N6532
PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR 1143 of 2013

THE STATE

V

BG (Juvenile)

Bialla/Kimbe: Batari J
  2014: 20 May & 10 July

CRIMINAL LAW– Sentence – Robbery – Robbery on street – Group of armed youths held up two men under oil palm trees and stole from them cash and  assorted personal effects – Actual violence - Seriousness of – Mitigation - Plea – Effect of – 13 year old youthful offender - Sentencing principles applied - Sentence of 4 years to Boys Town/Juvenile Centre appropriate.  

Cases Cited

Alex Pori v The State (2007) SC912	
Gimble v The State [1988-89] PNGLR, 271
Kalabus v The State [1988] PNGLR 193
Phillip Kassman v The State (2004) SC759	
See, Public Prosecutor v Tom Ake [1978] PNGLR 469
State v Win Thomas (unnumbered National Court Judgment) Cr No. 837 of 1994
The State v Bluey Hanua (1997) N1625

Counsel:

Mr A. Bray, for the State
Mr D. Kari, for the Accused

SENTENCE
10 July, 2014

1.	BATARI J:   Juvenile BG, to protect his identity, was aged 13 years at the time he accosted two men armed with a bush-knife and stole from them, cash and other personal effects with actual violence. Following his plea of guilty to aggravated robbery, this is his sentence.

Background Facts

2.	The brief facts of the robbery are these.  On 20 June 2013 the victims, Gende Nime and Stalon John sat under the Oil Palm trees at Bialla LLG grounds preparing their rum mix when BG, accompanied by four youths armed with bush knives and a screwdriver, accosted them.  BG swore at the victims threateningly, “yutupla kaikai kan na sanap,” before swinging a bush knife at them.  Three accomplices joined in the attack while the fifth stood guard on the road.  BG and his cohorts then left the scene after stealing from the victims, K450.00 in cash, a mobile phone valued at K70.00 and a billum worth K70.00.  Both Gende Nime and Stalon John also sustained knife wounds during the robbery. The youths had themselves been drinking.  Police arrested BG shortly after the incident.

The Offence of Armed Robbery
	
3.	The offence of armed robbery is set out in s.386 (1) of the Criminal Code. It carries 14 years maximum sentence. Where the robbery is committed in circumstances of aggravation under Sub-section (2) namely: use of a dangerous or offensive weapon or instrument; or in company with one or more other persons; or wounds or uses any other personal violence to any person; the prescribed maximum sentence is life imprisonment.

4.	BG committed armed robbery in contravention of s. 386 (1) and (2).  Therefore, the penal servitude of life sentence applies.

Sentencing Principles and Guidelines 

5.	In general, there has been too much of robbery incidences being committed. Street robbery is particularly common these days. Such prevalent criminal activity continues unabated and hardly a day goes by without a report of such crimes in the print as well as the electronic media.

6.	This reprehensible reality tarnishes the good image of our community and country through adverse publicity. Daylight robbery is a direct attack against the constitutional freedoms of movement and the right to enjoyment of life and property. People should feel safe whenever and wherever they are going about their lawful duties or at their leisure time. They should be able to move around freely and should not have to live in fear as many do, of armed robbers prowling the cities, towns and rural areas to steal from the unwary on the roads and streets, business houses, clubs, vehicles on the road, factories, banks and homes.

7.	These matters make it obligatory for the sentencing authority to apply tough measures against the crime of robbery but within the permissible limits of the sentencing schemes under s.19 of the Criminal Code.

8.	Section 19 provides for the primary legislative structure by creating two distinct systems of sentencing to reflect the different penal objectives governed by different principles.  These sentencing options have their roots in the common law as stated succinctly by the learned author of Principles of Sentencing, DA Thomas, 2nd Edition at p8:

     “The options are to impose a sentence that may be loosely termed as “tariff sentence” or impose a sentence based on the needs of an offender as an individual.”

9.	The sentencing authority must first decide which of the two sentencing objectives should prevail over the other on the particular circumstances of the case before applying the appropriate body of principles to determine the form of the sentence or measure to follow.

