N5484
PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR NO 998 0F 2007

THE STATE

V

A JUVENILE, "KM"

Madang: Cannings J
2007: 11, 18 October

CRIMINAL LAW – sentence – armed robbery – robbery of a PMV on the road – guilty plea – offender acted in a gang – juvenile offender – K5,000.00 in cash and goods stolen from passengers – sentence of 5 years

A male juvenile pleaded guilty to armed robbery. He joined four other young offenders and armed with a pistol, bushknives and other weapons, they held up a PMV and threatened the driver and passengers with violence. The passengers' properties with the total value of K5,000.00 was stolen.

Held:

(1)	This was the robbery of a vehicle on the road and the starting point for sentencing is eight years imprisonment.

(2)	Mitigating factors are: cooperated with the police; pleaded guilty; first offender; young offender; prepared to face the law. Aggravating factors are: victims threatened real danger of people being injured; valuable properties stolen; no minor role; did not give himself up; no apology to victims.

(3)	The offender was given a head sentence of five years imprisonment. The pre-sentence period in custody was deducted from the time to serve; and two years of the sentence was suspended.

Cases cited

The following cases are cited in the judgment:

Gimble v The State [1988-1989] 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 of 2003, 09.04.05
The State v A Juvenile, "TAA" (2006) N3017
Tom Longman Yaul v The State (2005) SC803

PLEA

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

Counsel

M Ruari for the State
A Turi for the offender

18th October, 2007 

1. CANNINGS J: This is a decision on sentence for a male juvenile, KM, who pleaded guilty to one count of armed robbery. The offender who was 16 years old at the time joined the gang of four other young offenders and held up a PMV, carrying passengers and cargo, at the Mangai bridge in the Kubam area of Karkar Island. The robbery occurred between 7 and 8 pm on 23 December 2006. The gang was armed with a pistol, bushknives and other weapons. The PMV was a Mitsubishi Canter truck. The driver was forced out of the vehicle at gunpoint. The passengers were villagers and they were returning after doing their Christmas shopping in Madang town. The total value of the things stolen was about K5,000.00.

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's true we did this robbery but I am the only one who is facing court for what we did. The others have escaped. I am happy for the court to sentence me.

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 SCRA No 52 of 2005, 27.04.06). He co-operated with the police and made admissions in his police interview.

PERSONAL PARTICULARS

5. The offender is now 17 years old. He has limited education and he was brought up in the village on Karkar Island.

SUBMISSIONS BY DEFENCE COUNSEL

6. Ms Turi highlighted the fact that the offender is the only one of the gang who staged the robbery who is now before the court. He admitted to the police his role in the robbery and he should be extended some leniency because of his preparedness to face the law.

SUBMISSIONS BY THE STATE

7. Mr Ruari submitted that this was a serious armed robbery in which a number of people were threatened and one of the young female young passengers was raped. A sentence of seven years would be appropriate.

DECISION MAKING PROCESS

8. 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 sentences have been imposed for equivalent offences?
•	step 4: what is the head sentence?
•	step 5: should the pre-sentence period in custody be deducted?
•	step 6: should all or part of the sentence be suspended?

STEP 1: WHAT IS THE MAXIMUM PENALTY?

9. Armed robbery, with circumstances of aggravation, has a maximum sentence of life imprisonment (Criminal Code, Section 386). 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?

10. 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) SC564; Tau Jim Anis v The State (2000) SC642; and Phillip Kassman v The State (2004) SC759.

11. 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.

12. This was the robbery of a vehicle on the road and the starting point for sentencing is eight years imprisonment.

STEP 3: WHAT SENTENCES HAVE BEEN IMPOSED FOR EQUIVALENT OFFENCES?

