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National Court of Papua New Guinea |
PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]
CR NO. 819 OF 2005 AND CR NO. 672 OF 2005
Between:
THE STATE
And:
KEVIN AKU KNOX and ALEX AMBI
Prisoners
Waigani: David, J
2008: 15 May
CRIMINAL LAW – sentence – guilty pleas entered by each prisoner – one count of armed robbery on golf course – a home-made gun and bush knives used - robbery in the company of others - actual violence – youthful offenders - one with prior conviction sentenced to seven years – first offender sentenced to six years – both sentences partly suspended- s.386 (1)(2) Criminal Code.
Cases cited:
Ure Hane v. The State [1984] PNGLR 105
Gimble v. The State [1988-89] PNGLR 271
Tau Jim Anis & Ors v. The State (2000) SC642
Public Prosecutor v. Don Hale (1998) SC564
The State v. Fabian Kenny (2002) N2237
The State v. Nelson N. Ngasele (2003) SC731
Dadly Henry Gorop v. The State (2003) SC732
The State v. James Gatana & Ors. (2001) N2127
The State v. Vincent Malara (2002) N2188
The State v. Sunny Kaupa, CR 480 of 2003 (2003)
Norbert Maing v. The State, SCRA No.29 of 2002, 02 October 2003
The State v. Paul Maima Yogol and Anor (2004) N2583
The State v. Tommy Yare & Anor, CR 1828 of 2003 (2004)
The State v. Chris Banban & Anor (2004) N2645
The State v. Terence Ago (2004) N2673
The State v. Billy Bimaru (2000) N2025
The State v. Benjamin Nabate (2002) N2216
The State v. Allan Esri Waluta (2005) N2911
The State v. Lionel Paru, CR 749 of 2004
Hawai John v. The State, SCR 9 of 1995 (1998)
John Arua Peter v. The State (2000) SC638
The State v. Gilbert Peter Diga (2000) N1991
The State v. Gore Yogal (2001) N2080
The State v. Sul Kora (2001) N2092
The State v. Tarere Mamu (2002) N2228
Counsel:
R. Luman and T. Ai, for the State
M. Norum, for the Prisoners
Legislation cited:
Criminal Code
Juvenile Courts Act, 1991
DECISION ON SENTENCE
15 May, 2008
1. DAVID, J: The State presented an indictment charging Kevin Aku Knox and Alex Ambi (the Prisoners) that they, on 17 February 2005 stole from one Kiyosi Matsuyama with actual violence (the victim) K20.00 in cash and properties valued at K16,300.00, the properties of the victim. At that time, the Prisoners were armed with dangerous weapons namely, a home-made gun and two bush knives. The Prisoners’ actions contravened s.386 (1) and (2) of the Criminal Code (the Code). The Prisoners pleaded guilty to the charge. The Court accepted the Prisoners’ guilty pleas and convicted each of them of the charge after reading the depositions and having been satisfied that there was sufficient basis to support the charge.
2. The Court has the benefit of pre-sentence reports filed for each of the Prisoners by the Community Base Correction & Rehabilitation Services through Ms. Elizabeth Mirio, Probation Officer and I am grateful for her contribution.
3. A Submission on Sentence was filed by the defence.
FACTS
4. The facts to which the Prisoners pleaded are these.
5. On 17 February 2005, at about 4.00 pm, the Prisoners who were part of a gang were in nearby bushes at the Port Moresby Golf Club, Waigani. They saw a Japanese man in the company of two locals. One of the locals was a caddy and the other a relative of the caddy. The gang then approached the security guard on duty at location 15 and threatened to shoot him if he raised any alarm as they were there to rob the Japanese. One of them stood near the security guard and stood watch while the rest awaited the Japanese and his caddy and the other local. As they approached the 15th hole, they were jumped upon and threatened with a home-made gun and bush knives and were ordered to lie down. They then searched the Japanese’s pocket and removed K20.00 from the pocket. They also removed a silver Rolex wrist watch valued at US$5,000.00 which is about K15,000.00 equivalent, 79 golf club, UX brand, graphite shaft valued at about K900.00, one pair of golf shoes, Nike brand valued at about K300.00.
