N10015

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR NO 1208 OF 2021

BETWEEN:
THE STATE

AND:
NELSON YALEBA

Popondetta: Wawun-Kuvi, AJ
2022: 26th October, 2nd November & 15th November

CRIMINAL LAW-SENTENCE-Guilty Plea- Armed Robbery, s386(1)(2)(a)(b), Criminal Code-Robbery of motor vehicle on street- Personal items were stolen from the victims - Use of Firearm and in company-Sentence of 10 years imprisonment

Cases Cited
State v Paul [2022] PGNC 278; N9747  (1 July 2022)
State v Ambia [2018] PGNC 463; N7586 (22 October 2018)
State v Larry [2018] PGNC 352; N7432 (21 August 2018)
State v Levin [2017] PGNC 324; N6962 (20 May 2017)
Mikoro v State [2015] PGSC 12; SC1424  (1 May 2015)
Pori v State [2007] PGSC 39; SC912 (2 November 2007)
State v Selkit [2014] PGNC 365; N6525 (20 October 2014)
State v Nimai [2008] PGNC 72; N3355 (21 April 2008)
Stuard Kepu v. The State, Unreported Judgment, SCR 21 of 2007
Kassman v The State [2004] PGSC 9; SC759 (20 August 2004)
State v Ago [2004] PGNC 92; N2673 (20 May 2004)
State v Ngasele [2003] PGSC 2; SC731 (3 October 2003)
State v Kenny [2002] PGNC 96; N2237 (16 May 2002)
Allan Peter Utieng v The State (2000) SCR No 15 of 2000
Lialu v The State [1990] PNGLR 487 
The Public Prosecutor v Vangu’u Ame [1983] PNGLR 424
Goli Golu v The State [1979] PNGLR 653
State v Tardrew [1986] PNGLR 91
Public Prosecutor v Thomas Vola [1981] PNGLR 412

References
Criminal Code Ch 262
Criminal Justice (Sentences) Act 1986

Counsel
Mr .Dale Digori, for the State
Mr. Emmanuel Yavisa, for the Offender

DECISION SENTENCE
15th November, 2022

1.	WAWUN-KUVI, AJ: Nelson Yaleba (offender) is from Tari.  He is known to the victims who are employees of PNG Power Limited. On 30 December 2018, he, and his accomplices pretended to walk across the pedestrian crossing at Kamsi. When the driver of the vehicle slowed down, the offender and his accomplices charged towards the vehicle. They were armed with homemade firearms. The offender forced the driver out of the vehicle and into the tray. The offender and another got into the front cabin and another accomplice drove the vehicle. Other accomplices got into the tray with the victims. The victims were driven to the back of the USG company base. They were searched and their personal items comprising of cash monies, company issued safety boots and mobile phones collectively valued at K4, 510.00 were stolen. The victims were again driven to the back of Vudal Plantation. The offender and his accomplices left them at Vudal Planation and drove off in the vehicle.

2.	The offender has accepted responsibility and has pleaded guilty. I must now decide the appropriate penalty.
The Charge
3.	The offender was convicted following his guilty plea on the charge of Robbery under section 386(1)(2)(a)(b) of the Criminal Code.

Penalty

4.	The maximum penalty is life imprisonment.

5.	The maximum penalty is reserved for the most serious case: Goli Golu v The State [1979] PNGLR 653.
Antecedent
6.	The offender is 32 years old and hails from Koroba, Tari, Held Province. His wife is from Pongoro Village, Sohe, Northern Province. They reside at SBS Compound in Popondetta. He has two children aged 3 years and 8 months.

7.	The offender was raised by his father. His mother deserted the family. He has 2 brothers and a sister. His father and sister are deceased and were repatriated to Hela.

8.	 The Offender has been educated up to Grade 8 at Sorovi Primary School. He did not further is education. 

9.	He is unemployed.
Sentencing guidelines
10.	Sentencing guidelines do not restrict the sentencing court’s discretion. They are, however, important because they ensure parity in sentencing. It is the peculiar circumstance of each case that is the determining factor in sentencing:  Lialu v The State [1990] PGSC 16; [1990] PNGLR 487 (30 November 1990).

