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State v Balilai [2018] PGNC 335; N7452 (13 September 2018)


N7452


PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]


CR 164 of 2018


THE STATE


V


ISAAC BALILAI


Lae: Kaumi AJ
2018: 24 May, 2, 3, 6 June, 24 July


CRIMINAL LAW – Criminal Code Act 1974, Part VI-Offences Relating to Property and Contracts-Division 1- Stealing and Similar offences, Subdivision D-Stealing With Violence: Extortion by Threats-Section 386 (1) (2) (a) (b) (Offence of Robbery) and Section 7-Sentence-Sentencing Guidelines-Plea of Guilt-Robbery of a shop during the daytime-Gang of robbers-Use of Firearms-Proper Starting Point–Sentences Imposed for Equivalent Offences-Head Sentence-Identification of Relevant Considerations-Mitigating and Aggravating Factors-Pre-Trial in Custody-Should All or Part of the Sentence be Suspended –Imperative that there must be a basis substantiated by evidence for any recommendation of suspension of a custodial term in a Pre-Sentence Report


CRIMINAL LAW- Sentence-Guilty Plea-Expression of Remorse–Prevalent Offence


The offender pleaded guilty of one count of armed and aggravated robbery.


Held:


[1] The discretion to suspend a part or whole of the starting sentence is a discretionary matter which must be exercised on terms and it must be supported by a pre-sentence report either from the community or where that is difficult to obtain, it must come from prison or the institution from where the escape took place and the arresting officer. Unless there is such material supporting a suspension of the starting minimum sentence, it cannot be reduced. Affirmed and followed The State v. Irox Winston (supra) and The Acting Public Prosecutor v. Don Hale (SC564). This principle was prescribed by the Courts with respect to the offence of escape but is equally applicable to other offences and armed robbery is no exception.


[2] I find that in this case that the recommendation for suspension of the sentence by the CBC office here in Lae is substantiated by evidence as per the PSR. The State v Benson [2006] PGNC 68 CR 447, 445 Cannings. J


Cases Cited:


Avia Aihi v The State (No.3) [1982] PNGLR 92
Gimble v The State [1988-1989] PNGLR 271
Goli Golu v The State [1979] PNGLR 653
Lawrence Simbe v The State [1994] PNGLR 38
Public Prosecutor v William Bruce Tardrew [1986] PNGLR 91
Philip Kassman v The State [2004] SC 759
Saperus Yalibakut v The State [2008] SC 890
State v Roy CR Nos. 508 and 509 of 2007
Tan Jim Anis and Others v The State [2000] SC 564
The Acting Public Prosecutor v Don Hale (27/08/98) SC 564
The State v Benson [2006] PGNC 68 CR 447, 445
The State v Billy Bimaru [2000] N2025 CR 1104
The State v Dickson Kauboi CR No. 495/2001
The State v Henry Feda; CR No. 1225 of 2016
The State v Irox Winston [2003] N2304
The State v John Carl Endekra and Ors [2007] N3185 PGNC 82
The State v Lesly Cletus Malo CR N0. 379
The State v Momaku Aube; CR No. 110 of 2009
Tom Longman Yaul v The State [2005] SC 803
Ure Hane v The State [1984] PNGLR 105


Legislation Cited:


Constitutionof Papua New Guinea
Criminal Code 1974
Criminal Justice (Sentencing) Act 1986


Counsel


Ms. Langrty, for the State
Mr. Tjipet, for the Offender


SENTENCE


13th September, 2018


  1. KAUMI AJ: This is a decision on sentence for a man who on the 24th May, 2018 pleaded guilty of one count of armed and aggravated robbery contrary to Section 386 (1) (2) (a) (b) and Section 7 (1) (a) of the Criminal Code Act Chapter 262.

