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State v Paimuru [2021] PGNC 237; N9101 (1 September 2021)

N9101

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR 1391 OF 2019

THE STATE

V

MARK PAIMURU

Waigani: Berrigan, J
2021: 5^th June, 9^th August and 1^st September

CRIMINAL LAW – SENTENCE – GUILTY PLEA – AGGRAVATED ROBBERY - S 386(1)(2)(a)(b) - Offender in company with others, and armed with firearms, robbed a vehicle at a busy market – sentence of 9 years imposed, less time spent in custody, and partial suspension having regard to disability, police brutality, and prospects for rehabilitation.

Cases Cited:

Tau Jim Anis and Others v The State (2002) SC564
Phillip Kassman v The State (2004) SC759
Ikalom v State (2019) SC1888
Kaya & Kuman v The State (2020) SC2026
Goli Golu v The State [1979] PNGLR 653
The State v Tardrew [1986] PNGLR 91
The State v Frank Kagai [1987] PNGLR 320
Gimble v The State [1988-89] PNGLR 271
Lawrence Simbe v The State [1994] PNGLR 38
The State v Paul Maima Yogol & Dama Teiyei (2004) N2583
State v Ago (2004) N2673
State v Mondol and 4 Ors (2004) N2707
The State v Kuromo & 3 Ors (2009) N3743
State v Jaip (2015) N6188
State v Hekoi (2016) N6413
The State v Bobby Andrew Don (2021) N8889

References Cited

Sections 19, 386(1)(2)(a)(b) of the Criminal Code (Ch. 262) (the Criminal Code)

Counsel

Mr Dus, for the State
Mr Sumbuk, for the Offender

DECISION ON SENTENCE

1^st September, 2021

1. BERRIGAN J: The offender pleaded guilty to one count of aggravated robbery of a vehicle, whilst in the company of two others and armed with dangerous weapons, namely homemade pistols and a bush knife, contrary to s386(1)(2)(a)(b) of the Criminal Code, on the basis of the following facts which were admitted on arraignment and are supported by the depositions.
   
2. On the 12^th February 2019 at 3:30pm the complainant, Mr. Confu Xue, was sitting in his vehicle, a Toyota Harrier registration number BFB 711, parked at Koki Fish Market in Port Moresby. Whilst sitting there, he wound his window down to look at the produce from two of the market sellers.
   
3. The offender and his three accomplices, who were armed with homemade pistols and a bush knife, approached the vehicle and pointed the guns at the victim whilst he was seated in his car. The offender and his accomplices then hit the complainant with the bush knife on his back and took his mobile phone valued at K1, 600.00 and removed the car keys from the ignition. The victim managed to escape from the vehicle to the market area. The offender and his accomplices got into the vehicle and took possession of it. They tried to start the vehicle, but were apprehended by police officers who were called to the scene by the sellers.
   
4. I note here that it was not in dispute, and I found that the alleged facts, supported by the depositions, established that the act of stealing was complete upon the offender and his accomplices taking possession of the vehicle and attempting to start it. This constituted the requirement under s 365(3) of the Criminal Code which defines stealing and provides that the act of stealing is not complete until the person taking or converting the thing “actually moves it or otherwise actually deals with [the vehicle] by some physical act”. Stealing, of course, must be established to prove the offence or robbery: Ikalom v State (2019) SC1888 at [15] and [16].
   

Allocutus

5. On allocutus the offender said: Thank you to the Court. Thank you to my counsel and the State for their time and resources here in this Court. I would like to tell this Court at that time on that day I did commit that offence. I would like to say that time the policemen shot me together with my three accomplices. We lost one of us. I would like to apologise to this court for what I have done. I am a first time offender. Whilst in custody I am a changed man. I attend church services. Please have mercy on me and suspend my sentence because of what I did I sustained injury and now I realised that that life is not a good life because I nearly died from it. I apologise and with due respect I leave it to the court to make decision on that.
   

Sentencing Principles

6. The maximum penalty under s 386(1)(2)(a)(b) is death: see The State v Bobby Andrew Don (2021) N8889 at [4] to [11].
   
7. Having regard to Gimble v The State [1988-89] PNGLR 271, and the Supreme Court decisions in Tau Jim Anis and Others v The State (2002) SC564 and Phillip Kassman v The State (2004) SC759 the following may be regarded as appropriate starting points on sentence on a plea of not guilty by young first offenders carrying weapons and threatening violence for:
   
   1. robbery of a house, a starting point of ten years;
   2. robbery of a bank, a starting point of nine years;
   100. robbery of a store, hotel, club, vehicle on the road or the like, a starting point of eight years; and
   4. robbery of a person on the street, a starting point of six years.
      
