N3692

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR NO 919 0F 2009

THE STATE

V

JONATHAN SENGI

Madang: Cannings J
2009: 22, 24 July

SENTENCE

CRIMINAL LAW – sentence – armed robbery – Criminal Code, Section 386(1), (2)(a), (b) – guilty plea – young offender, passenger on a PMV, hold-up of PMV – K15.00 cash stolen – sentence of 4 years.

The offender pleaded guilty to joining with others in holding up a PMV on which he was a passenger. Four men were involved in the gang, knives were used to threaten bus crew, K15.00 cash was stolen. The offender played a minimal role in the robbery.

Held:

(1) The starting point for armed robbery of a vehicle on the road is eight years imprisonment.

(2) Mitigating factors: no actual physical violence; offender did not threaten anyone; had minimal role in robbery; pleaded guilty; first-time offender; young offender; small amount of money stolen.

(3) Aggravating factors are: acted in a gang; no compensation or apologies to victims.

(4) The court imposed a sentence of four years imprisonment. The pre-sentence period in custody was deducted and none of the sentence was suspended.

Cases cited:

The following cases are cited in the judgment:

Gimble v The State [1988-89] PNGLR 271
Phillip Kassman v The State (2004) SC759
Public Prosecutor v Don Hale (1998) SC564
Saperus Yalibakut v The State (2006) SC890
Tau Jim Anis v The State (2000) SC642
The State v A Juvenile "KIB" CR 982/2008, 09.04.09
The State v A Juvenile "KM" CR 998/2007, 18.10.08
The State v A Juvenile "NBM" CR 589/2008, 27.10.08

SENTENCE

This is a judgment on sentence for armed robbery.

Counsel

M Ruarri, for the State
N Los, for the offender

24 July, 2009 

1. CANNINGS J: This is the sentence for a young man, Jonathan Sengi, who has pleaded guilty to armed robbery. On Friday 20 February 2009, he came into town with three of his friends. They planned to rob a bus. They went to the Best Buy bus stop near the town market. When the route 17A bus arrived they got on board as passengers and the bus headed out along the North Coast Road. At Mero they called out for the bus to stop. When it stopped, one of his friends grabbed hold of the bus crew, Avio Gamen, threatened him with a knife and made off with a waist bag containing K15.00 cash. Jonathan Sengi, who was armed with a kitchen knife, was apprehended by the genuine passengers on the bus and handed over to the police.

2. A conviction has been entered under Sections 386(1), (2)(a) and (b) of the Criminal Code.

ANTECEDENTS

3. The offender has no prior convictions.

ALLOCUTUS

4. The offender was given the opportunity to address the court. He said:

Thank you for hearing my case. This is my first time to be in the National Court. I say sorry to the court for what I have done. I had an argument about money with my older brother that day. I got frustrated and went into town and got into this trouble. I have a wife and child to look after. I ask for the court’s mercy.

OTHER MATTERS OF FACT

5. 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 (2006) SC890).

6. The only mitigating factor arising from this material is that the offender played a minimal role in the robbery and did not get any of the proceeds of the robbery. It is notable that he did not make admissions when he was interviewed by the police. He denied involvement so the level of his co-operation with the police cannot be taken into account as a mitigating factor.

PERSONAL PARTICULARS

7. Jonathan Sengi is 22 years old, married with one child. He is from Parimbe in the Ambunti district of East Sepik Province but was born and raised in Madang. Both his parents are deceased. He lives at Sisiak 2 on the edge of Madang town. He has a grade 5 education and is a member of the Roman Catholic Church.

SUBMISSIONS BY DEFENCE COUNSEL

8. Mr Los submitted that the court should put considerable weight on the guilty plea and the fact that the offender, though not a juvenile, is a young man with no prior convictions. He committed the crime out of frustration. He depends on his big brother, who he lives with, for financial support and on the day of the offence they had an argument over money. Mr Los also highlighted that though the offender was armed with a knife he did not use it and did not threaten anyone with it. He had a minimal role in the robbery and only a small amount of cash was stolen. Mr Los submitted that a sentence of 30 months imprisonment would be appropriate.