ISSUE


  1. The relevant issue is what the appropriate sentence in this case.

AGREED BRIEF FACTS


  1. The brief facts giving rise to the charge are as follows:
  2. The State alleges that on the 17th day of August 2017, the accused, dressed in a grey coloured T-Shirt which had the PNG flag on it and black long jeans trousers, was on his way to school when he met one Neville Yawi who told him that he (Neville Yawi) and Keith wanted to rob Abel Home and Office. Neville Yawi also said that Keith has gone off to get a car to be used in the robbery. The accused thought he needed a laptop to do his homework so he consented to assisting Neville Yawi and Keith in robbing Abel Home and Office.
  3. Around 8am that morning the accused and Neville Yawi met up with their accomplices from Bumbu settlement and 3 mile and got on a white Ford Ranger double cab that came. They were armed with knives and guns - the accused sat in the open back tray and they drove to Abel Home and Office. When the vehicle stopped outside the shop, the accused and the others jumped down and ran into the shop. The accused went and stood at the door of the store; he kept watch over the security guards and also kept a look-out for the police. His accomplices robbed the store of electrical properties namely laptops, digital cameras, computer keyboard, computer mouse, tablet phones and external hard drives, portable boom-box speakers, flash drives, micro SD cards and head phones, all worth the sum of K95, 155.74. They went to Jawani swamp where they abandoned the vehicle and took the stolen properties into the swamp. They shared the properties of the store and the accused got a grey laptop for his part in the robbery.
  4. The State alleges that when the accused stole the electrical properties namely laptops, digital cameras, computer keyboard, computer mouse, tablet phones and external hard drives, portable boom-box speakers, flash drivers, micro SD cards and head phones, all worth the sum of K95, 155.74 he stole with actual violence from Johnson Kango the property of Able Computing (PNG) Limited trading as Abel Home and Office and at this time was armed with a home-made stapler pistol and was in company with other persons he contravened section 386(1)(2)(a)(b) of the Criminal Code Act.
  5. The State invokes section 7(1) (a) of the Criminal Code Act.

ANTECEDENT


  1. The Antecedent Report provided to the Court by the State on paragraph 9 states that he has no prior convictions.

ALLOCATUS


  1. When I administered allocatus to the offender i.e. allowing him the opportunity to say what matters he would like the court to take into account when contemplating what kind of punishment to give him, the following is a paraphrased summary of his response:

“I say I’m very sorry for what I did before God. I say sorry before the Court for breaking the law of this country, I say sorry to the Court staff for taking up their time in attending to my case. I say sorry for owner of the company and employees for what took place at the area of the company. I am a school student, and my, and my first to stand before the Court and I say I’m very sorry. I ask for the mercy of Court to consider me for Good Behaviour Bond or Probation. I am an only male child in the family, my mum passed away and I am very sorry for what I did. That’s all”.


OTHER MATTERS OF FACT


  1. The prisoner pleaded guilty and so I will give him the benefit of the doubt on mitigating matters raised in the committal depositions, the allocatus in submission that are not contested by the prosecution, Saperus Yalibakut v. The State (2008) SC890.

SUBMISSION BY DEFENCE COUNSEL


  1. The Counsel for the Offender, Mr.Tjipet highlighted matters that went to his mitigation; his lack of prior convictions, his co-operation with police by making early admissions in the ROI, his plea of guilt and his expression of remorse.
  2. He referred to cases that reflect the Supreme Court approach to the proper starting points; Gimble v The State [1988-1989] PNGLR 271, Don Hale v The State [1998] SC 564 , Tau Jim Anis and others v The State [2000] SC 564 and Philip Kassman v The State (2004) SC 759 and submitted that the current starting points are:
  3. That the current case is one involving robbery of a shop hence a starting point of 8 years is warranted in the circumstances.
  4. In mitigation he submitted the following that the offender is a first young offender, and that this is a 2018 matter however the prisoner has decided to plead guilty at the earliest saving the court time and expense if a trial were to be conducted, he cooperated well with police and made early admissions, even though guns were used they were never actually fired causing injuries to the victims and the prisoner is not in a position of trust to the victims, the offender stood as a watchman but then decided to go into the shop and get a laptop which he wanted to use for schooling, that laptop was however recovered by the police when the prisoner was apprehended.
  5. In aggravation he acknowledged the seriousness and prevalence of the offence that the offence was committed in company with others and they were armed with dangerous weapons, and substantial amount of monies and properties were robbed from the victims.
  6. He also invited the court to consider views expressed in the pre-sentence report which favored the prisoner.
  7. With respect to the sentencing trends he referred to two armed robbery cases it had recently dealt with and handed sentences accordingly. Firstly, in the matter of the State v Henry Feda; CR No. 1225 of 2016 (18 April 2018), this was a case where the offender pleaded guilty to armed robbery of a motel. The offender was sentenced to 6 years imprisonment, period in remand was deducted and part of the sentence was suspended by discretion of the court on conditions. In the other case of the State v Momaku Aube; CR No. 110 of 2009 (11 May 2018), the prisoner pleaded guilty to armed robbery of a shipping vessel. The prisoner was sentenced to 5 years imprisonment, period in remand was deducted. That these two (2) cases have in a way made the offenders realized that crime does not pay, spending time in remand awaiting finalization of their cases in overcrowding cells have made them learn the consequences of their actions and each of them have promised not to re-offend or get involved in committing crime. They realized they have been given a second chance to live a better life free from crime.
  8. He has referred to the aggravating and extenuating factors as well in the case.
  9. He submitted for a term of between 5 to 6 years is appropriate, period in remand to be deducted and further suspension as the court sees fit.

