N11229

PAPUA NEW GUINEA
[NATIONAL COURT OF JUSTICE]

CR NO. 1487 OF 2023

THE STATE

V

THOMPSON SCROPHIL
of
BUSUMANG, VILLAGE, HUON GULF
MOROBE PROVINCE

BULOLO/LAE: POLUME-KIELE J
30 APRIL, 2 JULY, 9 AUGUST, 4 SEPTEMBER, 2, 4 OCTOBER, 24 DECEMBER 2024;7, 14 FEBRUARY, 4, 19 MARCH 2025

CRIMINAL LAW - Plea of not guilty – Verdict of guilty returned - conviction entered against accused for one count of armed robbery – s 386(1) (2) (a) (b) (c  – Criminal Code

CRIMINAL LAW – Sentence – maximum sentence - subject to Section 19, to imprisonment for life. - relevant considerations

Brief allegations

The background facts leading to this case are set out in my decision on verdict which was delivered on 30 April 2024 (CR NO. 1487 of 2023 – State v Thompson Scorphil). 

Cases cited

Goli Golu v The State [1979] PNGLR 653
Thress Kumbamong v The State (2008) SC1017
Saperus Yalibakut v The State (2006) SC890
The State v Nelson [2005] N2844
Gimble v The State [1988] PNGLR 271 
The State v Liliura [2014] N5785
State v Gobe [2011] N4547
Ure Hane v the State [1984] PNGLR 105
Public Prosecutor v Hale [1998] PGSC 26; SC564
State v Nigel Kopper Kingsley (2011) N4465
State v Tingin [2005] PGNC 5; N2956 (26 September 2005) 
State v Knox [2008] PGNC 79; N3339 (15 May 2008)
State v RG (CR (JJ) NO. 69 OF 2022) (Unreported judgment, 14 August 2023)
State v Lua Manak (2022) N10339

Counsel

Ms S Joseph for the State
Mr. J John  for the prisoner

SENTENCE

1.	POLUME-KIELE J:  On 5 October 2023, Ms Tamate of the Office of the Public Prosecutor presented an indictment charging the accused, Thompson Scorphil on one count of armed robbery with actual violence contrary to s 386 (1) (2) (a) (b) (c) of the Criminal Code Act (Ch No 262). This offence attracts a penalty subject to s 19, imprisonment for life. 

2.	On 13 October 2023, he was arraigned, and he pleaded guilty to the charge of one count of armed robbery with actual violence contrary to s 386 (1), (2) (a) (b) (c) of the Criminal Code Act (Ch No 262). 

3.	The facts leading to the allegations relating to the charge of armed robbery contrary to s 386(1) (2) (a) (b) (c) of the Criminal Code are set out in the judgment on verdict delivered on 30 April 2024. 

4.	I must state at the outset that although, the accused had been charged with another offence of assault with intent to steal under s 384 of the Criminal Code, the indictment presented only related to the armed robbery charge under s 386 (1) (2) (a) (b) and (c) of the Criminal Code.  The charge of assault with intent to steal under s 384 of the Criminal Code is pending before the Court.  

5.	This ruling relates only to the charge of armed robbery with actual violence contrary to s 386 (1), (2) (a) (b) (c) of the Criminal Code Act (Ch No 262). The State invoked s 7 (1) (a) (b) (c) of the Criminal Code Act.

Penalty Provision

6.	The Charge of armed robbery – Section 386 states: 

“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”

Issue

7.	The issue for determination by the Court is the appropriate sentence to impose on the prisoner.

Allocutus

8.	In administering the allocutus, the prisoner was asked if he had anything to say on the issue of penalty. He replied, “Yes”. He was then given the opportunity to speak. In his statement on penalty, he said that he was sorry for what he did. Sorry for breaking the Constitution. He also said sorry to the victims for what he did. He says sorry to the Police, CS officers, the court and those who are in Court for what he did.

9.	 In addition, he asked for God’s mercy and the mercy of the Court when determining penalty. He also asked for leniency from the Court and request that he be placed on probation. Furthermore, he said sorry to his family, the community and church leaders of his area. 

Pre-trial custodial period

10.	The prisoner has been in custody since 11 November 2022.

Pre-Sentence Report

11.	Because he had asked to be placed on probation, his lawyer, Mr John requested that this Court direct the Community Based Corrections (CBC) Office to prepare a Pre-Sentence Report to be complied on the prisoner and have it filed for purposes of assisting this Court determine the issue of penalty. 

12.	This process is a necessary component of the Court process where prisoners have exercised their right to ask the Court to be placed on probation. To facilitate this process, the Probation Officer, (Bulolo) was ordered to prepare and file a Pre-Sentence Report for this purpose. He was directed to have this Report prepared and be filed  13 September  2024.

