him a lesser sentence on account of that fact. What happened is a reasonably foreseeable consequence of being caught red-handed immediately after a robbery. I cannot condone what happened. It is a fact of life that this sort of thing happens when criminals are caught by the public or, in this case, by one of the victims of the crime.

51. I will continue to treat the two offenders in the same way for sentencing purposes.

52. The sentence I impose for the second robbery is nine years imprisonment. 

Summary of head sentences

Alphonse Polpolio: 
5 years for count 1
9 years for count 2

Jeffery Baru:
5 years for count 1
9 years for count 2

STEP 6: SHOULD THE SENTENCES BE SERVED CONCURRENTLY OR CUMULATIVELY?

53. As each offender is facing more than one sentence, I now have to decide whether the head sentences should be served concurrently (the sentences are served at the same time) or cumulatively (the sentences are added together).

54. I summarised the principles to apply in this situation in three of the armed robbery cases referred to in table 1: The State v Jacky Vutnamur and Kaki Kialo (No 3) (2005) N2919; The State v Lucas Soroken Sembengo, Bob Alois Wafu & Raphael Lawrence Mandal (2006) N2801; and The State v A Juvenile, "TAA" (2006) N3017.

55. That is:

•	First, apply the "one transaction rule". Where two or more offences are committed in the course of a single transaction, all sentences in respect of the offences should be concurrent.

•	Secondly, where the offences are so different in character, or in relation to different victims, cumulative sentences are normally applicable, eg burglary and violence to the householder, or assault plus escaping from custody, or sexual assaults on different victims.

•	Thirdly, apply the "totality principle". When the court has arrived at appropriate head sentences and decided whether they should be concurrent or cumulative, it must look at the total sentence and see if it is just and appropriate. If it is not, one or more of the sentences should be varied to get a just total.

56. The one transaction rule does not apply in this case. The two robberies for which each offender is being sentenced were similar in character but they happened at different times and the victims were different. One of the worst things that they did was to traumatise the innocent residents of what is usually a quiet, beautiful and peaceful place. The two sentences must therefore be served cumulatively, subject to application of the totality principle. That is:

5 years (PC & EH Trading robbery) + 9 years (Peter & PNG Group robbery) = 14 years each.

STEP 7: WHAT IS THE EFFECT OF THE TOTALITY PRINCIPLE?

57. I now look at that the total sentence that each offender is potentially facing, to see if it is just and appropriate having regard to the totality of the criminal behaviour involved. The court needs to guard against imposing a crushing sentence, ie one that is 'over the top' or manifestly excessive. 

58. I am conscious of the fact that I am sentencing offenders for crimes committed in Kandrian, not in Kimbe. There is perhaps an argument to say that sentences for armed robbery in Kandrian should be less than in Kimbe, working on the presumption that armed robbery is less prevalent in Kandrian. The need for deterrence is not as great, perhaps. I have considered that but it has not weighed heavily in the exercise of my discretion.

59. Ultimately I consider that sentencing these two men – one a young man aged 20, the other a family man aged 35, to 14 years would be excessive. 

60. I will therefore reduce the total sentence for the two crimes to 10 years, comprising 4 years for the first offence and 6 years for the second offence. 

STEP 8: SHOULD THE PRE-SENTENCE PERIOD IN CUSTODY BE DEDUCTED FROM THE TERM OF IMPRISONMENT?

61. The offenders have spent the following periods in custody in connexion with the offences of which they have been convicted:

•	Alphonse Polpolio: from 30 April 2006 to 13 July 2006, a period of two months, one week and six days;

•	Jeffery Baru: from 12 April 2006 to 13 July 2006, a period of three months and one day.

62. I now have to consider whether those periods should be deducted from each of their terms of imprisonment. Normally a court will make that deduction but it is not automatic. It is done at the discretion of the court under Sections 3 and 4 of the Criminal Justice (Sentences) Act 1986.

63. Section 3 (length of sentences) states:

(1) A sentence imposed by a court in the National Judicial System shall take effect from the beginning of the day on which it is imposed, unless a law otherwise provides.

