N5017

PAPUA NEW GUINEA
IN THE NATIONAL COURT OF JUSTICE

CR NO 1923 0F 2005 & CR NO 689 OF 2006

THE STATE

V

HERMAN KAPARUI

Kimbe: Cannings J
2007: 10, 21 May, 13 July

CRIMINAL LAW – sentence – one count of armed robbery of a dwelling house – one count of escape – guilty plea to each charge – whether sentences concurrent or cumulative – totality principle.

The offender with the help of others staged an armed robbery of his uncle’s house. He was arrested and detained in the police lock-up, and escaped. He pleaded guilty to one count of armed robbery and one count of escape.

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 (armed robbery): 8 years;
•	count 2 (escape): 5 years;

resulting in a total potential sentence of 13 years.

(3)	The offences were not part of the one transaction, which means the sentences should be served cumulatively. However, the totality principle requires that the total sentence be reduced, to avoid imposition of a crushing sentence. Accordingly the court imposed a total head sentence of 8 years. The pre-sentence period in custody was deducted, and 4 years of the sentence was suspended subject to conditions.

Cases cited

The following cases are cited in the judgment:

Phillip Kassman v The State (2004) SC759
Saperus Yalibakut v The State (2006) SC890
The State v Charlie Kevin, Worex John and Demas Dano CR Nos 1627-1629/2006, 21.03.06
The State v Eddie Maso CR No 684/2006, 27.03.07
The State v Jacky Vutnamur & Kaki Kialo (No 3) (2005) N2919
The State v James Negol (2005) N2801
The State v Lucas Soroken Sembengo, Bob Alois Wafu & Raphael Lawrence Mandal (2006) N2801
The State v Mogi Konda CR No 1316/2005, 19.04.05

PLEA

An accused pleaded guilty to armed robbery and escape from custody and the following reasons for sentence were given.

Counsel

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

13th July, 2007

1. CANNINGS J: This is a decision on the sentence for a young man who pleaded guilty to one count of armed robbery and one count of escape, arising from the following facts:

•	On Tuesday 12 August 2003 between 6:00 pm and 7:00 pm he was at Laleki, in Kimbe, in the company of others. They were armed with two homemade guns and two bushknives.

•	They went to Joe Lamboku’s house. Using pliers they cut the security fence to gain entry to the premises.

•	They then held up members of Joe’s family, who were under the house.

•	While some of his companions kept watch over the family, the offender and others entered the house and held up Joe.

•	They assaulted Joe, demanded money and broke into a cupboard and stole K8,160.00 cash before taking off.

•	On Wednesday 29 October 2003 at 4:30 am, he was in custody at the Kimbe police lock-up.

•	He had been brought to the lock-up from Lakiemata Jail, to attend the District Court on the armed robbery charge.

•	Some other detainees cut the cell bars and he escaped with them.

•	He was at large for three years before being arrested.

ANTECEDENTS

2. He has no prior convictions.

ALLOCUTUS

3. He said:

It is true, I committed these offences. I apologise to this court for what I have done. I also apologise to everyone in the court room. I apologise to the Judge and to God. I am currently employed at Family Mart. I am in charge of the bulk section at the store. I am married with a child. I promise before your Honour and to God’s eyes I will never do this sort of thing again. I ask for mercy from the court to put me on good behaviour bond or probation. Since I have been out on bail I have not got into trouble. I have stayed at home with my mother and obeyed her. If I go to jail my mother and my wife and the whole family will find it difficult.

OTHER MATTERS OF FACT

4. 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). There are also some mitigating factors in the pre-sentence report that the prosecutor has not challenged. In September 2003 he made a confessional statement to the police. In that sense, he co-operated with the police. He has shown remorse over his offences by apologising to the court and has asked mercy. He has during the time he has been at large, turned his life around. He has a job and a family and has stayed out of trouble.

PRE-SENTENCE REPORT

5. I received a favourable pre-sentence report from the Kimbe office of the Community Corrections and Rehabilitation Service. This has helped me set the head sentence and decide whether any of it should be suspended.