10.	Robbery cases fall into four main categories of seriousness. The Supreme Court in Gimble v The State [1988-89] PNGLR, 271 enunciated these types as:

1)	Robbery of a house – a starting point of seven years;
2)	Robbery of a bank – a starting point of six years;
3)	Robbery of a store, hotel, club, vehicle on the road or the like – a starting   point of five years; and
4)	Robbery of a person on the street – a starting point of three years.

11.	The recommended starting points are relevant where young first offenders carrying weapons and threatening violence are convicted following a trial. Where there was actual violence or other aggravating factors like loss of substantial money were present, or where the robbery was committed in breach of trust, a higher sentence will be justified.  Conversely, a lower sentence will be justified in a plea of guilty with mitigating factors.

12.	While the sentencing guideline in Gimble’s case remains useful, the Supreme Court has since reviewed the suggested starting points for the different categories and subsequently settled on a three-year increase factor for all the categories robbery cases.  See, Phillip Kassman v The State (2004) SC759

13.	The starting point is, at all times, subject to the judge’s discretion to increase or decrease from the term depending on the facts of each case. See, Alex Pori v The State (2007) SC912.

Present Case – Facts and considerations
	
14.	This case falls into the last category namely, street robbery. The starting point is now 6 years. This case is a robbery in the park and not a typical robbery of person on the street.  It is nevertheless a similar type robbery and the same sentencing principles apply.  The aggravating features are that the prisoner armed himself with a dangerous weapon, he was in the company of others and that he committed actual violence.

15.	Mr Kari of Counsel for the prisoner has impressed upon the court, from instructions as well as the presentence reports, a number of factors from BG’s personal circumstances in support of his plea of guilty.

16.	I agree that, the benefit of pleading guilty should be apparent in the outcome of the sentence imposed. One effect of that is an incentive in itself to plead guilty. The plea must however result from a genuine free choice to confess as Los J stated in The State v Win Picinon Thomas (un-numbered National Court Judgment) CR No. 837 of 1994;

"… an honest plea of guilty must be taken into account in an apparent fashion so that the prisoner must know that his guilty plea has been well appreciated and taken into account by the Courts. This would also encourage other people who genuinely want to plead guilty must do so knowing that it will help them in their punishment."

17.	In The State v Bluey Hanua, (1997) N1625, it was observed that, with the increasing length, complexity and costly criminal trials at public expense, guilty persons when charged with offences be encouraged to enter honest plea of guilty at the earliest possible time. The incentive must of course come from what is apparent on the final sentence of the Court.

18.	The value of pleading guilty will depend on a number of factors namely, but not limited to:

•	seriousness of the offence; 
•	circumstances of aggravation; 
•	special or exceptional factors in mitigation; 
•	young age or advanced age of offender; 
•	health of the offender; 
•	how soon the plea is taken after committal.

19.	On the other hand, a plea of guilty standing alone will have little or no effect in mitigating such serious crimes of violence like murder, armed robbery, rape or sexual penetration committed with circumstances of aggravation.

20.	It has also been long recognised that a guilty plea may demonstrate and support remorse and contrition: Public Prosecutor v Tom Ake [1978] PNGLR, 469; Kalabus v The State [1988] PNGLR 193.  In my view, a plea taken at the earliest opportunity has more value where it is consistent with mitigating conduct since the commission of the offence.

21.	In this case, the prisoner was committed to stand trial on 2 October 2013.  He did not appear on the first sittings of the National Court at Bialla in February 2014.  In the next sitting in May 2014, he appeared from custody after police arrested him on a bench warrant.  Police had initially detained him on the same day of the incident.  On 9 July 2013, BG readily confessed his involvement in a record of interview. The Committal Court then let him out on bail. He then contradicted his confession when he jumped bail.  His conduct exhibits serious delinquency, which punishment by imprisonment should correct.

