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National Court of Papua New Guinea |
PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]
CR No. 159 OF 2018
THE STATE
V
NELSON AMBIA
Lae: Numapo AJ
2018: 12th, 16th July & 17th, 27st August & 22nd 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) The maximum penalty for aggravated armed robbery of a worst type is, subject to s. 19, death under the new Criminal Code (Amendment) No.6) of 2013.
(ii) A person or persons armed with dangerous weapons and in company of others when committing the robbery makes it an aggravated armed robbery.
(iii) Sentencing tariffs for armed robbery developed over the years by the Courts through relevant case laws such as the ‘Gimble Guidelines’ provides a useful guide.
(iv) The appropriate sentence will be determined from factual circumstances of the case being; the aggravating and mitigating factors and the extenuating circumstances.
(v) Prisoner sentenced to six (6) years in hard labour.
(vi) No suspended sentence.
Cases cited:
Goli Golu v The State [1979] PNGLR 653
Gimble v The State [1988-89] PNGLR 271
Public Prosecutor v Don Hale (1998) SC 564
Tau Jim Anis and Others v The State (2000) SC 546
The State v Iori Veraga (2005) N2921
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.
State v Ishmael Kulau CR. No. 1384 of 2017
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 NELSON AMBIA of Tambunum village, Angoram, East Sepik Province pleaded Guilty and was convicted on one count of Armed Robbery contrary to Section 386 (1) (2) (a) (b) & (c) of the Criminal Code.
2. On the 26th of August 2017 in the early hours of the morning between 2am and 5am, the Prisoner and his accomplices were at Nine (9) Mile Hatchery owned by Niugini Table Birds, a Division of Mainland Holdings Limited in Lae. They were armed with homemade guns and held up the two (2) security guards, tied up their hands and legs and stole from them 2x computer screen and CPU hard drives valued at K4,000.00, 1x Telikom modem valued at K150.00, 1x Samsung mobile phone valued at K200.00, safety boots cost K155.00, sport shoe at K50.00 and 1x bicycle valued at K260.00. The costs of the stolen items totaled up to K7,235.00 belonging to Mainland Holdings Limited.
3. The maximum penalty for Aggravated Armed Robbery is death under s. 386 (2) of the new Criminal Code (Amendment No. 6) of 2013. A person or persons armed with dangerous weapons and in company of others when committing the robbery makes it an Aggravated Armed Robbery.
4. However, section 19 of the Criminal Code gives the Court a wider sentencing discretion to impose a lesser sentence in place of the prescribed maximum penalty. 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 for Armed Robbery developed over the years by the Courts through the relevant case laws also provides a useful guide.
6. In Gimble v The State [1988-1989] PNGLR 271, SC369 the following tariffs were set for armed robbery:
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 subsequent decisions of the Supreme Court to increase the sentence by an additional three (3) years is that given the high prevalence of armed robbery cases in recent times, an increase may serve as a deterrent factor. 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 current tariffs, the present case falls under category (c) and therefore, the starting point is eight (8) years.
10. Counsels cited some case precedence which I found very useful for purposes of consistency in sentencing. I list 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. 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
12. 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.
13. 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
14. 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.
They all pleaded guilty and were sentenced to 4 years imprisonment.
(4) State v Ishmael Kulau CR. No. 1384 of 2017
15. The prisoner pleaded guilty to one count of robbery of a shop at Eriku. He had a prior conviction of armed robbery. He was sentenced to 8 years imprisonment.
16. 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. All these have to be properly weighed up in deciding the appropriate sentence. See: The State v Iori Veraga (2005) N2921.
17. 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 prisoner was in company of others.
- (ii) They were armed with dangerous weapons namely, a homemade gun.
- (iii) Substantial amount of goods were stolen.
- (iv) Actual violence were perpetrated against the security guards during the robbery.
- (v) Prevalence of the offence.
(b) Mitigating factors
- (i) Prisoner pleaded guilty early.
- (ii) Made admissions at an earliest opportunity as shown in the Police Record of Interview (ROI).
- (iii) Prisoner is a first time offender.
18. In the present case, I find that the aggravating factors outweighs the mitigating factors. Actual violence was used when the prisoner and his accomplices tied up the hands and legs of security guards and stole from them. The victims suffered some injuries when they were tied up. The robbery took place in the early hours of the morning and there is nothing much the victims could do to protect themselves or the properties. It appears to me that the perpetrators may have planned this robbery for quite sometimes before they carried it out. It was a carefully planned and well executed robbery. The high prevalence of armed robbery cases in recent times demands a custodial sentence with no suspended sentence to be imposed to serve as a deterrence both to the prisoner himself and other would-be offenders.
19. I make the following Orders:
(i) I sentence the prisoner to Six (6) years imprisonment.
(ii) Pursuant to section 3 (2) of the Criminal Justice (Sentences) Act, I deduct One (1) year for the pre-trial custody period.
(iii) Prisoner is to serve the remaining balance of Five (5) years in hard labour.
(iv) None of his sentence will be suspended.
Orders Accordingly.
Public Prosecutor : Lawyer for the State
Public Solicitor : Lawyer for the Defence
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