N4994

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR NO 739 0F 2000

THE STATE

V

JOSHUA SAMSON

Kimbe: Cannings J
2007: 8 February, 9, 23, 27 March

CRIMINAL LAW – sentence – unlawful use of motor vehicle, unlawful deprivation of liberty, attempted armed robbery – guilty plea. 

The offender pleaded guilty to one count of unlawful use of a motor vehicle, two counts of unlawful deprivation of liberty and one count of attempted armed robbery. A gang of which he was a member held up two people, stole their vehicle and detained them overnight before the next day using the vehicle in an attempt to stage an armed robbery of a service station. The police apprehended the offender during the course of the attempted robbery.

Held:

(1)	If sentencing an offender for multiple offences, the court should first pass a notional sentence for each offence, then determine whether the sentences are to be served cumulatively or concurrently, then apply the totality principle.

(2)	The following notional sentences were passed: 

•	count 1 (unlawful use of motor vehicle): 3 years; 
•	count 2 (unlawful deprivation of liberty): 2 years; 
•	count 3 (unlawful deprivation of liberty): 2 years; 
•	count 4 (attempted armed robbery): 4 years; 

resulting on a total potential sentence of 11 years.

(3)	Though the offences were all committed as part of a single plan, they were not part of the same transaction for sentencing purposes and should be served cumulatively.

(4)	However, the totality principle requires that the total sentence be reduced, to avoid imposition of a crushing sentence, given the totality of the criminal conduct involved. Accordingly the court imposed a total head sentence of 6 years. The pre-sentence period in custody was deducted from the head sentence and no part of the sentence was suspended. 

Cases cited

The following cases are cited in the judgment:

Saperus Yalibakut v The State (2006) SC890
The State v A Juvenile, "TAA" (2006) N3017
The State v Aaron Lahu (2005) N2798
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

PLEA

An accused pleaded guilty to unlawful use of a motor vehicle, unlawful deprivation of liberty (two counts) and attempted armed robbery and the following reasons for sentence were given.

Counsel

F Popeu, for the State
O Oiveka, for the accused

27 March, 2007

1. CANNINGS J: This is a decision on the sentence for a man who pleaded guilty to four offences. A gang of which he was a member held up two people, commandeered their vehicle and detained them overnight before the next day using the vehicle in an attempt to rob a service station. The police apprehended the offender during the course of the attempted robbery. The case has taken a long time to be heard as he absconded for a considerable period. The indictment contained four charges:

•	count 1: unlawful use of a motor vehicle, contrary to Section 383 (unlawfully using motor vehicles etc) of the Criminal Code.

•	count 2: unlawful deprivation of liberty, contrary to Section 355 (deprivation of liberty) of the Criminal Code; 

•	count 3: unlawful deprivation of liberty, contrary to Section 355 (deprivation of liberty) of the Criminal Code;

•	count 4: attempted armed robbery, contrary to Section 387 (attempted robbery accompanied by wounding, or in company) of the Criminal Code.

CONVICTION

2. The offender pleaded guilty to the following facts:

•	On Sunday night 19 March 2000 he and four others were at Gigo, in Kimbe, armed with a knife and pistol.

•	At 9.00 pm two men drove into Gigo in a Nissan utility to drop off a friend, a pastor.

•	As they were about to leave, the offender and his accomplices held them up, commandeered the vehicle, ordered them into the back seat, then drove to Buvussi oil palm settlement, 25 km outside Kimbe. 

•	The offender and his accomplices detained the two men in the bush at Buvussi overnight, against their will. 

•	The next morning they drove the vehicle back to Kimbe and the offender alighted from the vehicle near Kimbe General Hospital and walked into the Malama service station shop, armed with a knife.

•	One of the employees noticed the offender behaving suspiciously and saw one of his accomplices approaching from outside the shop armed with a pistol, so he pushed the security button, which caused the sliding doors to shut and lock.