5. As the victim and the two locals were lying on the ground, the victim was attacked with a bush knife with hands on his head. He sustained injuries to the middle fingers from both his hands. The victim was later transported to a hospital where he was appropriately treated.
6. The gang escaped. The Prisoners were subsequently arrested after an investigation was conducted.
THE LAW
7. The Prisoners were charged under s.386 (1) and (2) of the Code. Section 386 (1) and (2) of the Code creates the offence and prescribes the penalty for simple and aggravated robbery. I set out the relevant provision as follows:-
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) -
8. In Gimble v. The State [1988-89] PNGLR 271, the Supreme Court prescribed sentencing guidelines for aggravated armed robbery cases for which the maximum prescribed penalty is life imprisonment and they are as follows:-
1. On a plea of not guilty by young first offenders carrying weapons and threatening violence for:-
(a) robbery of a house – a starting point of seven years;
(b) robbery of a bank – a starting point of six years;
(c) robbery of a store, hotel, club, vehicle on the road or the like – a starting point of five years;
(d) robbery of a person on the street – a starting point of three years;
2. Features of aggravation such as actual violence, large amount stolen or where the robber is in a position of trust towards the victim may justify a higher sentence.
3. A plea of guilty may justify a lower sentence.
9. These guidelines were varied in Tau Jim Anis & Ors v. The State (2000) SC642 where the Supreme Court held that while the sentencing guidelines were still useful, the tariff was not which resulted in the increase of the recommended sentences for each category by three years. The Supreme Court was influenced by Public Prosecutor v. Don Hale (1998) SC564 where the Supreme Court held that with the prevalence of violent crimes involving the use of guns, the tariff recommended in Gimble had no effect and was no longer relevant. The Supreme Court in Don Hale felt that the starting point of armed robbery of a house at night should be ten years, an additional three years above the tariff set. The Supreme Court in Tau Jim Anis said there was a need to increase the sentencing tariff for all categories of armed robberies, but that it is done progressively and not by leaps and bounds.
10. The following are examples of some aggravated armed robbery cases which show that there has been an increase in sentences. Guilty pleas were entered in all the cases.
11. In Dadly Henry Gorop v. The State (2003) SC732, the appellant was sentenced to twenty years imprisonment in hard labour for the robbery of a tourist couple at Rabaul with physical violence occasioning serious injuries to both of them. He claimed that the sentence was excessive. The appellant attacked the victims with a hockey stick repeatedly until the victims fell to the ground unconscious and then stole from them a camera, a bag containing their business cards and K150.00 in cash. The victims suffered multiple injuries including fractures to the head and facial area affecting the sight of one of them and the brain of the other. They were initially taken to the Nonga Base Hospital, Rabaul, but were later flown to Cairns Base Hospital and then transferred to Townsville General Hospital where they recovered from the injuries. They required ongoing rehabilitation particularly for the male victim whose long term prognosis was not good. The Court reduced the sentence to eighteen years holding that the trial judge failed to consider the sentencing trend in similar cases.
12. In The State v. Sunny Kaupa, CR 480 of 2003 (2003), the Court sentenced the prisoner to five years imprisonment in hard labour less time spent in custody. Two years of the term was suspended and the prisoner placed on a good behaviour bond for three years after serving two years one month and three weeks in gaol. In that case the prisoner, who was a youthful first time offender, in the company of others held up the victim while driving his motor vehicle along the Sogeri Road towards Port Moresby. The prisoner and his accomplices were armed with home made guns and a bush knife. The victim and his passengers were robbed of K1,500.00 in cash and property valued at K190.00 out of which the prisoner only received K50.00 in cash.
