N9794

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR No. 471 OF 2021

THE STATE

V

XAVIER SOLOMON

Madang: Miviri J
2022: 12th, 21st & 22nd July

CRIMINAL LAW – PRACTICE AND PROCEDURE – Aggravated Armed Robbery – Plea – Shop robbery – first offender – PSR MAR favourable to prisoner – serious and prevalent offence – Leading & active participant in crime – Juvenile at Time of Offence – deterrent sentence. 
Facts
Accused was one amongst a number of others who were armed with bush knives and pistol. They went to the shop held up the employees within and made off with assorted electronic gadgets and laptops, property of that company.

Held
Early Guilty plea. 
First offender.
Serious and prevalent offence. 
Deterrent sentence
7 years IHL

Cases Cited: 
The State v Lahui, Hetau, Noho, and Eki, [1992] PNGLR 325 
The State v Simbago [2006] PGSC 23; SC849 
Nimagi v State [2004] PGSC 31; SC741 
RD Tuna Canners Limited v David Sengi & ors [2020] SC2232 
The State v Kama [2004] PGSC 32; SC740 
State v Hagei [2005] PGNC 60; N2913 
The State v Gimble [1988-89] PNGLR 271
The State v Thress Kumbamong (2008) SC1017. 

Counsel:

D. Ambuk, for the State
N. Katosingkalara, for the Defendant
		
SENTENCE

22nd July, 2022 

1.	MIVIRI J: 	This is the sentence of Xavier Solomon who was one of the persons in a group armed with dangerous weapons who held up employees of a shop and made off with properties from it. 

2.	On the 1st of October 2020 between 10.00am and 11.00am the Accused was amongst a group of young men who entered the Datec Sales Office. Inside they pulled out a pistol which was pointed at the employee manning behind the display glass shelf. One of the Accused armed with a bush knife jumped over the counter and began going into the glass display cabinets. As that was happening the accused with the pistol kept it pointed at the employee behind the counter telling him not to move and to remain quiet. Seeing the co accused going through the display shelf as he did, the others also jumped behind the counters and together they broke the glass display shelves with hammers and took off with mobile telephones laptops, cameras and other technological gadgets valued at or around K 22, 841.22 all properties of Telikom PNG Limited. It is further alleged that the accused is within the realm of section 7 (1) (a) (b) (c) of the Criminal Code Act, because he aided and abetted the offence of aggravated armed robbery committed here. He had no lawful justification or excuse for his actions. He is therefore guilty of section 386 (1) (2) (a) (b) and (c) of the Criminal Code Act of Aggravated Armed Robbery.

3.	And that was the section which drew out the indictment against him which is spelt out as :-  “(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 subject to Section 19, to imprisonment for life.”
4.	He has pleaded guilty after being explained by the Court heeding the Juvenile Justice Act particularly bearing that at the time of the offence, he was under 18 years old. He was born on the 22nd November 2006 at Modilon Hospital, affidavit sworn by his mother Delvereen Sawaer of section 124, allotment 18, Bidamon Crest, New Town, Madang. So, on the date of the offence 1st October 2020 he was 14 years old because he would turn 15 on the 22nd November 2020, his birthday. By this fact he was a juvenile as he was not over the age of 18 years old. Hence any sentence passed will take account of the fact in his case. It is notable in his favour that he has taken the first step in pleading guilty to the aggravated armed robbery charged. It means he takes responsibility for his actions as he is seen in the security camera with a bush knife outside the premises that was robbed. The description by the witnesses is that the man with the bush knife started to go into the display shelf and others with them followed eventually smashing the glass display shelf and getting what electronic gadgets were inside including all set out in the allegations. So, his role in the offence is leading rather than a mere follower because of his age. He has instigated within the scene of the robbery prompting the others to follow suit. And the fruits were in his hands a camera in the value of K 2500 to K 3000. Not a light matter for a company trying to carry on business without looking over its shoulders. That is a serious fact that draws out against his cry that he is a juvenile at the time of the offence.

5.	What is the purpose of the Juvenile Justice Act is that it sets establishment of a comprehensive and separate juvenile justice system based on restorative justice, Melanesian tradition, and contemporary juvenile justice practices. Restorative Justice means restitution for the complainant victim who has been offended by the actions of the juvenile prisoner. Here the responsibility in restitution is not of the parents. They have not offended. The Juvenile must take responsibility to shoulder what he has caused. The parents are not convicted of the armed robbery before the court. It is therefore not their responsibility. If the Juvenile Justice Act is to be meaningful, it must show how to reform the Juvenile not a theory in a textbook. And in this regard the traditional Melanesian, Papua New Guinea ways of settling disputes are incorporated in the way it is amicably settled. Here how can that be attained in the case of a company that has had its electronic products on sale to generate its sustenance, stolen with actual violence perpetrated upon it in broad daylight? And it also considers what is the way Juvenile Justice is administered in other parts of the world that has become contemporary, or usual, customary way in dealing with Juvenile. In this regard our lifestyle and culture is not the same to anywhere in the world. So what practises are is not before the court in the presentence and means assessment reports presented this afternoon. The Juvenile is not even in a school. He has since left school and is no longer in school because of the offence. So where would he go to give effect to the Juvenile Justice Act is not set out in the presentence and the means assessment reports.
 
