N11217
PAPUA NEW GUINEA
[NATIONAL COURT OF JUSTICE]

CR NO.27 OF 2019

BETWEEN:
THE STATE

AND:
JERRY KATU
Prisoner

LAE/BUIMO: POLUME-KIELE J
18 SEPTEMBER 2024; 7 JANUARY 2025

CRIMINAL LAW- Sentence - Armed robbery - s 386 (1)(2) (a) (b) - Criminal Code Act - Penalty of which is subject to s 19, imprisonment for life- No prior convictions – Criminal Code, s 19 - Suspension of sentence considered.

CRIMINAL LAW – Sentenced to 4 years imprisonment- less period held in custody- s 3(2) Criminal Justice (Sentences) Act - Sentence partly suspended, s 19, Criminal Code 

Brief facts
On 11 March 2018, the accused in the company of  others stole K400 from Huon Gulf Hotel. They checked into the hotel the night before and under the pretext of checking-out the next day they threatened the hotel staff with physical violence to overcome their resistance and stole the monies in the sum of K400.00, the property of the Huon Gulf Hotel. 

Cases cited
Goli Golu v The State [1979] PNGLR 653
Gimble v the State [1988-89] PNGLR 271 
The State v Liliura [2014] N5785 
Thress Kumbamong v The State (2008) SC1017
Avia Aihi v The State (No.3) [1982] PNGLR 92
Ure Hane v The State [1984] PNGLR 105
Simbe v The State [1994] PNGLR 38
The State v Jacky Vutnamur & Kaki Kialo (No.3) (2005) N2919 
State v A Juvenile [2006] N3017
The State v Alphonse Polpolio and Jeffery Baru, (2006), N4514 
State v Nelson [2005] N2844
Saperus Yalibakut v The State (2006) SC890
State v Malara [2002] N2188
The State v Patrick Puppy Kaikara Loavi [2006] N3384 
The State v Magani (2011) N4555. 
Public Prosecutor v Michael Wunap Ngudomp, [1982] PNGLR 357 
The Public Prosecutor v. Kwalimu Goina, John Vele, Norman Leva and Tom Wari (Unreported Supreme Court judgment No. SC230 dated 27th July, 1982). 
SCR No. 1 of 1984; Re Maximum Penalty [1984] PNGLR 418
The Public Prosecutor v Don Hale (1998) SC564
State v Waim [1998] PNGLR 360
Public Prosecutor v Thomas Vola [1981] PNGLR 412 
State v Frank Kagai [1987] PNGLR 320
State v Justin Nyama [1991] PNGLR 127
Public Prosecutor v William Bruce Tardrew [1986] PNGLR 91
Doreen Liprin v. The State (2001) SC673
The State v Richard Saku (No.3) (2006) N3284
Phillip Kasman v The State (2004) SC759
The State v Richard Saku (supra) 
Kuri Willie v The State [1987] PNGLR 298 
State v Taulaola Pakai (2010) N4125

Counsel
Mr. Panpan for the State
Mr. John for the prisoner

SENTENCE

1.	POLUME-KIELE J: The facts of this case are contained in my ruling delivered on 30 April 2024. Essentially, on 8 July 2021, an indictment was presented by Ms Langtry from the Office of the Public Prosecutor, indicting the accused, Jerry Katu with one count of armed robbery contrary to section 386(1)(a)(2)(a)(b) of the Criminal Code. 

2.	On arraignment on he pleaded not guilty. Trial was conducted on the same day and concluded on 9 July 2021. 

3.	At the close of the State’s case, the Defence raised a “No Case to Answer” and the matter was adjourned until the hearing of the “No Case to Answer”. 

4.	On 27 July 2021, the Court heard the “No Case to Answer” submission. 

5.	On 7 December 2021, the no case to answer was dismissed. The Court held that the accused had a case to answer. 

6.	Trial resumed on 12 October 2022. During trial, the Defence called its witnesses to give evidence. 

7.	On 9 September 2023, Counsels address the Court on verdict. 

8.	On 30 April 2024, the Court found the accused guilty of the offence of armed robbery under s 386 (1) (2) (a) (b)  of the Criminal Code and entered conviction against the accused accordingly.

