N5927

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR 353 OF 2011

THE STATE

V

RONNIE RUGA

Buka: Kawi-iu, AJ.
2012: 13th, 21st September

CRIMINAL LAW – Sentence – Attempted Armed robbery – Prisoner and accomplices attempted to rob victim of substantial sum of money at sea – Armed with guns and bush knives – Guilty plea – first time offender – co-operated with police – Exposed victim and those on board to threat of being killed – Prevalent offence – No compensation or apology to victim –– Criminal Code Act Ch. 262, s 387(1)(a)(2)(a) (b) 

Cases Cited:

The State v Aaron Labu (2005) N2798
Alex Pori v-The State (2007) SC 912
State v Atau Gore (No. 2) [2004] PGNC 124; N2644 (23 August, 2004)
Public Prosecutor v Don Hale (1998) SC564
Gimble v The State [1988-1989] PNGLR 271 
Goli Golu v The State [1979] PNGLR 653
The State v Joe Rex Basu [1997] PGNC 48; N1537 (23 April 1997)
State v Kumai (No 2) [2004] PGNC 78; N2699 (4 October 2004)
State v Levator [1997] PGNC 50
The State v Tarere Mamu (2002) N228 
Tau Tom Anis v The State (2000) SC 642

Counsel: 

J. Waine, for the State
Ms J. Maemae, for the Prisoner

JUDGMENT ON SENTENCE

14th October, 2014

1.	KAWI-IU, AJ: Ronnie Ruga on 14th October 2014, you pleaded guilty before me to one count of aggravated attempted robbery contrary to Section 387(1) (a) 2 (a) (b) of the Criminal Code Ch. 262 (the Code).

2.	I had perused the committal files from the District Court and was satisfied that evidence supported the charge. I then confirmed your plea and convicted you. Your lawyer confirms this to be consistent with your instruction.

THE FACTS

3.	The facts which you admitted and upon which I am going to sentence you are as follows. On the afternoon of 15th day of June 2013, you were part of a gang that held up Paul Takila (victim) and his family who were travelling on an outboard motor en-route to Torokina. Mr Takila at the relevant time was the Executive Manager to Torokina District and had in his possession K12,980.00 for the anniversary celebration in Torokina. Whilst travelling between Trlena and Tsiroge Sea, accused with his gang pursued them and held them up in the high seas with their weapons, a magnum pistol, and bush knife. They threatened to shoot the victim and attacked him to obtain the money he had in his possession. They also fought the victim's son with the bush knife. The victim and his son resisted and they struggled and fought on the boat. The victim and his son finally fended off the attackers and accused and his gang left. Victim suffered lacerations and generalised pain to his body. He was admitted and treated at the Buka General Hospital and discharged the next day.

YOUR ADDRESS ON SENTENCE

4.	In your address to the Court before sentence you told the court that you are sorry to this court, to the people in court and those persons who got hurt. You said sorry to the policemen and warders who looked after you. You also said sorry to All Mighty God. This is you first time in court. You asked for the court's mercy. You therefore requested the court to consider probation or GBB as part of your sentence. 

Defence submission on Sentence
 
5.	On your behalf your lawyer in addressing the court says that you were charged on one count of Attempted Robbery under section 387(1) (a) (2) (a) (b) of the Criminal Code Act. The maximum penalty is 14 years.

6.	You are 44 years old of Nova Village, and attend United Church. You attended Hutjena High School and completed Grade 10 in 1987. You are now self employed.
 
7.	The maximum penalty is reserved for the worse type of arm robbery. In this case the maximum sentence is not warranted. If there is any penalty, it is subject to section 19 of the Criminal Code. 

8.	Your lawyer referred to the case of State v Levator [1997] PGNC 50; N1547. In that case prisoner pleaded guilty to one count of Attempted Robbery under the same provision as the prisoner in this present case. Facts in that case is that- "On the 19 September 1996 prisoner and two others approached the victim, outside a shop at Tokarara. As the victim and his companion were trying to leave in their vehicle one of the co-accused held a home-made pistol against the victim's head and got the car key off him. One of the other friends at the same time pointed what resembled to be a pistol at the by-standers. Before the prisoner could drive away, off duty police members at the scene intervened and fired warning shots causing the prisoner and his friends to abandoned the vehicle and flee. Prisoner was caught and charged for the attempt robbery of the victim's vehicle". The court said in that case, where the prisoner pleads guilty range from 1 year to 8 years or more in the most serious cases where the victims are injured or killed. The prisoner was sentenced to 3 years imprisonment. Pre-trial custody period was deducted and a further 2 years suspended on condition for a period of 24 months. The prisoner served the balance of 9 months and 2 weeks in prison. 

