N5040
PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR NO 1396 0F 2006

THE STATE

V

CHRIS BAILI

Kimbe: Cannings J
2007: 11 July, 7, 17 August

CRIMINAL LAW – sentence – one count of conspiracy to commit armed robbery – one count of armed robbery of a vehicle on the road – guilty plea to each charge – whether sentences concurrent or cumulative – totality principle.

The offender conspired with a number of other young men to hold up a company truck that was doing a payroll run in a remote location. The offender's role was to get on the truck and make it easier for his accomplices to stage the hold up, which they did with firearms and bushknives, stealing K22,400.00 cash. The offender pleaded guilty to both conspiracy to commit armed robbery and armed robbery. This is the judgment on sentence.

Held:

(1)	When 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 (conspiracy): 3 years;
•	count 2 (armed robbery): 7 years;

resulting in a total potential sentence of 10 years.

(3)	The offences were part of the one transaction, which means the sentences should be served concurrently, ie a total term of 7 years. The totality principle does not require any reduction in the total sentence. Accordingly the court imposed a total head sentence of 7 years. The pre-sentence period in custody was deducted, and one year of the sentence was suspended.

Cases cited

The following cases are cited in the judgment:

Gimble v The State [1988-1989] PNGLR 271
Mase v The State [1991] PNGLR 88
Phillip Kassman v The State (2004) SC759
Public Prosecutor v Don Hale (1998) SC56
Public Prosecutor v Kerua [1985] PNGLR 85
Saperus Yalibakut v The State (2006) SC890
Tau Jim Anis v The State (2000) SC642
The State v A Juvenile "ET" CR 1012/ 2003, 09.04.05
The State v A Juvenile, "TAA" (2006) N3017
The State v Alphonse Polpolio and Jeffery Baru CR 865 + 701/2006, 14.07.06
The State v Dickson Kauboi CR 495/2001, 07.06.06
The State v Jacky Vutnamur & Kaki Kialo (No 3) (2005) N2919
The State v Jethro Paul Matu CR No 314/2007, 13.07.07
The State v John Carl Endekra, Wilson Isaiah & Albert Martin Klembasa CR 70-72/2007, 14.07.06
The State v Justin Komboli (2005) N2891
The State v Kia Tala Moksy CR 785/2005, 12.08.05
The State v Lesley Cletus Malo 379/2005, 19.12.06

SENTENCE

This is a judgment on sentence for conspiracy and armed robbery.

Counsel

F Popeu, for the State
B Tanewan, for the offender

17th August, 2007 

1. CANNINGS J: This is a decision on sentence for a young man who pleaded guilty to one count of conspiracy and one count of armed robbery arising from the following facts. On 12 July 2006 the offender was at his village at Nut, West Kove, West New Britain Province. Francis Kago approached him and planned with him to commit an arm robbery on a truck that was to do a payroll run for the Tzen Niugini Company Limited, a logging company operating in the area. They planned that the offender would keep watch for the truck and when the payroll truck came through headed to the company's Aria Banu base camp, the offender would get on it, then send a signal to the others and that would enable the others to commit the robbery. Three days later, on Saturday 15 July 2006, the payroll truck came through the area on its way to the base camp. The offender, as planned, climbed aboard and was travelling on the back of the truck. As the truck was about to climb a steep mountain, the offender gave the signal and Francis Kago and two other men, with the assistance of the offender and in accordance with their plan, held up the vehicle using home-made guns and bush knives. They smashed the windscreen of the truck, forced the two occupants outside and stole the company's payroll of K22,400.00 cash. The offender aided and abetted those who committed the robbery.

ANTECEDENTS

2. The offender has no prior convictions.

ALLOCUTUS

3. 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:

It is true that I did these things. I was apprehended on the same day of the robbery. I did not use any of the money from our enterprise. This is my first time to be before the court. I say sorry for what I have done.

OTHER MATTERS OF FACT

4. As the offender has pleaded guilty he will be given the benefit of the doubt on mitigating matters raised in the depositions, the allocutus or in submissions that are not contested by the prosecution (Saperus Yalibakut v The State (2006) SC890). The main mitigating factors arising from depositions are that the offender was not the ring leader, played a relatively minor role in the robbery and co-operated fully with the police when he was apprehended.

PRE-SENTENCE REPORT

5. I received a favourable pre-sentence report from the Community Corrections and Rehabilitation Service, which is summarised below.

CHRIS BAILI: male, aged 24 years.