11.	The facts show that this is the robbery of a vehicle on the road in which personally items of the victims were stolen. The vehicle was used to take the victims to a secluded location where they were robbed. The facts are like the case of Peter v State [2007], where the Supreme Court found that it was robbery of a vehicle on the road.  

12.	In Gimble v The State [1988-89], this category of robbery would attract a starting point of 5 years. Some 10 years later, the starting point was increased by three years in Public Prosecutor v Don Hale (1998) SC564. Tau Jim Anis v The State (2000) SC642 reaffirmed Public Prosecutor v Don Hale (1998). The starting point of robbery of a vehicle on the road is 8 years.

13.	The Supreme Court in reviewing sentence in similar cases have imposed the starting points of 8 years.

14.	Pori v State [2007]: The appellant was sentenced to 8 years imprisonment. He and others held up the victim with weapons. As they were running away, they discharged firearms to prevent the public from chasing them. They stole cash and properties valued at K3,096.80. The Supreme Court dismissed the appeal.  

15.	In Stuard Kepu v. The State, Unreported Judgment, SCR 21 of 2007, The appellant pleaded guilty to robbery a shop manager at the shop car park. He and his accomplices parked their vehicle and waited for the shop manager. When he arrived, they pointed a home-made gun at him and threatened to shoot him. In fear of his life, he handed them the money bag. They drove away.  They stole K79, 750.00. The Supreme Court dismissed the application for review and confirmed the sentence of 10 years.

16.	Peter v State [2007]: The appellant sought a review of his sentence of 13 years. He and others armed with home guns, sling shots and bush knives threw a log across the road. When a vehicle stopped. They robbed the occupants of cash in the sum of K2, 200.00 and other personal properties. The sentence was quashed and reduced to 10 years imprisonment.

17.	State v Ngasele [2003]: The Supreme Court was of the view that the sentence of 5 years was too lenient. Had the Public Prosecutor filed a cross appeal, it would have increased the sentence to 10 years imprisonment. The appellant had pleaded guilty to the robbery of a motor vehicle and canteen. The appellant and others armed with weapons woke the canteen owner and robbed him of his properties.

Comparable cases and sentencing range

18.	Mr. Digori has submitted for a range between 6-8 years. Mr. Yavisa submits for a range between 4 and 5 years.

19.	 Counsel have assisted with the following comparable cases.

20.	State v Paul [2022], Miviri J: Three offenders pleaded guilty and two were convicted following a trial. A shop employee was robbed on the street of the shop takings. K163, 400.00 was taken. Violence was used when one of the robbers swung a knife at the victim and two others pointed a firearms. The offenders that pleaded guilty were sentenced to 10 years imprisonment and those convicted on trial were sentenced to 12 years imprisonment. Time spent in custody was deducted and no part of the sentence was suspended.

21.	State v Ambia [2018], Numapo, AJ (as he then was): The offender pleaded guilty to the robbery of a Hatchery. The offender and his accomplices were armed with homemade guns. They tied up 2 security guards and stole personal properties and company properties valued at K7,235.00. The offender was sentenced to 6 years imprisonment. Time spent in custody was deducted and the balance was ordered to be served. 

22.	State v Larry [2018], Numapo, AJ (as he then was): The offenders pleaded guilty. They drove in a stolen vehicle to the Abel Computing Shop. They walked into the shop and pretended to be customers. Once inside they held up the staff. They were armed with bush knives, kitchen knives and home made shot guns. They stole properties valued at K95, 155.74. The Court was of the view that the starting point was 8 years. The age of the offenders was given consideration. The offenders were sentenced to 5 years imprisonment.

23.	State v Nimai [2008], Makail, AJ (as he then was):  The offender pleaded guilty to aggravated robbery. The offender and three others held up a vehicle and stole money and properties from the driver and passengers. The offender was a look out and was aged 19 years at time of offence. He was sentenced to 5 years imprisonment.

24.	State v Ago [2004], Kandakasi J (as he then was): The offender pleaded guilty. The victim and one other withdrew K9400 from the Bank. They boarded a vehicle and were driving to their destination when the accused and others pointed firearms and forced the vehicle to a stop. They stole the K9, 400.00. The occupants of the vehicle were removed, and the offender and his accomplices drove off in the vehicle. They left the vehicle at another location and escaped by foot. The Court found that it was a planned robbery. The offender was sentenced to 13 years imprisonment.