13. In The State v. Paul Maima Yogol and Anor (2004) N2583, the prisoners were charged with the armed gang robbery of a motor vehicle. They were first time offenders and had no prior convictions. They were in the company of ten other young men when they set up a road block, held up and robbed the driver of the motor vehicle and his passengers of cash and property with an estimated total value of K1,300.00. The prisoners and their accomplices were armed with three home-made shotguns and bush knives at the time. The Court imposed a sentence of twelve years in hard labour less the time spent in custody.
14. In The State v. Tommy Yare & Anor, CR 1828 of 2003 (2004), the prisoners were charged for armed robbery and for unlawful use of a motor vehicle. The Court sentenced them to a term of six years on the charge for armed robbery. In that case, the prisoners held up the driver of the vehicle with a gun, got the keys and drove off in the vehicle, but nothing of value was taken.
15. In The State v. Chris Banban & Anor (2004) N2645, the prisoners and other accomplices armed with a grass knife and two home made guns held up a motor vehicle. They assaulted the driver and the passengers and then robbed them of K2,445.00 in cash and other personals items. The prisoners were sentenced to seven years in hard labour less time spent in custody.
16. In The State v. Benjamin Nabate (2002) N2216, the prisoners and their accomplices held up the victim who was resident in a compound at night and stole from him cash in the sum of K538.00 and properties altogether totalling in value K800.00. The victim was in his house that particular night when he heard his dogs barking. When he opened the door to investigate he was met by the prisoners and their accomplices who were armed with a gun, a grass knife and a chain from a chainsaw. The victim was threatened and forced back into the house. While one of them stood guard over the victim at gunpoint, the others searched the house and stole various items including a radio with two speakers and three highlands bilums. They then escaped into the night. Except for the radio and highlands bilums which were returned, all other items stolen were never recovered. The Court imposed a sentence of eight years in hard labour less time spent in custody upon each prisoner taking into account the prisoners’ antecedents and mitigating factors such as the absence of violence and damage to properties, the amount of money was not substantial, expression of remorse, first time offender, the entering of guilty pleas and some of the stolen items were retuned to the victim.
17. In The State v. Allan Esri Waluta (2005) N2911, the victim was preparing dinner for her family in her village at about 07:00 o’clock in the evening when eight suspects including
the prisoner came to her house and held her up with her children. The suspects were armed with three shotguns and one SLR rifle.
There was evidence indicating that the other gang members also had in their possession bush knives and axes. Four of the gang members
demanded from the victim the keys to her Toyota Land Cruiser and while she was being harassed, three of them went up to the house
where the children were and started terrorizing them by also demanding from them car keys and searched the house for money.
After the victim had given the keys to her motor vehicle to the prisoner and his gang, they continued searching for money under the
floor mats and beddings and found K1,000.00. They also demanded from the victim money and she gave them about K1,000.00. A total
of K2,300.00 in cash was actually stolen. Other items stolen were a BMX bicycle, a key to the family’s PMV bus and a lawnmower.
The gang loaded all the stolen items into the victim’s Toyota Land Cruiser and drove away. The motor vehicle was driven to
a plantation, the prisoner alighting along the way, where it was abandoned and the prisoner’s accomplices fled with the stolen
properties.
18. The Court imposed a sentence of eight years imprisonment less time spent in custody.
THE PRESENT CASE
Kevin Aku Knox
Allocatus
19. The prisoner said sorry to the victim, the Court and for spoiling his family’s name. He promised not to re-offend.
Antecedents:
20. The prisoner has a prior conviction. He was convicted and sentenced by the Boroko District Court in January 2004 for being in possession of an offensive weapon.
21. According to the Record of Interview conducted on 8 March 2005, the prisoner was aged nineteen years when he was apprehended. The Antecedent Report by simple arithmetic confirms that when it is recorded there that the Prisoner was born in the National Capital District in 1986.
22. The prisoner is from the Ungai Bena District, Eastern Highlands Province. His parents are alive and reside at Morata No.1 in the National Capital District. His father is employed as a driver with the Civil Aviation Authority at the Jacksons Airport while his mother is a house wife. The Prisoner resides with his parents, but sometimes stays with his maternal aunty at Gerehu Stage 3B. He is the second born out of four siblings in the family. He is a member of the SDA church. The Prisoner completed Grade 6 of his primary education at the Boreboa Primary School in 1997. He was unable to further his education due to financial constraints and as such it was difficult to obtain formal employment up until the commission of this crime. He was arrested on 9 March 2005.