Residence: Nut village, WNBP.
Family background: Both parents are from the East Kove (Kombe) area of Talasea in WNB – his father is deceased but his mother lives in the village – the offender is the third born in a family of four boys.
Marital status: Single.
Education: Grade 10, Kimbe Secondary School, 2004.
Employment: Never formally employed.
Health: OK.
Financial status: Has been receiving timber royalties and land rentals from the Aria Vanu Logging Company – has no other cash or assets – unable to pay compensation.
Plans: Pursue his education.
Victim's attitude: Unclear – but the robbery proceeds have never been recovered.
Offender's family's attitude: Unknown – as Nut village is accessible only by boat and no family members have made themselves known to the Community Based Corrections Office.
Attitude of community: Unknown.
Assessment: No known community or family support.
Recommendation: Not recommended for probation.

SUBMISSIONS BY DEFENCE COUNSEL

6. Mr Tanewan submitted that the court should put considerable weight on the fact that the offender played only a minor role in the robbery and he was apprehended soon afterwards. He did not benefit from the proceeds, whereas others who played a major role are still on the run. The two sentences were part of the one transaction and should be served concurrently, Mr Tanewan submitted.

SUBMISSIONS BY THE STATE

7. Mr Pope submitted that the court should impose sentences of 4 years for conspiracy, 6 years for arm robbery and they should be served cumulatively, but reduced from 10 years to 8 years under that totality principle.

DECISION MAKING PROCESS

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

•	step 1: what is the maximum penalty for each offence?
•	step 2: what is a proper starting point for each offence?
•	step 3: what sentences have been imposed for equivalent offences?
•	step 4: what is the head sentence for each offence?
•	step 5: should the sentences be served concurrently or cumulatively?
•	step 6: what is the effect of the totality principle?
•	step 7: should the pre-sentence period in custody be deducted?
•	step 8: should all or part of the sentence be suspended?

STEP 1: WHAT IS THE MAXIMUM PENALTY?

9. For count 1 – conspiracy (Criminal Code, Section 515 – the maximum penalty is seven years imprisonment. For count 2 – armed robbery (Criminal Code, Sections 386(1), (2), (a) and (b)) – the maximum penalty is life imprisonment. However I have discretion to impose less than the maximum term and suspend part or all of the sentences under Section 19 of the Criminal Code.

STEP 2: WHAT IS A PROPER STARTING POINT FOR EACH OFFENCE?

10. For count 1, I will use a starting point in the middle of the available range, ie 42 months imprisonment. For count 2, armed robbery, the Supreme Court has given sentencing guidelines in a number of leading cases: Gimble v The State [1988-1989] PNGLR 271; Public Prosecutor v Don Hale (1998) SC56; Tau Jim Anis v The State (2000) SC642; and Phillip Kassman v The State (2004) SC759. 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.

11. The present case falls within the third category. The starting point is therefore eight years.

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

12. There are no recent cases on conspiracy to commit armed robbery. However, there are plenty of cases involving armed robbery of stores and vehicles on the road, which are summarised in the table below.

SENTENCES FOR STORE AND ROAD ROBBERIES, 2005-2007

No	Case	Details	Sentence	
1	The State v A Juvenile "ET" CR 1012/ 2003, 09.04.05	Guilty plea – kai bar in Kimbe – juvenile – in company with two others – firearms – K400.00 stolen.	4 years
	
2	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	
3	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	
4	The State v Jacky Vutnamur & Kaki Kialo (No 3) (2005) N2919	Guilty pleas – two offences – in company with others – mature aged offenders – firearms used – robbery of Kapiura Trading Supermarket (K40,000.00 stolen).	12 years,
12 years	
5	The State v A Juvenile, "TAA" (2006) N3017	Guilty plea – juvenile – Shopper's Choice store robbery, Kimbe – offender had minimal involvement.	4 years	
6	The State v Dickson Kauboi CR 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	
7	The State v Alphonse Polpolio and Jeffery Baru CR 865 + 701/2006, 14.07.06	Guilty pleas – two store robberies, Kandrian – in company with one other person – mature aged man – K2,807.00 stolen in first robbery – K21,530.00 stolen in second robbery.	5 years;
5 years;
9 years;
9 years	
8	The State v Lesley Cletus Malo 379/2005, 19.12.06	Guilty plea – Spirit of WNB robbery, Kimbe – in company with other persons – innocent person stabbed – approx K165,000.00 stolen.	8 years	
9	The State v John Carl Endekra, Wilson Isaiah & Albert Martin Klembasa CR 70-72/2007, 14.07.06	Guilty pleas – held up a truck carrying cargo on a public road – had guns and bushknives and were in the company of two convicted criminals – K600.00 cargo stolen – occupants of vehicle wounded with bushknives.	5 years,
5 years;
5 years	
10	The State v Jethro Paul Matu CR No 314/2007, 13.07.07	Guilty plea – E-Mart robbery, Kimbe – sole offender – robbed service station attendant of K177.40 at knifepoint – no physical injury to victim – apology made and money repaid.	4 years	

STEP 4: WHAT IS THE HEAD SENTENCE FOR EACH OFFENCE?

