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State v Morgan (No.2) [2007] PGNC 272; N3876 (16 August 2007)

N3876

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR NO. 739 & 740 of 2006

THE STATE

-V-

KAIRI MORGAN & GEORGE MIKE

(No. 2)

Waigani: Kandakasi, J.
2007: 25th July, 16th August

CRIMINAL LAW- Sentence – Armed gang robbery on a street – Conviction after trial – First time offenders – Serious damage to property stolen – Prisoners not playing lead role – Prevalence of offence – Deterrent sentence required – Sentence of 15 years imposed.

CRIMINAL LAW –Sentence – Unlawful use of motor vehicle – Vehicle stolen in armed robbery – Vehicle seriously damaged – Prevalence of offence – Guilty plea – First time offenders – Sentence of 15 years imposed.

CRIMINAL LAW – PRACTICE & PROCEDURE – Concurrency of sentence – Two offences committed out of the same transaction – Sentence for two offences made to be served concurrently.

Papua New Guinea Cases Cited:

Gimble v The State [1988-89] PNGLR 27.
The State v Moses Tingin & Kennedy Kara CR 1483 and 1484 of 2005 (judgment delivered on 26th September 2005).
Hawai John v The State (Unreported judgment delivered on 02/01/98) SCR 09 of 1995.
Dadly Henry Gorop v The State (unreported judgment delivered on 03/10/03) SC732.
The State v Paul Maima Yogol and Dama Teiye (21/05/04) N2583, per Kandakasi J
The State v Warip Mondol & Ors (19/08/04) N2707, per Lenalia J.
The State v Gilbert Monai (09/06/04) N2617, per Sevua J.
Bosco Bedy v The State SCR 45 of 2004, per Sevua, Kandakasi and Gabi JJ delivered 0n 30th August 2006.
Public Prosecutor v Don Hale (27/08/98) SC564.
The State v Edward Toude & Ors (No.2) (2001) N2299.
The State v John Micky Lausi (2001) N2073.
The State v Tomikuk Herman Itagau (CR No. 1522 of 2005 (2006) Unreported judgement delivered on 24th October 2006.
The State v Donald Angavia, Paulus Moi and Clement Samoka (No.2) (29/04/04) N2590, per Kandakasi J.
The State v James Yali (19/01/06) N2989, per Cannings J.
The State v Danny Sanu & Ors [1993] PNGLR 396.
The State v Aruve Waiba (Unreported and unnumbered judgment of the Supreme Court delivered on the 4th of April 1996) SCR 1 of 1994.
The State v Jason Domgoia (2000) N2038.
The State v James Gurave Guba (2000) N2020.
The State v Wallen Yamevi and Kem Dano (1990) N949.
Joseph Nimagi, Tom Gurua Kerui and David Bawai Laiam v The State (2004) SC 741.
Bokum Umba v The State, (1976) SC92.

Counsel:

S. Luben, for the State.
L. Siminji and R. Aupae, for the Prisoner

DECISION ON SENTENCE

16th August, 2007

1. KANDAKASI J: On 25th July 2007, this Court found you both guilty and convicted you one count each of armed robbery and unlawful use of motor vehicle. The conviction for the first count was after a trial whilst your convictions in relation to the second count were on your guilty plea confirmed after the trial. You argued for a sentence between 10 and 14 years for armed robbery and 2 years for unlawful use of motor vehicle to be served concurrently. The State asked for a sentence between 12 and 15 years.

Relevant Issues

2. The Court has to decide on an appropriate sentence for you on both counts and also decide whether to order the sentences it finally decides to impose against you to be served either concurrently or cumulatively. I will deal firstly with the question of what is an appropriate sentence for you and after a determination of that issue, the question of whether not, the serving of the sentences should be concurrent.
   

Appropriate Sentence

3. Turning firstly to the question of appropriate sentence, we need to start with what the law is in relation to both offences and the relevant sentencing guides and trends. We will then apply the law to the facts of your case and settle upon an appropriate sentence for each of the offences.
   
4. The offence of armed robbery carries a maximum penalty of life imprisonment. Nevertheless, in the often cited case of Gimble v. The State,[1] the Supreme Court set sentencing guidelines and tariffs lower than that in the exercise of the sentencing discretion vested in the Courts by s.19 of the Criminal Code. According to the guidelines provided by that case, higher up on the sentences it recommends is 7, years for robbery of a dwelling house and at the lower end are robberies of a person on the street at 3 years.
   