8. Features of aggravation such as actual violence, a large amount stolen, or where the robber is in a position of trust towards the victim may justify a higher sentence; a plea of guilty may justify a lower sentence.
   
9. Through its 2013 amendment Parliament has clearly indicated that aggravated robbery is a very serious offence which must be met with strong punishment: see the discussion regarding amendment to s 383A of the Criminal Code in Kaya & Kuman v The State (2020) SC 2026 per Batari J at [3] to [5], and Berrigan J at [107]. The necessary corollary of the grave increase in the maximum penalty is that all sentences imposed under s 386(1)(2), regardless of whether or not in the worst category, should, in general terms, increase: Bobby Andrew Don (supra) at [16].
   
10. Defence counsel conceded that armed robbery was prevalent across the country. This particular offence involved the use of a dangerous weapon, in the company of others, and the victim was assaulted and injured. In mitigation this was the offender’s first conviction, he pleaded guilty, is a youthful offender (20 years old at the time), suffered a gunshot wound at the hands of police. He was influenced by his peers to commit the offence. Since being in prison he has changed his life and regularly attends church services. The offence fell into category c of Gimble, but that having regard to the mitigating factors a head sentence of six to eight years was appropriate^[1] but should be wholly or partially suspended.
    
11. Defence counsel relied upon the following cases in support of her submissions:
    
    1. State v Mondol and 4 Ors (2004) N2707, Lenalia J: The offenders pleaded guilty to a very serious aggravated robbery. They set up a road block and then held up a PMV carrying fourteen passengers on its way into Mendi, whilst armed with bushknives and home-made weapons, and in the company of even more men. All passengers were dragged to a quarry, some were stripped of their clothing and a total of almost K20,000 in cash together with wallets, shoes, and even clothing was taken. The driver was cut three times with a bush knife. A female victim also suffered bruises and wounds from a bush knife. They were sentenced to 12 years’ imprisonment, less time spent in custody;
       
    2. The State v Kuromo & 3 Ors (2009) N3743, Kirriwom J: four juveniles pleaded guilty. Whilst armed with three home-made guns and bush knives held up a PMV laden with passengers travelling from Lufa to Goroka. They stole from the driver and passengers whilst threatening them with their weapons and using violence, one wrist watch valued at K12, one mobile phone and K120 in cash. The prisoners were apprehended soon thereafter with the assistance of the village people and most, if not all of the stolen items were returned to the owners. In addition, monetary compensation was also paid on top of the items stolen as show of reconciliation between the community and the PMV operator concerned, and there was strong support for them from the community to be allowed to continue their education. The prisoners were young students, three of them aged 15 and the other 16. They were sentenced to four years of imprisonment, less time spent in custody, the balance was suspended on strict conditions including community service;
       
    100. State v Jaip (2015) N6188, Murray J: the offender pleaded guilty to two counts of the aggravated robbery of separate vehicles, occurring a few months apart. Following a media campaign the offender surrendered himself to police. The vehicles were not recovered. He was sentenced to eight years on each count, to be served cumulatively, but reduced due to the totality principle to a sentence of 14 years, less time spent in custody;
         
    4. State v Hekoi (2016) N6413, Toliken J: Guilty plea. Offender ran into his accomplices who asked him to join them, so he did. They held up a taxi and drove to a store at which they robbed phones, cigarettes, K200. He was drunk at the time and played a minimal role. He was caught at the scene and severely assaulted by the public and later police. He was sentenced to 5 and 2 years’ respectively, to be served concurrently, less time spent in custody.
       
12. The State agreed in mitigation that the offender had no prior convictions, cooperated with police, pleaded guilty, and expressed remorse. It acknowledged that he had been shot at the time of his apprehension. In aggravation it noted the use of threats and violence, the presence of offensive weapons, the value of the vehicle and the phone stolen, the presence of others, the damage caused to the vehicle. It also asked the court to take into account that the offence took place in a public setting in the market.
    
13. State counsel submitted that this case falls within category three of Gimble, but should attract a sentence of between 8 and 13 years because of its aggravating features.
    
