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State v Damge (No 2) [2022] PGNC 102; N9523 (16 March 2022)

N9523

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR No. 647 OF 2020

THE STATE

V

MOSES DAMGE
(NO 2)

Kimbe: Miviri J
2022: 14^th & 16^th March

CRIMINAL LAW – PRACTICE AND PROCEDURE – Aggravated Armed Robbery Section 386 (1) (2) (a) (b) (c) CCA – Trial – Service Station robbery – PSR – First time Offender – Active Participant – Prevalent Offence – Proceeds Intended use Further Robberies – Deterrent Sentence – 10 years IHL.

Facts
Prisoner planned and committed an armed robbery to get a pump action shotgun with ammunition intended to be used in further robberies later. He was a first-time offender but the offence was well planned and executed. Proceeds were large. None of the properties were recovered except the pump action shotgun.

Held
Aggravated Armed Robbery committed in the night. Admission to offence by Accused in Record of Interview to Police. Planning leading the offence. Proceeds of robbery large, prevalent offence a Deterrent sentence in view. PSR noted sentence of 10 years IHL.

Cases Cited:

Gimble v The State [1988-89] PNGLR 271
Thress Kumbamong v The State (2008) SC1017.
Anis v The State [2000] PGSC 12 SC642
Nimagi v State [2004] PGSC 31; SC741
State v Malo [2006] PGNC 231; N4520
Marase v The State [1994] PNGLR 415
Gorop v The State [2003] PGSC 1; SC732
CR No. 1304 OF 2020 The State v Samuel Simon Petrus.
Kama v The State [2004] PGSC 32; SC740
State v Hahuahoru (No 2) [2002] PGNC 136; N2186
Lahui, Hetau, Noho, and Eki, The State v [1992] PNGLR 325
Simbago v The State [2006] PGSC 23; SC849
Tardrew, Public Prosecutor [1986] PNGLR 91

Counsel:

L. Maru, for the State
D. Kari, for the Defendant

SENTENCE

16^th March, 2022

1. MIVIRI J: This is the sentence of Moses Damge of Wasakim village, Wosera, East Sepik Province convicted with Aggravated Armed Robbery pursuant to section 386 (1) (2) (a) (b) & (c) of the Criminal Code in that he on the 19^th October, 2019 at Kimbe entered the premises of JR Holdings Limited accompanied by others armed with homemade guns and knives, where they held up one Ben Peau, threatened him with actual violence and stole from him a pump action shotgun serial number K923821 valued at K 45, 000. 00, 5 red 12-gauge bullets valued at K 250.00, K 19, 515.21 in cash from sales from that office and the food bar there, a HP laptop valued at K3000.00 and assorted other items to the value of K 1734.94 all belonging to JR Holdings Limited.
2. When given an opportunity to address as to what should be taken into account in passing sentence he stated:
   

“Thank you to you to hear my case accused Moses Damge. My mother gave birth to me at section 27 and I was brought up there. I have stayed here for 25 years. This is my first time before the Court. I am married with a wife who passed away leaving two children with my mother now. I will submit to the Courts decision discretion.”