13.	The Pre-Sentence Report was received from the CBC Office, Bulolo on 3 September 2024 and is available to the Court. I have perused the Report, and the overall assessments contained in the report appears favourable to the prisoner; there are several admissions of the prisoner being involved with other youths within Lae which they are not particularly proud of. I also note that in this report,  the prisoner has in this interview admitted his involvement in the armed robbery as being the watchman whilst the armed robbery was being carried out. He said that he was involved because he wanted to support his parents, particularly his father who requires medical attention. 

14.	The father of the prisoner has expressed some  sorrow that his son was involved in such an offending but is hopefully that her son who is a likeable person, hardworking and brings money home (although he does not know how he gets this money) to support the family will have learnt from his mistake and not reoffend. 

15.	Similarly, a community leader, Mr. Vincent Bingmalu also speaks well of the prisoner and says that the prisoner is a well-liked person with no bad name. He is surprised that Thomson has gotten himself into trouble. He states that peer pressure and influence is a main concern today for all youths in the communities. Otherwise, he is willing to back the offender if given a non-custodial sentence.  

16.	Overall, the pre-sentence report also in its conclusion recommended that the prisoner is a suitable candidate for a non-custodial sentence for a period of 4 months to 4 years and that he be placed on probationary supervisory orders on terms.

Mitigating Factors

17.	In determining the severity of sentence, the Court took into consideration mitigating factors relevant to your case, such as your early guilty plea, which greatly assisted this Court in arriving at this early outcome. In addition, this Court also noted that you are a first-time offender, your co-operation with the police and explanation as to how you committed the offence in the Record of Interview and recommendations contained in the pre-sentence report. These are factors in your favour.

Aggravating Factors

18.	The aggravating factors against you are, however, is that the sum of money stolen is very substantial, it should be pointed out that this Court does not condone your actions including acts of actual violence on the victim. You robbed the victim of its cash of a sum of K108, 034.67. During the robbery you also applied physical violence on a security guard employed by the PNGFP company  cutting him on his thump with a bush knife, immediately and/or during the commission of this robbery. This type of offence is prevalent. 

Application of the law to the facts

19.	In order to substantiate the charge of armed robbery, the elements of the offence must be established by evidence under section 386(1) (2) (a) (c) of the Criminal Code; the State must prove the following: 

(a)	There must be a robbery.
(b)	The robbery must be committed on a thing capable of being stolen.
(c)	At the time of the robbery the accused is armed with a dangerous or offensive weapon; or 
(d)	Is in company with one or more other persons.
(e)	At the time of robbery, the person wounds or uses other personal violence.

20.	In your case, because you had pleaded not guilty to the charge, the State did call any oral evidence to corroborate the evidence contained in the various witnesses’ statements and relied on these oral statements which had been tendered into evidence by consent to substantiate the allegations. 

21.	These witnesses’ statements clearly showed that you and your accomplices held up security guards of the PNG Forest Products in front of the Bulolo BSP Bank and you all stole money valued in the sum of K108, 034.67. At the time of stealing you and your accomplices used actual violence on any person in order to obtain the thing stolen. At the time you and your accomplices  stole from the security guards of the PNG Forest Products, you and your accomplices, (the robbers) were armed with homemade guns and bush knives and in the act of stealing the money, you and your accomplices  stabbed one of the security guards on the hand using a knife between 1.00. and 2.00 p.m. on 21 March  2022. The cash amount of K108, 034.67 was not recovered by the police. 

22.	I also do note that the feedback contained in the Pre-Sentence Report does mention that you have admitted to the charge of armed robbery contrary to s 386(1) (2) (a) (b) (c) of the Criminal Code. 

23.	For purposes of this charge, money is capable of being stolen and the commission of this robbery was carried out with the use of a knife which is a dangerous and offensive weapon.  In addition, personal violence was used to commit robbery whereby the victims were threatened with homemade guns and knife and the victim, Chris Kapun sustained a cut on his thumb with a knife.  

Sentencing Principles

24.	Sentence is a matter for the Court's discretion. This is provided for by Section 19 of the Code, wherein, the Court is granted wide powers to consider what appropriate penalty should be. In this jurisdiction the maximum penalty prescribed for an offence is reserved for the worst form or category or offending for that particular offence. This is clear from the case of Ure Hane v The State I [J984] PNGLR 105: see also Goli Golu v The State [1979] PNGLR 653: Avia Ahi v The State (No.3) [1982] PNGLR 92

25.	In Lawrence Simbe v The State [1994] PNGLR 38  the Supreme Court held, that the principle in determining sentence, is that each and every case should be decided on its own peculiar facts and circumstances.

Sentencing Guidelines

26.	I thank both counsel, for the State and the Defence for their submission and referral to the sentencing guidelines and a number of comparable sentences that may assist in arriving at an appropriate sentence. 