5. In The State v. Moses Tingin & Kennedy Kara[2] I reviewed the Supreme and National Court's approach to sentence since the decision in the Gimble case. I started that process with the decision of the Supreme Court delivered on 2nd April 1998, in Hawai John v. The State,[3] to the Supreme Court decision in Dadly Henry Gorop v. The State[4] and the National Court decisions in The State v. Paul Maima Yogol and Dama Teiye,[5] The State v. Warip Mondol & Ors.,[6] and The State v Gilbert Monai.[7]
   
6. The review revealed that, due to the prevalence of the offence of armed robbery, the Courts have now come to accept that, the past sentences have failed to deter offenders like you. Having regard to that fact, and the relevant sentencing trend and or tariffs, the Supreme Court in Dadly Henry Gorop v. The State (supra), in the context of a sentence of 20 years said:
   

"Given these, the sentence of 20 years in your case would appear not to be manifestly excessive going by the guidance of the judgment in Hawai John's ... case. At the same time however, given the kind of sentence the offenders have received in cases like that of The State v. Vincent Malara ... following a guilty plea in the particular circumstances in those cases with a sentence after a trial as in The State v. Edward Toude, & Ors (No 2), ... reaching 20 years, we are of the view that you would have a justified feeling of the sentence being excessive. We are therefore of the view that your sentence should be reduced to 18 years."

7. In that case, the prisoner pleaded guilty to one charge of armed robbery. The amount of property stolen was not substantial, but the injuries to the victims were very serious. The victims were a Canadian couple, touring the country at the time. The prisoner seriously assaulted the victims with a hockey stick. That resulted in fractured head injuries to both victims. The prisoner also knocked them down unconscious, with one of them almost dying but for swift medical intervention.
   
8. In the case of Moses Tingin & Kennedy Kara then before me, I concluded:
   

"What is clear from all of this is the fact that, sentences in armed robbery cases have increased since the guidelines in Gimble v. The State ... The prevalence of the offence is the main contributing factor for the increase in the sentences. The lowest starting point for a simple robbery of a dwelling house is now 10 years. This sentence may be increased or decreased depending on the factors in aggravation as well as those in mitigation. However, if this is reconsidered in the light of the judgment in Hawai John v. The State,... the sentence could well start at 13 to 15 years. Indeed two recent judgments of the Supreme Court in Norbert Maing v. The State ... and Nelson Ngasale v. The State,... endorsed a number of judgments increasing sentences, most of them mine by indicating a preparedness to increase sentences from 10 years to 13 years for armed robberies on a street on a plea of guilty."

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

10. In the first of these cases, I imposed a sentence of 12 years on guilty plea. The prisoners were part of an armed gang that held up a motor vehicle and stole from its driver and others cash and goods valued at about K1, 300.00. That was on a guilty plea by two first time young offenders.

11. In the second of these cases, the National Court per Lenalia J., imposed on a guilty plea a sentence of 12 years for armed gang robbery on a street. That was for robbery of a vehicle on a highway with the use of bush knives and actual violence where a victim was cut by a bush knife.

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

13. More recently, the Supreme Court in Bosco Bedy v. The State,[8] endorsed the sentiments expressed by the Supreme Court in Dadly Henry Gorop v. The State (supra). Then in the case before it, the Supreme Court expressed the view that, a sentence of 8 years for armed robbery with threats and actual violence at a dwelling house, and robbing from it a generator set, a chain saw frame, a TV screen, 3 radios, a bag of clothes, K400.00 cash and other personal effects, all valued at K11, 429.05, was too low. It held that the starting sentence should have been 10 years following its earlier decision in Public Prosecutor v. Don Hale.[9]
    
14. Your lawyer drew my attention to other cases like of The State v. Edward Toude & Ors (No.2) (2001) N2299, where I imposed varying sentences with the highest at 20 years for armed robbery on a ship against the ring leader. Your lawyer also drew my attention to my decision in The State v. John Micky Lausi (2001) N2073, where I imposed a wholly suspended sentence of 6 years, with the support of pre-sentence report. Members of the community, including the parents of the offender came into Court and demonstrated their commitment to seeing the offender reform and become a good law abiding and useful member of the society.
    
15. The first case is much more serous because of the amounts of money involved, the offence being committed in breach of trust and the use of firearms. The second case comes closer to your case but the problem in your case is that, there is no community support of a non custodial sentence, let alone, a sentence lower than the kind of sentences that are being imposed these days.
    