Pre Sentence Report:
23. The Community Base Correction & Rehabilitation Services, subject to the Court’s sentencing discretion, does not recommend that the prisoner be released on probation due to his prior conviction, but instead recommends that the prisoner be sentenced to twelve months and that the sentence is served at a juvenile institution.
Alex Ambi
Allocatus
24. The Prisoner said sorry to the victim and the Court. He regretted appearing before the Court and taking up everyone’s time to deal with his matter.
Antecedents
25. The State in the earlier part of the proceedings indicated that the Prisoner had no prior convictions. However, Mr. Ai reneged when the Supplementary Report was filed. This was because that report indicated that the Community Base Correction & Rehabilitation Services or the Probation Service was previously requested by the Juvenile Court to furnish a pre sentence report in respect of a juvenile called Alex Ambi Noel after he had been convicted by the Juvenile Court on 18 November 2002 for stealing. Both reports were compiled by Elizabeth Mirio. A copy of that report is attached to the Supplementary Report. I have compared the pre sentence report with the Supplementary Report which shows some major inconsistencies. These relate to the name of the Prisoner, name of his village, name of the school where the Prisoner received his primary education, details of his parents and the number of siblings. No other steps were taken to either substantiate or dispel the issue under discussion. The inconsistencies create a doubt in my mind as to whether the juvenile Alex Ambi Noel is the one and same person as the prisoner and this doubt should therefore benefit the Prisoner. I find that the prisoner, Alex Ambi does not have a prior conviction.
26. According to the Record of Interview conducted on 21 March 2005, the prisoner was aged fifteen years when he was apprehended. He is from Guari village, Goilala District, Central Province. His parents are alive and they reside at Morata No.1 in the National Capital District. Both of his parents are employed; his father was employed as a security guard at Jacksons airport while his mother was a cleaner at a motel in Port Moresby. He is the eldest amongst four siblings in the family. He is a member of the Catholic Church. The Prisoner completed Grade 6 of his primary education at the Givena Primary School in 1999. He was enrolled at the Koki Technical/Vocational Training School when he committed this crime. He was arrested on 21 March 2005 upon surrendering voluntarily and admitted to bail soon after.
Pre Sentence Report
27. The Community Base Correction & Rehabilitation Services, subject to the Court’s sentencing discretion, also does not recommend that the prisoner be released on probation due to his alleged prior conviction, but instead recommends that the prisoner be sentenced to twelve months and the sentence is served at a juvenile institution.
Submissions for the Prisoners
28. In mitigation, Mr. Norum of counsel for the Prisoners asked the Court to consider in their favour that; they pleaded guilty; they were youthful offenders; they expressed genuine remorse; the aggregate value of the items stolen was misleading because they did not reflect their true residual values; they cooperated with the police and they assisted the police by disclosing the identity of their co-accused.
29. As to penalty, Mr. Norum submitted that each case should be considered in the light of the different and peculiar circumstances under which they occur and that the maximum penalty was usually reserved for the worst case. He cited Ure Hane v. The State [1984] PNGLR 105 in support of that proposition. He also argued that this case fell under the last category of Gimble. He suggested that a term ranging from three to six years was appropriate in the circumstances of this case. By way of comparison of sentences, counsel referred to The State v. Fabian Kenny (2002) N2237, Nelson N. Ngasele v. The State (2003) SC731, Norbert Maing v. The State, SCRA No.29 of 2002, 02 October 2003, The State v. Vincent Malara (2002) N2188 and The State v. Lionel Paru, CR 749 of 2004. These cases are briefly discussed below.
30. In Fabian Kenny, the prisoner was charged for armed gang robbery of a PMV on a highway. The prisoner with two others armed with a gun and a bush knife stole with threats of violence cash and property belonging to the driver and the passengers with an estimated value of K579.00. On a guilty plea and as a first time offender, the prisoner was sentenced to nine years imprisonment in hard labour less time spent in custody.
