N9081

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR 665 OF 2020

BETWEEN
THE STATE

AND
LINDSAY GAWI

Wewak:  Rei, AJ
2021:  4th& 24th June

PRACTICE AND PROCEDURE – Criminal Law – Armed Robbery.  Section 386 of the Criminal Code Act - 8 years imprisonment with 2 years 10 months deducted for time spent in custody - Balance suspended with good behaviour bond to be under supervision.

Cases Cited:

The Public Prosecutor -v- Don Hale [1998] SC564
Avia Aihi -v- The State [1982] PNGLR 44 
Goli Golu -v- The State [1979] PNGLR 92
The State v Kukubu [2015] PGSC 19; SC1426 
The State -v- Enj [2015] PGNC 100 N5893 
The State -v- Leo (No.2) [2015] PGNC 190; N6096
The State -v- Patrick Puppy Kaikara Loavi [2006] N3384 
Dadly Henry Gorop -v- The State [2003] SC732
The State -v- Vincent Malara [2002] N2188
Gimble -v- The State [1988-89] PNGLR 27
The State -v- Edward Toude [2001] N2299
Nelson Ngassele -v- The State [2003] SC731
The State -v- Paul Maima [2004] N2583 
The State -v- WasipMandolos [2004] N2707 
The State -v- Gilbert Monai [2004] N2617
The State -v- Donald Angavia, Paulus Moi & Clement Sanoka (No.2) (2004) N2590
Kukubu -v- The State (2015) SC1426

Counsel:		

Mr. T. Aihi, for the State
Mr. S. Parihau, for the Defendant

DECISION ON SENTENCE

4th June, 2021

1.	REI AJ: BACKGROUND: The prisoner was charged under Section 386(1)(2) (a) & (b) of the Criminal Code Act with one count of armed robbery.

2.	The State presented an indictment on the 10th of February 2021 before Kirriwom, J that:

“Lindsay Gawi of Haniak Village, Kubalia District, East Sepik Province stands charged that he on the 6th day of September, 2018, at Wewak, in Papua New Guinea, stole from Lilian Arami with threats of violence, a sum of Thirteen Thousand Nine Hundred and Seven Kina and Sixty Toea in cash (K13,907.60), a sum of Three Thousand Forty Kina and Forty Toea (K3040.40) in cheque and dockets valued at Seven Hundred and Sixty Eight Kina and Sixty Toea (K768.60), the property of Air Niugini Ltd.
AND AT THAT TIME the said LINDSY GAWI was in company of other persons.”

The brief facts of the case as alleged are that on the 6th of September 2018 between 8.00 am and 9.30am in the morning Ms. Lilian Arami, the cashier at Air Niugini Office here in Wewak walked to the Air Niugini Traffic Sales Office to pick up the previous day’s takings for banking.  At the Traffic Sales Office, she picked up:

•	Cash in the sum of K13,907.60
•	Cheque in the sum of K3040.40
•	Dockets valued at K768.60

All the cash, cheque and dockets were placed in a bag which she picked up.  The cash, cheque and dockets were the property of Air Niugini Ltd.

After she picked up the said cash, cheque and dockets, she then walked back to the main office when she was held up by the accused and his accomplices who held her up with a pistol and pulled the bag from her. They then took off towards the beach and escaped in a boat to Kairiru Island where the cash was distributed.  The accused and his accomplices returned to Kolan Beach where they were captured by Police.

Therefore, the State says that when the accused and his accomplices robbed Air Niugini Limited, he contravened Section 386 (1)(2)(a)(b) of the Criminal Code, and this charge is brought against him.

The State also involves section 7 and 8 of the Criminal Code Act.

3.	This is an offence under Section 386(1)(2) (a) & (b) of the Criminal Code Act.	
			
4.	The matter came before His Honour the Late Kirriwom J before when the indictment and brief fact were presented.  Prior to handing down his decision on sentence, His Honour passed on.  The accused was then arraigned and asked to enter a plea whereas a guilty plea was recorded. 

5.	The matter then came before me today 4th June 2021 for sentencing only.

6.	The accused having entered a plea of guilty His Honour Kirriwom J perused the Committal files and concluded that the plea was consistent with the evidence contained in the Committal files. His guilty plea was confirmed.

THE LAW

7.	The law as stated in Section 386(1) & (2) provides as follows:

“(i)	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 person; 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 subject to Section 19 to imprisonment for life.”