16. In the case of The State v. Tomikuk Herman Itagau (CR No. 1522 of 2005 (2006) Unreported judgment delivered on 24th October 2006, I noted that, in most of the cases I have referred to above, there were guilty pleas by first time youthful offenders. Also, I note that none of those cases discussed the possible effect of the wording in s. 386 of the Criminal Code, which reads:
    

"386. The offence of robbery.

(1) A person who commits robbery is guilty of a crime.

Penalty: Subject to Subsection (2), imprisonment for a term not exceeding 14 years.

(2) If a person charged with an offence against Subsection (1)—

(a) is armed with a dangerous or offensive weapon or instrument; or

(b) is in company with one or more other persons; or

(c) at, immediately before or immediately after, the time of the robbery, wounds or uses any other personal violence to any person,

he is liable subject to Section 19, to imprisonment for life."

17. There I noted that, in the case of The State v. Donald Angavia, Paulus Moi and Clement Samoka (No 2),[10] and other cases, I considered the provisions of s. 347 of the Criminal Code which deals with rape. That provision is in similar terms and arrangement as s. 386. In that context, I said the division between the two categories of the offence of rape and the respective sentences prescribed means that, an aggravated rape should attract sentences beyond the maximum prescribed sentence for rape simpliciter. In other words, a sentence for aggravated rape should be beyond the prescribe maximum for a simple rape case caught by subsection (1) of s. 347, unless very good mitigating factors warranting a sentence below what is prescribed exists. That view has be referred to by Cannings J who decided not to express any views in the case of The State v. James Yali.[11]
    
18. In the circumstances, I continue to subscribe to the view that, once there is a case of aggravated robbery, sentences should be considered in the range of 15 years to life imprisonment, unless very good mitigating factors exist and they warrant a sentence below that range. Such cases would be an exception rather than the norm given the prevalence of the offence and the ready use of dangerous weapons like guns and bush knives in the commission of these kinds of serious offences.
    

Unlawful Use of Motor Vehicle

19. Turning now to the offence of unlawful use of a motor vehicle, I note that s. 383 of the Criminal Code prescribes the offence and provides for its penalty. It carries a maximum penalty of up to five years imprisonment. The section does not say the penalty provision is subject to s. 19 of the Code. That has not however, prevented the Court from exercising its discretion under s. 19 of the Code.
    
20. The Supreme Court in The State v. Danny Sanu & Ors [1993] PNGLR 396 held that, even the prescription of a minimum penalty by s. 398 of the Code does not remove the court's discretionary power under s. 19 of the Code. This was affirmed by the Supreme Court in The State v. Aruve Waiba (Unreported and unnumbered judgment of the Supreme Court delivered on the 4th of April 1996) SCR 1 of 1994. The National court has thus passed sentences in full utilization of its powers under s. 19 of the Code.
    
21. In The State v. Jason Domgoia (2000) N2038, I observed that, there appeared to be no case on point to assist the court in determining appropriate sentences for s. 383 offences and discussed general principles of sentence applicable to sentencing.
    
22. Subsequently, in the case of The State v. James Gurave Guba (2000) N2020, I decided to suggest a guideline for sentencing in unlawful use of motor vehicle case. I did that in the following terms:
    

"As is undoubtedly the case with nearly all of the cases under the Code, s. 383 in my view has its own categories. There are four broad categories in my view and these are:

(a) The offence is committed under serious aggravating circumstances such as serious injuries to the owner of the vehicle, the vehicle itself or other properties and is being committed in the course of or in the furtherance of a serious crime such as armed robbery;

(b) The offence is committed under circumstances in which not all of the factors under (a) exist but only some of them exist. An example of that would be say the vehicle is being taken by force but without injuring the owner or its lawful driver, driven off and is recovered with minor damages to the vehicle or any other property;

(c) The offence is being committed in situations where say a single factor under (a) exist. An example of that would be a case in which say, the owner or legal driver leaves the vehicle unlocked and the offender gains entry and drives off and damages the vehicle;

(d) The offence does not fall under (a) (b) or (c) but is still an offence under s. 383. An example of that would be a case in which say an owner/employer authorizes his employee to use a vehicle for a specified purpose within a specified period but he simply exceeds the authorized purpose and time for the employee's own purpose or interest without advancing his employers interest in any way.