31. In Nelson N. Ngasele, the appellant was a first time offender. He appealed the sentence imposed on him of five years imprisonment in hard labour which he claimed was excessive. The appellant was part of an armed gang involved in two robberies conducted in the night which involved actual violence, damages and injury caused to persons and property. Cash and goods of substantial value were stolen with only a part recovered. The Court dismissed the appeal, but held, inter alia, that the sentence of five years was well below the sentencing tariff or the range of sentences imposed in similar cases. The Court also expressed surprise that the Public Prosecutor did not cross appeal against sentence, because if he had, the Court would have had no hesitation in imposing a sentence in excess of ten years given the factors in aggravation.
32. In Norbert Maing, the appellant was sentenced to ten years imprisonment in hard labour for armed gang robbery, less time spent in custody. The appellant was a first time offender who pleaded guilty to committing the offence. Two shotguns, a pistol and a bush knife were used during the robbery involving actual and threats of violence against the staff of a company and properties of the company and its staff were also damaged and stolen. The value of cash and goods stolen was substantial. The appellant claimed that the trial judge did not take into account his guilty plea and that he was a first time offender. The Court held that the sentence was within the range of sentences imposed in similar cases. The Court was also of the view that a sentence between twelve to thirteen years would have been appropriate, given the prevalence of the offence.
33. In Vincent Malara, the Court on a guilty plea imposed a sentence of fifteen years in hard labour less time spent in custody. The prisoner had a prior conviction. The prisoner, in a gang numbering about twelve men, held up the security guards of a supermarket using a gun, bush knives, a crow bar and a pinch bar. The crowbar and pinchbar were used to breakdown doors to the supermarket and its doors. One of the guards received two cuts to his head. A total of over K26,000.00 inclusive of cash and the value of cheques and cigarettes was stolen, but K500.00 was recovered.
34. In Lionel Paru, the prisoner was in the company of one other when armed with a pistol held up a female driver. The prisoner got into the vehicle and attempted to drive off, but the immobiliser was on. The prisoner realising that took off with a mobile phone. The Court imposed a sentence of seven years imprisonment in light labour and two years was suspended with strict conditions.
35. The Court was also invited to consider the provisions of s.30 of the Juvenile Courts Act 1991, in particular sub-section (2)(c)(iii) when considering an appropriate sentence for Alex Ambi.
State’s submissions
36. Mr. Ai of counsel for the State submitted that this case fell under category 3 of Gimble and not as suggested by the defence because the robbery took place within a club. He also handed up a Schedule of Comparable Sentences as a guide to determine an appropriate sentence for each prisoner. The cases briefly discussed there include Gimble, Don Hale, Tau Jim Anis, Hawai John v. The State, SCR 9 of 1995 (1998), John Arua Peter v. The State (2000) SC638, Nelson N. Ngasele, The State v. James Gatana & Ors (2001) N2127, The State v. Gilbert Peter Diga (2000) N1991, The State v. Billy Bimaru (2000) N2025, The State v. Gore Yogal (2001) N2080, The State v. Sul Kora (2001) N2092, Vincent Malara, The State v. Terence Ago (2004) N2673 and The State v. Tarere Mamu (2002) N2228. I briefly discuss some of those cases below.
37. In Hawai John, the Supreme Court considered that a sentence of eight years on a guilty plea by the appellant’s accomplice was too lenient. The appellant was sentenced to life imprisonment. The Supreme Court reduced the sentence to 15 years. The reduction was because of a huge disparity between the appellant and his accomplice. Otherwise, the Court found that the offence was most serious because it was a planned robbery carried out with reckless disregard for others using firearms resulting in one of the victims of the offence being rendered blind.