•	Despite the accomplice pointing the pistol at a security guard the employees refused to open the door and the offender was trapped inside.

•	His accomplices escaped in another vehicle, leaving the offender still trapped inside when the police arrived and he was apprehended.

•	The allegations were therefore that he and his accomplices: used the commandeered vehicle without the owner's consent; held the two men against their will thus depriving them of their personal liberty; and intended to rob the service station but failed to do so because of the actions of the employees. 

REVIEW OF CONVICTION ON COUNT NO 4

3. After the allocutus was administered (on 8 February 2007), the lawyers made their submissions (on 9 March 2007) and before passing sentence (on 27 March 2007), I recalled the case (on 23 March 2007) as I had second thoughts about the conviction on count No 4, attempted armed robbery. If at any stage of the criminal process, from arraignment to formal entry of the sentence the Judge observes something in the depositions that call a guilty plea into question, the Judge has the power to vacate the plea and the conviction (Saperus Yalibakut v The State SCRA No 52 of 2005, 27.04.06). A Judge must do so as part of the court's duty to afford the accused the full protection of the law under Section 37(1) of the Constitution (The State v Saul Ogerem (2004) N2780, Lay J). Attempted armed robbery is an offence under Section 387(1) of the Criminal Code, which states:

A person who assaults a person with intent to steal any thing, and, at, immediately before or immediately after, the time of the assault, uses or threatens to use actual violence to any person or property in order—

(a)	to obtain the thing intended to be stolen; or
(b)	to prevent or overcome resistance to its being stolen,

is guilty of a crime.

Penalty: Imprisonment for a term not exceeding seven years.

4. Circumstances of aggravation are prescribed by Sections 387(2) and (3). If proven, they increase the maximum penalty to 14 years (eg if the offender is armed with an offensive weapon) or life imprisonment (eg if the offender wounds someone by discharging loaded arms). Count No 4 of the indictment stated:

Joshua Samson of Huray, Maprik, East Sepik Province, stands charged that he on the 20th day of March 2000 at Kimbe … assaulted Lucas Muruk with intent to steal and threatened to use actual violence to steal the thing intended to be stolen, namely monies; and at that time [he] was armed with a pistol and a knife, being dangerous and offensive weapons, and was in company with four other persons.

5. The accused was charged with attempted armed robbery, with circumstances of aggravation, under Sections 387(1) and (2). The elements of an offence under Section 387(1) are that the accused:

1	assaulted a person; 
2	with intent to steal any thing; 
3	at, immediately before or immediately after the assault; 
4	used or threatened to use; 
5	actual violence; 
6	to any person or property; 
7	in order to: obtain the thing intended to be stolen OR prevent or overcome resistance to its being stolen. 

Circumstances of aggravation under Section 387(2) are that the accused was:

8	armed (with a dangerous or offensive weapon or instrument) OR in company (with one or more other persons).

6. After reconsidering the evidence and hearing from the lawyers I was satisfied that the accused did not assault anyone when he was at the service station. "Assault" is defined by Section 243(1) (definition of assault) of the Criminal Code, which relevantly provides:

A person who—

(a)	directly or indirectly strikes, touches or moves, or otherwise applies force to, the person of another, without his consent, or with his consent if the consent is obtained by fraud; or

(b)	by any bodily act or gesture attempts or threatens to apply force to the person of another without his consent, under such circumstances that the person making the attempt or threat has actually or apparently a present ability to effect his purpose,

is said to assault that other person, and the act is called an assault.

