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State v Larry [2018] PGNC 352; N7432 (21 August 2018)

N7432

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR (FC) No. 336, 337 & 338 OF 2018

THE STATE

V
KEITH LARRY
NEVILLE YAWI
BONNY MICHAEL

Lae: Numapo AJ
2018: 02^nd, 12^th, 16^th July & 03^rd, 17^th & 21^st August.

CRIMINAL LAW – Particular Offence – Armed Robbery – Armed with Dangerous Weapons and In Company of Others – Aggravating and Mitigating factors – Extenuating circumstances - Sentencing Tariffs – Maximum penalty – Sentencing Discretion - Sections 386 & 19 of Criminal Code.

Held:

(i) A person or persons armed with dangerous weapons and in the company of others when committing a robbery makes it an aggravated armed robbery.

(ii) Sentencing tariffs for armed robbery developed over the years by the Courts through relevant case laws provides a useful guide.

(iii) The appropriate sentence will be determined from factual circumstances of the case being; the aggravating and mitigating factors and the extenuating circumstances.

(iv) Prisoners’ formal apology in writing to the victim and their expression of remorse and shame can be regarded as personal deterrence.

(v) Offenders’ young age is always a consideration that favours a lesser sentence including non-custodial sentence.

(vi) Young offenders should be given every opportunity to become good law abiding citizens of the country and it follows therefore, that any penalty imposed by the Court must be the one that promotes reformation and rehabilitation.

(vii) Prisoners sentenced to five (5) years imprisonment to be partially suspended and placed on a good behaviour bond with strict conditions under the supervision of the Probation Office.

Cases cited:

Gimble v The State [1988-89] PNGLR 271, SC369
Goli Golu v The State [1979] PNGLR 653
Public Prosecutor v Don Hale (1998) SC 564
Public Prosecutor v William Bruce Tardrew [1986] PNGLR 91
State v Dominic [2014] 286; N5823
State v Rat [2014] PGNC 230; N5783
State v Thomas Jeffrey Amos & Belden Thomas Bisket CR. No. 944 & 947 of 2015.
Tau Jim Anis and Others v The State (2000) SC 546
The State v Iori Veraga (2005) N2921

Counsel:

J. Done, for the State
S. Katurowe, for the Defence

SENTENCE

21^st August , 2018

1. NUMAPO AJ: This is a decision on sentence. The accused persons all pleaded guilty to one count of Armed Robbery contrary to Section 386 (1) (2) (a) (b) & (c) of the Criminal Code.
   
   1. FACTS
      
2. On the 17^th of August 2017 between 8am and 9am the accused persons were at Able Computing shop at Laurabada Avenue, Lae. They planned to commit armed robbery and drove to the said place in a vehicle, a Ford Ranger double cabin registration number BCI-598 which they had stolen earlier. They were armed with bush knives, kitchen knives and homemade shotguns. They pretended to be customers and entered the Able Computing shop.
   
3. They held up the security guards at gunpoint at the entrance to the shop and removed their walkie talkie radios and also assaulted them. They broke the display glass cabinet and stole from Jason Bacang electronic equipment namely; laptops, digital cameras, tablet mobile phones, portable boom box speakers, flash drives, computer keyboards, external hard drives, micro SD cards and head phones to the total value of K95,155.74 being the properties of Able Computing Limited.
   
4. They later escaped in the getaway vehicle. They were arrested and charged.
   
   2. CHARGE
      
5. The accuseds each and severally were charged under Section 386 (1) (2) (a), (b) & (c) of the Criminal Code Act Ch. No. 262. It reads:
   

Section 386

(1) A person who commits robbery is guilty of a crime.

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

(2) If a person charged with an offence against Subsection (1) –

• (a) Is armed with a dangerous or offensive weapon or instrument; or
  
• (b) Is in company with one or more other persons; or
  
• (c) At, immediately before or immediately after the time of robbery, wounds or uses any other personal violence to any person,
  

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

100. STATE’S CASE
     

6. The State’s case consisted mainly of documentary evidence comprising of the Record of Interview (ROI), Police and witnesses’ statements that were tendered to Court.
   
   4. MAXIMUM PENALTY
      
7. The maximum penalty for armed robbery is life imprisonment under section 386 (2) of the Criminal Code however, the provision has been repealed and now replaced with a death sentence as the maximum penalty under the new Criminal Code (Amendment No. 6) of 2013. Section 19 of the Criminal Code however, gives the Court a wider sentencing discretion to impose a lesser sentence in place of the prescribed maximum penalty. Furthermore, the Supreme Court in the famous case of Goli Golu v The State [1979] PNGLR 653 held that maximum penalty should be reserved only for worst type of offence. This has become a trite law and also applies to other offences as well.
   
   5. SENTENCING TARIFFS
      
8. Sentencing tariffs for armed robbery developed over the years by the Courts through the relevant case laws provides a useful guide.
   