14. It relies on the following cases:
    
    1. State v Ago (2004) N2673, Kandakasi J: Guilty plea. The prisoner and five others used two homemade and a factory made pistol to hold up three men on the road who were headed to buy coffee with a K9400 they had withdrawn from the bank. They threw the driver and his passengers from the vehicle, took control of it and drove away before later escaping on foot. The monies were never recovered. He was sentenced to 13 years’, less time spent in custody;
       
    2. The State v Paul Maima Yogol & Dama Teiyei (2004) N2583: Guilty plea. The prisoner with 10 other young men, armed with homemade guns and bush knives, executed a planned robbery by conducting an illegal roadblock at about 11:00pm. A vehicle loaded with passengers was heading for Goroka town from Vanimo village.
       The driver and his passengers were ordered out of the vehicle and forced to lie down whilst the gang checked all their string bags and pockets and stole whatever they could put their hands on. Two accomplices lifted the driver up and threw him at the back of the vehicle and stole his wallet and shoes. Total property stolen was about K1,300.00. They fled the scene. The next day the offender returned the properties when he was identified by the victims as part of the gang that robbed them. He was sentenced to 12 years’, less time spent in custody.
       

Consideration

15. It is well established that the maximum penalty is reserved for the most serious instances of the offence: Goli Golu v The State [1979] PNGLR 653. Whilst this case does not fall within that category, it remains very serious.
    
16. Having regard to Gimble, Tau Jim Anis and Kassman (supra), this case falls into category three and that the appropriate starting point is eight years. In my view, however, the penalties set out in Gimble, Tau Jim Anis and Kassman must be regarded as out of date not only because of the prevalence of aggravated robbery but having regard to the 2013 amendment.
    
17. Section 19 of the Criminal Code provides the Court with broad discretion on sentence. I remind myself when considering the guidelines and comparative cases that whilst they are relevant, every sentence must be determined according to its own facts and circumstances: Lawrence Simbe v The State [1994] PNGLR 38.
    
18. Having identified the starting point it is necessary to consider the aggravating and mitigating factors.
    
19. The offender is 24 years of age from Kiripo Village in Baimuru District, Gulf Province. He previously lived with his father and four siblings at Gerehu Stage 6. His mother died in 2011. He was educated to Grade 10 in 2013 and worked as a security guard. He is not married.
    
20. In mitigation this is the offender’s first offence. Whilst the offender was apprehended at the scene, I take into account that he co-operated with police and made early and full admissions. He was about 21 or 22 at the time of the offence and may properly be regarded as youthful.
    
21. The offender pleaded guilty at the National Court. I take that into account as reflecting his genuine remorse, as well as for the fact that it has saved the Court, State and its witnesses the time, inconvenience and trauma of reliving the offence during a trial.
    
22. The impact of the offence on the offender has been and will continue to live with him for rest of his life. I accept his statements, which are supported on the depositions, that he and his accomplices were shot by police and assaulted by the public upon their apprehension. I also accept that this happened despite the fact that the offender and his accomplices had their hands up and were trying to surrender as they were already under attack from rocks and stones thrown by the public.
    
23. The vehicle itself is riddled with bullets. The offender himself was shot in the right knee whilst seated in the vehicle and it is clear to me that he suffers a permanent disability. He requires a crutch and his mobilty is severely impeded. One of his accomplices, sitting beside him in the vehicle, was shot dead by police.
    
24. Any term of imprisonment will have a significant impact on the offender, who is still a young man.
    
25. A number of factors, however, make this case a very serious one. They outweigh the mitigating factors.
    
26. Firstly, whilst the fact that dangerous weapons were used and the offence was committed in company of others is to a large extent already reflected in the starting point I have identified, two home made pistols and a bush knife were used in the commission of the offence. Secondly, the offender acted in concert with three other men.
    
27. In addition the item stolen, a vehicle, was a thing of substantial value. Whilst the vehicle was recovered that is only because the offender was apprehended at the scene. Regrettably, the vehicle was extensively damaged by police bullets and the rocks and stone thrown by the public. A phone worth K1600 was also stolen. Two of the offender’s accomplices escaped. It is not known if the phone was recovered or not.
    
28. The fact that the offence took place in a busy market is also to my mind aggravating. It would have been a terrifying experience for the complainant and everyone at the market, men, women and children doing their shopping on a Tuesday afternoon. It is very fortunate that no innocent bystander was injured or killed that day.
    
29. The particular type of offence in this case is one often referred to as “car-jacking”. As I have said before, it is a term that many Papua New Guineans are all too well familiar with, and something they fear might happen, as it did in this case, when simply going about the ordinary business of going to the market.
    
30. The offence of aggravated robbery is prevalent, and the aggravated robbery of vehicles is particularly prevalent, and as this case demonstrates, becoming even more brazen. Drivers are acutely aware that “car jacking” can happen anywhere, at any time of the day or night, whether out on a highway or main road, when returning home at night, or dropping their children at school in the morning. How much more brazen can it get than a busy market in the middle of the day?
    
