Home | Databases | WorldLII | Search | Feedback National Court of Papua New Guinea

Independent State of Papua New Guinea v Berghumer [2023] PGNC 204; N10287 (10 May 2023)

N10287

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]

CR NO. 1312 OF 2022

BETWEEN:

THE INDEPENDENT STATE OF PAPUA NEW GUINEA

AGAINST:

FRANCIS BERGHUMER

-Prisoner-

Waigani: Tamade AJ

2023: 14^th April; 10^th May

CRIMINAL LAW – sentence – armed robbery – robbery of fast-food outlet – armed with homemade gun – gang of four – money stolen – early guilty plea – first time offender – aged 29 – Sections 386 and 7 – Criminal Code – sentenced to eight years – three years suspended

Cases Cited

Goli Golu v The State [1979] PNGLR 653
The State v Edmond Geria [2008] PGNC 295; N3868

Gimble v The State [1988-89] PNGLR 271

Public Prosecutor v Hale [1998] PGSC 26; SC564
Anis v The State [2000] PGSC 12; SC642
Steven Wickless v The State (2020) SC2293
Peter v The State [2007] PGSC 28; SC894
State v Francis Naty (2021) N9004
State v Matu [2007] PGNC 256; N5022
Public Prosecutor v William Bruce Tardrew [1986] PNGLR 91

Legislation

Criminal Code Act

Counsel

Mr Jonathan Siminji, for State

Ms Kim Watakapura, for the Prisoner

10^th May, 2023

1. TAMADE AJ: The Prisoner, Francis Berghumer of Tufi District, Oro Province pleaded guilty to a charge of armed robbery contrary to section 386(1)(2)(a)(b) and section 7(1)(a)(c) of the Criminal Code.
   
2. The facts in which the Prisoner pleaded guilty to is that on 11 November 2021 between 1;00pm and 2;00pm, the Prisoner and three other accomplices went into the Rainbow Big Rooster outlet which is located directly opposite Stop & Shop and held up the shop. The prisoner and others were armed. Berghumer was armed with a homemade gun and subdued the people in the shop. He was positioned at the entrance of the shop whilst his accomplices armed with bush knives went to the cashier and removed cash in the sum of K716.60. As they were removing the cash from the counter, a security guard stationed inside the shop interrupted the robbery in an attempt to escape. This alerted the Prisoner and his accomplices to cease what they were doing, and they ran away from the scene. The robbery was reported to the police and the Prisoner was apprehended inside Tasion Barracks. After that he was brought to the police station, charged and detained.
   
3. The prisoner has made an early guilty plea to the charge and therefore a guilty verdict was entered. After hearing submissions from lawyers, this is the Court’s decision on sentence.
   
4. Section 386 of the Criminal Code is in the following term:
   

386. THE OFFENCE OF ROBBERY.

(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.

5. The prisoner is 25 years of age with no prior convictions. He has been detained for about 1 year and 6 months. His education level was only up to Grade 12 and he is a Seventh Day Adventist.
   
6. Counsels have reminded me about the case of Goli Golu v The State^[1] that the punishment the Court should give should be proportionate to the gravity of the offence and that the maximum penalty should be applied to the worst of cases. In applying my mind to sentencing, it is useful to take into account these question as raised in The State v Edmond Geria^[2]:
   

“(1)What are the relevant facts or the particular circumstances in which the offence was committed?
(2) What is the nature of the offence with which the offender has been charged with and its relevant sentencing trend?
(3) What are the factors in aggravation and mitigation of the offender?
(4) Are there any special features attending the commission of the offence?
(5) After carefully considering all of the relevant factors, what should be the appropriate sentence? and
(6) Whether the whole or any part of the sentence should be suspended and if so on what terms?”

7. The aggravating factors in this case is that the offender was in the company of others, the offender and his accomplices were armed with a homemade gun and bush knives, the offence of armed robbery is prevalent in society and that cash was stolen from the shop.
   
8. The mitigating factors are that the offender is a young offender, he has no prior convictions, he made an early guilty plea, he showed genuine remorse at his allocutus and he has a favourable pre-sentence report.
   
9. Both counsels have referred to the case of Gimble v The State^[3] where the Supreme Court stated this:
   

“The following guidelines are to be taken as appropriate to sentencing for aggravated robbery contrary to s 386(2) of the Criminal Code (Ch No 262), for which the maximum prescribed penalty is life imprisonment:

On a plea of not guilty by young first offenders carrying weapons and threatening violence for:

(a) robbery of a house — a starting point of seven years;

(b) robbery of a bank — a starting point of six years;

(c) robbery of a store, hotel, club, vehicle on the road or the like — a starting point of five years; and

(d) robbery of a person on the street — a starting point of three years;

features of aggravation such as actual violence, the 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.”