6.	In the dictate of the prisoner on the date of the offence is he led the group in the offence. And it is grave for him in particularly in the light of the fact that this company premises suffered loss not only of the properties that were stolen but damages to the glass display shelves used in its business. He was the bush knife man who led the others to commit this. These properties are not cheap but expensive. And would be an overhead unnecessarily incurred because of the greed of the prisoner and the others who accompanied him. They chose to steal accompanied by violence with weapons that could have easily killed, for instance as in Lahui, Hetau, Noho, and Eki, The State v [1992] PNGLR 325 (August 1992); where the intent simply to steal her motor vehicle driven by the deceased led to her death from it been stolen by the prisoners and in Simbago v The State [2006] PGSC 23; SC849 (31 August 2006) like grave results of aggravated armed robberies. Life will not be replaced with a part and serial number. He may have been a juvenile but in possession of a bush knife accompanied by another who was armed with a pistol, it was menacing and at the squeeze of the trigger someone could have been dead within minutes, Nimagi v State [2004] PGSC 31; SC741 (1 April 2004). The Supreme Court confirmed the 50 years sentence imposed on a youthful offender who appealed on the basis that he was a youthful offender. Here it remarked that the public Prosecutor should have cross appealed against the sentence imposed.

7.	Far too long shelter has been sought out by violent offenders under the guise of their age. They are like wolf in sheep skin and caution must be exercised bearing in mind the purpose of the Juvenile Justice Act. Abuse of the law under the guise of being a Juvenile frail and lame, timid, harmless, falling by the way in heat must stop. Resort to other forms of sentences based on proper established grounds under law not without. Discretions under the Juvenile Justice Act sections 76, 77, 80 are not on display for the picking of the Court unceremoniously without the evidentiary and factual basis to support application. Because without they are   disabled as is the case here where there is no material to lock in that Act to the case of the Prisoner. He must have proper credible and substantial material to enhance that indeed the Juvenile will turn for the better and there are basis foundation, set to which he or she will fit to gradually come out as a reformed person. This means a plan driven by a theme because of behavioural problems, or psychiatric problems identified within the Juvenile by a trained professional who is schooled on the basis of which a school and set program is in place for him or her to learn to be a model citizen: RD Tuna Canners Limited v David Sengi & ors [2020] SC2232 (04 May 2022), just as a psychiatric report is needed to establish nervous breakdown, similarly behavioural problems must be identified by a schooled professional to be able to seriously look at diversion called for under the Juvenile Justice Act. It is a process of law and compliance of law or non-compliance must have evidentiary basis to bring out the jurisdiction of the Court.

8.	In this regard there must be a balance drawn out between the protection of the public and proportionality of the sentence upon the prisoner with a view to life later outside of prison. Here also taking account that the mother here is a single parent, would there be control and supervision of the prisoner outside the prison, to enforce the fact that he has breached, and has been convicted of a very serious criminal offence. Is there evidence of supervision and control upon the prisoner outside of the formal prison system in the Community to bring back punishment as well as rehabilitation of the prisoner. Given particularly in the light of the fact that, the section details out simple robbery without aggravation under subsection (2) drawing a 14-year imprisonment as minimum upon an offender upon conviction. Circumstances of aggravation have been pleaded in the case of the prisoner here in that at the time of the offence, he was accompanied by others and all were armed with offensive and dangerous weapons, bush knives, homemade guns, and a factory-made gun and in company. He was the man with the bush knife here by the security camera installed. It is not a light matter in his case considering. That draws that he could be imprisoned to the maximum of life years imprisonment. But considering his facts and circumstances set out here he is appropriately a determined period and not the maximum prescribed.

9.	It is a very serious offence and not a matter of going non-custodial because of the presentence and a means assessment report. Both reports must contain substantive basis to weed out what is set out above. There is punishment, correction, rehabilitation of the prisoner juvenile. I take judicial notice of the fact of a warrant of arrest that was issued by this Court dated the 19th November 2021 when he did not appear in court from bail on the matter now convicted. And which warrant was executed and so the warrant of commitment issued by this Court on the 21st January 2022. It means he was illegally at large did not front up on his bail voluntarily. And if supervised in the care of the supposed parents who are together now would he have behaved in that manner. It is clear reflection that what is deposed in the presentence and the means assessment report is just a cover what is inside is not what meets the eye on the cover. It will not advance his cause set out in the presentence and the means assessment reports.