7. The accused pleaded guilty to being inside the service station, armed, with the intention of joining with his accomplices in robbing it. He was clearly, in fact, attempting to commit an armed robbery. But should he be convicted of that offence if he did not assault anyone or use or threaten to use actual violence? Mr Popeu, for the State, submitted that the guilty plea was safe as the offender was jointly criminally liable with his accomplices, in particular the one who pointed a pistol at the security guard, by virtue of Section 7 of the Criminal Code. Section 7 (principal offenders) states:

(1)	When an offence is committed, each of the following persons shall be deemed to have taken part in committing the offence and to be guilty of the offence, and may be charged with actually committing it:—

(a)	every person who actually does the act or makes the omission that constitutes the offence; and

(b)	every person who does or omits to do any act for the purpose of enabling or aiding another person to commit the offence; and

(c)	every person who aids another person in committing the offence; and

(d)	any person who counsels or procures any other person to commit the offence.

(2)	In Subsection (1)(d), the person may be charged with—

(a)	committing the offence; or
(b)	counselling or procuring its commission.

(3)	A conviction of counselling or procuring the commission of an offence entails the same consequences in all respects as a conviction of committing the offence.

(4)	Any person who procures another to do or omit to do any act of such a nature that, if he had himself done the act or made the omission, it would have constituted an offence on his part, is—

(a)	guilty of an offence of the same kind; and
(b)	liable to the same punishment,

as if he had done the act or made the omission, and may be charged with himself doing the act or making the omission.

8. Defence counsel Mr Kua submitted that Section 7 had not been invoked when the offender was asked to plead to the charge, so his plea and the conviction on count No 4 should be vacated.

9. Having given a lot of thought to the matter, I have decided not to vacate the plea or the conviction. It was not necessary for the prosecutor to specifically mention the provision of the Criminal Code – Section 7 – being relied on to sustain a conviction. What was necessary was for all the elements of the offence of attempted armed robbery to be put to the accused. That was done. The accomplice approaching with the pistol from outside the shop was the person who did the acts constituting the offence; and the accused now before the court (ie the offender) was doing acts for the purpose of enabling his accomplice to commit the offence. The offender was therefore properly charged with that offence under Sections 7(1)(b) and 387 of the Criminal Code. I am satisfied that I made it sufficiently clear to the offender when I put the allegations to him that he was being charged with attempted armed robbery due to the combined actions of himself and his accomplices, especially the one with the pistol. I am satisfied, on reflection, that I accorded him the full protection of the law and properly convicted him. The result of this review is that the offender remains convicted of all four charges. 

ANTECEDENTS

10. The offender has no prior convictions.

ALLOCUTUS

11. I administered the allocutus, ie the offender was given the opportunity to say what matters the court should take into account when deciding on punishment. A paraphrased summary of his response follows.

I ask the court to consider me for community work. I would faithfully follow whatever conditions the court imposes. If I am to serve a prison sentence I ask for a transfer to Bomana.

OTHER MATTERS OF FACT

12. As the offender has pleaded guilty, he is entitled to the benefit of the doubt on mitigating factors that are apparent from the depositions, the allocutus (or plea) or matters raised by his defence counsel that are not contested by the prosecutor (Saperus Yalibakut v The State (2006) SC890). The rationale is that giving the benefit of the doubt provides an incentive for accused persons to plead guilty and is a benefit accorded to them for saving the State extra resources that would have been committed to the case if a trial were necessary. Here, it is significant that the offender made admissions in police interview on 30 March 2000.

PRE-SENTENCE REPORT

13. To help me make a decision on the appropriate sentence and determine whether any of it should be suspended I requested and received a pre-sentence report under Section 13(2) of the Probation Act for the offender. The report, prepared by the Kimbe office of the Community Corrections and Rehabilitation Service, was a favourable one and concluded that the offender was suitable for probation. 

SUBMISSIONS BY DEFENCE COUNSEL

14. Mr Kua highlighted that the offender pleaded guilty and the pre-sentence report is a favourable one. 

SUBMISSIONS BY THE STATE

15. Mr Popeu submitted that though the PSR is favourable, there was a lot of criminality involved, a high degree of planning. He was armed with a knife in the service station and could have done a lot of harm to innocent people.