9.	In the case of State v Kumai (No 2) [2004] PGNC 78; N2699 (4 October 2004) prisoner was charged with a crime of Attempted Robbery under section 387 of the Criminal Code which carries a maximum sentence of 14 years. The facts in that case are: 

The prisoner and his friend drove in his friend's car to Lae court house where his friend got off, leaving the car to the prisoner. The prisoner proceeded to pick up a gang of four armed men and proceeded to ADN Cash and Carry Shop. There the gang went into the shop while the prisoner waited in the car. The gang pointed a pump action shot gun and two factory made pistols at the security guards and forced them out of the shop.

At that time the two cashiers had cash spread on the table in the cash office for banking preparations. The gang knocked and then broke into the cash office where the two cashiers were counting the money. Fortunately the two cashiers by then had escaped through the back door and hidden themselves in the liquor room. The four robbers then got into the car and fled".

The prisoner is a first time offender, in company of others who were in possession of offensive weapons, guns and pistols. The offence was premeditated. The prisoner was sentenced to 6 years, with 2 years and 5 months deducted for pre-trial custody period and prisoner was sentenced to prison for 3 years and 7 months.

10.	The State v Joe Rex Basu [1997] PGNC 48; N1537 (23 April 1997). In that case the prisoner used a pistol and attempted to steal a vehicle, was sentence to 3 years imprisonment. In The State v Tarere Mamu (2002) N228 a suspended sentence of 4 years was imposed. In The State v Atau Gore a sentence of 5 years was imposed for attempted robbery of a vehicle. The current sentence of attempted arm robbery is 3years to 5 years. 

11.	Offence of attempted robbery is a serious one as reflected in the penalty of 14 years. However we submit that the maximum penalty is reserved for the worst case. We asked the court to consider the following mitigating factors. Plea of guilty thus saving court's time, expression of genuine remorse, first time offender, no weapons used, and had been in custody since June 6 2013. 

12.	Against these are the following factors of aggravation. This offence is prevalent, committed in company of others, premeditated, boat used, victim sustained injuries but not serious, some degree of violence used, prisoner and other friends were in possession of dangerous weapons and victim together with those in the boat were fearful and traumatised. No tangible expression of remorse displayed. 
 
13.	Defence submits that an appropriate sentence should be in the range of 3 -5 years, less time in custody and consider placing prisoner on GBB. 

State Submission

14.	The Counsel for State acknowledged the cases referred to by Defence, namely State v Levatoro (supra) and State v Kumai (supra). He submits that the offence of robbery involved violence like all homicide cases. The sentence the court imposes must reflect the condition of society we live in. He likens the case of attempted robbery to attempted murder and involves pre-planning. This offence was committed on the sea - Chances of escaping from attacks at sea are minimal. In this attempted robbery the prisoner and his accomplices were in possession of firearms. Victim of the attempted robbery was hospitalised and discharged the next day. 

15.	After reflecting on the aggravating and mitigating factors as outlined by defence submits that any penalty imposed must reflect on the sentiments of the community in which the prisoner belong. The prisoner must be imprisoned so that travellers on the sea must be protected. 
 
16.	He submits that the sentence to be imposed on the prisoner should be 1 year, 6 months. He is to serve 9 months and the balance to be suspended. 

THE OFFENCE

17.	The offence of Attempted Robbery is provided in Section 387 of the Criminal Code Ch. 262 in the following terms:

387.	Attempted robbery accompanied by wounding, or in company.

(1)	A person who assaults a person with intent to steal any thing, and, at, immediately before or immediately after, the time of the assault, uses or threatens to use actual violence to any person or property in order—
(a)	to obtain the thing intended to be stolen; or
(b)	to prevent or overcome resistance to its being stolen,
is guilty of a crime.

Penalty:	Imprisonment for a term not exceeding seven years.
(2)	If the offender—
(a)	is armed with a dangerous or offensive weapon or instrument; or
(b)	is in company with one or more other persons,

he is liable to imprisonment for a term not exceeding 14 years.
(3)	If the offender—
(a)	is armed with any loaded arms; and
(b)	at, immediately before or immediately after, the time of the assault wounds any person by discharging the loaded arms,

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

18.	The offence of robbery and attempted robbery had always been viewed by the courts with seriousness, particularly when committed under circumstances of aggravation. This is because of the threat posed to lives of persons who are victims or bystanders.