23. In my view, an offence which falls under category (a) should attract sentences between 4 and 5 years. Then those falling under category (b) should attract sentences between 3 and 4 years while those under (c) and (d) should respectively attract sentence between 1 to 3 years and a number of months to 1 year. Of course, from what is suggested, the actual sentences in any one given case can be substantially or fractionally reduced depending on the particular facts of the case and mitigating factors such as a guilty plea, young first offender, no prior convictions and an expression of genuine remorse."

24. I note once again that, most of the offence of unlawful use of motor

vehicle has been out of armed robberies. Most of the sentences have been hovering between 2 and 4 years. In most of these cases, the sentences have been imposed after a higher penalty for robbery and ordered to be served concurrently with the higher sentence for robbery. An example of a case on point is the case of The State v. Wallen Yamevi and Kem Dano (1990) N949

Sentence in Your Case

25. Having considered the law and practice of sentencing in armed robbery and unlawful use of motor vehicle cases, I now need to decide upon an appropriate sentence for you two. In order to properly do that, I note the foregoing discussion on the law and practice or sentencing trend. I also note the relevant facts in your case, your personal and family backgrounds, the factors in your favour as well as those against you.
    
26. Turning firstly to the relevant facts, I note that, my decision on your verdicts set out the relevant facts. I need not repeat all of the facts except only those facts that are relevant for your sentencing. In that regard, I note the following facts are relevant:
    
    1. You were part of a gang of 5 men that conducted an armed hold up on 3rd February 2006;
    2. The gang was armed with loaded home made gun;
    100. In the armed robbery your gang stole at gun point, a motor vehicle, being a property of the State as well as some personal properties belonging to the lawful drive of the vehicle at the time consisting of K200 cash, his bank cards and his drivers license;
    4. The occupants were forcefully ordered or caused to leave the vehicle;
    5. You and your gang then got in and drove off in the stolen vehicle.
    6. A member of your gang drove the vehicle, who lost control of the vehicle and got it into an accident;
    7. In the accident, the vehicle ran off the road resulting in serious damages to the vehicle to the point of rendering it impossible to drive;
    8. Although you admitted to unlawfully using the vehicle, you both denied being part of the gang and committing the offence of armed robbery; and
    9. There is no evidence of you paying for the damages to the vehicle and or apologizing and making it right with the victims of your offences, including a return of the stole personal properties of the driver.
       
27. These facts disclose a number of factors against you. Firstly, you committed a serious offence with the use of a dangerous weapon, a home made gun. The Courts have repeatedly warned and have in fact imposed tougher penalties against offenders who use such a dangerous weapon to secure the commission of an offence because of the dangers they cause or bring upon human life. Secondly, you committed the offence in the company or in association with others. Again the courts have warned and have in fact imposed tough penalties against offenders who commit offenders in the company or in association with others. The reason for this is simple, the involvement of an additional person provides, strength and encouragement for the commission of an offence as opposed to someone acting alone.
    
28. Thirdly, your gang stole a motor vehicle which was of some value. That vehicle was unlawfully driven and used in a manner that was reckless, inevitably resulting in an accident. The accident resulted in serious damage to the vehicle. There is no evidence as to the possible costs of repair to the vehicle, but it is clear that the vehicle could not be driven after the accident. Neither of you nor any member of your gang has fixed or paid for the damage done to the vehicle.
    
29. Fourthly, the driver of the vehicle who was held up at gun point, lost K200 cash, his driver's license and his bank cards. You and your gang did not return these properties to the rightful owner. So it is clear that, your gang applied these goods to their own use unlawfully. There is no evidence of either of you or any of the members of your gang making that wrong right. Apart from losing the personal properties, the drive did suffer shock when your gang confronted him with the loaded home made gun. The same would go for the other lawful occupants of the vehicle at the time of the robbery. They deserved at least an apology and some compensation for the harm you did to them. Unfortunately, you and your gang members did not offer any apology or pay any compensation.
    
30. Fifthly, the offence you committed is a very prevalent offence. It is so prevalent that it is being committed on a daily bases, sometimes, more than one each day. This means, the kind of sentences that have been imposed to date are not serving their intended purpose of deterring other would be offenders from committing the offence. This is inevitable when some judges are imposed wholly suspended sentence of say 7 or lesser years with the support of any pre-sentence report and more so, without any good compelling reason to impose a sentence well below the tariffs. What this means in your case is that, a sentence that has the potential to help deter yourselves other like yourselves from committing the offence of armed robbery.
    