31. The complainant could not be contacted by Probation Services but his statement to police reflects the fear and helplessness he felt when the vehicle was surrounded, a gun was pointed at him and he was hit hard in the back. As a matter of common sense, I have no doubt that he carries the psychological scars of those events with him every day. I note from his statement to police that he was at the market with his wife to buy fish for her business. Whilst she was not in the vehicle at the time of the offence, she witnessed the events and again, I have no doubt that for both of them, shopping at a market is a difficult thing to this day.
    
32. The penalty imposed in this case must be strong enough to ensure both specific and general deterrence. The community has had enough.
    
33. Having regard to the general circumstances of the case, the personal circumstances of the offender, the aggravating and mitigating factors, the submissions of counsel, the guidelines contained in Gimble, Tau Jim Anis and Kassman, and comparative cases, I sentence the offender to 9 years of imprisonment.
    
34. The offender has been in custody since 12 February 2019. I exercise my discretion to deduct the time spent in custody to date.
    
35. The question remains whether any or all of the sentence should be suspended.
    
36. In The State v Tardrew [1986] PNGLR 91 the Supreme Court set out three broad, but not exhaustive, categories in which it may be appropriate to suspend a sentence, namely: where it will promote the general deterrence or rehabilitation of the offender; where it will promote the repayment or restitution of stolen money or goods; or where imprisonment would cause an excessive degree of suffering to the particular offender, for example because of bad physical or mental health. Suspension is not an act in leniency but a form of punishment that is to be served outside the prison system in the community interest to promote restitution or rehabilitation: The State v Tardrew [1986] PNGLR 91; The State v Frank Kagai [1987] PNGLR 320.
    
37. Probation Services regard the offender as suitable for probation. It is clear that he has a supportive father and family behind him. His father pleads for the court to release his son so that he can complete his education and built a better life. He undertakes to ensure that he stays away from poor influences. Probation Services was able to speak to a member of the community but no leaders as such. The person he spoke to, however, said that other than for this offence the offender had a good record in the community and did not regard him as a threat.
    
38. I am satisfied that he has demonstrated through his guilty plea at the National Court stage good prospects for rehabilitation. This is supported by statements to both Probation Services by the offender himself and a letter from his chaplain at Bomana, who says that he is an active member of the Pentecostal church at the prison and participates daily in morning and evening devotions, church attendance and clean up programs. Importantly, he has progressed very well in his rehabilitation program. It was clear from the materials and the statements on allocutus that the events of that day have changed his life profoundly.
    
39. In addition, whilst I do not consider that his disability would cause an excessive degree of suffering, I am sure that it makes his detention much more difficult. It is also necessary to reflect the Court’s condemnation of police action when the offender was trying to surrender.
    
40. In the circumstances, and having regard to his age, I am of the view that partial suspension of his sentence would promote his rehabilitation and reintegration into the community, and is warranted having regard to his disability. All of this, however, must be balanced against the serious nature of the offence and the need for deterrence. The offender is still young and his release will also give him a better opportunity of completing his education and remaking his life. But the Court cannot ignore the seriousness of this offence.
    
41. I note here that whilst having regard to the amended maximum under s 386(1) suspension under s 19(1)(d) of the Criminal Code may no longer be available, it remains available when ss 19(1)(aa) and (a) are read together with s 16(2)(a) of the Probation Act.
    
42. I make the following orders.
    

Orders

(1) The offender is sentenced to 9 years of imprisonment in light labour to be served at Bomana Correctional Institution.

(2) Time spent in pre-trial custody, namely 2 years, 6 months, 8 days is deducted from time to be served, leaving a balance of 7 years, 5 months, 12 days.

(3) Of that balance, 3 years is suspended on the following conditions required under s 17 of the Probation Act, such that the offender:

1. remain at the address specified in the pre-sentence report as his home address following his release until he is contacted by a probation officer, unless
   1. he has given to a probation officer reasonable notice of his intention to change the address and the reasons for the proposed change;
   2. where by virtue of the change of address, the probationer has moved to another declared area–he shall, within 48 hours of arrival, report to a probation officer in that area and advise that officer of the nature and place of his employment and of his new address in that area; and
      
2. report to a probation officer as and when he is required by the probation officer to do so;

100. keep the peace and be of good behaviour for the period of his probation;

4. shall, if applicable, give to a probation officer reasonable notice of his intention to change his employment and advise him of the nature and place of his proposed employment; and
5. allow a probation officer to enter his home during reasonable hours.
   

(4) Leaving a balance of 3 years, 5 months, 12 days to be served in custody.

Sentence accordingly.
_______________________________________________________________
Public Prosecutor: Lawyer for the State
Public Solicitor: Lawyer for the Accused

^[1] Counsel is reminded that it is appropriate to suggest a range not a specific term to the Court.