10. In Public Prosecutor v Hale^[4], the Supreme Court was of the view that the tariff of seven years of a robbery of a house was inadequate as these types of offences have increased of late and as it is a serious type category of robbery of people in their home, the Supreme increased the tariff to 10 years of robbery of a house where it involved a young offender.
    
11. In Anis v The State^[5], the Supreme Court followed the approach in Public Prosecutor v Hale^[6] and increased the tariff of sentencing for armed robbery as set in Gimble v The State^[7] by three years.
    
12. For robbery of a shop in this case, the starting point of a sentence considering the age of the offender would be at 8 years as per Gimble, Don Hale and Anis decisions. In Steven Wickless v The State^[8], the Supreme Court increased the tariff for aggravated armed robbery of a shop from 8 years to 11 years stating that this type offence is too prevalent and that Anis v The State was 20 years ago from 2020 and that Gimble v The State was 12 years earlier to that. In Steven Wickless case, the offender was in the company of seven other gang members who were armed and held up the City Pharmacy shop in Kimbe taking money and other items from the shop.
    
13. In Peter v The State^[9], the Court held that it is within the Court’s discretion to increase or decrease a sentence depending on the factors that aggravate the robbery and or otherwise.
    
14. In State v Francis Naty^[10], the offender held up a trader store with other young accomplices where there was actual violence and the robbery involved the presence of weapons. The Court sentenced the offender to 9 years hard labour.
    
15. In State v Matu^[11], it was a robbery of a service station and it involved a guilty plea. There was no actual violence, a small amount of money was stolen, the case involved a young offender and there was a supporting Pre Sentence Report. The offender was sentenced to 4 years, with part of the sentence suspended to a term of 1 year, 11 months, 3 weeks, 2 days to be served in custody.
    
16. I have read the Pre Sentence Report which supports a suspension of any sentence on the offender. The offender has stated in the report that at the time of the offence, he was drinking with his peers when they decided to rob Big Rooster at Rainbow. The Offender’s mother has proposed to enrol him to complete grade 12 next year in 2024 if he is given a non-custodial sentence.
    
17. Should part of the sentence be suspended? I refer to the case of Public Prosecutor v William Bruce Tardrew^[12] in which the Supreme Court has set the guidelines for suspension of sentence as:

“Suspension of part of a sentence under s 19(6) of the Criminal Code (Ch No 262) is, or may be appropriate, in three broad categories. The categories are not exhaustive:

(i) Where suspension will promote the personal deterrence, reformation or rehabilitation of the offender.

(ii) Where suspension will promote the repayment or restitution of stolen money or goods.

(iii) Where imprisonment would cause an excessive degree of suffering to the particular offender, for example because of his bad physical or mental health.

18. The offender is a young man of 24 years of age who has given an early guilty plea. Imprisonment can sometimes harden a young man against society. I also have to take into account that armed robbery is an offence which is prevalent in society. The Courts have increased the tariffs for armed robbery of shops, this is set to deter offenders. I am of the view that a sentence that sits in between rehabilitation and reformation on the one hand and deterrence on the other hand is to strike a balance in the sentencing ranges depending on a particular case. For deterrence to effectively work, the sentence of these types of crimes should be published, the public has to be aware, young offenders need to be aware that the punishment strips of a good part of your life in your prime. You are useful to society outside of prison where you can build your community, protect your family, and contribute meaningfully. The tough economic times and the hard city conditions should not be an excuse for a drunken spree of the moment to hold up a shop where you exert fear into the lives of people.
    
19. Taking into account all the sentencing principles, related cases and section 19 of the Criminal Code, I will sentence you Francis Berghumer to 8 years as the head sentence as this is not an aggravated armed robbery case in the worst category. You have served about 1 year and 6 months since being incarcerated. That is deducted from the head sentence leaving 6 years and 6 months. You will serve 3 years and 6 months in custody being a total of 5 years in custody. The rest of the 3 years of sentence is suspended. After you leave prison, you will be on a good behaviour for the three years suspended term with the oversight of the Probation Officers.

________________________________________________________________
Office of the Public Prosecutor: Lawyers for the State
Office of the Public Solicitor: Lawyers for the Accused

^[1] [1979] PGSC 9; [1979] PNGLR 653 (14 December 1979)

[2] [2008] PGNC 295; N3868 (17 November 2008)
[3] [1988] PGSC 15; [1988-89] PNGLR 271 (27 July 1989)
[4] [1998] PGSC 26; SC564 (27 August 1998)
[5] [2000] PGSC 12; SC642 (25 May 2000)

^[6] Supra N4
^[7] Supra N3
^[8] (2020) SC 2293

[9] [2007] PGSC 28; SC894 (27 June 2007)

^[10] (2021) N9004

[11] [2007] PGNC 256; N5022 (13 July 2007)
[12] [1986] PGSC 10; [1986] PNGLR 91 (2 April 1986)