38. That was a case of robbery on a street, which fell in the last category of Gimble. The victim was transporting bags of money in cash totalling K1,798.00 and cheques totalling K215,000.00 in a company vehicle. The appellant and his accomplices followed the victim and shot into the screen of the vehicle on the driver’s side. That injured the driver rendering him fully blind. The money was stolen with the cash distributed and the cheques destroyed.
39. In John Arua Peter, the appellant was sentenced to a term of ten years imprisonment by the National Court. An additional term of two years was imposed for unlawful use of a motor vehicle, with sentences ordered to be served concurrently. There, the Appellant and six other men acting together and using a gun held up the victim in his motor vehicle. They demanded the victim to get out of the motor vehicle. When he did not, the appellant and his accomplices took a stone and smashed the windscreen of the motor vehicle. They also assaulted the victim with an empty beer bottle on the head which broke and cut him. The prisoner appealed on the grounds of severity of sentence and that the trial judge did not consider certain factors on mitigation. The Supreme Court dismissed the appeal and confirmed the sentence of the prisoner by the trial Court.
40. In James Gatana, the two prisoners and two others were charged with two counts of aggravated robbery. The prisoners were in the company of three other men when they committed the crimes. The prisoners pleaded guilty. The other two denied the charges. The charges against the latter two were dismissed later when the State opted to offer no evidence.
41. The first count was for stealing a motor vehicle from its owner, a male, while armed with two guns (a factory made and a home-made) and bush knives. The male victim and his female passenger were both blind folded. The male victim was ordered to get into the back of the motor vehicle and lie flat on his back and the spare tyre was placed across his body. The female victim remained in the motor vehicle.
42. The second count was that after stealing the motor vehicle, the robbers used it to drive to the premises of Boroko Motors with the victims on board still blindfolded where they threatened employees while in possession of those weapons and stole K1,364.85 in cash and two cheque books valued at K617.70 the properties of the car dealer. As the robbers were driving out from the premises, a police vehicle on a routine patrol spotted them and gave chase. The stolen motor vehicle crashed and the accused were apprehended. One of the robbers died from injuries sustained from the accident.
43. James Gatana had a prior conviction and was sentenced to five and half years in hard labour for each count to be served cumulatively making a total sentence of eleven years to be served. Four years was suspended leaving a total of seven years to be served. The co-accused had no prior convictions and was sentenced to four years for each count to be served cumulatively making a total sentence of eight years to be served. Three years was suspended leaving a total of five years to be served.
44. In Gilbert Peter Diga, the prisoner and his accomplice were passengers on a PMV. They were drunk at the time. When they stopped the bus and alighted, they demanded money from the bus crew. They (without any weapons) assaulted the crew and stole from him K50.00. Mitigating factors considered there were that the prisoner was a first offender, he pleaded guilty and also expressed remorse. Aggravating factors included the fact that the prisoner was drunk and assaulting an innocent man. The prisoner was sentenced to seven years imprisonment less the period for pre-trial confinement.
45. In Billy Bimaru, the prisoner, a seventeen year old male and his accomplices planned to hold up and rob one of the victims, a Manager, who was resident in Wau. The prisoner played a major role in the planning of the robbery which took place in the wee hours of the morning at about 12:30 am. They walked all the way from Taraka which is near Lae and arrived at the scene of the crime in Wau five hours later. They were armed with two homemade shotguns, two bush knives and a crow bar. The Manager’s house was damaged during the robbery including the smashing of the doors and the destruction of household goods. The prisoner kept watch outside of the gate as the robbery took place. The occupants of the house were tied up however, the Manager saved himself by hiding. A large quantity of goods were also stolen from the house including gold valued at K9,000.00 none of which was recovered. On a guilty plea, the Court imposed a sentence of eight years in hard labour less time spent in custody.
46. In Gore Yogal, the prisoner and his accomplice armed with a gun held up employees of a company as they were just about to leave their place of work on a company vehicle. They threatened the employees, but without actual violence, stole from them a sum of K875.35 in cash and three cheques valued at K4,282.11. Mitigating factors there were, the prisoner’s plea of guilty, he had no prior convictions, his expression of remorse, his preparedness to rehabilitate and his family and personal background. A sentence of seven years in hard labour was imposed.