10.	He did not act like a juvenile who was following leader of the pack. It was he; he was the leader of the pack and he was bold enough to lead the pack to commit a serious aggravated armed robbery that has landed with K22, 841.22 all properties of PNG Telikom PNG Limited. His actions lead to the breaking of the glass shelf of the Company so that the properties could be stolen and were stolen. He held up the security guard and led into get the electronic gadgets that were in the display shelf. These are facts that do not depict a timid harmless juvenile who has been lured by peers who are older than he. It is clear here; he is the leader of the pack. His sentence will reflect that fact no more, no less.

11.	Because lawlessness in this way seriously effects economic activities and the welfare of the province and the Country. People of Madang and business that operate in Madang must not be threatened or harassed by criminals and criminal activities perpetrated as here in the heart of Madang. Public Areas that are prone to all members of the Public must be protected from criminals. Here is one person whose interest and welfare cannot outweigh the welfare and interest of the Town, Province and Country to be safe in and around. Because the backdrop is situations like Kama v The State [2004] PGSC 32; SC740 (1 April 2004) that have become prevalent so aggravated robbery as here is very serious in that light. There is nothing extenuating as observed in State v Hagei [2005] PGNC 60; N2913 (21 September 2005) for his sentence to be different from the ordinary. Reliance on the Juvenile Justice Act is without the material to advance the course to apply that law. It will not be applied without the evidentiary basis. It will not apply in the case of the prisoner. Age is one factor as to how to serve that age there is no material advanced to foster.

12.	The prisoner’s action must be punished and denounced rehabilitation upon education is likely though there is no specific evidence from any School to foster this basis for the prisoner. As reformation and rehabilitation starts there if there is to be real meaning to the Juvenile Justice Act. Controlled reformation both in school and out in the home. Here is a case of a single mother of three trying to look after a 17-year-old now after being convicted. It is an armed robbery in accordance with Gimble v The State [1988-89] PNGLR 271, likened to robbery of a store club vehicle on the road drawing a starting point term of 8 years. It is aggravated for the reasons that I have set out above fitting this tariff and range. It is a prevalent offence. That guidelines were set in 1988-89 and since that time to the present this offence has not gone down it is prevalent as ever. But each case must be determined and sentence passed based on its own facts and circumstances. Tariff and range are amongst matters for and against that are considered in determining an appropriate penalty in a given case: Thress Kumbamong v The State (2008) SC 1017. 

13.	You are sentenced to 7 years IHL. Of that 4 years will be spent in Jail IHL. From this time in custody will be deducted you will spend the remainder in jail.

14.	Three (3) years will be suspended prisoner is placed on a 3 years’ Probation Order on the following Conditions:
(i)	You Xavier Solomon shall enter into a probation order for 3 years on the usual terms under the Probation Act. 
(ii)	You Xavier Solomon shall be resident and remain at Miliok Street New Town and shall not move residency from there without leave of the National Court during the term of your probation.
(iii)	You Xavier Solomon shall within 48 hours after release from jail report to the Probation Officer. 
(iv)	You Xavier Solomon shall perform 600 hours of community work at a worksite to be approved by the Probation Office;
(v)	You Xavier Solomon shall keep the peace and be of good behaviour at times;
(vi)	You Xavier Solomon shall not take liquor or any form of intoxicating substance or drugs during the period of your probation;
(vii)	You Xavier Solomon shall attend new town Lutheran Church Bidamon Crest New Town every Sunday for Worship whilst on probation.
(viii)	You shall undergo counselling from your Local Lutheran Church Pastor for a number of times as may be determined by the counsellor;
(ix)	Upon release within 5 months, you Xavier Solomon shall reconcile and pay K 3000 to Datec Madang victim of the robbery.
(x)	The reconciliation is to be attended and witnessed by the Probation Officer and the Police Arresting Officer.
(xi)	The reconciliation is to be recorded and a receipt filed at the National Court Registry by the Probation Officer;
(xii)	The Probation Officer shall file a report on the responses and progress of the probationer Xavier Solomon every five months after the prisoner is released on probation until the probation order lapses.
(xiii)	In a breach of any of these Probation Orders, your Probation Xavier Solomon shall lapse and you shall be arrested to serve the whole term of your sentence.

Orders Accordingly.
__________________________________________________________
Public Prosecutor:  Lawyer for the State	
Public Solicitor: Lawyer for the Defendant