State v Dominic [2013] PGNC 214; N5407 (21 June 2013)

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CRIMINAL LAW – Sentence – Trial - Highway robbery of businessman by prisoners – Prisoners armed with guns and knives – Substantial amount of cash (K34,000) and other properties stolen – Criminal Code Act Ch.262, s 386.

CRIMINAL LAW – Sentence – Except for one, prisoners are all first time offenders – Planned robbery - Prevalent offence – Need to protect users of highways - Deterrent sentence required – Probation or suspension inappropriate – Sentences of 10 years for Peter Dominic and 9 years for the rest less period spent in custody.

1. TOLIKEN, AJ: INTRODUCTION: On 17th of April 2013, I found the five accused persons guilty of armed robbery after a four days trial. The prisoners requested for Pre-Sentence and Means Assessments Reports (PSR and MAR). Since the circuit was just about to close there wasn't enough time for the reports to be prepared so the matter was adjourned to these sittings for that purpose.

2. On 07th June, I administered the allocutus on the prisoners. Mr. Yavisa was not ready with his submission on sentence so the matter was adjourned to 11th of June when he made his submission followed by the State's reply.

"... on the 20th of October 2008, at Hoivi Village, Kokoda, Oro Province they stole from one Michael Zhing with actual violence K35,700.00 in cash, twenty (20) CHM cassettes valued K340.00, spanners valued at K250.00, cheques, two (20) Pall Mall cigarette packets, a torch, a windscreen valued at K400.00, and a spare tyre valued K400.00 all properties belonging to Michael Zhing and at that time they were armed with two shotguns, bush knives and iron bar and timber and in company with each other"

Thereby contravening section 386 (1) (2) (a) (b) (c) of the Criminal Code Act Ch. 262 (the Code).

THE FACTS
5. At the trial I found the following facts upon which the prisoners will be sentenced.

6. On 20th October 2008, the victim left Kokoda in a truck at 7.00am for Popondetta Town. After about thirty minutes drive down road as he was driving up Mt. Hoivi he was held up by six men – three men approaching him from each side of the truck. One pointed a gun at him and another came from the side and broke the glass screen and rear vision mirror. Another one jumped onto the vehicle and hit the victim with an iron pipe. Another man who was standing on the left and armed with a bush knife demanded money from the victim. The victim begged not to be assaulted and said that he had money and handed the bag containing the money over to the men. One man stood in front of the vehicle armed with a factory made gun. He had a woollen cap which only partly covered his face to his eye-brow. The other side of his face was hidden by the gun he was aiming at the victim.

7. One of the robbers who was standing on the right side broke the right windscreen. He opened the door and dragged the victim out. The victim fell into a drain and as he was lying in the drain the man assaulted him and demanded for more money. The victim gave him K1400.00 which he had in his pockets. The man was not masked and was armed with home-made gun.

8. The robbers took from the victim the car keys, spare tyre, spanners, K1400.00 cash, a sling bag containing K34,000.00 in cash, 20 audio music cassettes and two packs (gross) of cigarettes.

9. After robbing the victim the robbers escaped on foot into the jungle following no existing track in particular.

10. The victim was discovered by a villager a little while later. Nearby Sisiretta villagers were alerted. The village boys including Sydney Warafa, Roman Sema and Kevin Kaeka chased after the robbers following the fresh tracks they made on their escape into the mountains.

11. The pursuers caught sight of the six men running into the mountains. They caught two, the prisoners Peter Dominic and Chris Bora. They observed that the two men were sweating heavily and out of breath. They found a brown sling back on Chris Bora. The bag contained audio music cassettes and cigarette packs.

12. Peter Dominic and Chris Bora told the village boys that they were gold buyers. Sydney Warafa and the other village boys issued threats to Peter Dominic and Chris Bora to admit their involvement in the robbery which they did. Peter Dominic promised them a share of the loot which he said had been carried away by others. They also told their captors that they were staying at Omsetta Village with William Kaura.

13. Peter Dominic and Chris Bora were later taken to William Kaura's house at Omsetta. There William's brother, Andrew told Sydney Warafa that the prisoners will sort him out later.

14. The matter was reported to the police at Kokoda. That night a Police contingent from Popondetta travelled up to Sisiretta Village. They picked up Sydney Warafa and proceeded to Omsetta Village. There they found all five accused's asleep in William Kaura's haus win and apprehended them. The police found and took a brown sling bag from Chris Bora. Large amount of cash amounting to K8200 was also found by the police under the mattresses which the prisoners Andrew John and Chris Bora were sleeping on.

15. The victim identified the money that was stolen from him during the robbery. No one claimed ownership of the money nor did the prisoners give any explanation as to how the money was there. And while Peter Dominic and Chris Bora claimed to be gold buyers no gold-buying equipment were found in their possession when they were caught by the villagers.

