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State v Sarufa [2009] PGNC 22; N3595 (19 February 2009)

N3595

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR No 512 OF 2001

THE STATE

V

PETER SARUFA

Waigani: Paliau, AJ
2009: 12th & 19th February

CRIMINAL LAW – Sentence – Armed Robbery – charge of – Guilty Plea – Criminal Code s. 386 (1)(2)(a)(b)(c).

Cases cited:
Gimble v. The State [1988-89] PNGLR 271
Public Prosecutor v. Don Hale (1998) SC564
Tau Jim Anis v. The State (2000) SC642

Counsel:
Mr. D. Ninkama & Mr. T Ai, for the State
Mr. J. Folen, for the Prisoner

SENTENCE

19 February, 2009.

1. PALIAU, AJ: The prisoner is charged for the offence of armed robbery. He is charged under s.386 (1)(2)(a)(b)(c) of the Criminal Code.

2. Upon arraignment he pleaded guilty to these facts. The prisoner was at his sister’s house at Gerehu Stage 3 when Jessie, Michael and John went to see him. This was on 27th October 2000. They told him that they were going to steal a car. He accompanied them to Gerehu Primary School. Michael was in possession of a home made gun. There they stood at the entrance to the School. Between 8:00 and 8:30am, the complainant, Tuli Kwaipo arrived to drop off his wife at the school. This was when the prisoner’s accomplices pointed the gun at Mr. Kwaipo. They pulled him out of the vehicle. The prisoner stood away from the vehicle when all these were happening. The prisoner’s two other accomplices jumped into the vehicle and drove off. The complainant, Mr. Kwaipo struggled with the third accomplice who held the gun. With the assistance of the bystanders they managed to apprehend the accomplice. The prisoner ran away but was apprehended later that day by the Police and brought to Gerehu Police Station.

3. The issue for consideration is what is the appropriate sentence to be imposed on the prisoner?
   
4. The prisoner on his allocutus said sorry to the Court and the owner of the vehicle. He said this is the first time that he has committed any offence. He pleas to the Court to have mercy and asks for leniency.
   
5. Section 386 of the Criminal Code makes it an indictable offence for a person who commits robbery. The maximum penalty is life imprisonment. Section 386 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 robbery, wounds or uses any other personal violence to any person,
  

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

6. The sentencing guidelines in armed robbery cases have been set by the Supreme Court in its judgments. First, in the case of Gimble v. The State [1988-89] PNGLR 271 the Court sets out four (4) categories of cases in the following manner;-
   
   • (a) The first category involves robbery of a house. The starting point is seven years, if the accused pleads not guilty. A lesser sentence can be imposed, where the offender pleads guilty.
     
   • (b) The second category involves robbery of a bank. The starting point is six years, if the offender pleads not guilty. A lesser sentence can be imposed, where the offender pleads guilty.
     
   • (c) The third category involves robbery of a store, a hotel, a club, a vehicle on the road, or the like. The starting point is five years, if the offender pleads not guilty. A lesser sentence can be imposed, where the offender pleads guilty.
     
   • (d) The fourth category involves robbery of a person on the street. The starting point is three years, if the offender pleads not guilty. A lesser sentence can be imposed on a plea of guilty.
     
7. It was also considered that if there are in existence evidence of aggravation such as actual violence, the large amount stolen, or the robber is in a position of trust towards the victim may justify a higher sentence. A plea of guilty may justify a lower sentence.
   
8. In the case of Public Prosecutor v. Don Hale (1988) SC564, the Court was of the view that the sentencing guidelines set in the Gimble case (supra) was outdated and increased the starting point in all categories by three years.
   
9. In the case of Tau Jim Anis v. The State (2000) SC642, the Court followed Don Hale’s case (supra) but applied the principle in Gimble’s case (supra) when substituting a sentence of seven years. The Court considered the plea of guilty and other mitigating factors in favour of the prisoners when arriving at the substituted sentence.
   
10. Applying the above principles to the facts of the present case, this case falls into the third category of Gimble’s case (supra). It was a robbery of a vehicle. But before I consider an appropriate sentence for the prisoner, I must look at the factors for and against him.
    
11. The prisoner is 29 years old and not married. He is a member of the United Church of Papua New Guinea. He was educated up to Grade 5 and unemployed.
    
12. I take into account the prisoner’s early plea of guilty, expression of remorse, and apology to the Court and the victim, the owner of the vehicle. This has saved the Court’s time and money in running a trial.
    
13. Another factor which favours the prisoner is his lack of prior convictions. He has not been in trouble with the law before.
    
14. I also find in favour of the prisoner the fact that he did not fully take part in the robbery. He was standing on the side, just watching and then later ran away.
    
15. The aggravating factors that weigh against the prisoner are firstly that he was in company with his accomplices. He could have refused to accompany them, because there was no evidence of him being forced to follow them. I find this to be the main aggravating factor against the prisoner.
    
16. Secondly, the offence that the prisoner has committed appears to be committed on a daily basis, in particular in our cities and major towns. The increase in the penalties that the Courts are dishing out with the view to dissuade the would be offenders seem to be taken lightly. I view this as a deliberately disregard by people not wanting to follow the law of the land.
    
17. After weighing the factors for and against the prisoner, I find the mitigating factors outweigh the aggravating factors. In applying the above Supreme Court cases to the prisoner’s case, I consider that a sentence of 6 years imprisonment with hard labour is appropriate.
    
18. I will deduct 3 years from the head sentence of 6 years for time spent in pre-trial custody. This leaves a balance of 3 years.
    
19. As I have not been provided with a Pre-Sentence Report, I am unable to consider whether the prisoner is a suitable candidate for probation, thus to be given a wholly suspended sentence.
    
20. Sentence
    

PETER SARUFA, having been convicted of the crime of armed robbery, you are sentenced to

Sentenced accordingly.
______________________________________
Public Prosecutor: Lawyer for the State
Paul Paraka Lawyers: Lawyer for the Prisoner