N7824

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR. N0. 382 OF 2019

THE STATE

V

Z P
(Juvenile)

Kerevat:   Susame AJ
2019:  10, 23 & 24 April

CRIMINAL LAW – Sentence – Plea - Offence – Armed Robbery –S386(1)(2)(A)(B) Criminal Code – Prisoner 17 Years Of Age, A Juvenile – Sentencing Considerations In The Juvenile Justice Act 2014 Considered – Factors In Mitigation Outweigh Aggravating Factors- 4 Years Imprisonment – 4 Months One Day Discounted For Custody Period – Resultant Sentence Of 3 Years 7 Months 29 Days Wholly Suspended On 2 Years Probation With Conditions. 

Cases Cited

Acting Public Prosecutor v Uname Aumane [1980] PNGLR 510
Gimble v The State [1988-89] PNGLR 271	
Goli Golu v The State [1988-89] PNGLR 653
Philip Kassman v The State (2004) SC759
Public Prosecutor v Don Hale (1998) SC564 
Tau Jim Anis v The State (2000) SC642 
The State v RH CR N0. 14 0f 2017, unreported (dated 6 August 2018
The State v SMN CR N0. 674 0f 2017, unreported (dated 18 July 2018

Counsel

Mr G. Tugah, for the State
Ms J.M Ainui, for the Prisoner

DECISION ON SENTENCE

24 April, 2019

1.	SUSAME AJ: Prisoner pleaded guilty to a charge of armed robbery under section 386(1)(2)(a)(b) of the Criminal Code.  He was convicted on 10 April 2019 and is in court to receive his sentence. Prisoner is a juvenile and he will be referred to by the initials (Z P) of his name.

Facts

2.	These are the facts he was convicted on. On Wednesday 6th December 2017 at around 6:00am the prisoner and two of his other friends were at New Kavern Lasul within Gazelle District East New Britain Province (ENBP). They were armed with a grass knife and two home-made guns.  They approached Tony Stuart to get on his boat but he told them to pay for the boat fare and went back to his house.  After he left the prisoner and his two friends got into the boat and ordered the skipper to take off with the 4 bags of dry cocoa beans. They ordered the boat to go to Klin-wara at Mandress where they unloaded the cocoa bags and got K560.00 from the three passengers including the skipper. They also got a tablet phone worth K500.00. 

3.	Police apprehended the prisoner and his two other friends when they were trying to sell the four bags of cocoa. Police retrieved the cocoa bags, the phone and K20.00 from the prisoner. His other two friends escaped. 

Allocutus

4.	Prisoner had this to say. “It is true I committed the trouble. It was by force and influence of others. It was my first time. I realise that I will not live a good life and I won’t be successful in my dream. I ask the court to give me chance and place me on probation so I can continue my education and not commit crimes. Finally, I am a student doing grade 9 and would like to continue my education. I ask the court to have mercy on me. That’s all.”

Submissions

5.	Court has heard the submissions from lawyers. Court took note of the points that were raised. Ms, Ainui has also taken the court through the Pre-sentence report from probation officer. I have read the report and taken note of the information, views and recommendations in the report.  

Offence 

386. THE OFFENCE OF ROBBERY.
 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 the robbery, wounds or uses any other personal violence to any person,
he is liable to be sentenced to death. (Amendment N0.06 of 2013).	 

6.	Mandatory maximum penalty for aggravated armed robbery is death sentence. Courts have a wider discretion to impose a lesser penalty by exercising powers under s 19. (Acting Public Prosecutor v Uname Aumane [1980] PNGLR 510) The accepted sentencing practice is that maximum penalty should be reserved for the worst possible case normally encountered in practices. (Goli Golu v The State [1988-89] PNGLR 653). Counsels have correctly alluded to in their respective submissions. I agree. Maximum death penalty will not be considered. 

Sentencing Guidelines in Robbery Cases. 

7.	Courts are usually guided by criteria laid down by the Supreme Court in Gimble v The State [1988-89] PNGLR 271. The head sentence prescribed in that case were considered inappropriate due to increasing incidents of armed hold ups in recent times by Supreme Court in Public Prosecutor v Don Hale (1998) SC564 and Tau Jim Anis v The State (2000) SC642 and Philip Kassman v The State (2004) SC759 And recommended an increase in tariffs all four categories by a common denominator of 3.  

8.	Using the Gimble guidelines this case falls within category 3, robbery of a vehicle (sea vehicle) which attracts a head sentence of 5 years (but now increased to 8 years) which Counsels have conceded to that.

Comparable Judgments

9.	Counsels have referred the court to a few comparable cases. They are useful to guide the court but not binding on this court particularly so when sentencing juvenile offenders. Section 77(2) of the Juvenile Justice Act 2014 makes it clear courts are not bound by precedents when sentencing juveniles. 

10.	I will not make reference to authorities. I have taken note of the facts and the sentences that were imposed. It is not clear from the facts presented the courts were dealing with juvenile offenders. The law establishes the legal age of a juvenile to be under 18 years of age. An offender of 18 years of age and over cannot be considered a juvenile but a youthful offender. 
So it appears to me prisoners in the cited cases were young offenders other than juveniles.