16. Apart from Joe Teviri who is married to Andrew Kaura's niece, the prisoners were all strangers to the area.

ANTECEDANTS
18. Peter Dominic is 39 years old and comes from Dayo Village in the Milne Bay Province but now resides at East Ambogo where he owns three (3) oil palm blocks. He is separated from his wife and has one child. He belongs to the Seventh Day Adventist faith. He only completed Grade 7. He has two prior convictions for unlawful use of motor vehicle in 2004. He was placed on 3 years probation. In 2005 he was sentenced to 5 years IHL for breaking, entering and stealing by the Gr. 5 Court.

19. Chris Bora is 47 years old and comes from Deboin Village in the Northern Province. He is a widower with ten (10) children. He only completed Grade 3 and is an Anglican Church member.

20. Joe Teviri comes originally from the Gulf Province. He is 33 years old and married with two children. He has had a tertiary education and is a Seventh Day Adventist. He was residing at Gerehu in the National Capital District prior to the commission of the offence.

21. Andrew John is 27 years old and comes from Agaun Village, Rabaraba District of Milne Bay Province. He is married with two children. He is a Seventh Day Adventist and was residing at ATS in the National Capital District. He has a Grade 6 education.

22. Paul Luke comes from Rove Village, Malalaua, Gulf Province. He is 32 years old and is married with three children. He is educated up to Grade 10, is a Seventh Day Adventist and was residing in the National Capital District.

ALLOCUTUS
23. The prisoners each apologised to God, the Court and Kokoda and Oro communities for disturbing the peace. They also apologized to the victim and pleaded for leniency.

PRE-SENTENCE AND MEANS ASSESSMENT REPORTS
24. The Pre-Sentence Reports for each prisoner are adverse to them. They are each viewed as unsuitable for probation supervision.

25. Peter Dominic is assessed to be a potential danger to others because of his criminal history. He is unsuitable for probation because he seems to have no steady home and moves between Oro, Port Moresby and Milne Bay. He says he is willing to pay whatever the court may order him to pay but does not state how he is going to pay.

26. Chris Bora is not assessed to be a danger to the community. However, he is considered not to be a suitable candidate for probation because he has no steady place of residence and constantly moves between Port Moresby, Popondetta and Lae. He says that he can give K2000 to the victim and may need a week to pay.

27. Joe Teviri is assessed to be a danger to others particularly when in the company of friends with similar interests. He is considered unsuitable for probation because he resides in Port Moresby with no steady home so supervision will be difficult. He admitted that he has no means of income and will not be able to make restitution or pay compensation.

28. Paul Luke is assessed to be unsuitable for probation because he does not have a fixed residence in Popondetta and has little or no means of income. And because of that he conceded that he will not be able to make restitution or pay compensation.

29. Andrew John was assessed to be a young man with no guided life. He is viewed as a danger to others particularly when in others' company. He has no financial capacity to pay compensation or make restitution. He lived and worked in Port Moresby prior to his apprehension and hence has no fixed residence in Popondetta. He is considered to be unsuitable for probation.

SUBMISSIONS
30. Mr. Yavisa submitted on behalf of the prisoners that while the maximum penalty for armed robbery is life imprisonment there is considerable discretion under Section 19 of the Code for the Court not to impose the maximum which is reserved for the worst type of cases. He submitted that this case does not fall in the worst type category, though he readily conceded that armed robbery is a very serious crime.

31. He urged the Court not to impose the maximum penalty but impose a lesser sentence within its discretion under s 19 of the Code. He submitted that Gimble v The State [1988-1989] PNGLR 271 laid down sentencing guidelines for armed robbery. However, due to the prevalence of this offence the tariffs laid there are now out-dated and the Supreme Court has since suggested increases for the different categories of robbery as per Gimble. (Lau Jim Anis v The State (2000) SC 642; Philip Kassman v The State (2004) SC 759)

32. Counsel asked the Court to take into account the following mitigating factors:

33. Counsel, however, conceded that there are aggravating factors present in this case. These are:

34. Given the circumstances of the case, counsel therefore asked for head sentences of 8 years less 4 years and 10 months that each prisoner was on remand awaiting trial. The balance (3 years and 2 months) should then be wholly suspended and the prisoners placed on probation.

35. Mr. Tamate on the other hand submitted, inter alia, that since Gimble, sentences have increased for aggravated armed robbery. The Supreme Court has indeed suggested in Don Hale v The State that an armed robbery of a house should be increased by three years from the 7 years set in Gimble. Then in Tau Jim Anis (supra) the Supreme Court suggested that sentences for all categories of robbery should be increased proportionately three-fold.

36. Mr. Tamate cited several cases to show the sentencing trend in both the National and Supreme Courts. These will presently be considered below.