(2) There may be deducted from the length or any term of imprisonment imposed by the sentence of any court any period before the sentence was imposed during which the offender was in custody in connection with the offence for which the sentence was imposed.

64. Section 4 (person imposing sentence to specify length of sentence, etc) states:

At the time of imposing a sentence in any court in the National Judicial System, the judicial officer imposing the sentence shall specify—

(a) the length of the sentence imposed; and
(b) the length of any period to be deducted from the sentence under Section 3(2); and
(c) the resultant length of the sentence to be served.

65. It is fair that each offender obtain the benefit of the time he has spent in custody. Neither of them has escaped or done anything that would otherwise justify not allowing a deduction.

66. I therefore decide under Section 3(2) of the Criminal Justice (Sentences) Act that there will be deducted from each term of imprisonment the whole of the pre-sentence period in custody. 

67. I specify under Section 4 of that Act the periods set out in table 2.

TABLE 2: CALCULATION OF FINAL SENTENCES

	Alphonse Polpolio	Jeffery Baru	
Length of sentence imposed	10 years	10 years 	
Pre-sentence period to be deducted 	2 months,
1 week,
6 days	3 months, 
1 day	
Resultant length of sentence to be served	9 years,
9 months,
2 weeks,
3 days	9 years,
8 months,
4 weeks,
1 day	

STEP 9: SHOULD ALL OR PART OF THE HEAD SENTENCES BE SUSPENDED?

68. No. I will not suspend any part of the sentences. Armed robbery is a serious crime and the People of Papua New Guinea are fed up with it. Whether it happens in Port Moresby or Lae or Kimbe or Kandrian, an armed robbery is a traumatic event for the whole community and for every person who is a victim or an innocent bystander. Both offenders violently disturbed the peace and order that should prevail in a small place like Kandrian. They disrupted two different businesses. They gave Kandrian a bad name. 

69. They have been dealt with fairly by the justice system and now the expectation of the community – as I understand it – is that they will be sent to jail, as punishment. The court would be sending the wrong signal to the people of Kandrian if it were to grant suspended sentences immediately. The court must consider the deterrent effect of an immediate gaol sentence. If I were to suspend the sentences immediately, much of the deterrence value of sentencing would be lost.

70. So they will have to go to jail straightaway. This is going to make it difficult for their families, particularly for Jeffery Baru's wife and five children. Unfortunately that is the price that the families of a criminal have to pay when their husband, father, son or brother commits a serious crime. 

71. Alphonse and Jeffery should have thought about all this before they got involved in criminal activity.

72. However, because each offender has a positive pre-sentence report, indicating strong community and family support, I will identify a minimum term of imprisonment which each must serve, after which he will be eligible for early release.

73. The minimum term will be six years each.

74. Early release will be dependent on his record of behaviour while in prison and any compensation that is paid to the victims and any tangible reconciliation with the owners of the businesses that were held up or the employees whose lives were threatened.

75. The court would be interested to know also whether someone like Alphonse has really changed his life and turned to Christ. He says that that has happened already. But I agree with Pastor Bryan Girard that time will tell whether he is sincere about that. Alphonse needs to be asked that question later, to see whether he means what he says or whether the words he is using now are just hollow maus wara, to try to save himself from going to jail.

SENTENCES

76. The Court makes the following order:

1	Alphonse Polpolio, having been convicted of two counts of armed robbery, is sentenced as follows:

Length of sentence imposed	10 years	
Pre-sentence period to be deducted	2 months,
1 week,
6 days	
Resultant length of sentence to be served	9 years,
9 months,
2 weeks,
3 days	
Minimum time to be served in custody	6 years	

2. Jeffery Baru, having been convicted of two counts of armed robbery, is sentenced as follows:

Length of sentence imposed	10 years	
Pre-sentence period to be deducted	3 months, 
1 day	
Resultant length of sentence to be served	9 years,
8 months,
4 weeks,
1 day	
Minimum time to be served in custody	6 years	

3 For the avoidance of doubt: suspension of any of the above sentences will only come into effect if and when ordered by the National Court. 

Sentenced accordingly.
_________________________

Public Prosecutor: Lawyer for the State
Public Solicitor: Lawyer for the accused