8.	The question therefore is:  What is the appropriate sentence to be imposed on the prisoner?

9.	This offence carries a penalty of imprisonment for a term not exceeding14years to life imprisonment.  If the evidence is such that the person charged with the offence was armed or in company of one or more persons immediately before or after the offence is committed, a sentence of life imprisonment is on offer.
10.	Because of the prevalence of the crime in this Country Courts should not show leniency when passing sentence.

MITIGATING AND AGGRAVATING FACTORS

11.	The court should, however, consider mitigating factors in doing so.  In doing so it is noted from the submission of the State that the prisoner entered early plea, he is a firsttime offender and has shown remorse by apologizing to the Court.  It is noted in paragraph 15 in the PSR that:

	“…he is very sorry committing the crime. He apologizes to the staff and management of Air Niugini and the people of Papua New Guinea, he says sorry to this honourable court and to all lawyers taking up his case and above all he says sorry to God.  He will never repeat his mistake.  He asks the Court to give him probation so that he can rebuild his life to live a better life and become a productive member of the community.”

12.	Ps. Jason Hukahu who is brother to Paul Hukahu the father of the prisoner at paragraph 12 of the PSR said that:
			
	“… when his nephew is released, he would make sure that Lindsay would attend Church with him every Sundays.  He would make sure that Lindsay would not stay with his mother’s family and that he must go and live at Ularina village and live off the land instead of resorting to crime.  Since now that he has been shot by police on both legs and made him cripple, he is not likely to commit another crime.”
					
13.	The aggravating factors are that there was involved the implicit threat by pointing a gun, the robbery was carefully planned and executed which involved a desire to steal money to pay for school fees.  The prisoner was accompanied by a group at the time the crime was committed.

14.	It is common knowledge that this offence is a daily occurrence in most parts of the country especially in towns and cities in Papua New Guinea.

15.	Many commit this crime and other similar crimes out of greed or lustfulness for wealth.  Others commit them not to enrich themselves but to help meet expenses like school fees and meet other benevolent expenses, as is in this case.

16.	Whatever the motive of committing this type of crime is nonetheless immaterial.

17.	The gist of the matter is that the law is continuously broken in a serious manner by people to make ends meet to look as though the offender earned the money from his honest labour.

18.	No excuse or reason is valid is lawful where unlawful means are employed to enrich oneself.  This type of conduct must be scorned upon and avoided as much as possible.

THE PRISONER

19.	The prisoner was 29 years of age when he committed the crime.  At least 2 years 10 months have been spent in remand at Boram CIS.  By now he would be 31 years.

20.	He was married with one child.  His wife is from New Ireland who left him because the PSR says life was hard to live in Wewak.  He intentionally committed this crime in order to help pay school fees for himself.

He has expressed genuine remorse in the PSR (paragraph 15) and his uncle Mr. Jason Hukahu gives an undertaking to help rehabilitate him if given a suspended sentence.

21.	It is also noted from the PSR at 7 & 8 that the prisoner is now crippled as a result of serious gunshot wounds received from the members of the Royal Papua New Guinea Constabulary at the time of his arrest around the area of both ankles.  I observed him in Court on 4th June 2021 and do confirm that he is crippled and is unable to support himself to walk.  His inability is limited because of this disability.  Although no recent medical report was produced, I relied on the PSR report refer The Public Prosecutor -v- Don Hale [1998] SC564 and my own observations in Court and drew this conclusion.

SENTENCE

22.	As I noted earlier on, this case is a serious case which attracts a sentence of between 14 years to life year imprisonment as provided under Section 381(1)(2)(a)(b) & (c) of the Criminal Code Act dependent on the circumstances of each case.

23.	This case is not the worst case type where a substantial sum of money is involved, no lives were lost except that dangerous weapons used.  It involves the theft of cash of K13,907.60, cheques valued at K3040.40 and dockets valued at K786.60.

24.	The sentences for the worst case scenario should not be applied here see Avia Aihi-v- The State [1982] PNGLR 44 & Goli Golu -v- The State [1979] PNGLR 92.

25.	I make reference to the Supreme Court decision in The State v Kukubu [2015] PGSC 19; SC 1426 which involves the appellants each charged with armed robbery.  Between the six of them, they had been armed with one firearm and two bush knives.  They attacked at just after 1am on 10 May 2011entering a trade store and expelling the occupants.  One wounded a security guard, Mr. Kanga, on the legs with a bush knife.  Fortunately, the injuries were slight.  Nevertheless, the robbery was violent and terrifying for the helpless victims.  The proceeds included goods from the trade store and cash to the value K2,364.50.  All the property taken was returned after the offenders apparently repented of their crime.  The offenders also cooperated with police, readily admitting their guilt.  Indeed, they have offered and paid substantial compensation to Mr. Kanga.  They have apologized to those they have wronged and offered further compensation to the trade store owner, but he declined that offer. It may be assumed he was content to have the stolen property back.  The offenders are also very young men aged 18 to 21 years at the time of the offence.  The appellants were sentenced to terms of 12 years.