47. In Sul Kora, the male victim went to the public toilet to urinate. After he had urinated and while he was in the course of pulling up his zipper, the prisoner pushed open the door, punched the victim and stole from him a packet of cigarettes. There was no evidence of any permanent injury sustained by the victim. Taking into account the seriousness of the offence given personal violence was used, the prevalence of the offence as against the mitigating factors and the recommendation contained in the Pre Sentence Report based on an interview with the prisoner which the Court declined to follow, a sentence of four years in hard labour was imposed with two years suspended with strict conditions applying. Mitigating factors there were that the prisoner freely admitted to having committed the offence both to the police and the court; that he had no prior convictions; the offence was committed without the use of any dangerous weapons although he had a knife with him at the time; the value of the items stolen was not substantial and his family background.
48. In Terence Ago, the prisoner was with five others who held up the victims who had just withdrawn K9,400.00 from the bank to buy coffee and were on their way to their destination to buy coffee in their vehicle when they were held up. The prisoner and his friends were armed with two home-made pistols and a .22 rifle at the time. They demanded and received from the victims K9,400.00 in cash, pulled the driver and the crew out of the vehicle and drove off in the vehicle abandoning it later. The amount stolen was not recovered. On a guilty plea with no prior convictions, the Court imposed a sentence of thirteen years in hard labour less time spent in custody.
49. In Tarere Mamu, the prisoner with three to four others stopped a motor vehicle as it was being driven home by the victim after a visit to the hospital. One of the gang members placed a knife against the victim’s neck. The victim tried to disarm the assailant, but in the course of the struggle, another gang member appeared and pointed a gun at him. He then let go of the first assailant and grabbed the end of the gun. One of the passengers after grappling with another gang member managed to escape and raised the alarm. The prisoner and his accomplices escaped when the villagers came to the rescue. On a guilty plea to a charge of attempted robbery preferred under s.387 of the Code, the prisoner was sentenced to four years imprisonment. Eight months was deducted for the pre-trial custody period leaving three years and four months to be served, but was wholly suspended with strict conditions applying.
50. Counsel further submitted that each of the Prisoners had prior convictions despite him informing the Court earlier that Alex Ambi had none. He therefore suggested that custodial sentences of between six to eight years were appropriate for each of them.
GENERAL REMARKS
51. This is a serious case involving a gang armed robbery of the victim, an expatriate by origin innocently playing golf at a place normally frequented by golfers and those who assist them like caddies and who sustained serious injuries to the affected fingers in both hands apart from the loss of his properties.
52. I agree with the defence counsel that this case falls under category (d) of Gimble. This is because the crime was committed outside the club house of the Port Moresby Golf Club as the victim was approaching the 15th hole. However, the starting point now is six years which can be adjusted downwards or upwards or remain at the starting point depending on whether mitigating factors outweigh aggravating factors and by how many and vice versa or they are on par.
53. I accept in each of the Prisoners’ favour the fact that they pleaded guilty; they were youthful offenders; they expressed compunction; they cooperated with the police and they assisted the police by disclosing the identity of their co-accused. Alex Ambi also surrendered voluntarily and is a first time offender as I have alluded to earlier.
54. One might ask why the Court has accepted Kevin Aku Knox to be a youthful offender when, according to the depositions, he was aged nineteen years when he committed the crime. I pose this question as I have generally taken the view that an offender under the age of eighteen years is a youthful offender. I am guided by s.2 of the Juvenile Courts Act 1991 which defines a juvenile to be a person not less than seven years and less than eighteen years and also s.126 (3) of the Constitution which provides that the voting age is eighteen years. The Antecedent Report also does not disclose the exact date of birth of the prisoner except the year when he was born which is 1986. The rest of the depositions show that the prisoner was aged nineteen years at the time, but his age could have been a little bit more or a little less depending on the exact date of birth. The Pre Sentence Report compiled in respect of the prisoner indicates that the Prisoner was aged seventeen years at the time. To cure this uncertainty, the Court has invoked s.63 of the Evidence Act, Chapter 48 in finding that the prisoner was slightly below eighteen years old when he committed the crime.