Count 1: conspiracy

13. In the absence of sentencing guidelines and considering all the circumstances of this case, I will fix a head sentence just under the starting point: three years imprisonment.

Count 2: armed robbery

14. There are a number of considerations to take into account in deciding on the head sentence. I have listed them below as a series of questions. An affirmative (yes) answer is regarded as a mitigating factor. A negative (no) answer is an aggravating factor. A neutral answer will be a neutral factor. The more mitigating factors there are, the more likely the head sentence will be below the starting point. The more aggravating factors present, the more likely the head sentence will be above or at the starting point. Three sorts of considerations are listed. Numbers 1 to 6 focus on the circumstances of the robbery. Numbers 7 to 11 focus on what the offender has done since the robbery and how he has conducted himself. Numbers 12 to 14 look at the personal circumstances of the offender and take account of other factors not previously considered.

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

2	Did the offender and other members of his gang not threaten the victims of the robbery with violence? No.

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? No.

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? Neutral.

5	Did the offender and other members of his gang steal money or property of a relatively small value? No.

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

7	Did the offender give himself up after the robbery? No. He was apprehended by police.

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

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? No.

10	Has he pleaded guilty? Yes.

11	Has he genuinely expressed remorse? Neutral. He said he was sorry for what he did but did not mention the victims – the occupants of the vehicle – in his apology, during his allocutus.

12	Is this the first offence? Yes.

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

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

15. After weighing all these factors and comparing this case with the other armed robbery sentences I have recently imposed in West New Britain, the head sentence should be close to the starting point of eight years. I give substantial credit to the offender for his co-operation with the police and early guilty plea. I fix a head sentence of seven years imprisonment. The total potential sentence the offender is facing is:

3 years (conspiracy) + 7 years (armed robbery) = 10 years.

STEP 5: SHOULD THE SENTENCES BE SERVED CONCURRENTLY OR CUMULATIVELY?

16. 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). In Public Prosecutor v Kerua [1985] PNGLR 85 and Mase v The State [1991] PNGLR 88 the Supreme Court held that in deciding whether sentences should be made concurrent or cumulative the following principles apply:

(i) 	Where two or more offences are committed in the course of a single transaction all sentences in respect of the offences should be concurrent.

(ii) 	Where the offences are different in character, or in relation to different victims, the sentences should normally be cumulative.

(iii) 	When a court has arrived at appropriate sentences and decided whether they should be concurrent or cumulative, it must then look at the total sentence to see if it is just and appropriate. If it is not, it must vary one or more sentences to get a just total.

17. I consider that the conspiracy was part and parcel of the armed robbery. Most armed robberies will result from a conspiracy of some sort so I query the utility of charging the two offences separately. The sentences should be served concurrently, so the total sentence, subject to the totality principle, is seven years.

STEP 6: WHAT IS THE EFFECT OF THE TOTALITY PRINCIPLE?

18. I now look at the total sentence the offender is facing, to see if it is appropriate having regard to the totality of the criminal behaviour involved. The court needs to guard against imposing a crushing sentence. I consider that seven years is not excessive. It is a fair sentence, which fits the crime of armed robbery (the principal offence) and the role that the offender played in it.

STEP 7: SHOULD THE PRE-SENTENCE PERIOD IN CUSTODY BE DEDUCTED FROM THE TERM OF IMPRISONMENT?

19. Yes. 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, which is one year, one month.

STEP 8: SHOULD ALL OR PART OF THE HEAD SENTENCE BE SUSPENDED?

20. 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 Kimbe or Kove, an armed robbery is a traumatic event for the whole community and for every person who is a victim or an innocent bystander. In this case two innocent men were driving along a public road doing their job when they were forced to stop by a group of gun-wielding and knife-wielding thugs. Innocent people in this position do not know how much longer their lives will last. The terror and emotional scar of such an event can last forever. The community expects raskols who are convicted of armed robbery to be sent to prison. Fully suspended sentences for armed robbery should be reserved for only special or exceptional cases. This is not such a case. However, I note that the offender has spent more than a year in remand waiting for this matter to proceed. This is despite my having granted him bail many months ago; the problem being that none of his relatives live around Kimbe and he has been unable to raise the cash bail required. I have received no adverse report on his behaviour while in custody. He has been co-operating with the court. I also take into account the difficulties in getting a full pre-sentence report. I will therefore suspend one year of the sentence.

SENTENCE

21. Chris Baili, having been convicted of one count of conspiracy and one count of armed robbery, is sentenced as follows:

Length of sentence imposed	7 years	
Pre-sentence period to be deducted	1 year, 1 month	
Resultant length of sentence to be served	5 years, 11 months	
Amount of sentence suspended	1 year	
Time to be served in custody	4 years, 11 months	

Sentenced accordingly.
__________________________________
Public Prosecutor: Lawyer for the State
Public Solicitor: Lawyer for the offender