N7534

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR Nos. 297 - 300 OF 2018

THE STATE

V

ISAAC TAU
STANLEY TAU
RICHARD PAUL
PETER ANTON

Lae:	Numapo AJ
2018:	03rd 09th, 24th July; 03rd August & 22nd Oct.

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)	Sentencing tariffs for armed robbery such as the ‘Gimble Guidelines’ developed by the Courts through relevant case laws provides a useful guide. 

(ii)	Sentence imposed by the Court must reflect the purposes of sentencing such as deterrence, rehabilitation, restitution and retribution. 

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

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

(v)	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. 

(vi)	Offenders sentenced to 3 years less the pre-trial custody period with the remaining balance of their term to be wholly suspended with conditions.

Cases Cited:

Goli Golu v The State [1979] PNGLR 653 
Gimble v The State [1988-1989] PNGLR 271, SC369 
Public Prosecutor v Don Hale (1998) SC 564 
The State v Iori Veraga (2005) N2921.   
The Acting Public Prosecutor v Aumane & Others [1980] PNGLR 501.
Tau Jim Anis and Others v The State (2000) SC 546 
The State v Vincent Malara [2002] PNGC 135; N2188 
State v Benedict [2014] PGNC 106; N5645
State v Amon John Kintau & Augustine Felix CR. Nos. 617 & 618 of 2012
State v Keith Larry & Ors CR. No. 336 – 338 of 2018 N7432

Counsel:

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

SENTENCE
22nd October, 2018

1.	NUMAPO AJ: This is a decision on sentence.  The accused persons ISAAC TAU, STANLEY TAU, RICHARD PAUL and PETER ANTON each and severally pleaded guilty to one count of Armed Robbery contrary to Section 386 (1) (2) (a) (b) of the Criminal Code and were convicted accordingly. 

A.	BRIEF FACTS

2.	The facts to which the prisoners pleaded guilty to were that; On the 13th of October 2017 between 2-3pm in the afternoon, the prisoners were at Baiyune Market bus stop in Bulolo.  They were consuming homebrew near the victim’s market stall and one of the accused Richard Paul got two (2) cooked sausages from the complainant without paying and an argument started. 

3.	The prisoners armed themselves with a small kitchen knife, a stone and a piece of firewood, set upon the victim and assaulted him.  They stole from the victim, Manu Timothy the following items; 1 x Samsung Galaxy phone valued at K500.00, 1 x waist bag, 8 GB flash drive and K60.00 in cash, all totaling to K800.00 the properties of the victim. The victim also suffered some injuries from the attack.   

B.	APPROPRIATE SENTENCE

4.	It is often difficult to state with certainty the appropriate sentence that would fit the crime.  Every case is determined by its own set of peculiar facts and circumstances being the aggravating and mitigating factors and the extenuating circumstances.  

The prevalence of the particular offence is also a consideration that is taken into account.  All these have to be properly weighed up in deciding the appropriate sentence. See: The State v Iori Veraga (2005) N2921.  

5.	The common law principles on sentencing provide a useful guide on sentencing particularly, that the sentence imposed is aimed at achieving certain outcomes such as deterrence, rehabilitation, restitution and retribution.  The Courts have, over the years, being guided by these principles in imposing sentences that are aimed at achieving those specific outcomes.  These principles are well adopted in this jurisdiction. See: The Acting Public Prosecutor v Aumane & Others [1980] PNGLR 501.   

6.	The offence of Aggravated Armed Robbery carries the maximum penalty of death under the new Criminal Code (Amendment No. 6) of 2013.  The Court however, has the discretion to decide in each given case what might be the appropriate sentence without having to impose the maximum penalty which is usually reserved for worst type offence.  The Court’s discretionary power on sentencing is founded in both the substantive law and case laws.  Firstly, the Court has a wider sentencing discretion under section 19 of the Criminal Code to impose a lesser sentence than the prescribed maximum sentence.  Secondly, 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 offence.  This is now a trite law in our jurisdiction and applies to all offences.  And thirdly, sentencing tariffs for armed robbery developed over the years by the Courts through the relevant case laws such as the ‘Gimble Guidelines’ provides a useful guide to assist the Court in deciding the appropriate sentence between the lower end and the upper end of the sentencing scale.  I refer to them below.

C.	 SENTENCING GUIDELINES

7.	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.

8.	The sentencing tariffs were further increased by an additional three (3) years by the Supreme Court in the subsequent case of Public Prosecutor v Don Hale (1998) SC564.  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 ten (10) years imposed for robbery of a factory.  The Supreme Court noted that the ‘Gimble Guidelines’ (supra) was still good law.

9.	The rationale behind the two (2) 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 three (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.

10.	In The State v Vincent Malara [2002] PNGC 135; N2188, Kandakasi J in sentencing an offender to fifteen (15) years in hard labour made the following remarks regarding the high prevalence of armed robbery cases: 

“…this in my view, calls for the Courts to be prepared to depart from the traditional methods of sentencing with a view to substantially increasing sentences to send a stronger message from the Courts to offenders that they now stand the risk of much higher or severe sentences…”
 
11.	Applying the new tariffs, the present case falls under the third category and therefore, the starting point is eight (8) years. 

