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State v Biki [2014] PGNC 149; N5782 (23 August 2014)

N5782

PAPUA NEW GUINEA
IN THE NATIONAL COURT OF JUSTICE

CR 1563 OF 1995

THE STATE

V

JOHN TOPAIT BIKI

Kimbe: Cannings J
2014: 12, 20, 23 August

CRIMINAL LAW – sentence – armed robbery – Criminal Code, Sections 386(1) and (2)(a) and (b) – guilty plea – offender held up a company truck, drove to base camp and robbed the payroll of employees.

A man pleaded guilty to committing armed robbery. He was in a group of five men who blocked a road and held up a company vehicle. They took control of the truck, went to the base camp and stole the payroll of approximately K15,000.00. This is the judgment on sentence.

Held:

(1) The maximum sentence for armed robbery is life imprisonment.

(2) Mitigating factors are: the offender pleaded guilty; he has no prior convictions; he had a minimal role; though violence was threatened, no actual physical violence was inflicted.

(3) Aggravating factors are: a large amount of money stolen, which has not been recovered; the offender acted in a gang; victims inevitably traumatised by the incident.

(4) A sentence of four years was imposed, the pre-sentence period in custody was deducted and no part of the sentence was suspended.

Cases cited

The following cases are cited in the judgment:

Gimble v The State [1988-1989] 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 Chris Baili (2007) N4520
The State v Dickson Kauboi CR 495/2001, 07.06.06
The State v John Carl Endekra, Wilson Isaiah & Albert Martin Klembasa (2006) N4520

SENTENCE

This was a judgment on sentence for armed robbery.

Counsel

F K Popeu, for the State
D Kari, for the offender

23rd August, 2014

1. CANNINGS J: This is the sentence for John Topait Biki who pleaded guilty to one count of armed robbery and has been convicted of that offence under Sections 386(1) and (2)(a) of the Criminal Code. The robbery was committed on 9 June 1995 at Kandrian. He was in a group of five or six men who blocked a road and held up a logging company vehicle. They took control of the truck, went to the base camp, and stole the payroll of approximately K15,000.00.

ANTECEDENTS

2. The offender has no prior convictions.

ALLOCUTUS

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

I did not get any of the money as I was arrested on the same day and gave my share to the police. I am married with three children but my wife died last year. I have changed my life. I am now a United Church lay preacher. I have been employed by a logging company since 2007. I went to the police station at Kandrian as I thought the court was coming to Kandrian. I tried to do the right thing but I was arrested. I will not appear before the court again.

OTHER MATTERS OF FACT

4. As the offender has pleaded guilty he will be given the benefit of reasonable 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). I take into account that he made admissions to Police when interviewed, they were early admissions and he gave the names of other people involved.

PERSONAL PARTICULARS

5. There was no pre-sentence report. The court will act on the personal particulars provided in the allocutus.

SUBMISSIONS BY DEFENCE COUNSEL

6. Mr Kari put forward a number of mitigating factors: the guilty plea, the lack of prior conviction, minimal involvement. He submitted that a sentence of no more than six years imprisonment is warranted, which should be suspended because of the mitigating factors.

SUBMISSIONS BY THE STATE

7. Mr Popeu submitted that eight years was necessary as it was a road robbery.

DECISION MAKING PROCESS

8. 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?

9. For armed robbery (Criminal Code, Sections 386(1), (2), (a) and (b)) – the maximum penalty is life imprisonment. However I have discretion to impose less than the maximum term and suspend part or the entire sentence under Section 19 of the Criminal Code.

STEP 2: WHAT IS A PROPER STARTING POINT?

10. The Supreme Court has given sentencing guidelines in a number of leading cases: Gimble v The State [1988-1989] 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. 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: eight years; robbery of a person on the street: six years. This should be regarded as a road robbery. The starting point is eight years.

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

11. Recent sentences of road robberies are shown in the following table.

SENTENCES FOR ROAD ROBBERIES

STEP 4: WHAT IS THE HEAD SENTENCE?

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

Mitigating factors:

• the offender pleaded guilty;
• he has no prior convictions;
• he had a minimal role;
• though violence was threatened, no actual physical violence was inflicted.
  

Aggravating factors:

• a large amount of money stolen, which has not been recovered;
• the offender acted in a gang;
• victims inevitably traumatised by the incident.
  

13. The aggravating and mitigating factors are fairly evenly matched. This was a very serious robbery and it has taken a long time for the offender to own up to his involvement. Comparing this case with the precedents referred to, I impose a sentence of four years imprisonment.

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

14. 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 two years.

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

15. No. The seriousness of this major armed robbery, involving firearms, and given that the offender broke bail or escaped and has been at large for a long time mean that there should be no suspension.

SENTENCE

16. John Topait Biki, having been convicted of one count of robbery contrary to Section 386(1) of the Criminal Code in circumstances of aggravation under Section 386(2)(a) and (b), namely he was armed with a dangerous and offensive weapon and in company with other persons, is sentenced as follows:

Sentenced accordingly.
__________________________________________________________
Public Prosecutor: Lawyer for the State
Public Solicitor: Lawyer for the Offender