13. I have passed sentence in 20 armed robbery cases since 2005 and the sentences have ranged from four to thirteen years. As for juvenile offenders, there are two cases that can be compared with the present case. In The State v A Juvenile "ET" CR No 1012 of 2003, 09.04.05, a 17-year-old boy joined with two others in holding up a kai bar in Kimbe, threatening the shop assistant and stealing K400.00 case. He pleaded guilty and was sentenced to four years imprisonment. In The State v A Juvenile, "TAA" (2006) N3017 a 17-year-old boy helped a gang stage the robbery of a store manager doing a bank run. He had a minimal involvement in the robbery and was caught soon afterwards. He was also given a four-year sentence.

STEP 4: WHAT IS THE HEAD SENTENCE?

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 not commit actual physical violence? Neutral. He has not pleaded guilty to committing actual violence but allegations appear in the depositions about the rape of one of the young female passengers, in which he was involved.

2	Did the offender not threaten the victims of the robbery with violence? No.

3	Did the offender not put the victims or innocent bystanders in real danger of being injured or killed? No.

4	Did the offender ensure that especially vulnerable victims such as children, women or older people were not threatened or treated badly? Neutral.

5	Did the offender 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.

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

9	Has the offender done anything tangible towards repairing his wrong? No.

10	Has he pleaded guilty? Yes.

11	Has he genuinely expressed remorse? Neutral. In allocutus he did not say that he was sorry but did say that he was happy for the court to sentence him.

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.

14	Are there any other circumstances of the robbery or the offender that warrant mitigation of the head sentence? Yes, it appears that he is the only member of the group who is prepared to face the law for what he did.

Recap

15. To recap, mitigating factors are:

•	No 8 – cooperated with police;
•	No 10 – pleaded guilty;
•	No 12 – first offender;
•	No 13 – young offender;
•	No 14 – prepared to face the law.

16. Aggravating factors are:

•	No 2 – victims threatened;
•	No 3 – real danger of people being injured;
•	No 5 – valuable property stolen;
•	No 6 – no minor role;
•	No 7 – did not give himself up;
•	No 9 – no apology to victims.

17. The other factors are neutral. After weighing all these factors, and noting that there are five mitigating factors and six aggravating factors, and comparing this case with other sentences I have recently imposed the head sentence should be below the starting point of eight years. I fix a head sentence of five years imprisonment.

STEP 5: SHOULD THE PRE-SENTENCE PERIOD IN CUSTODY BE DEDUCTED FROM THE TERM OF IMPRISONMENT?

18. 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 nine months.

STEP 6: SHOULD ALL OR PART OF THE HEAD SENTENCE BE SUSPENDED?

19. Sections 19(1)(f) and (6) of the Criminal Code allow the National Court to suspend all or part of a sentence, provided that the offender enters into a recognisance (a pledge) to comply with conditions set by the Court. In the present case I have decided to suspend two years of the sentence, in view of the offender's age, subject to the following conditions:

(a)	must reside at a place notified to the Probation Office and nowhere else except with the written approval of the National Court;

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

(c)	must perform at least six hours unpaid community work each week at a place notified to the Probation Office under the supervision of a reputable person;

(d)	must attend his local Church every weekend for service and worship and submit to counselling;

(e)	must report to the Probation Office at Madang 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 victim and his family;

(h)	must have a satisfactory probation report submitted to the National Court Registry at Madang 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.

20. The last condition is very important. If any of these conditions is breached, any person may report the matter to the police or to any person nominated to supervise the offender or to the Probation Office, any of whom may bring the matter to the attention of the National Court. The Court may then issue a warrant for arrest of the offender and he can be brought before the Court to show cause why he should not be sent to jail to serve the rest of his sentence. (See Tom Longman Yaul v The State (2005) SC803.)

SENTENCE

21. The juvenile, "KM", having been convicted of one count of armed robbery, is sentenced as follows:

Length of sentence imposed	5 years	
Pre-sentence period to be deducted	9 months	
Resultant length of sentence to be served	4 years, 3 months	
Amount of sentence suspended	2 years	
Time to be served in custody	2 years, 3 months	

Sentenced accordingly.

_____________________________________________________________
Public Prosecutor: Lawyer for the State 
Public Solicitor: Lawyer for the Accused