SUBMISSION BY THE STATE


  1. Ms. Langtry for the State highlighted that the circumstances of the offence called for an immediate custodial sentence especially for the fact that:
  2. She made reference to the sentencing precedents of Gimble v The State [1988-89] PNGLR 271 and Public Prosecutor v Don Hale (1998) SC564 and noted that the robbery of a shop had a starting point of eight years.
  3. Ms. Langtry also referred the court to the following precedents, Firstly, The State v Momaku Aube CR 110 of 2009 (11 May 2018). The prisoner pleaded guilty to robbing the captain of a ship called MV Coconut Trade at Finschaffen, Morobe Province in 2008. He was armed with a bush knife and acted as look-out while the principal offenders went into the ship, held up the victim and stole K70, 000 cash. The Court noted that the principal offender, Sete Sam was sentenced to 9 years imprisonment by Gabi J and sentenced the offender, Momaku Aube to 5 years imprisonment. Secondly, State v Bira N3633 of 26 May 2009. The offender pleaded guilty to aiding the principal perpetrators in an armed robbery. He provided a vehicle and acted as a watchman during the offence. The offender was sentenced to 5 years imprisonment. Thirdly, State v Saku N4355 of 11 August 2011. This case involved 4 men who pleaded guilty to their involvement in an armed robbery of a home office at a plantation in a rural area. The watchman in this case was sentenced to 7 years imprisonment. Fourthly, State v Kevin N3191 of 21 March 2007 the offenders joined up with a number of other persons, armed with home-made guns and bush knives and entered the premises of Hamamas Trading at Mamota. Both watchmen were sentenced to 4 years in prison.
  4. Ms. Langtry submitted that the penalty for this offence suggests that offence of armed robbery is a very serious crime against society and submitted that a term of imprisonment between 5 and 8 years was appropriate to personally deter the offender and other like-mined members of the public intent on committing similar offences.
  5. Lastly, she submitted that the Pre-Sentence Report is favourable to the offender. It suggests that he can be satisfactorily supervised if given a suspended sentence. A suspended sentence is open to the court but only in part, as a wholly suspended sentence would not adequately reflect the gravity of the offence. Time in prison would serve as a personal deterrence. The offender was in school at the time of the offence and so needs to complete his education. Whilst on good behaviour bond he can complete his studies and find regular employment.

DECISION MAKING PROCESS


  1. In arriving at a penalty that befits the offence for which the prisoner has pleaded guilty to, I apply the following parts of the process:

STEP 2: WHAT IS THE STARTING POINT?


  1. In The State v John Carl Endekra and others (2007) N3185 PGNC 82 (21 March 2007) Cannings. J after considering what the Supreme Court in the cases of Gimble (supra), Hale (supra) and Anis (supra) had said with respect to sentencing tariffs applicable in Armed Robbery cases, stated that the appropriate starting points in like cases nowadays should be:
  2. The proper starting point in this case is eight years.

STEP 3: WHAT SENTENCE HAD BEEN IMPOSED FOR EQUIVALENT OFFENCES?


  1. I will now consider the sentencing trends in recent history.

NATIONAL COURT SENTENCES FOR ARMED AND AGGRAVATED ROBBERY OF HOMES


(a) The State v Henry Feda; CR No. 1225 of 2016 (18/04/18). The prisoner pleaded guilty to armed robbery of a motel and was sentenced to 6 years imprisonment. The period in remand was deducted and part of the sentence suspended conditionally.
(b) State v Roy CR Numbers 508 and 509 of 2007. The two offenders pleaded guilty to robbing a store manager and his wife. Each offender was sentenced to 8 years imprisonment.
(c) State v Momaku Aube; CR No. 110 of 2009 (11/05/18). The prisoner pleaded guilty to the armed robbery of a shipping vessel. He was the watchman. He was sentenced to 5 year imprisonment and the period in remand was deducted.
(d) The State v Dickson Kauboi CR No 495/2001. The offender pleaded guilty to robbing a business called Commodore Bay Company. The offence was committed while in the company of three other persons. He was sentenced to 8 years imprisonment.
(e) The State v Lesley Cletus Malo CR No 379 of 2005. The offender pleaded guilty to being in company with other persons when they robbed the Spirit of WNB. He was sentenced to 8 years imprisonment.
  1. I note from the cases above that the starting point is 8 years and generally the head sentence is 5 years on a plea of guilty and suspension of these periods have depended on the peculiar circumstances of the matter. I note where the circumstances dictated and also upon conviction after trial the head sentence increased over the starting point.

STEP 4: WHAT IS THE HEAD SENTENCE?