26.	The Supreme Court in that case held that:

“(i)	The offenders’ guilty pleas, expressions of remorse and contrition and their efforts to make amends including their tender of compensation do not seem to have been acknowledged with a more lenient sentence which would have been justified, 

(ii)	The sentence was manifestly excessive, and it is reduced to 7 years which allows for these youthful offenders who are remorseful to work towards rehabilitation, perhaps earlier release with remission earned by good behaviour, at [18].”

27.	In the case of State -v- Enj [2015] PGNC 100 N5893 (10th March 2015), the prisoner was:
	
“was amongst a group of men arm with axes, bush knives, sticks and stones who held up Sawa Ugiga and the occupants of the Pimaga Hospital Ambulance which was travelling from Mendi to Pimaga along the Highlands Highway.  They robbed the occupants of their personal items and stole Two Hundred and Fifty Kina (K250) in cash from the driver Sawa Ugiga and Four Thousand Eight Hundred and Sixty-Two Kina (K4862.00) in cash from an occupant of the ambulance Inabiya Michael the Health Extension Officer with the Pimaga Hospital.  Those were the wages for staff of Pimaga Hospital.  The State also proved beyond reasonable doubt that Enj and his cohorts held Sawa Ugiga prisoner in a house in their village at Kunjulu Village for two nights and released him on 29 January 2009.  The offender was found guilty of armed robbery in company.  The offender is 38 years old, married for 20 years with 6 children, an assistant pastor, a smallbusinessman and treasurer of a cooperative society.”

His Honour Kassman J held that:

(i)	The mitigating factors are that the offender has no prior convictions, he has demonstrated that he can be trusted, he was granted bail in June 2009 and faithfully returned to his trial on 8 November 2012;
(ii)	The aggravating factors are that  the offender pleaded not guilty and a full trial ensued, there was pre-meditation in the crime, the use of dangerous weapons was planned and executed at night, he was in a group that outnumbered the victims in the ambulance, the presence in the ambulance of a deceased person demonstrated deep disrespect for the dead, none of the money and items stolen have been recovered, there’s been no apology, the  community suffered when the health centre was closed for a number of months following this incident;
(iii)	A head sentence of 8 years less a period of 2 years for the mitigating factors and less 10 months for pre-trial custody, 5 years and 2 months to be served.”

28.	His Honour Lenalia held in State -v- Leo (No.2) [2015] PGNC 190; N6096 in a case where two offenders were found guilty of the charge of armed robbery under S.368(1)(2)(a), (b) & (c) of the Criminal Code Act which was committed with aggravation that:

(i)	The role played by the two accused were passive such as talking in support of a beggar who demanded money from the bus driver and its crew.
(ii)	Appropriate penalty should be suspended sentence with a set of probation orders to allow the parties living in a settlement to reconcile.
(iii)	The prisoners are sentenced to a term of eight (8) years’ imprisonment in hard labour.  The pre-trial custody period be deducted, and the remaining balance is fully suspended on the following conditions:
a)	The offenders shall enter into a recognizance without sureties to keep the peace and be of good behaviour for 2 years.
b)	Each shall pay K200 towards the compensation payment to the owner of the bus for the loss of K400 including loss of business.
c)	The total amount the offenders shall pay in compensation is K400 to the vehicle owner.
(iv)	The Court further orders that each offender shall pay K100 to the driver and his off sider of the bus due to the trauma caused to them.
(v)	The total amount payable for compensation to the driver and his offsider is K200.
(vi)	The Court orders that the two Committee Ward Members, Mr. Ben Wak Sason and Mr. Ben Simbu, shall supervise the payments of compensation and report to the Community Base Correction Officerwhich Office shall assist the Probationers to file reports at the National Court Registry Office here in Kokopo declaring completion of payments of such compensation.
	