55. Counsel for the defence has argued that the aggregate value of the items stolen was misleading because they did not reflect their true residual values and therefore has urged the Court to take that into account in mitigation as well. There is however no dispute that those items were actually stolen. The total amount of the value of properties stolen from the victim was pleaded in the indictment and also in the brief facts presented by the State to support the charge. The Prisoners admitted the charge based on the brief facts presented. No issue was taken of this matter on allocatus. In any event, the items stolen by their very nature, apart from the cash taken, are to my mind expensive although depreciation would have affected their true values. The Court does not have the benefit of any proper valuation done by a person of competency in that area made in respect of those items, but there is evidence that the amount pleaded is substantially correct if the correctness of the total amount is the subject of concern. I would have thought that this is a matter that could have been raised when parties entered into a plea bargain. I am not convinced that I should consider this factor in mitigation.
56. The aggravating factors in this case are that; this was a gang robbery; dangerous weapons were used; actual violence was used; the total value of the items stolen was substantial notwithstanding the recovery of the pair of shoes and the offence is prevalent. Kevin Aku Knox has a prior conviction.
57. According to the medical certificate issued by Dr. Torova of the Pacific International Hospital on 4 April 2005, he examined the victim when he was brought to that hospital on 17 February 2005. The victim was discharged on 18 February 2005. The victim suffered serious injuries by way of lacerations to his fingers in both hands. He was treated by suturing, immobilisation of the fracture caused to a couple of his fingers and was also administered antibiotics. He was referred to Japan for further surgery.
58. The crime of armed robbery is prevalent in our society today. It happens everywhere throughout the country almost daily and at any time of the day. Many victims and their families have suffered one way or the other and some have lost their lives as a result. The escalation of the crime must be stopped and one way to assist in doing that is for the Court to impose stiffer sentences even of the perceived simplest of cases guided by relevant principles of law and hoping that they will have a deterrent effect on those who consider committing the crime.
59. I note the provisions of s.18 of the Juvenile Courts Act 1991, which confers upon this Court jurisdiction to deal with juveniles in cases where a juvenile is charged with homicide, rape or other offences punishable by death or life imprisonment. Where there is a conviction, the sentencing powers conferred upon the Court under Part VII of the Juvenile Courts Act 1991 come into play. This includes ordering of pre sentence reports before passage of sentence. Pre sentence reports were filed. I have considered the sentencing options open to the Court under s. 30 (2) in particular under sub-subsection (c)(iii) at the urging of the defence as against the seriousness of the crime and consider that under the circumstances, taking into account all of the factors for and against each of the Prisoners including the sentencing trend for the offence they have committed, I will, impose the following sentences:-
Kevin Aku Knox:
Seven years imprisonment in hard labour to be served at the Bomana gaol. From the head sentence, a period of three years, two months and six days is deducted for being in custody awaiting trial and sentence leaving a period of three years nine months and twenty two days to be served. Three years of the remaining term will be suspended on the condition that the prisoner immediately serve a further nine months and twenty two days calculated from today and after completing that part of the sentence, the prisoner will be released from gaol upon entering into his own recognizance to keep the peace and be of good behaviour for three years.
Alex Ambi:
Six years imprisonment in hard labour to be served at the Bomana gaol. From the head sentence, a period of one day is deducted for time spent in custody leaving a period of five years eleven months and twenty seven days to be served. Three years of the remaining term will be suspended on the condition that the prisoner immediately serve two years eleven months and twenty seven days calculated from today and after completing that part of the sentence, the prisoner will be released from gaol upon entering into his own recognizance to keep the peace and be of good behaviour for three years.
60. Appropriate warrants are to issue forthwith to execute the sentences imposed including the arrest of the prisoner, Alex Ambi.
I order accordingly.
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Public Prosecutor: Lawyer for the State
Public Solicitor: Lawyer for the Prisoner
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