  1. In order to arrive at a head sentence I have to consider the particular circumstances in which the prisoner has committed the offence and the result of which will come the factors in his aggravation as well as those in his mitigation.
  2. Both mitigation and aggravating factors may be mild or strong and weighed accordingly. The State v Raka Benson (2006) CR 447 and 445.

MITIGATING FACTORS


  1. The offender or the prisoner in this matter is a young offender and a student. He cooperated early with police investigators in this matter by making admissions in the matter. He also made an early plea of guilt and I make particular mention of this because his matter is a 2018 matter. It is not as if it was a matter from last year or 2016 for that matter. I note that guns were used but none of the guns were fired. I also note that the prisoner was not in position of trust to the victims. I further note that the prisoner played a passive role of watchman but at the last minute decided to run in and grab a laptop for schooling. That laptop was later recovered by police when the prisoner was caught.

AGGRAVATING FACTORS


  1. There are a number of aggravating features of this matter, armed robbery is a prevalent offence, dangerous weapons were involved, the offender was armed with a home-made staple gun, he was in the company of other persons, items of considerable value were stolen, most of the stolen items were not recovered and there was pre-planning involved. There was actually a get-away vehicle that was obtained and used and this allowed this prisoner and his accomplices a clearly getaway from the scene of the robbery.
  2. The head sentence is arrived at not by way of rocket science on one hand or guess work on the other but rather by due consideration by the court of all the factors or circumstances prevailing at the time the offence was committed. In the instant matter the court notes that the mitigating factors and the factors in his aggravation balance out. There are six mitigating factors and six aggravating factors however I note particularly that there are some mitigating factors that are of significance. Firstly, is that he is a youthful first offender and a student who cooperated early with the police. When an offender cooperates with police in the investigations after an offence has been committed it assists law enforcers greatly.
  3. I also note as well of particular significance the fact that he pleaded guilty early. He was committed this year (2018) by the District Court to stand trial in the National Court and rather than wait for his matter to be dealt next year or sometime down the line he has chosen to plead guilty which is consistent which his approach to the matter. He cooperated with police right up through the committal process and his trend of cooperation has continued until today where he has come to this court and pleaded guilty. I also note that he played a passive role as being a watch man in the matter. So I have to consider the factors in his aggravation and those that I have referred to in his mitigation when considering what kind of a head sentence would be appropriate.
  4. When I consider all of these factors put together, a head sentence of 5 years is appropriate in this matter.

STEP 5: SHOULD THE PRE-SENTENCE PERIOD IN CUSTODY BE DEDUCTED?


  1. Section 3 (2) of the Criminal Justice (Sentences) Act 1986 provides that:

There may be deducted from the length or any term of imprisonment imposed of any court any period before the sentence was imposed during which the offender was in custody in connection with the offence for which the sentence was imposed.


  1. This provision allows the court discretion to decide whether or not to deduct the period an offender has spent in custody in remand awaiting trial. It is not an automatic right of the offender to have this period deducted.
  2. I note that he has been in pre-trial custody for 10 months and during this 10 months there have been escapes but he has not attempted to escape and in my view this is consistent with his initial approach in cooperating early with police.
  3. His pre-trial period of 10 months is to be deducted.

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


  1. Suspension of sentence is primarily the discretion of the Court and is stipulated under Section 19(6) of the Criminal Code that after a court has sentenced an offender to a term of years, it may order a portion of the sentence to be served and the remaining sentence to be suspended. The Supreme Court in the case of Public Prosecutor v William Bruce Tardrew [1986] PNGLR 91 when considering suspension of sentence held that suspension was appropriate in three categories:
  2. Cannings, J in State v Raka Benson (supra) held that there must be a basis substantiated by evidence for any recommendation of suspension of a custodial term.
  3. People who commit robbery must know that if they are found guilty after their case is being proven beyond reasonable doubt they will serve time. No one walks out the door scot free after they have been found guilty for armed robbery. However sentences may be suspended wholly or partially in appropriate circumstances.
  4. The PSR is favourable to the offender because I find that the aggregate results of the inputs are for a suspension of sentence.
  5. I find that in this case that recommendation for suspension of the sentence by the CBC office here in Lae is substantiated by evidence as per the PSR.
  6. I have considered the aforementioned factors and decided in the present case to suspend only a part of the sentence as if I was to suspend the entire sentence that would not in my view serve the purposes of personal and general deterrence and would be a disservice to society.
  7. In this instance I have considered a partial suspension of 2 years 2 months conditionally and that leaves a sentence of 2 years. That suspension of the 2 years 2 months is conditional.
  8. I suspend two (2) years two (2) months of the sentence subject to the following conditions:

SENTENCE


  1. The orders of the Court are as follows:

Sentence accordingly.


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


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