9. In Gimble v The State [1988-1989] PNGLR 271, SC369 the following tariffs were set for armed robbery:
   
   1. On a plea of guilty by first time offenders carrying dangerous or offensive weapons and threatening violence for:
      
      • (a) Robbery of a house – a starting point of 7 years
        
      • (b) Robbery of a bank – a starting point of 6 years
        
      • (c) Robbery of a store, hotel, club, vehicle on the road or the like – starting point of 5 years
        
      • (d) Robbery of a person on the street – a starting point of 3 years.
        
   2. Features of aggravation such as actual violence, a large amount of money stolen or where the robber is in a position of trust towards the victim may justify a higher sentence.
      
   3. A plea of guilty may justify a lower sentence.
      
10. The sentencing tariffs were further increased by an additional 3 years by the Supreme Court in the subsequent case of Public Prosecutor v Don Hale (1998) SC 564. The increase was reaffirmed in a later case of Tau Jim Anis and Others v The State (2000) SC 546 when the Appellants appealed against a sentence of 10 years imposed for robbery of a factory.
    
11. The rationale behind the two subsequent decisions of the Supreme Court is that given the high incidences of armed robbery cases in recent times it was necessary to increase the sentence by another 3 years. The new tariffs were as follows:
    
    • (a) Robbery of a house – a starting point of 10 years.
      
    • (b) Robbery of a bank – a starting point of 9 years.
      
    • (c) Robbery of a store, hotel, club, vehicle on the road and like – starting point of 8 years.
      
12. Applying the new tariffs, the present case falls under the third category and therefore, the starting point is 8 years.
    
    6. COMPARABLE CASES
       
13. Counsels cited some case precedence which I found very useful for purposes of consistency in sentencing. I list some of them below:
    
    • (1) State v Dominic [2014] 286; N5823 (21 November 2014)
      
14. The offender pleaded guilty to one count of armed robbery. The offender and five of his accomplices held up a shop, Yuvi Trading in Lorengau, Manus and stole cash and store goods valued at K45,000.00.
    
15. The court held that 8 years was the starting point and set the head sentence at 7 years. The court deducted 4 years pre-trial custody period and a further one year for police brutality. The balance of 2 years was wholly suspended with conditions.
    
    • (2) State v Rat [2014] PGNC 230; N5783
      
16. The offender pleaded guilty to aggravated armed robbery of a shop. He stole cash and store goods worth K18,500.00 whilst in the company of others.
    

The head sentence was 4 years less 6 months pre-trial custody period. None of his sentence was suspended.

(3) State v Thomas Jeffrey Amos & Belden Thomas Bisket CR. No. 944 & 947 of 2015

17. The prisoners in the company of others were armed with dangerous weapons, held up one Elizabeth Kaminiel at Eriku Service Station in Lae and stole flex cards, top up cards valued at K13,575.00. They tried to escape in a getaway vehicle stolen earlier at Hunter Bus stop but the engine failed. They were apprehended by the public and the security guards.
    
18. They all pleaded guilty and were sentenced to 4 years imprisonment.
    
    7. WHAT SHOULD BE THE APPROPRIATE SENTENCE?
       
19. The appropriate sentence will be determined from the factual circumstances of the case being; the aggravating and mitigating factors and circumstances and the extenuating circumstances. In addition, considerations such as prevalence of the offence and the public’s perception about the particular offending are also taken into account. All these have to be properly weighed up in deciding the appropriate sentence. See: The State v Iori Veraga (2005) N2921.
    
20. In the present case the aggravating factors and circumstances, mitigating factors and the extenuating circumstances are as follows:
    
    • (a) Aggravating factors and circumstances
      
      • (i) The prisoners were armed with offensive and dangerous weapons namely, bush knives, kitchen knives and homemade shotguns.
        
      • (ii) The prisoners were in the company of other people.
        
      • (iii) Substantial amount of goods were stolen.
        
      • (iv) Actual violence were perpetrated against the employees of the Able Computing Limited in the course of the robbery; and
        
      • (v) Prevalence of the offence.
        
    • (b) Mitigating factors
      
      • (i) Prisoners pleaded guilty early thereby saving Court’s time and resources.
        
      • (ii) Prisoners admitted committing the offence during the Police initial investigations as reflected in their respective records of interview.
        
      • (iii) One of the accused persons, Keith Larry made a confessional statement.
        
      • (iv) Prisoners are all young and first time offenders.
        
      • (v) Prisoners did not benefit from the proceeds of the robbery. Many of the stolen items were retrieved by the Police.
        
      • (vi) They expressed remorse.
        
      • (vii) They apologized to the victim and asked for forgiveness.
        
    • (c) Extenuating circumstances
      
      • (i) The Prisoners wrote to Able Computing Limited and unreservedly apologized for robbing the company. They were ashamed and very remorseful. The letter of apology was acknowledged by the company.
        
      • (ii) A number of Church and Community leaders provided character references for each of the prisoners that includes; Reverend Gia Kilalema of the Lae United Church; Father Frank Misiwasi, Parish Priest - St, Martin’s De Porres Parish, Lae Diocese; Hon. Douglas McQuinne, Councillor of Ward Six (3) Lae LLG; Mr Peter Aiwa the Co-ordinator of PolyTech Study Centre, University of Technology, Lae and Mr Yelo Amu Head Teacher, Milford Haven Primary School.
        