25.	State v Kenny [2002], Kandakasi J (as he then was): The offender pleaded guilty to robbing passengers of a PMV. He was armed with a bush knife and others were armed with homemade firearms. They stopped the vehicle and robbed its passengers of properties valued at K579.00. He was sentenced to 9 years imprisonment. Time spent in custody was deducted and the balance was ordered to be served.

26.	I have also found the following comparable cases, where youthfully first-time offenders pleaded guilty to robbery of a motor vehicle on the road.
27.	State v Levin [2017], Batari, J: The accused is co-accused for the offenders in State v Selkit [2014]. The offenders pleaded guilty to robbery. They set up a roadblock. They were armed with an axe, a grass knife, and homemade guns. A logging vehicle was stopped, and the driver was forced out. He was searched but nothing was found on him. He was struck in the shoulder. Two chain saws and a fuel container valued at K173.00 was stolen. The offenders were sentenced to 7 and 5 years respectively. The offender who was sentenced to 7 years had a prior conviction. Time spent in custody was deducted. The sentenced were suspended and they were placed on probation.

28.	The offenders were youthful offenders and there were several other issues that affected the delay of their cases.

29.	 The above cases demonstrate that in cases of guilty pleas to robbery of a motor vehicle where occupants were robbed of their properties, offenders were armed and they were first time offenders, the sentences were between 8-13 years. In cases, where the sentence were less than 8 years, the Courts found that there were special mitigating factors such as the young age of the offenders.
Culpability
30.	Given the facts that they were a number of people who were involved, the weapons that were used and the modus operandi, I find that the offence was planned. The offender also informed the Probation Officer that he committed the offence to sell the items stolen to obtain money to buy more beer.  This also is indicative of some degree of pre-planning.
31.	The offender forced the driver out of the vehicle and got into the front cabin. He was an active participant and played a significant role. 
32.	I find that his culpability is high.
Harm 
33.	The victims lost their personal properties and company issued properties. The driver Laurence Kanawi states that he and his colleagues were traumatized by the experience. Their lives were placed at risk by the actions of the offender and his accomplices.
34.	The evidence demonstrates that the victims were placed in the vehicle tray and were taken to another location where another robbery was committed. They were used as human shield when the victims of the other robbery retaliated. 
Aggravating Factors
35.	 I have considered the submissions by counsel and find the following to be aggravating:
1.	Weapons were used.
2.	The offender was armed with a firearm. 
3.	The offender was in company.
4.	He placed an active role.
5.	The victims were held up at night.
6.	The vehicle was a PNG Power vehicle, and the victims were PNG Power employees. This is an aggravating factor because, the men were working. Their job entails ensuring that electricity is supplied to homes, school, business houses and hospitals. If people continue to rob service providers, then they most likely will not want to work at night and people are likely to suffer as a consequence. 
7.	The victims were taken on board the vehicle and driven to another location placing their lives at considerable risk.
8.	The victims were placed at a secluded location where they lives were placed at further risk.
9.	Robbery is a prevalent offence in Papua New Guinea. It is a very prevalent offence in Northern Province.  
Mitigating Factors
36.	In mitigation:
1.	The offender has no prior convictions. 
2.	He pleaded guilty. I place some weight or his guilty plea but not significant weight as it was given on the eve of the trial.  
3.	None of the victims were physical assaulted or hurt during the commission of the offence.
4.	I accept that he has expressed remorse for his actions. 
Pre-Sentence Report
37.	I thank the Probation Officer Wep Ninau who continues to contribute significantly to the circuit by his timely and comprehensive Pre-Sentence Reports. The reports are prepared within days of the Court issuing the Orders and contain all parties’ views including members of the offenders’ communities. 
 
38.	The offender and his wife also care for his 11-year-old nephew who suffers from epilepsy and other form of disabilities. Mr. Ninau attaches a Medical Report dated 1 November 2022, which provides the above prognosis. The child is a known Pediatric patient. The report by the Resident Nursing Officer confirms that the offender has since taken over the care of his nephew since the death of the child’s mother.
39.	The offender supports himself and his family in the informal sector. He has no serious health condition. 

40.	He has about K2, 000.00 in his savings. He has asked for three weeks to find an additional K3, 000.00 to pay compensation to the victims.
 
