Home | Databases | WorldLII | Search | Feedback National Court of Papua New Guinea

State v Keith [2018] PGNC 428; N7531 (17 October 2018)

N7531

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR No. 785 OF 2015

THE STATE

V

ANKELMAN KEITH

Lae: Numapo AJ
2018: 26^th September & 17^th October

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 company of others when committing the 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) A suspended sentence pursuant to section 19 (6) of the Criminal Code is considered most appropriate to promote personal deterrence of the offender - Re: Bruce Tardrew.

(v) Sentence is wholly suspended with conditions.

Cases Cited:

Goli Golu –v- The State [1979] PNGLR 653
Gimble v The State [1988-1989] PNGLR 271
Public Prosecutor v William Bruce Tardrew [1986] PNGLR 91
Public Prosecutor v Don Hale (1998) SC 564
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
The State v Iori Veraga (2005) N2921.
Tau Jim Anis and Others v The State (2000) SC 564

Counsel:

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

SENTENCE

17^th October, 2018

1. NUMAPO AJ: This is a decision on sentence. The accused ANKELMAN KEITH of Siar village, Madang was found guilty and convicted after a trial on one count of Armed Robbery pursuant to section 386 (1) (2) (a) (b) of the Criminal Code.
   
   1. BACKGROUND
      
2. The facts upon which he was found guilty were that on the 02^nd of October 2014 between 7pm-8pm the accused and his friends were at NWTL Digicel and Fone Haus shop at Central Avenue, Top Town, in Lae. They were armed with a homemade shotgun and issuing threats of violence, held up the members of the public next to the store whilst his accomplices held up the Manager, Dominador Breis and his staff and stole the following items; a Lenovo Laptop valued at K2,000.00, a HPC iMG Phone that cost K1,800.00, P132 Philips Mobile Phone valued at K99.00, a Nokia Lumia phone at K499.00 and K600.00 cash money. The total value of the stolen goods stands at K7,689.00.
   
3. After committing the robbery, the accused and his accomplices escaped in a getaway vehicle, a double cabin Toyota Hilux green in colour. The accused was later apprehended by the police and charged.
   
   2. THE LAW
4. The maximum penalty for aggravated Armed Robbery is death. However, the Court has a wider sentencing discretion under section 19 of the Criminal Code to impose a lesser sentence than the prescribed maximum penalty. In addition, the Supreme Court in Goli Golu –v- The State [1979] PNGLR 653 held that the maximum penalty is reserved for the worst type offence. This has become a trite law and applied to all the offences. Sentencing guidelines developed by the Courts also provides some guidance as discussed below.
   
   100. SENTENCING GUIDELINES
        
5. Sentencing tariffs for Armed Robbery developed over the years by the Courts through the relevant case laws provides a useful guide.
   
6. 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 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.
      
7. 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) SC 564. The increase was reaffirmed in a later case of Tau Jim Anis and Others v The State (2000) SC 564 when the Appellants appealed against a sentence of ten (10) years imposed for robbery of a factory.
   
8. The rationale behind the two (2) subsequent decisions of the Supreme Court is that given the high prevalence of armed robbery cases, it has become necessary to increase the sentence by an additional three (3) years. The current tariffs are 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.
     
9. Applying the most recent tariffs, the present case falls under the third category and therefore, the starting point is eight (8) years.
   
   4. COMPARABLE CASES
      
10. Counsels cited some case precedence which I found very useful for purposes of parity and consistency in sentencing. I list some of them below:
    
    • (1) State v Dominic [2014] 286; N5823 (21 November 2014)
      
11. 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.
    
12. 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
      
13. 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.
    
14. 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
      
15. The prisoners in the company of others were armed with dangerous weapons, held up one Elizabeth Kaminiel at Eriku Service Station 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.
    
16. They all pleaded guilty and were sentenced to 4 years imprisonment.
    
    5. WHAT SHOULD BE THE APPROPRIATE SENTENCE?
       
17. The appropriate sentence will be determined from the factual circumstances of the case being; the aggravating and mitigating factors and circumstances, the extenuating circumstances including any other peculiar facts about the case itself. 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.
    
18. In the present case the aggravating factors and circumstances and mitigating factors are as follows:
    
    • (a) Aggravating factors and circumstances
      
      • (i) The prisoner was in the company of others.
        
      • (ii) They were armed with dangerous weapons namely, a homemade shotgun and busk knives.
        
      • (iii) Substantial amount of goods were stolen.
        
      • (iv) Actual violence was perpetrated against the employees of NWTL Digicel and Fone Haus Store in the course of the robbery.
        
      • (v) Prevalence of the offence.
        
    • (b) Mitigating factors
      
      • (i) Prisoner is a first time offender
        

6. FACTORS FOR CONSIDERATION BEFORE SENTENCING
   

19. I took into account the fact that the prisoner is a first time offender. He was in custody for two (2) years awaiting trial before he was granted bail. He has complied with his bail conditions and has been faithfully attending his court case whilst on bail. He was remanded again for sentencing after he was found guilty. His total pre-trial custody period is two (2) years, one (1) month and ten (10) days in custody.
    
20. 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 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.

21. I consider category (i) and (iii) of Tardrew (supra) applicable to the present case. And I say this for the following reasons:
    
    • (i) I consider that the time spent in custody on remand is already a sufficient punishment for the prisoner and this would serve as a personal deterrence.
      
    • (ii) I observed the prisoner’s demeanour in Court and positive attitude towards the offence and consider him to be a person with some potential to reform himself and become a good law abiding citizen and I want to give him that second chance.
      
    • (iii) I consider that if I send him to prison it could cause his health to suffer and I do not intend to do that.
      

7. SENTENCE
   

22. I make the following Orders:
    
    • (i) I sentence the prisoner to Five (5) Years imprisonment.
      
    • (ii) I further order that Two (2) Years and Two (2) Months to be suspended for his pre-trial custody period.
      
    • (iii) I further order the remaining term of Two (2) Years and Ten (10) Months of his prison term to be wholly suspended.
      
    • (iv) I further order that the Prisoner is to enter into his own recognizance and be of good behaviour and keep the peace for a period of One (1) Year with a surety fee of K500.00.
      

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