11.	Courts cannot approach sentencing of juveniles in the same path as adult offenders. Only in exceptional cases like in a wilful murder case court can depart from the ordinary sentencing approach. In all other cases generally focus is on rehabilitation of juveniles. Counsels have reminded the court to be guided by the sentencing provisions of the Juvenile Justice Act 2014. (Sections 6 & ss75, 76, 77, 80 & 81 of Part V11).  

12.	The Juvenile Justice Act is a complete code of its own providing the processes and procedures on how to deal with juvenile delinquencies through the criminal justice system. The Act makes allowance for and encourages diversion in certain cases juveniles are involved for settlement away from the formal court system right at the first point of call at the police station. 

13.	I made similar observations in The State v SMN CR N0. 674 0f 2017, unreported (dated 18 July 2018) in sentencing the juvenile offender:

…sentencing of juveniles is to be governed by the Juvenile Justice Act 2014. The Act accords special considerations to juveniles because of their youth and vulnerability and that at all stages, the criminal justice system for juveniles must be separate from that of adults…..  
The offender will be sentenced in accordance with the spirit and objective of the Juvenile Justice Act as outlined in s 5 of the Act.” 

14.	Again, in The State v RH CR N0. 14 0f 2017, unreported (dated 6 August 2018) the same sentencing approach was taken. 

15.	This court will be guided by sentencing considerations under the Act in sentencing this juvenile.    

16.	Counsels are in agreement to most of the factors that weigh for and against the prisoner. I endorse them under the respective heads.

Mitigating Factors 

•	Prisoner pleaded guilty
•	Prisoner cooperated with police and made early admissions of guilt in the record of interview
•	He is a young juvenile offender except when he was convicted for escaping from custody while awaiting this case. 
•	The stolen properties which were in his possession have been recovered. Personally he never benefited from the properties and money stolen. 
•	Prisoner had expressed remorse and had apologised to one of the complainants. I consider he was truly sorry for what he had done. 
•	No one received physical injuries. 

Aggravating Factors.

•	Prisoner was in company of two others
•	Dangerous and weapons were used
•	Other people’s lives were put at risk
•	Offence is prevalent.
•	Sum of K250 stolen has not been recovered 

17.	It comes out clear factors in mitigation far outweigh those that are against the offender. 

18.	Mr Tugah representing the State (which is the people) has submitted robbery is a serious crime and warrants a punitive and fair penalty on offenders as there is a need for deterrence.  Robbery is a direct breach of rights guaranteed under the constitution. He asked the court to impose a penalty for personal and general deterrence. That said though counsel urged the court to impose a sentence more appropriate to promote rehabilitation of the juvenile back in society guided by the Juvenile Justice Act.  

19.	Ms Ainui representing the offender has submitted for 4 years imprisonment sentence and to be fully suspended. Taking into account offender played a minimal role. That by virtue of s 80 (1)(c) of the Juvenile Justice Act offender is placed on good behaviour bond with such conditions which offender will be required to enter into an agreement  and abide by under  supervision  and monitoring  of an adult mentor.  

20.	Counsels’ submissions are valid and have been considered.  

Court’s view

21.	Large percentage of armed holdups are usually committed by young male persons, around offender’s age group.  What the offender needs to know is holding up innocent people with use of threatened violence with dangerous weapons is not something mischievous. It is serious.  People’s lives are unnecessarily put at high risk and properties stolen. At times people robbed are left with serious physical injuries and some even loss their lives. 

22.	This court has a Constitutional duty to ensure that people’s lives and properties are protected from offenders like you. That any like-minded individual who care less of the safety and welfare of others in the community will expect stiffer penalties from the courts. The sentence to be imposed should serve as a deterrence to the prisoner personally and would be offenders in the community.

23.	I have read the pre-sentence report 

24.	Pre- sentence report is favourable to the offender.  I take particular note of the information and views expressed by persons that were interviewed. Except that complainants’ views were not captured in the report.   I have considered the recommendations of the Probation Officer who compiled the report. Offender committed the offence under peer pressure and influence being in company of escapees. Being young as he is it is very easy to be influenced under peer pressure in doing things against good parental advice and elderly advice. And kids end up regretting later why they decided to resort to such bad behaviour.  

25.	I am guided by the Gimble’s tariffs. The starting point would be 5 years.  In the exercise of my discretion and considering the mitigating factors which far outweighs the factors in aggravation the scale moves down a bit lower by a  year. 

26.	Offender is sentenced to 4 years imprisonment. Four months one day period in custody is to be deducted.

27.	The balance of the sentence of 3 years 7 months 29 days is wholly suspended upon offender being placed on probation for 2 years.

28.	Court further orders that offender will enter into an agreement with certain undertakings with the State which he will sign with the help of the Probation Officer who compiled the report. 

29.	Conditions court orders are as follows:

1.	Prisoner to remain at his parents’ residence.
2.	He shall report to the Probation Officer Nigel Amos within 24 hours.
3.	Prisoner is restrained from consumption of alcohol or other illicit drugs and substances.
4.	Prisoner to attend all church services
5.	Prisoner to refrain from associating with bad companions 

30.	It is recommended the copy of the sentence and is made available to the principle of the school prisoner attends, Jerry Binore Chairman of the Law and Order Committee. 
________________________________________________________________
Office of the Public Prosecutor:		Lawyer for the State
Office of the Public Solicitor:	Lawyer for the Prisoner