29.	The Supreme Court of Justice held in the case of Public Prosecutor -v- Don Hale (unreported Supreme Court Judgement SC.564 (SCRA No.33 of 1996) as follows:

		“… we feel that the starting point to an appropriate sentence involving the robbery of homeowner at night with the use of firearms to threaten victims should be 10 years …”

30.	On the question of suspension of sentence or part thereof the same Court went on and said:

“The judge having set a sentence of imprisonment then proceeded to suspend the term.  Whilst we agree that a judge has a discretion in sentencing convicted persons such a discretion must be exercised according to normal principles.   We agree that there are many circumstances which should be applied in the consideration of an appropriate punishment for a particular offender and a judge should refer to these circumstances.  There are first of all a number of circumstances of aggravation such as the amount of violence used in a robbery, and the amount of damagedone, and property taken and whether victims were further injured apart from the fear of the threats.  Then there are matters that may be considered in mitigation of the punishment.  Of course, the first factor in mitigation is whether there have been any admissions of guilt.”

“However, in this case before us to-day the appellant pleaded not guilty, so the State and Court was put to the time and expense of a trial with the calling of witnesses.  So, any mitigation for admissions and remorse have limited applications.  The age of the respondent was considered by the judge as a mitigating factor.   Age considerations may of course be more obvious to a judge if an offender is under the age of 17 to 19.  Age considerations may of course be more obvious to a judge if an offender is under the age of 16 years.  Then for such a drastic suspension of sentence a further help to the court would be a community report from the community to which the offender belongs and whether the community, seeing that the incident happened within that community, has any views on an appropriate punishment or whether the community is prepared to assist with any community management of any bond period.  The Courts are bound under the philosophy of the Constitution to be in touch with the aspirations and attitudes of the people of PNG and the punishment of criminals definitely has an effect on the ordinary people.  So, community involvement with the punishment of offenders to the community instead of imposing imprisonment.  A return to the community should mean an appropriate report of the attitude of the community and whether the community is prepared to take some responsibility for their own offending members and supervise any alternate punishment.”

31.	In that case the Supreme Court noted that:

“the trial judge had no pre-sentence report nor any report from the community and sought no help from the community in the supervision of this suspended sentence.”

“…and the Supreme Court said this is a clear error if he was to suspend a sentence for this kind of aggravated robbery.”

32.	I also make reference to the decision of His Honour Kandakasi J (as he then was) in The State -v- Patrick Puppy Kaikara Loavi (2006) N3381 which case contains a careful assessment of the types of sentences to be imposed and I rely on the entire opinion in that case.  His Honour revisited decisions of the National Court and the Supreme Court and make the following remarks:

	“Influenced by a number of National Court decisions, which were in turn influenced by an increased and prevalence of the offence of armed robbery, subsequent decision of Supreme Court increased the suggested sentences for each of the categories.  That started with the decision of Supreme Court in Public Prosecutor -v- Don Hale 4 and followed by the one in Tau Jim Anis v The State 5.  That saw an increase in the suggested sentences by a factor of 3 years.  Hence, robbery of a dwelling house increased to 10 years at the highest and 6 years for robbery on a street.”

33.	He goes on and says and I quote:

	”The increase in the sentences did not deter the commission of mostly aggravated robberies. Once again, the National Court started to impose sentence beyond those suggested by the decisions of the Supreme Court in Don Hale and Tau Jim Anis cases.  The Supreme Court in its recent decision in Dadly Henry Gorop -v- The Stateendorsed the National Court’s approach and held that a sentence of 20 years imposed by the National Court was not excessive for robbery on a street.  However, the Supreme Court reduced the sentence to avoid a feeling of injustice when considering that, the National Court had up to that time, imposed sentences up to a maximum of 20 years after a trial.  In so doing the Supreme Court referred to my decisions in The State -v- Vincent Malara 7 and The State -v- Edward &Ors (No 2).”

34.	The cases referred to in that case and relied upon are The State -v- Vincent Malara [20/02/02] N2188, Gimble -v- The State [1988 – 89] PNGLR 27, The State -v- Edward Toude [2001] N2299; Nelson Ngassele -v- The State [2003] SC731, The State -v- Paul Maima [2004] N2583 per Kandakasi J; The State -v- Wasip Mandolos [2004] N2707 Lenalia J and The State -v- Gilbert Monai [2004] N2617 Sevua J.

35.	After observing the reasons for decisions by various Judges including his own decision he said:

	“Most of the offenders in the above cases were youths and were first time offenders.  None of these cases discussed the possible effect of the way in which Parliament has prescribed the penalties for armed robberies s. 386.  My decision in The State -v- Donald Angavia, Paulus Moi and Clement Samoka (No 2) and other cases, I considered the provisions of s.347 of the Criminal Code which deals with rape.  That provision is in similar terms and arrangement as s. 386.  There, I said the division between the two categories of the offence of rape and the respective sentences prescribed means that an aggravated rape should attract sentences beyond the maximum prescribed sentence for rape simpliciter.  In other words, a sentence for aggravated rape should be beyond the prescribe maximum of a simple rape.”