3. A presentence report was tendered into Court together with a Means Assessment Report. Which fulfilled the application of Counsel defending made seven (7) days earlier. It was granted initially to Monday 14^th March 2022. But extended to Tuesday 15^th March 2022 at 9.30am as it was not ready then. Material particulars relevant within are that the Prisoner is 26 years old resident at section 27, 41 Bush Camp Ward 6 Kimbe Local level Government. He is originally from Wasakim, Wosera in the East Sepik Province. Which is the village where his father is from. His mother is from Bali, West New Britain. He is the second born of that family of six siblings. A first offender, he is married with two children, but the wife left him with their son who has been left behind because the mother was killed in domestic violence perpetrated upon her by the new husband.
4. Prisoner has been educated to grade 8 level at the Kimbe Primary School. He could not continue grade 9 as he did not have the funds to pay for the school fees. He still desires to be educated and wants to complete grade 9 to 12 after settling any orders for compensation made by the Court, should it make same. He states that he is carrying a broken bone on the left ankle and his frontal skull sustained in the arrest by Police. This is not verified by medical evidence. Because if it is so it may be considered in the determination of this sentence.
5. He was employed briefly by Paradise Super Market in 2015 but quit in 2016 because of his wife’s extra marital affairs. He never sought employment. He is a member of the Kimbe Catholic Church. His councillor from his ward 6 Kimbe Urban Local Level Government Joseph Bani Robert, requested if he could serve his sentence through Probation Order because of his two children. That sentiment is echoed by Father Benjamin Agea of the Kimbe Catholic Diocese. According to him the Prisoner is a youth Leader in the church. Which is reiterated by Ryan Kukisal Chairman/ Magistrate Kimbe Urban Court 2 who describes the Prisoner as a youth Leader in the Community. And does not pose a threat to the Community. The recommendation has been for the Prisoner to be placed on Probation with extensive time to further compensate the victim and relatives to bring lasting peace. He has been assessed as suitable for probation sentence.
6. What is aggravating against the prisoner is that K69,500.15 worth of properties were stolen. None of which have been recovered except for the pump action shotgun. And the Manageress of the victim Company whose properties were stolen said they would accept compensation, but that was depended on the discretion of the Court. The prisoner is not employed so as to bring any compensation ordered would not be a reality but a fallacy.
7. The prisoner’s role in the offence is serious. He used to see the shotgun with the security and was prompted to steal it. He put to reality his want for it by the execution of the robbery. It shows out a plan that was played out. There were about ten or so persons, three of whom were immediately at the side of the security guard the victim of the robbery. It was carried out in the early hours of the morning. This sentence must protect lone watchman, the security man who is there without anybody minding looking after properties of others at his own risk. He deserves the protections of the law and the sentence will reflect to protect him and other like workers in the night and wherever they are.
8. Further when he was apprehended by Police, he was in possession of a 12-gauge buckshot, two (2) police uniforms, 2 police berets and trouser. And he expressly stated in the record of interview, that they were intended to be used to hold up vehicles. What more would be deceiving to have a robber dressed as a policeman with a stolen pump action shotgun posed on a road, it certainly was a very serious matter against the prisoner set out by his own admissions in the record of interview. And are very relevant in the determination of an appropriate sentence against him. Preparedness or preparation intended to commit further criminal offences, or as here a criminal offence that is committed as a foothold to facilitate further criminal offences is very serious. It is likened to defying the law and the rule of law especially in Kimbe a Town which has a lot to stand up for to the national purse. Criminals with intentions as the offender must be shown the door of deterrence, retribution, and change for the better in their lives if they are to be citizens in their own right in life. Respect tolerance observance of the law must be the principle that the offender takes away from this sentence.
9. Because life is not lived at the barrel of a gun, or the wielding of offensive weapons, but honesty by the sweat and toil as was the case of the victims who have lost out because of the actions of the defendant. And the location is within the town parameters and the business centre of Kimbe. No business should be threatened or feel unsafe. Because business and commerce drives Kimbe and the Province. The country benefits because of business in the revenue generated. Economic well-being for every citizen whether corporate or natural derives. And when homemade gun wielding is the order and rampant and prevalent, appreciating that it is not the same as a factory-made weapon, where there are safety mechanism put in to ensure protection. Here there is none and the victim could have been easily the victim of a shooting. Thankfully it never went to that extreme.
10. He was asked to give his story on what happened there which he recounted at question 14:

“I used to see the Security guard holding that gun so I told the boys and we went there in the morning. I went and stood near the fence and saw that there was nobody there and I knew that the Security guard was asleep. I placed a ladder on the fence and was climbed over and went inside. We PAKSY from Morobe, Jimmy from Sepik, Palai of Arove, Kapul of mix parentage of Arove/ Talasea we jumped into the premises. The three boys that woke up the Security Guard was Paksy, Jimmy and Palai while Myself and Kapul stood at the fence. They got the gun and came outside and myself and Kapul then broke the store using a knife and iron bar to break open the door. We went inside the store and got a laptop computer, packet cigarettes, coins money and both of us came out, jumped over the fence, and ran away along the riverbank towards the mountain towards section 42 bush camp. We met there and we distributed the coins and cigarettes. I received a share of K 50 cash in coins and four packets (4) of Cambridge cigarettes. That is all.