37. He submitted that pleas have attracted sentences between 8 to 13 years clearly showing that sentences have increased since Gimble, Don Hale and Tau Jim Anis (supra).

38. Counsel submitted that an appropriate sentence in this matter should be 12 – 15 years except for Peter Dominic who has prior convictions. Probation or suspension of sentence are inappropriate in this case.

39. Section 386 of the Code provides for the offence of armed robbery in the following terms:

Penalty: Subject to Subsection (2), imprisonment for a term not exceeding 14 years.

(c) at, immediately before or immediately after, the time of the robbery, wounds or uses any other personal violence to any person,

40. The sentencing guidelines for a plea of not guilty for armed robbery were set by Gimble v The State (supra) as follows:

41. The Supreme Court has since suggested that these tariffs should be increased proportionately three-fold across the board. (The Public Prosecutor v Don Hale (supra) and Tau Jim Anis v The State (supra)

SENTENCING TREND
42. A quick review of the sentencing trend for armed robbery on highways over the recent past reveals the following.

43. In The State v Yandi (2010) N4064 (David, J.) the prisoner pleaded guilty to the aggravated armed robbery of passengers in a PMV which he and his accomplices were also passengers. They threatened the passengers with bush knives and a gun and robbed them of K3040.00 which was never recovered. A passenger was injured in the robbery. Some pre-planning was involved and the court took into account the prevalence of the offence. The prisoner was a first time offender, illiterate, unsophisticated, remorseful and co-operated with the police. He was sentenced to 10 years less time in pre-trial custody.

44. In The State v Abai (2010) N4132 (Makail, J.) the prisoner, part of a gang of 13, armed with two M16 assault rifles, 1 SLR sub-machine gun, 4 home-made guns and 4 bush knives held up 3 motor vehicles along the Highlands Highway and stole K28,958.00 worth of properties. The offender was seriously and permanently injured by some of his victims when he was apprehended. The court considered the aggravating factors but felt that the wounding of the prisoner was a special mitigating factor. It sentenced him to 6 years.

PRESENT CASE
45. Let me now consider the subjective considerations in this matter. Firstly, the mitigating factors:

47. Now the maximum penalty is life imprisonment which, as is trite law, may only be imposed in the worst type of cases.

49. However, a sentence that is appropriately stiff for personal as well as general deterrence ought to be imposed.

51. It must be noted that what those cases set are starting points and not the head sentence itself which will be lowered or increased according to the peculiar circumstances of each case.

52. So given the prevalence of this offence and the fact the aggravating factors outweigh the mitigating factors I think that a starting point should be 8 years. However, the head sentences must necessarily start from above this starting point.

53. The higher head sentences are justified partly by the fact the robbery was planned and partly because users of our public highways must and have the right to travel freely without fear of being held up and robbed.

54. Businessmen, regardless of ethnicity deserve to conduct their businesses in a free and safe environment. Some like the victim in this case, risk everything – their investments and even their lives – to conduct their businesses in places like Kokoda so that our rural disadvantaged people and public servants alike can have access to goods and services which otherwise would only be available in the Town of Popondetta some two hours away.

55. But regardless of whether one is a businessman or a simple user of our public highways, they all expect the protection of the law. Unfortunately that protection often times comes a little too late.

56. Be that as it may, the crime of robbery ought and must be denounced and condemned by appropriate sentences that seek not only to punish and deter offenders and others as well but also to keep them away from the community for sufficiently long periods of time.

57. The prisoners have asked for probation or non-custodial sentences. I do not think, however, that these will be appropriate in the circumstances. The Pre-Sentence Reports are not favourable to any of the prisoners and rightly so too. The prisoners are all grown-ups and knew exactly what they were doing.

58. As I have said above they planned the whole thing. The fact that some of them lived in the National Capital District and obviously had to travel into the province to carry out the robbery testifies to that. This is a matter that requires the prisoners to serve the full term of their custodial sentences.

60. From these sentences I shall deduct 4 years and 10 months for the pre-trial custody period.

Prisoner	Head Sentence	Deductions for time in pre-trial custody	Resultant Sentence to be served at Biru Corrective Institution
Peter Dominic	10 years	4 years 10 months	5 years 2 months
Chris Bora	9 years	4 years 10 months	4 years 2 months
Joe Teviri	9 years	4 years 10 months	4 years 2 months
Andrew John	9 years	4 years 10 months	4 years 2 months
Paul Luke	9 years	4 years 10 months	4 years 2 months

Sentenced accordingly
________________________________________________
Public Prosecutor: Lawyers for the State
Paraka Lawyers: Lawyers for the Prisoners

National Court of Papua New Guinea

State v Dominic [2013] PGNC 214; N5407 (21 June 2013)