22.	The CBC presentence report of 3 June 2014 paints a prior unsteady youthful background in BG.  He had no prior conviction but his arresting officer asserted that he grew up in Kimbe, aligning himself with anti-social peer groups.  His unsociable attitude continued to be a concern to the police and his mother after he moved to Bialla.

23.	This adverse view of BG’s youthful life has support from his own admissions of drinking and being drunk at the time of the offence.  No one forced him to drink.  He and his friends voluntarily set out to drink before committing the offence.  Matters got worse for him when following his release on bail; he failed to comply with his bail undertaking to attend court.  His actions were clearly that of an adult person with a no-care attitude.  This also points to a likelihood of reoffending.  Hence, he is a threat to the community and to himself.

What is the Sentence to be imposed?

24.	The circumstances of this robbery, the conduct and personal circumstances of the offender and his youth have made the task and duty of this court to pass sentence, most difficult and daunting.  Hence, I have taken some time to think about the appropriate sentence that should not only punish him but one that should also benefit him.  From the options of sentencing under s. 19 of the Criminal Code, I have decided to impose a sentence based on the needs of BG as an individual offender.

25.	I am dealing with a youthful offender whose anti-social behaviour I think is partly due to his unstable family upbringing. According to the PSR, BG lives on an oil palm block in Bialla with one parent only, his mother.  The mother seems to have little or lost control over him.  In her anguish, she wanted to see him go to jail to teach him a lesson.  His father lives away from the family, working in Port Moresby.  He too appears to have no concern for his erring behaviour.  The result of parental neglect is a child with the propensity towards criminal activities.  Both parents should answer for that. The unstable upbringing is however, a factor that is relevant for sentencing.

26.	It is common sense that one does punish a juvenile for his unstable upbringing. Young offenders who find themselves on the wrong side of the law because of their unfortunate background needed corrective measures that are helpful, useful, and not destructive. The challenge in sentencing a young offender has always been the risk of making him or her come out of prison worst off than when he or she first went in.

27.	I bear in mind, that the opportunity for rehabilitation and reformation may not be present at an adult prison institution.  On the other hand, sentencing him to an adult prison may do him more harm than good.  

28.	I propose to attempt a sentence that should influence his future conduct. The sentence must reflect the circumstances of his offence and his personal circumstances as a youthful first time offender and his plea.  He was 13-year-old at the time of the offence.  He had an unstable childhood and lacking the maturity of an adult at the time of the offence.  According to the pre-sentence reports, others easily led him and he succumbed under peer group pressure.

29.	The young age of the offender is a factor that the Court can use to justify an individualised measure to submit him to proper rehabilitation options. This has support in his admissions in the Record of Interview.  His confession at the outset supports an honest plea and demonstrates genuine remorse.

30.	The court is bound Court to use these factors to impose a sentence that is intended to influence a young offender’s future behaviour. Punishment by containment orders to a juvenile institution is in my view, a viable and appropriate option.  This, I hope, will give BG a greater sense of purpose and the opportunity to correct and improve his personality and character.  It will provide him the occasion to redeem his past and embrace personal reform through structured rehabilitation programmes.

31.	Balancing all the facts for and against the offender, a term of four years imprisonment is in my view justified.

32.	BG, I sentence you to four years imprisonment at a juvenile institution at Erap Boys Town in Lae or at any other recognised juvenile institution  commonly used by the court to commit juvenile offenders to.

33.	The orders of the Court are that;  

(i)	You sentenced to four years imprisonment IHL.

(ii)	You shall serve your imprisonment term at a juvenile institution namely, Erap Boys Town Juvenile Centre at Lae, Morobe Province.

(iii)	The Correctional Service Commissioner through the Superintendent Commander of Lakiamata Correctional Institute Gaol at Kimbe, West New Britain Province shall facilitate and meet the cost of the immediate transfer of BG to Erap Boys Town Juvenile Centre at Lae, Morobe Province or to any other juvenile institute available to accommodate BG under these orders.   

____________________________________________________________
Public Prosecutor:   Lawyer for the State
Public Solicitor:      Lawyer for the Accused