27.	In Gimble v The State [198889) PNGLR 271, in that case, the appellant had appealed against his sentence. The appellant was one of 4-5 men who robbed a club at Kimbe. Offenders armed with guns and a knife. Shot fired and manager knocked unconscious. Liquor stolen - value K1, 135. The Court held the Court proposed the following sentence guidelines: on a plea of not guilty, young first offenders carrying weapons and threatening violence:

Category 1-	Robbery of a house:			 7 years.
Category 2-	Robbery of a Bank:			 6 years.
Category 3-	Robbery of a Store, hotel, club, vehicle:5 years.
Category 4-	Robbery of a person on street:		 3 years.

28.	Here there exist features of aggravation such as actual violence, the amount stolen, robber in position of trust towards the victim, may justify a higher sentence: a plea of guilty a lower sentence. Appeal allowed. A sentence of 7 years imposed

29.	In State v Liliura (2014), N5785, the Court in considering the guideline in sentencing for arm robbery cases since Gimble has reviewed the tariff and increased this to the following:

Category 1-	Robbery of a house:			10 years.
Category 2-	Robbery of a Bank:			9 years.
Category 3-	Robbery of a Store, hotel, club, vehicle:8 years.
Category 4-	Robbery of a person on street:		63 years.

Comparable Sentences

30.	In Anis v The State [2000] SC642,  the appellants held up a coffee mill's employees armed with home-made shotguns and axes. One employee was kicked and urged to hand money over quickly. Sum stolen was K20, 234. All appellants were relatively young. The Court in that case held: "We are of the view that a sentence of 10 years for first time offenders like the two young appellants in this case who, according to the guidelines in Gimble would be sentenced to five years on a trial as the starting point seems to be a big jump. We make this observation notwithstanding the current upward sentencing trend for armed robbery as observed in Don Hale's case." Don Hale increased the tariff for armed robbery of a home from 7 to 10 years, an increase of 3 years from that suggested in Gimble. Robbery of a factory, like a club or store, attracted 5 years under Gimble so " applying the same denominator of 3 years, the appropriate tariff for robbery of a factory ought to be 8 years." 

31.	In Phillip Kassman v The State (2004) SC759, the appellant appealed against his sentence of 10 years for armed robbery of an ANZ bank customer outside the car park. The appellant was part of a gang of 4 . They robbed the victim at gun point of more than K120,000.00 in cash. The cash were the takings of a company that the appellants worked for. They were sentenced to 10 years IHL. The Supreme Court held that trial judge properly considered the aggravating factors in the matter. The robbery was committed in broad daylight and on the steps of the bank. A lot of people were expected to be present thus the risk of injuries to innocent bystanders. The appeal was dismissed and sentence confirmed.

32.	In the case of State v Kamo [2006] N2991, the prisoner held up bank officers who had just collected a patrol box containing K380,000.00 in cash from the Air Niugini flight which arrived from Port Moresby. The bank officers were stabbed during the course of the hold up. The gang were armed with pistol and knife. They stole the cash and fled. No money was recovered. He was sentenced to 13 years. 

33.	The State v Bayu [2002] N2215, this was a guilty plea. The prisoner and his accomplices were armed with a pistols and stole cash total of K19,000.00 plus goods valued at K51,964.00. Some of the properties stolen were recovered. The accused were sentenced to 5 years less time in custody. 4 years to be served on probation.

34.	In the State v Kiendou [2002] this was a guilty plea. The prisoner was armed with a shotgun and in company of others held up a vehicle on the road. The vehicle was then stolen, and the victims were placed at the back of the vehicle and assaulted. Case and properties were stolen. The accused was sentenced to 9 years imprisonment.

35.	In the State v Topin [2019], the prisoner and group of men were armed with home-made guns and offensive weapons and held up a PMV bus. Actual violence was used against one passenger and the driver. They stole cash and mobile phones. A sentence of 10 years was imposed.

Mitigating Factor

36.	The mitigating factors in favour of the prisoner are:

•	No prior convictions
•	Expressed remorse

Aggravating Circumstances

37.	The aggravating factors against the prisoner are:

•	Prisoner was in the company of several other persons.
•	It was pre-planned and sophisticatedly executed.
•	The use of offensive weapons such as homemade guns and bush knife.
•	Actual violence to the security in order to obtain the money.
•	The offence occurred in broad daylight and display of recklessness to the health and safety of the general public.
•	Substantial amount of money stolen, K108, 000.00 was not recovered.
•	Prevalence of offence of aggravated armed robbery especially here in Bulolo, a small-town rendering people to live in fear.