31. Finally, I note that, your conviction particularly, in relation to the more serious offence of armed robbery came about after a trial. Usually, a person who pleads guilty to the commission of an offence gets a lower sentence than one who commits the same offence and his or her guilt is established after a trial. This is because much of the Court's time is unnecessarily taken to hear and establish the offender's guilty. It is also because a trial entails witnesses being called and requires victim witnesses to re-live their bad memories and experiences all over again in the witness. Also, a ready guilty plea in some cases is taken to reflect or demonstrate the offender accepting responsibility for his actions which may form the foundation for genuine expression of remorse and plea for leniency.
    
32. Turning now to the factors in your favour, I firstly note that, this is your first ever offence. That means, since the day you were born, you have not committed any criminal offence and got dealt with for it until the commission of the offence in this case. An habitual or repeat offender would be dealt with a bit more severely than a first time offender like yourselves.
    
33. Secondly, I note that, although your gang used a dangerous weapon and was an armed gang robbery no physical injuries were occasioned to the driver of the motor vehicle or any of the other occupants of the vehicle at the time.
    
34. Thirdly, I note that, you are both relatively young but by no means below the age of 20 to warrant a more lenient sentence going by what the Supreme Court said in the Acting Public Prosecutor v. Don Hale case. At the same time, I note what the Supreme Court said in the case of Joseph Nimagi, Tom Gurua Kerui and David Bawai Laiam v. The State (2004) SC 741. That decision re-echoed what was already said in other judgments as in Bokum Umba v. The State, (1976) SC92. There, the Supreme Court of which, I was a member, held that, pleas of youthfulness are now insignificant given that most of the violent crimes including armed robbery are being committed by people who could considered youths.
    
35. Fourthly, I note that, neither of you was the one who carried and used the homemade gun against the victims to secure a commission of the offence. Also, I note that, there is no evidence of neither of you taking a lead in the commission of the offence. You were however, charged and convicted under s.7 of the Code for being part of the gang that committed the offences. That provision makes people like you as the principle offender. However, the courts have always treated an offender who did not play a lead role in the commission of an offence, less severely than an offender who plays a lead role in the commission of an offence.
    
36. Finally, I note your saying sorry to the victims and the Court and all involved for the offences you committed. However, I note that, your expression of remorse is not in furtherance or accompanied by the payment of any compensation or making good the damage you caused the victims of your offence. Additionally, I note that, your expression of remorse has come after the Court has found you guilty on the more serious charge of armed robbery following a trial.
    
37. Weighing all the factors for and against you two, I find that, the factors against you far out weigh those in your favour. Bearing that in mind, as well as the kind of sentences that are being imposed as I have discussed in the foregoing, I consider a sentence of 16 years appropriate on the charge of armed robbery appropriate and I hereby impose it against you each of you.
    
38. Turning then to the offence of unlawful use of motor vehicle, I consider a sentence of 3 years appropriate and impose that against each of you. Then considering the fact that this offence was committed in the one transaction, on the same day, against the same victims, it is appropriate to order that, you serve that sentence concurrently with your sentence of 15 years for armed robbery, thereby effectively leaving you with a sentence of 15 years for both offences. I further order that from that total sentence of 15 years, the period of 1 year, 6 months and 3 weeks you have already spend in custody awaiting your trial and later you sentence, be deducted. This should ultimately leave you with a sentence of 13 years, 5 months and 1 week. I order that you serve that sentence in hard labour at the Bomana Correction Services.

__________________________________________________________
Public Prosecutor: Lawyers for the State
Public Solicitor: Lawyer for the Prisoners

^[1] [1988-89] PNGLR 27.
^[2] CR 1483 and 1484 of 2005 (judgment delivered on 26^th September 2005).
^[3] (unreported judgment delivered on 02/04/98) SCR 09 of 1995.
^[4] (unreported judgment delivered on 03/10/03) SC732.
^[5] (21/05/04) N2583, per Kandakasi J.
^[6] (19/08/04) N2707, per Lenalia J.
^[7] (09/06/04) N2617, per Sevua J.
^[8] SCR 45 of 2004, per Sevua, Kandakasi and Gabi JJ.) delivered on 30^th August 2006.
^[9] (27/08/98) SC 564.
^[10] ) (29/04/04) N2590, per Kandakasi J.
^[11] (19/01/06) N2989, per Cannings J.