DECISION MAKING PROCESS

16. 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 is the head sentence for each offence?
•	step 4: should the sentences be served concurrently or cumulatively?
•	step 5: what is the effect of the totality principle?
•	step 6: should the pre-sentence period in custody be deducted from the term of imprisonment?
•	step 7: should all or part of the sentence be suspended?

STEP 1: WHAT IS THE MAXIMUM PENALTY?

17. Count 1 – unlawful use of a motor vehicle – has a maximum sentence of five 
years imprisonment. Counts 2 and 3 - unlawful deprivation of liberty – have a maximum sentence of three years imprisonment each. Count 4 – attempted armed robbery, with circumstances of aggravation under Section 387(2) – has a maximum sentence of 14 years imprisonment. Therefore the maximum sentence = 5 + 3 + 3 + 14 = 25 years. The court has a considerable discretion whether to impose the maximum penalty by virtue of Section 19 of the Criminal Code. 

STEP 2: WHAT IS A PROPER STARTING POINT?

18. I will use these starting points:

•	unlawful use of a motor vehicle – two and a half years
•	unlawful deprivation of liberty – 18 months
•	attempted armed robbery – 7 years .

STEP 3: WHAT IS THE HEAD SENTENCE FOR EACH OFFENCE?

Count 1 – unlawful use of a motor vehicle: 3 years
Count 2 - unlawful deprivation of liberty: 2 years
Count 3 - unlawful deprivation of liberty: 2 years
Count 4 – attempted armed robbery, with circs of aggravation: 4 years.

3 years (UUMV) + 2 years (UDL) + 2 years (UDL) + 4 years (AAR) = 
11 years – 0 = 11 years.

STEP 4: SHOULD THE SENTENCES BE SERVED CONCURRENTLY OR CUMULATIVELY?

19. As the 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). I summarised the principles to apply in this situation in 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.

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.

20. The one transaction rule does not apply in this case. The sentences should therefore be served cumulatively, subject to application of the totality principle. That is:

3 years (UUMV) + 2 years (UDL) + 2 years (UDL) + 4 years (AAR) = 
11 years – 0 = 11 years.

STEP 5: WHAT IS THE EFFECT OF THE TOTALITY PRINCIPLE?

21. I now look at the total sentence that the 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. 11 years would be excessive, as he did not physically harm anyone, the robbery was unsuccessful and he got caught. Therefore I will reduce the total sentence to six years.

STEP 6: SHOULD THE PRE-SENTENCE PERIOD IN CUSTODY BE DEDUCTED FROM THE TERM OF IMPRISONMENT?

22. The offender has spent time in custody in connexion with this offence. I decide under Section 3(2) of the Criminal Justice (Sentences) Act that there will be deducted from the term of imprisonment the whole of the pre-sentence period in custody, 2 years, 1 month, 1 week, 4 days. 

STEP 7: SHOULD ALL OR PART OF THE HEAD SENTENCE BE SUSPENDED?

23. Despite the favourable pre-sentence report I will not suspend any part of the sentence as the offender has not made any attempt to compensate, apologise to or reconcile with the victims of his crimes. Judging by the interviews with the victims set out in the PSR it was a traumatic and terrifying experience for them – the memory of it may well live with them forever. The incident happened seven years ago so the offender has had ample time to seek them out and say sorry, and make good what he has done wrong. He has failed to do that.

SENTENCE

24. Joshua Samson, having been convicted of one count of unlawful use of a motor vehicle, two counts of unlawful deprivation of liberty and one count of attempted armed robbery, is sentenced as follows:

Length of sentence imposed	6 years	
Pre-sentence period to be deducted	2 years, 1 month, 1 week, 4 days	
Resultant length of sentence to be served	3 years, 10 months, 2 weeks, 3 days	
Amount of sentence suspended	Nil	
Time to be served in custody	3 years, 10 months, 2 weeks, 3 days	

Sentenced accordingly.
_________________________________

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