Submission

38.	Mr. John, in his submission on your behalf of the prisoner submitted that although the prisoner found guilty of a charge of one count of armed robbery with actual violence contrary to the Criminal Code Act; for which the maximum penalty prescribed under s 386 (1), (2) (a) & (c) of the Criminal Code Act (Ch No 262) is subject to s 19, life imprisonment; he reiterated that the courts have wide discretion under s 19 of the Criminal Code to impose a lesser penalty.  Thus, the issue before the court is whether you should be sentenced according to the penalties prescribed under s 386 (1) (2) (a) (b) (c) of the Criminal Code Act (Ch No 262), which is subject to Section 19, imprisonment for life.  

39.	Further, Mr. John also submitted that whilst the use of force or a lethal weapon, namely a bush knife to apply personal violence to cut the victim, Chris Kapun on the right thumb during the commission of the offence, he  submitted  further that your present case does not warrant the imposition of the maximum penalty. In that the imposition of the maximum penalty should be reserved for the worst of category offence under consideration: Goli Golu v The State [1979] PNGLR 653. Furthermore, the Courts have unfettered sentencing discretion and are not necessarily bound by the Supreme tariffs when considering sentence: Thress Kumbamong v The State (2008) SC1017.

40.	 In addition, where in plea cases, “... the offender must be given the benefit of any reasonable doubt and if there are contentious facts in which there is no agreement, the Court should act on the version of the facts which, within the bounds of possibility, is most favourable to the accused: Saperus Yalibakut v The State (2006) SC890. In this case, you had denied the allegations, and a full trial was conducted, in spite of your admission which is contained in the Pre-Sentence Report.

41.	 Mr John further submitted this Court exercise discretion and consider leniency in determining penalty. He relied on the case of The State v Nelson [2005] N2844 which is a rape case to support his submission on leniency. 

42.	In Anis v The State (2000) SC642, in that case, it was a Guilty Plea. The appeal was against Decision and Sentence. Appeal allowed – 7 years. Appeal allowed. In view of the guilty pleas and cooperation, sentences reduced to 7 years for Tau Jim Anis and 6 years for his 2 accomplices. 10 years IHL.

43.	Pre-trial custody was deducted, and the balance was to be served with no suspension. With reference to the above cases, the State submits that the starting point in this case should be 10 years imprisonment.

44.	Ms Joseph also pointed out to this Court to note that the facts are the same  as the allegations raised against the prisoner’s co-accused to Meckelvin Kanamai who has been convicted and sentenced by this Court. Thus, this Court must consider the factors in mitigation and aggravation, the sentencing trend, and the need to impose a deterrent sentence because of the prevalence of the offence.

45.	The State therefore submits, that the aggravating factors outweigh the factors in mitigation hence the starting point of 10 years imprisonment. However, given the fact that this is a case where there is strong need for both personal and general deterrence. It was in recognition of the seriousness of these offences and the society's concern that Courts have now considered the sentencing tariff in Gimble' s case to be out-dated and have been imposing punitive sentences.

46.	In considering the criminality of the conduct of the prisoner in this case, he should serve a custodial sentence. This is necessary to reflect what is becoming a very prevalent offence within the society and to deter others from committing similar offences. The offence of armed robbery is being committed almost every single day, not only here in Bulolo but also everywhere in our country. People are constantly living in fear of their lives as well as the fear of loss and damages to their properties. This is evidenced by the high rise corrugated fences with barbed and razor wires throughout this small township. It is also a concern that business houses and small stores are vulnerable at the hands of the likes of individuals like you, the prisoner, who preyed upon their business and even use threat and actual violence to steal from them. Given these factors, I adopt the submission of the State that a starting point of sentence of 10 years imprisonment should be appropriate with movements upwards or downwards, given the circumstances of the case. 

47.	Reference was also made to the case of The State v Allan Huaiyo (2023) CR No. 1482 of 2023, (per Manuhu, J) where the Court took into consideration the following matter.

48.	Given these case law, Ms Joseph submitted that the starting point of sentence be of 10 years imprisonment with movements up and down given the circumstances of the case. I am minded taking the following factors into consideration such as the use of offensive weapons, the offence was pre-planned and sophisticatedly executed where there were watchmen armed with offensive weapons placed at strategic locations, such as in front of the main gate where members of the public were walking into the company premises to do shopping and banking. The offence occurred in broad daylight, a significant display of recklessness to the safety, health of general public and bystanders. I would adopt the sentence imposed in the case of State v Kamo (supra) and imposed a sentence of 13 years imprisonment. 

Order of the Court
49.	Having convicted you, Thomson Scorphil for one count of armed robbery contrary to Section 386 (1) (2) (a) (b) (c) of the Criminal Code, you are now sentenced as follows:

Length of sentence imposed: 				13 years. 	
Pre-sentence period deducted:				2 years 4 months 8 days.	
Balance of term of sentence to be served:		10 years 7 months 22 days. 
Amount of sentence suspended:				Nil .
Time to be served in custody:				10 years 7 months 22 days.  
Sentenced accordingly.

Lawyer for the State: Public Prosecutor						
Lawyer for the accused: Public Solicitor