HERMAN KAPARUI
Age: 25-year-old male (aged 21 at time of offences).
Residence: Laleki 1 squatter settlement, Kimbe.
Family background: mixed parentage- father from Morobe, mother from Kou, WNB – raised in WNB – fifth born in family of twelve children – father abandoned his family; mother alive – offender lives with his mother, stepfather, ten other siblings and relatives at Laleki 1; except for an elder brothers who lives at Kou.
Marital status: Married for two years to Bevelyn Ben – one child – daughter born 28 February 2007.
Education: grade 6 – Gigo Primary School, 1996.
Employment: In 2000, carpentry job for Paul Kiale, a local contractor – since February 2007, Family Mart – security then promoted to bulk section of supermarket.
Health: excellent.
Financial status: earns income from employer Family Mart – income of K120.80 fortnightly.
Plans: concentrate on current employment; help support family; build a house, help mother look after elder sister who is handicapped, keep away from trouble, reconcile with victim, Joe Lamboku, his uncle.
Victim’s attitudes: Joe Lamboku has not reconciled with the offender and not forgiven him for what he did. He feels that Herman has no respect for him as an uncle. He therefore, will leave the matter to the court to decide. Joe said that an apology letter Herman sent was not genuine and just an excuse.
Family’s attitude: supportive; mother observed that Herman has changed a lot since the offences that he committed in 2003. He has settled down well with wife and has a good marriage. His wife agrees that he is a changed person. Mother will ensure that Herman reconciles with his uncle. His mother and wife are worried, that if he goes to jail they will face difficulties at home.
Attitude of community: a completely changed man – the community regard him as a trouble-free person now, not a troublemaker.
Assessment: he committed these crimes when he was a single youth. Now he is a responsible married man. The local community believes in the changes taking place in his life and are convinced that he would continue to be a trouble free man.
Recommendation: Suitable for probation with strict conditions.

SUBMISSIONS BY DEFENCE COUNSEL

6. Mr Oiveka asked me to place a lot of weight on the guilty plea; that it was a first offence, the admission with the police; his current employment; the fact that the offender grew up in Kimbe at Laleki in a dysfunctional family with no fatherly guide; and when the offender escaped from police custody he was following others.

SUBMISSIONS BY THE STATE

7. Mr Popeu submitted that this was a robbery of a dwelling house at night. The victim was injured and had to be taken to hospital. Appropriate notional sentences would be ten years for robbery and five years for escape, to be served cumulatively.

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 – armed robbery (Criminal Code, Sections 386(1), (2), (a) and (b)) – the maximum penalty is life imprisonment. For count 2 – escape (Criminal Code, Section 139) – the law prescribes a minimum sentence of five years. The head sentence can be above that but not below it. Therefore the maximum penalty in this case is life imprisonment. However I have discretion to impose less than the maximum term and suspend part or all of the sentence for armed robbery under Section 19 of the Criminal Code. I do not have such discretion for escape from custody.

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

10. For count 1, armed robbery of a home and holding up the occupants is the most serious form of robbery recognised by the law. The starting point is ten years imprisonment (Phillip Kassman v The State (2004) SC759). For count 2, escape, the starting point is five years.

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

11. The table below shows the sentences I have imposed in cases involving armed robbery of a home.

SENTENCES FOR ARMED ROBBERY OF A HOME
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 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 
	
3	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, 12 years 	
4	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,
12 years,
12 years	
5	The State v Charlie Kevin, Worex John and Demas Dano CR Nos 1627-1629/2006, 21.03.06	Guilty plea – house robbery, Hamamas Trading compound, Mamota – gang of nine – guns and knives – K600.00 cash, firearm, camera stolen – different sentences due to different degrees of involvement and different ages.	6 years,
4 years,
4 years	
6	The State v Eddie Maso CR No 684/2006, 27.03.07	Guilty plea – home invasion, Section 21, Kimbe – offender, 18 years old, in company with one other person – offenders armed with gun and bushknife – household goods stolen – victim retaliated and offender hospitalised.	6 years 

12. For the offence of escape from lawful custody, I have imposed a sentence of five years in numerous cases decided since 2005.