SUBMISSIONS BY THE STATE

9. Mr Ruarri acknowledged that the guilty plea and the offender’s lack of prior convictions were mitigating factors but stressed that this was a prevalent offence in this part of the province. Armed robberies of this nature interfere with the livelihood of citizens who have a right to move around freely. Such robberies create anxiety and terror in the community, even if a relatively small amount of money is stolen. A considerably heavier sentence than that proposed by the defence counsel should be imposed, Mr Ruarri submitted.

DECISION MAKING PROCESS

10. 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?

11. For armed robbery the maximum penalty is life imprisonment. However I have discretion to impose less than the maximum term and suspend part or all of the sentence under Section 19 of the Criminal Code.

STEP 2: WHAT IS A PROPER STARTING POINT?

12. The Supreme Court has given sentencing guidelines in a number of leading cases: Gimble v The State [1988-89] 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.

13. 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.

14. The present case falls within the third category. The starting point is eight years.

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

15. Three armed robbery cases I have dealt with recently in Madang provide useful reference points for sentencing purposes. All cases involved the armed robbery of a vehicle on the road by juvenile offenders operating in a gang. They are summarised in the following table.

TABLE 1: ARMED ROBBERY OF VEHICLE ON ROAD, JUVENILE OFFENDERS, MADANG PROVINCE, CANNINGS J, 2008-2009

No	Case	Details	Sentence	
1	The State v A Juvenile "KM" CR 998/2007, 18.10.08	Guilty plea – 16-year-old offender joined four other young offenders and armed with a pistol, bushknives and other weapons, held up a PMV on Karkar Island, threatened driver and passengers – passengers’ properties worth K5,000.00 stolen.	5 years
	
2	The State v A Juvenile "NBM" CR 589/2008, 27.10.08	Guilty plea – 15-year-old offender conspired with others to hold up a company truck doing a cargo run – felled a coconut tree, blocked the highway, truck crashed into it, K1,100.00 cargo stolen – driver threatened with bushknives.	3 years
	
3	The State v A Juvenile "KIB" CR 982/2008, 09.04.09	Guilty plea – 15-year-old offender joined with others to hold up a truck on Hilolo Road – guns and bushknives used to threaten driver – K11,000.00 stolen.	6 years

STEP 4: WHAT IS THE HEAD SENTENCE?

16. The head sentence will reflect the following mitigating and aggravating factors.

17. Mitigating factors:

- no actual physical violence committed by the offender or any other gang member;
- offender did not threaten anyone;
- offender had minimal role in robbery;
- pleaded guilty;
- first-time offender;
- young offender (but not a juvenile);
- small amount of money stolen and he got nothing out of the robbery.

18. Aggravating factors are:

- acted in a gang;
- no compensation or apologies to victims (the owner/driver of the PMV, bus crew, passengers).

19. There are more mitigating than aggravating factors, so this is a case in which it is appropriate to fix a sentence lower than the starting point of eight years. The circumstances of the robbery make it a less serious event than the three Madang cases described in the above table. However, they were all juvenile cases and each of the sentences reflected that as a major mitigating factor.

20. I agree with the prosecutor that although only a small amount of money was stolen, crimes of this nature are a blight on the community and strike fear into the minds of law-abiding people who just want to live freely and peacefully and go about their daily lives without the ever-present threat of being held up and threatened with violence.

21. I do not think the 30-month sentence suggested by the defence counsel would adequately reflect the seriousness of the crime and the need to provide deterrence.

22. Having regard to all those matters, I fix a head sentence of four years imprisonment.

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

23. 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 five months, four days.

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

24. No. There is no pre-sentence report before the court to warrant a consideration of probation (Public Prosecutor v Don Hale (1998) SC564).

SENTENCE

25. Jonathan Sengi, having been convicted of one count of armed robbery under Sections 386(1), (2)(a) and (b) of the Criminal Code is sentenced as follows:

Length of sentence imposed	4 years	
Pre-sentence period to be deducted	5 months, 2 days	
Resultant length of sentence to be served	3 years, 6 months, 3 weeks, 5 days	
Amount of sentence suspended	Nil	
Time to be served in custody	3 years, 6 months, 3 weeks, 5 days	
Place of custody 	Beon Correctional Institution	

Sentenced accordingly.

__________________________

Public Prosecutor: Lawyer for the State
Public Solicitor: Lawyer for the offender