D.	PRESENT CASE

12.	The facts showed that this was not a planned robbery.  There was no hold-up or threats involved. The robbery occurred following an argument over a non-payment of some sausages that one of the prisoners got from the victim without paying for it.  A fight broke out between the complainant and the prisoners and they stole from him.  In my view, this is a robbery likened to a stealing.  There was no actual violence or threats of violence committed on the victim.  The victim was injured as a result of a fight that took place between him and the prisoners.
13.	Mr Done for the State submitted that the Court should impose a sentence ranging between 6 – 8 years to send a clear message that those engaged in such activities will be severely punished.  Ms Katurowe for the Defence on the other hand, urged the Court to take a rehabilitative approach and consider a suspended sentence for the prisoners as they were young first time offenders.  Prisoners Isaac Tau and Stanley Tau completed their grade ten (10) education.  Isaac Tau was supposed to do grade eleven (11) at Grace Memorial High School in Wau this year but because of this incident he was not able to continue.  Both were raised by their father alone as their mother passed away when they were infants.  Prisoner Peter Anton was doing grade seven (7) at the time of the offence.  He should have been in grade eight (8) this year.  Prisoner Richard Paul was doing his grade nine (9) and should be in grade ten (10) this year.  They now suffered the consequences of their actions and they realized that. They regretted it very much as this has destroyed not only their education but also their future as well. They were very remorseful and are willing to compensate the victim. On the part of the complainant, except for some minor superficial injuries he sustained as a result of the fight, all his stolen properties were recovered and given back to him by the police on the same day. 

E.	AGGRAVATING CIRCUMSTANCES & MITIGATING FACTORS

(i)	Aggravating Circumstances

(a)	  Prevalence of the offence.
(b)	  Offensive weapon namely a knife was used.

(ii)	Mitigating Factors

(a)	  Offenders pleaded guilty early.
(b)	  All are first time young offenders.
(c)	  Offenders are students currently attending school.
(d)	  They expressed remorse.
(e)	The stolen properties were recovered by the police on the same day   immediately after the robbery.

F.	COMPARABLE CASE LAWS

14.	A number of comparable case laws were cited by the Counsels to assist the Court in deciding the appropriate sentence to impose.  I consider them useful and refer to some of them below:

1.	State v Benedict [2014] PGNC 106; N5645

15.	The offender in that case pleaded guilty to one count of Armed Robbery in that he held up a company employee and stole cheques and cash valued at K35, 436.16. He was sentenced to 5 years.  None of his sentence was suspended.
2.	State v Amon John Kintau & Augustine Felix CR. Nos. 617 & 618 of 2012

16.	The offenders aged between 17 and 20 years respectively pleaded guilty to robbing from another person K15,300.00 in cash.  At the time they were in company of others and armed with dangerous weapons namely, knives.  The offenders paid K7, 582.00 as compensation to the victim and his relatives.  They were sentenced to 5 years which was wholly suspended.
 
3.	State v Keith Larry & Ors CR. No. 336 – 338 of 2018 N7432

17.	The offenders held up the Able Computing shop in Lae and stole 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.  They later escaped in the getaway vehicle.  They were armed with bush knives, kitchen knives and homemade shotguns at the time of the robbery.  They were sentenced to 5 years which was partially suspended and placed on good behaviour bond with strict conditions.  The Court took into account the fact that the offenders were young and first time offenders and some were students attending school at the time the offence was committed.

G.	FACTORS FOR CONSIDERATION IN SENTENCING

18.	I take into account the following factors in considering the appropriate sentence:

(i)	Prisoners are young and first time offenders.  They have no prior convictions.  They are students but since their arrest they have not been attending school.

(ii)	Family members of the prisoners and community leaders in their Pre-Sentence Report (PSR) urged the Court to consider giving the young offenders another chance and impose a non-custodial sentences. 

(iii)	The Probation Officer compiling the PSR 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. 

19.	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.

20.	I consider categories (i) and (ii) of Tardrew (supra) applicable to the present case. 

21.	And I say this for the following reasons:

Firstly, the prisoners expressed genuine remorse and regretted their actions.  I observed their demeanour in Court and am satisfied that they are genuinely sorry for what they did. 
Secondly, most of the properties stolen have been recovered by the police on the same day and were given back to the owner.  The complainant has not suffered any serious injuries or psychological trauma as a result of this robbery. The prisoners also indicated their willingness to pay compensation to the victim if ordered by the Court. 

Thirdly, they are all young and first time offenders and the focus should be more on rehabilitating them rather than incarceration.  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 that in itself is sufficient punishment.

22.	As I said in State v Keith Larry & Ors (supra) that there is always the risk of young offenders turning into hardened criminals if they are locked up with the other seasoned criminals.  They will be open to all kinds of bad influences.  The Court must balance the interests of the offenders versus that of the society.  And I asked the question; ‘Is it in the interest of the society that its young people should be incarcerated for a long period of time’? I don’t think so. ‘Would these young offenders want to do their growing up in prison’? I don’t think so either.  

23.	People often learn from their mistakes and sometimes learned it in a hard way and want a second chance to become better persons. And they deserved a second chance. The society also wants to see that. And it is for this reason that I want to accord these young offenders that second chance to change for the better and become good law abiding citizens of our country and I do not think that by sending them to prison would achieve that. I always hold the view that young offenders should be given the opportunity to become good members of the community and it follows therefore, that any penalty imposed by the Court must be one that promotes reformation and rehabilitation.  The Court, in appropriate circumstances, must decide if custodial or non-custodial sentence would best achieve the intended outcome.  In the present case non-custodial sentence, in my view, is the most appropriate form of punishment based on the considerations I alluded to above. 

H.	SENTENCE

24.	I make the following orders:

(i)	I sentence the Prisoners each and severally to Three (3) years imprisonment with hard labour.

(ii)	I order that Ten (10) months to be deducted for their pre-trial custody period.

(iii)	 I further order that the remaining balance of their term of Two (2) years and Two (2) months to be wholly suspended.

(iv)	I further order that the prisoners are to enter into their own recognizance and be of good behaviour bond for a period of One (1) year with strict conditions.

Orders Accordingly
__________________________________________________________________
Public Prosecutor	:	Lawyer for the State
Public Solicitor	:	Lawyer for the Defence