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

Count 1: armed robbery

13. 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 violence during the course of the robbery? No. The primary victim was injured 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? 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? No.

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? Neutral. He started off co-operating by making admissions to the police but then escaped before his case could be brought to finality. Then he was at large for three years.

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? Neutral. He wrote an apology letter to the victim but his apology has not been accepted and he and the victim have not reconciled.

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 victim 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? Yes. He has received a very favourable pre-sentence report. He had a difficult upbringing but has turned his life around, got married, has a child to care for and holds a steady job. The report gives the impression that he is a ‘different person’ to the one who committed the armed robbery.

14	Are there any other circumstances of the robbery or the offender that warrant mitigation of the head sentence? Yes. Since coming back into the criminal justice system, after his period at large, he has co-operated with the court and attended whenever required.

14. After weighing all these factors and comparing this case with the other armed robbery sentences I have recently imposed, the head sentence should be close to the starting point of ten years. This was a serious armed robbery of a family at their home. I fix a head sentence of eight years imprisonment.

Count 2: escape

15. There are no aggravating factors that warrant imposition of a sentence above the minimum of five years. I fix a sentence of five years imprisonment.

Summary

16. The total potential sentence the offender is facing is:

8 years (armed robbery) + 5 years (escape) = 13 years.

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

17. 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 agree with what Mr Popeu submitted. Each offence was a separate event. The one transaction rule does not apply. The sentences should be cumulative, subject to application of the totality principle.

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 13 years would be excessive. This young man has turned his life around. He is no longer a danger to the community. He deserves credit for correcting himself in the years since he committed the armed robbery. I reduce the total sentence to eight years and apportion it (note that the five year sentence for escape is the statutory minimum) as follows:

•	count 1: 3 years;
•	count 2: 5 years.

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 eight months.

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

20. I will suspend half of the sentence, in view of the strong pre-sentence report. I have considered whether a greater part of the sentence should be suspended, in view of the way that the offender has changed his life around. There is a danger that by sending him to jail he will be subject to criminal influences and regress to being a troublemaker. I acknowledge that risk. However, as I have said when sentencing other offenders for armed robbery, the People of Papua New Guinea are fed up with this sort of crime. It affects their daily lives. The offence of armed robbery that this offender committed was the most serious known to the law: the peace and security of a family home was infiltrated. The People expect that these sorts of criminals be imprisoned. Perhaps things would be different if the offender’s apology had been accepted or if he repaid the money that was stolen. Those things have not happened and in all the circumstances, an effective eight-year prison term fits the crimes committed. The conditions attached to the suspended part of the sentence will be:

(a)	must reside at Kimbe and nowhere else except with the written approval of the National Court;

(b)	must not leave WNB Province without the written approval of the National Court;

(c)	must perform at least six hours unpaid community work each week at a place to be determined by the National Court, in consultation with the Community Based Corrections Service;

(d)	must attend a nominated Church every weekend for service and worship and assist the church in its community activities under the supervision of the Senior Pastor;

(e)	must report to the senior Probation Officer at Kimbe on the first Monday of each month between 9.00 am and 3.00 pm;

(f)	must not consume alcohol or drugs;

(g)	must keep the peace and be of good behaviour and must not cause any trouble for, or harass, the complainant and his family;

(h)	must have a satisfactory probation report submitted to the National Court Registry at Kimbe every three months after the date of sentence;

(i)	if the offender breaches any one or more of the above conditions, he shall be brought before the National Court to show cause why he should not be detained in custody to serve the rest of the sentence.

SENTENCE

21. Herman Kaparui, having been convicted of one count of armed robbery and one count of escape, is sentenced as follows:

Length of sentence imposed	8 years	
Pre-sentence period to be deducted	8 months	
Resultant length of sentence to be served	7 years, 4 months	
Amount of sentence suspended	4 years	
Time to be served in custody	3 years, 4 months	

Sentenced accordingly.
_________________________________________
Public Prosecutor: Lawyer for the State
Public Solicitor: Lawyer for the accused