SENTENCE IN THIS CASE

36.	I have read the record of interview in the committal file and noted that the prisoner remained silent on questions asked as to how the crime was committed.

37.	However, I note the prisoner has confessed his wrong not only to the Court but to the employees of Air Niugini who were terrorized in the whole unlawful exercise.  This is contained in the PSR.

38.	The prisoner received serious wounds to both of his ankles as a result of the members of the Royal Papua New Guinea Constabulary open fire at the group which have since crippled him.  I observed him in Court when he walked in a young man holding a staff to support himself walking.

39.	His uncle Pr. Jason Hukahu who is a pastor of the Baptist Church in Wewak gave an irrevocable undertaking to provide rehabilitation should the prisoner be placed on suspended sentence due to the serious injuries as reported in the PSR.

40.	The PSR reports favorably for the prisoner in which the Community recommends Suspended Sentence.  Bearing these in mind, I will impose a sentence which will be part suspended which I think is within the range of sentences imposed in Kukubu -v- The State [2015] SC1426 and The State -v- Leo [2015] N6096 (supra) and the Supreme Court Case of Public Prosecutor -v- Don Hale (supra).

41.	The relevant question is whether the prisoner be given a custodial sentence, part custodial or non-custodial/suspended sentence.

42.	As I said earlier, this case attracts a term of imprisonment provided for under Section 319 of the Criminal Code Act between 7 years to life imprisonment dependent on the circumstances of each case.

43.	That section does not say that a term of imprisonment should be suspended.  It calls for imprisonment.

44.	This depends on the discretion of the Court.

45.	In this case it has been recorded in the record of interview that the prisoner was in the company of three (3) others when committing the crime who were armed with dangerous weapons.  It was a carefully planned attack to steal money.

46.	The record of interview also says that some money was recovered.  Not all of the money.  No amount was then disclosed.

47.	The PSR shows that the prisoner was shot on both legs around the right and left ankle(s), and he has been incapacitated from walking.  He now supports himself with crutches.

48.	The PSR also shows that as a direct result of this disability caused by shots fired at the prisoner at the time of his arrest, the prisoner cannot now eat properly, and his health is generally deteriorating.

49.	As I said earlier, I did observe the prisoner walking towards the dock and do confirm those reports.

50.	Do I then impose a custodial sentence or part custodial or wholly suspended sentence?

51.	I relied wholly on the observations of His Honour Kandakasi: J (as he then was) in the matter of State -v- Patrick Puppy Kaikare Loavi (supra) on passing sentence in this case.

52.	These types of crimes are prevalent.  A daily occurrence in the country.  The sentences have been increased and the starting point now is 10 years.

53.	The report PSR prepared by the Probation & Parole Office has strongly recommended that the prisoner is a suitable candidate for parole.

54.	Pr. Jason Hukahu has volunteered to help in the rehabilitation of the prisoner.  He says that; because of the serious disability of the prisoner,he will be home bound and will be bed-ridden.

55.	The Supreme Court in the case of Don Hale &Ors -v- The State said that non-custodial sentences can only be considered appropriate in sentencing if the PSR has strong recommendations for that.

56.	I appreciate the comments and recommendations contained in the PSR where a non-custodial sentence be passed because of the deteriorating health conditions of the prisoner.

57.	If he was a physically fit person, a prison term is appropriate.  If he is to be given a prison term, the prisoner would almost be worthless because of his physical condition.  A non-custodial sentence with conditions to apply will also not help much.

58.	But considering all of the factors in this case, I exercise my discretion in sentencing the prisoner to a term of imprisonment of 8 years which ought to be suspended in full.

59.	The term of 2 years 10 months is to be deducted for the time spent in remand.

60.	The balance of 5 years 2 months is wholly suspended with conditions.  The prisoner:

(i)	Shall remain in the custody of Pr. Jason Hukahu in Wewak, ESP
(ii)	Shall not leave Wewak, ESP unless leave is applied, for and is granted
(iii)	Shall not freely move around in Wewak, ESP 
(iv)	Shall report to the Registry of the National Court of Justice every first Monday of each month between the hours of 7:45 am and 4:06 pm throughout the period of suspended sentence; and
(v)	Failing any of the within conditions, the prisoner shall be brought to Court to be sentenced accordingly.
____________________________________________________________
Public Prosecutor: Lawyer for the State	
Public Solicitor: Lawyer for the Defendant