41.	The offender’s wife had concerns for their young family and the offender’s nephew in the event the offender is imprisoned.

42.	Peter Houpe is a community leader. He has observed the offender faithfully reporting to the Court in compliance with his bail conditions. He observed that the offender changed after he got married in 2019. He has become family orientated and spend most of his time with his family. He sells goods at the roadside at SBS Compound. He asks the Court to impose a non-custodial sentence.

43.	Laurence Kanawi is one of the victims. He states that the offender has 3 years to compensate him and his colleagues. He says that they were traumatized and lost their properties. He will not accept any compensation from the offender and asks the Court for a deterrent sentence. 

44.	The Probation Officer assess the offender to be a suitable candidate for Probation.
Consideration
45.	 Robberies in Northern Province are almost a weekly occurrence. People are robbed on the streets or shops are robbed. The use of homemade weapons to hurt, kill and threaten people is also prevalent. Robberies are traumatic for the victims during the offence and also following the offence. 

46.	The offender was not a young person when he committed the offence. He was about 28 years. He is now 32 years old.

47.	Some of the victims were known to him.  He was not a stranger to them. He still robbed them. 

48.	This was a serious offence. The facts show that the victims’ lives were placed at considerable risk. This was not a spur of the moment act, and the offender was actively involved.

49.	Considering the sentencing guidelines, the comparable case, the mitigating and aggravating factors and all of the foregoing matters, the offender is sentenced to 10 years imprisonment.
50.	 The offender was apprehended on 11 May 2021. He was granted bail on 22 July 2021. He was in custody for 2 months, 1 week and 4 days. Pursuant to section 3 of the Criminal Justice (Sentences) Act 1986, that period is deducted. The offender shall serve 9 years, 9 months, 2 weeks, and 3 days.

51.	 Should any part of the sentence be suspended? 

52.	There is very little before me that supports suspension. I am reminded that the same factors that were used to mitigate the sentence cannot be used to suspend the sentence: see Public Prosecutor v Thomas Vola [1981] PNGLR 412.

53.	There is some suggestion that the offender’s family including his nephew will suffer in the event of incarceration. However, the impacts on families as a result of imprisonment whilst grave is not a relevant consideration in sentencing except in the rarest occasion: Mikoro v State [2015] PGSC 12; SC1424 (1 May 2015), Allan Peter Utieng v The State (2000) SCR No 15 of 2000; The Public Prosecutor v Vangu’u Ame [1983] PNGLR 424. 

54.	Kapi DCJ held in Prosecutor v Vangu’u Ame [1983]:

“Indirect effects of a man going to gaol, although proper considerations, must not be over-emphasized nor allowed to cloud the fact a person has committed a most serious offence. Justice, it has been said, must of course be tempered by mercy, but in my view not to the extent of allowing a person who has committed a very serious offence to, in fact, go free.
…If a court is weakly merciful, and does not impose a sentence commensurate with the seriousness of the crime, it fails in its duty to see that the sentences are such as to operate as a powerful factor to prevent the commission of such offences.” (Citations removed).

55.	Whilst one community leader has spoken favorably of the offender, I must balance this with the factor that the offence is very prevalent offence in Northern Province and is a violent offence with the use of a firearm.

56.	Since the commission of the offence, the offender was evading arrest for almost 3 years. He was only captured when one of the victims saw him in town and alerted police. Since his arrest, he made no attempts to compensate or apologize to the victims of his crime. His expression to pay compensation is belated and not welcomed by the victim.

57.	The victim has asked the Court to impose a custodial offence that will serve as a deterrent to other likeminded individuals in the community.
58.	I have given consideration to the principles in State v Tardrew [1986] PNGLR 91 and find that the offender’s case does not fall within the three broad categories that favour suspension. Suspension is therefore not appropriate.

59.	The offender shall serve 9 years, 9 months, 2 weeks, and 3 days.

Orders

60.	The Orders of the Court are as follows:

1.	The Offender is sentenced to 10 years imprisonment.
2.	Time spent in custody of 2 months, 1 week and 4 days is deducted.
3.	The offender shall serve 9 years, 9 months, 2 weeks, and 3 days at Biru Correctional Institution.
4.	Bail and any paid sureties are refunded.
________________________________________________________________
The Public Prosecutor: Lawyers for the State
The Public Solicitor: Lawyers for the Defence