11. These evidence plainly show the role of the Prisoner in the offence. He is not a follower but is the leader who plans and executes the robbery. And the reason is that he wants the pump action shotgun to commit further robberies on vehicles on the road. That is evident also by the 12-gauge buckshot, two (2) police uniforms, 2 police berets and trouser, that were found on him when he was apprehended initially by Police. This is a criminal mind that must be stopped in its tracks. Freedom is for all and must not be dwindled into a corner because of fear of criminals.
12. Gimble v The State [1988-89] PNGLR 271 given its age up to the present, bearing in mind that the offence of robbery since that time is ever rampant prevalent, and therefore a serious call to imposing sentences to reflect deterrence, retribution of right thinking. And in my view given his role a sentence in the vicinity of 10 to 15 years is envisaged. This is not a radical jump it is dictated primarily by the facts that are portrayed. Justice particularly sentencing is a discretion exercised determined by the facts and circumstances of a given case. Because it is my view that the paramount authority is the legislature not the Courts who dictate the type term of imprisonment punishment in respect of a criminal offence. Its discretion will not with the greatest respect, be tied to tariffs and ranges laid out by the Supreme Court. Because they are guidelines which are canvassed against the backdrop that like offences must be treated alike. But the ultimate is the facts and circumstances peculiar to each case: Thress Kumbamong v The State (2008) SC1017.
13. Hence the comparative in Anis v The State [2000] PGSC 12 SC642 (25 May 2000) where sentence of 10 years was reduced upon first offenders who had robbed a factory. In reducing the court held that the youthfulness of the offenders was not given due consideration and so reduced to 5 years. That was in 2000 this is 2022, age is not a barrier to criminal offences which the Supreme Court saw in Nimagi v State [2004] PGSC 31; SC741 (1 April 2004). Appeal was dismissed and the sentence of 50 years IHL was confirmed. The appellant’s contention of youthfulness was brushed aside and orders at first instance confirmed with remarks that it was wilful murder and should have attracted the death penalty.
14. It is really now the execution of the robbery rather than the proceeds of the it: State v Malo [2006] PGNC 231; N4520 (19 December 2006) a store was robbed of K 165,924.17 with use of guns and firearms a vehicle was also stolen in that robbery. Police pursued and apprehended the prisoner who was slashed with a knife when apprehended. He pleaded guilty and was sentenced to 8 years IHL. In Marase v The State [1994] PNGLR 415. The appeal was dismissed and the 19 and half year IHL was confirmed for rape and robbery. In Gorop v The State [2003] PGSC 1; SC732 (3 October 2003) 20 years sentence for robbery was reduced to 18 years because the National court did not accede to current sentencing trend and tariff. Appellant had badly assaulted a tourist couple with a hockey Stick injuring both seriously and then stealing their properties.
15. There is real prospect and propensity lurking that serious injury will result or death, CR No. 1304 OF 2020 The State v Samuel Simon Petrus turned violent and serious to the extreme of a murder. And reported cases Kama v The State [ 2004] PGSC 32; SC740 (1 April 2004); State v Hahuahoru (No 2) [2002] PGNC 136; N2186 (21 February 2002) and Lahui, Hetau, Noho, and Eki, The State v [1992] PNGLR 325; Simbago v The State [2006] PGSC 23; SC849 (31 August 2006) evidence the run that a robbery will more than probable run into homicide and very serious injuries to the victims and robbers alike. It is therefore not a light matter that will be dictated by a tariff or range set. It must draw from its own facts and circumstances.
16. Here the prisoner is a leader, who planned the robbery and executed it successfully. He was intent to committing further offences of robbery and his preparedness is set out above. Such will not be defeated by the personal circumstance that he puts that he has young children without their mother, he must as the surviving parent look after. Even then there is no material upon which that discretion can be exercised. Because a sentence must work within the dictate of the law, here suspended sentence will be made out if there are proper basis established either by the Presentence report or the means assessment report. In my view after considering material particulars of both, which I set out above, there is no room to accord for a non-custodial term. The leader and the priest do not give details as to what they propose they will undertake with the prisoner once he is out on probation. Care of the young children are now in the hands of the parents of the prisoner. This is normal Papua New Guinea setting and is therefore not a basis to substitute the dictate of the law in violent crimes. Kimbe is crumbling into the dust of violent crimes, and therefore the Courts must step up to ring the rule of the law over tyranny of rogues tugs whose rightful place is in jail where the law has designated. Who else can reassure that there is protection of the law by the Constitution, and the rule of law, only the Courts.
17. Because in my view under section 19 (6) of the Criminal Code three broad categories can be summarized upon which suspension can be considered in sentence, (1) where suspension will promote personal deterrence or reformation or rehabilitation of the offender; (2) where suspension will promote the repayment or restitution of the stolen money; (3) where imprisonment will cause excessive degree of suffering to the particular offender; for example because of his bad health: Tardrew, Public Prosecutor [1986] PNGLR 91. In all respects in the case of the prisoner now with the Presentence Report the Means Assessment Report, I have thoroughly considered both, in my view there are no materials warranting that part of the sentence be suspended on a probation order. Because there is no material upon which reformation or rehabilitation is proposed by the Catholic Priest Father Benjamin Agea of the Kimbe Catholic Diocese, and Ryan Kukisal Chairman/ Magistrate Kimbe Urban Court 2, and ward 6 Kimbe Urban Local Level Government Joseph Bani Robert. It will not promote repayment of what is stolen, there is no evidence to that fact in the PSR and MAR. Lastly it will not be excessive degree of suffering, or that the sentence is disproportionate to the gravity of the crime. In my view given all above the sentence is proportionate considering.
18. A youth Leader in his right mind would not plan rob and steal guns and prepare himself to pose as a “policeman” to steal. And the reaffirming that the Prisoner is a leader by Ryan Kukisal Chairman/ Magistrate Kimbe Urban Court 2 is in the same boat together with ward 6 Kimbe Urban Local Level Government Joseph Bani Robert. Leaders be it national local or community who side with criminals must come with material fundamental to sway reform rehabilitation of the Criminal. Mere lip service and hypocrisy must be avoided. Leaders such as priests and religious, man of God, pastors first fear GOD in the reports that they pursue before they open their mouth. There is no material concrete to sway the discretion accorded in law upon to deviate other than to impose a custodial term of 10 years IHL upon the prisoner for the crime of aggravated armed Robbery. Time spent in custody of 1 year 11 months 2 weeks 6 days will be deducted from the head sentence. He will spend the remainder of 8 years 1week 1day IHL in jail.
19. Sentence of the Court is 10 years IHL. One (1) year 11 months 2 weeks 6 days is deducted for remand. Eight (8) years 1week 1day IHL to be served in jail.
    

Orders Accordingly

__________________________________________________________________Public Prosecutor: Lawyer for the State

Public Solicitor: Lawyer for the Defendant