      • (iii) Two of the prisoners are students.
        
    8. FACTORS FOR CONSIDERATION IN SENTENCING
       
21. In deciding the appropriate sentence, I take into account the following factors:
    
    • (i) Prisoners are young and first time offenders. They have no prior convictions. Two of them are students but since their arrest they have not been attending school.
      
    • (ii) The Prisoners took the initiative and wrote to the Manager of Able Computing Limited, Mr Jason Bacang (victim) and apologized for what they did. They were ashamed of their behaviour and were genuinely remorseful. They asked the victim and others who were affected by this crime to forgive them.
      
    • (iii) Church and Community leaders in their respective references and letters of support urged the Court to consider giving the young offenders another chance and impose a non-custodial sentences instead of a custodial sentence. The leaders undertook to provide counselling services to the offenders and supervise them if need be.
      
    • (iv) The Pre-Sentence Report prepared by the Probation Office also considered the offenders as suitable for probation and recommended that their sentences be partially suspended and they be placed on probation with strict conditions.
      
22. Section 19 (6) of the Criminal Code provides for suspended sentence that can be given at the discretion of the court. The grounds under which suspended sentence is given is also discussed in the Supreme Court case of Public Prosecutor v William Bruce Tardrew [1986] PNGLR 91. In that case the Supreme Court sets out three (3) broad categories on suspended sentence. The categories are not exhaustive and are as follows:
    
    • (i) Where suspension will promote personal deterrence, reformation or rehabilitation of the offender.
      
    • (ii) Where suspension will promote repayment or restitution of stolen money or goods; and
      
    • (iii) Where imprisonment would cause an excessive degree of suffering to

a particular offender, for example because of his bad physical or mental condition.

23. I consider category (i) of Tardrew (supra) applicable to the present case. And I say this for the following reasons:
    
24. Firstly, the prisoners wrote to the victim and sincerely apologized for their wrong doings and expressed genuine remorse. They told the Court in their allocutus that they were ashamed of what they did and promised that they would not commit any more offence in the future. I consider that as personal deterrence.
    
25. Secondly, they are all young and first time offenders and the focus should be on rehabilitating them. They deserved a second chance in life. They have already spent a considerable amount of time in custody since their arrest awaiting their trial and it has dawned on them that they have committed a serious crime and the prospect of been in prison for a very long time is very real. This in itself is very scary to them and the prisoners have come to realize that as they pleaded for leniency asking for non-custodial sentence in their respective allocutus. I observed their demeanour in Court and am satisfied that they are genuinely sorry for what they did. They want the Court to give them the opportunity to change to become better people.
    
26. Thirdly, there is this ever present risk of these young men turning into hardened criminals if they are in prison with other seasoned criminals. By mixing with the others they are susceptible to all kinds of influences and in the process would learn, as they say, the ‘skills of the trade’ in crime. The Court must balance the interests of the offenders versus that of the society. Would society wants its young people to spend most of their lives in prison? I don’t think so. Would the offenders want to go to prison for a long period of time? I do not think so.
    
27. I am of the view that young offenders should be given every opportunity to become good law abiding citizens of the country and it follows therefore, that any penalty imposed by the Court must be one that promotes reformation and rehabilitation. Therefore, the Court must, in appropriate circumstances, decide if custodial sentence or non-custodial sentence would best achieve the intended outcome.
    
28. In the present case, given the fact that dangerous weapons were used in committing the crime and the accused persons were in the company of others makes this an aggravated armed robbery and for this reason, I intend to impose part custodial and part non-custodial sentences to reflect the seriousness of the offence.
    
    1. SENTENCE
       
29. I make the following Orders:
    
    • (i) I sentenced the prisoners to Five (5) years imprisonment each.
      
    • (ii) Pursuant to section 3 (2) of the Criminal Justice (Sentences) Act, I deduct One (1) year for the pre-trial custody period from the head sentence of 5 years leaving a balance of four (4) years to be served in prison.
      
    • (iii) I further suspend Two (2) years from the total of four (4) years imprisonment period leaving a balance of Two (2) years to be served in prison.
      
    • (iv) The prisoners each and severally are to enter into their own recognizance to be of a good behaviour bond under the supervision of the Lae Probation Office with the following strict conditions:
      
      • (a) Not to consume illicit drugs, alcohol or spirits during the Probation period.
        
      • (b) Be of good behaviour bond during the Probation period.
        
      • (c) Report to the Lae Probation Office every first Monday of every month for the duration of the Probation.
        
      • (d) Probation office to submit a quarterly report on each of the prisoner to the Court.
        
      • (e) To report to Court if and when required.
        
30. In the event any of these Orders is breached or defaulted upon, the suspension orders will be lifted immediately and the prisoner be imprisoned to serve a full term of four (4) years.
    

Orders Accordingly.

Public Prosecutor : Lawyer for the State

Public Solicitor : Lawyer for the Defence