19.	Both counsel have conceded that your offence falls within Category 4 of the Gimble principles has been increased subsequently 3- fold by the Supreme Court in Public Prosecutor v Don Hale (supra). It must be noted, however, that in Tau Tom Anis v The State (2000) SC 642 the Supreme Court (Sheehan, Jalina and Kirriwom, JJ.) said that they find nothing in Public Prosecutor v Don Hale that laid down a blanket authority to supersede the principles in Gimble and that the discussion of the Supreme Court in Don Hale had been misconstrued and taken out of context as Don Hale merely dealt with the robbery of a house in the context of the principles in Gimble which they viewed was still good law. Their Honours suggested that the Supreme Court should prescribe new guidelines to supersede those in Gimble.

20.	It would seem that after Gimble there had been no other Supreme Court decisions setting new sentencing guidelines which would supersede Gimble. The Supreme Court still appears to follow Gimble, Don Hale and Tau Tom Anis as per its decision in Alex Pori v The State (2007) SC 912 (Davani, Mogish, David, JJ).
21.	Thus it is still good law and that I am still bound by the principals of sentencing enunciated in Gimble subject to any discretionary power under section 19 of the Code. So what considerations should I take into account in the process of determining an appropriate sentence for you within the prevailing guidelines?

22.	On this consideration I refer to helpful suggestions by my brother Cannings, J in The State v Aaron Labu (2005) N2798. These are:

1.	 Did the offender and other members of his gang not commit actual violence during the course of the robbery?
2.	Did the offender and members of his gang not threaten the victims of the robbery with violence?
3.	Did the offender and other members of his gang not put the victims or innocent bystanders in real danger of being injured or killed?
4.	 ...
5.	Did the offender and other members of his gang steal money or property relatively small value?
6.	Did the offender play a relatively minor role?
7.	Did the offender give himself up after the robbery?
8.	Did the offender co-operate into police?
9.	Has the offender done anything tangible towards repairing his wrong e.g. Compensation to victim, repaying what he stole, personally or publicly apologising to what he did?
10.	Has he pleaded guilty?

23.	I adopt these considerations as I find them applicable. I have considered them and your mitigating and aggravating factors as put to me by your lawyer and the counsel for the State.

The Offence of attempted robbery is a serious one as reflected in the penalty of 14 years. However we submit that the maximum penalty is reserved for the worst case, Goli Golu v The State [1979] PNGLR 653.

24.	We asked the court to consider the following mitigating factors. Plea of guilty thus saving court's time, expression of genuine remorse, first time offender, no weapons used, and had been in custody since June 6 2013. 
 
25.	Against these are the following factors of aggravation. This offence is prevalent, committed in the company of others, premeditated, boat used, victim sustain injuries but not serious, some degree of violence used, you and other friends were in possession of dangerous weapons and victim together with those in the boat were fearful and traumatised. No tangible expression of remorse displayed. 

26.	Offence of attempted robbery is a serious offence as reflected in the penalty of 14 years. However we submit that the maximum penalty is reserved for the worst case. We asked the court to consider the following mitigating factors. Plea of guilty thus saving court's time, expression of genuine remorse, first time offender, no weapons used, and had been in custody since June 6 2013. 
 
27.	Against these are the following factors of aggravation. This offence is prevalent, committed in company of others, premeditated, boat used, victim sustain injuries but not serious, some degree of violence used, accused and other friends were in possession of dangerous weapons and victim together with those in the boat were fearful and traumatised. No tangible expression of remorse displayed. 

28.	I find that the following considerations are present in your case; you pleaded guilty to the charge, you and your gang threatened the victims with violence, you and your gang exposed your victims and those in the boat to real danger of being killed or injured, you attempted to steal large sum of money from the victim, you played a major role in the attempted robbery. 

29.	Hence in applying the considerations in The State v Aaron Labu (supra) against your personal circumstances, I feel that a starting point within the range suggested by counsel is appropriate in the circumstances, and I fix 3 years to be the starting point.

30.	 However, because of your guilty plea and other mitigating factors I impose a head sentence of 3 years. 

31.	 From this, I suspend 1 year 5 months and 2 weeks for pre-trial custody period. You will therefore serve the balance of 1 year 6 months 2 weeks, with no suspension of sentence.

32.	I therefore order as follows:

1.	The prisoner Roonie Ruga you are sentenced to a term of 3 years imprisonment with hard labour.

2.	One (1) year, five (5) months and 2 weeks are deducted from the sentence for period spent in pre-trial custody.

3.	You shall serve a period of 1 year, 6 months and 2 weeks
________________________________________________
Public Prosecutor: Lawyers for the State
Public Solicitor: Lawyers for the accused