9.	This is my decision on sentence 

The charge

10.	The offence of robbery under s 386(1)(a)(2)(a)(b) of the Criminal Code reads:

“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 for determination 

11.	The issue before the Court is to determine the type of penalty for the offender.

The Law 

12.	The penalty provision is provided for under Section 386 of the Criminal Code. Section 386 prescribes the maximum penalty for the offense.

'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.

(3)	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,

13.	I gather from the penalty provision that the maximum sentence for this offence is life imprisonment subject to s 19 of the Criminal Code which empowers the Court discretion to determine an appropriate penalty. Furthermore, it is trite law that the maximum penalty be reserved for the most serious instances of an offense: Goli Golu v The State [1979] PNGLR 653. 

Submissions

14.	Mr. Panpan for the State submits that this case does not fall into the category of worst cases for this offense however it is serious for a number of aggravating factors which this Court is invited to take into account and these factors are that: 

(i)	Armed robbery is a prevalent offense.

(ii)	The offence was premeditated and sophisticated in that the offender pretended to be legitimate client and booked a room and stayed at the hotel the night before the offence.

(iii)	Dangerous weapons were used in the commission of the offence.

(iv)	They threatened the staff at Huon Gulf Hotel with physical violence during the robbery.

(v)	There were a number of persons involved in the robbery, not just the offender. The Offender committed the offence while in the company of other persons.

(vi)	The offender was one of the principal perpetrators; not a section 7 offender merely aiding the principal and that 

(vii)	Monies of some value were stolen.

15.	Mr. Panpan for the State also referred this court to a number of case authorities which I have taken note of, more particularly, the sentencing precedent of Gimble v The State [1988-89] PNGLR 271 which set out the categories of sentencing guidelines. I must point out that the sentencing guidelines have since been revised and these have been increased in the cases of Public Prosecutor v Don Hale (1998) SC564 and The State v Liliura [2014] N5785. In any case, the starting points in Gimble (supra) were:

(1)	robbery of a house — a starting point of seven years.
(2)	robbery of a bank — a starting point of six years.
(3)	robbery of a store, hotel, club, vehicle on the road or the like — a starting point of five years; and
(4)	robbery of a person on the street — a starting point of three years.

16.	In addition, reliance was also based on the case of Public Prosecutor v Don Hale (1998) SC564. In that case, the Supreme Court introduced the following starting point:

(1)	robbery of a house — ten years
(2)	robbery of a bank — nine year
(3)	robbery of a store, hotel, club, vehicle on the road etc — eight years.
(4)	robbery of a person on the street — six years.

17.	If the Court has regard to the sentencing guidelines in Don Hale (supra) it would find that the present case attracts a penalty of 8 years imprisonment as the offender robbed a hotel. Adherence to these tariffs will not adequately reflect the prevalence of this offence and so we also refer the court to the following precedents to aid the Court.

18.	In case of The State v Ata [20241 N10806, the prisoner was arrested and charged for one count of armed robbery with actual violence where a sum of K240 cash and properties valued at a sum of K290.00, the property of. Emma Ronald was stolen. The accused was armed with an offensive weapon, namely a bush  knife which he used to apply personal violence to the victim, actions which contravened s 386 (1), (2) (a) (c) of the Criminal Code. The brief fact of the case is that on 21 November 2022, the complainant, Emma Ronald and her son were walking along the main; road at Water Supply Compound, Butolo, when she was held up by the accused, Clyde Ata who was armed with a knife, a dangerous weapon. The prisoner was sentenced to four (4) years imprisonment with hard labour less the period of 9 months that the prisoner has been held in pre-trial custody.

19.	In The State v Wangi [2018] N7505 per Miviri AJ, the prisoner and three accomplices pretended to be genuine passengers on the 23 June 2016 hopping on PMV bus route 3B travelling to Mai Junction where they stopped the bus and got off. As they did prisoner took out a knife and pointed it at the PMV off sider whilst his accomplices pointed a homemade gun at the driver. They took K500 in cash and a Huawei mobile telephone valued at K299 property of the driver. The off sider of the bus ran away with the prisoner chasing him who turned and hit him with an umbrella prompting youths from neighbouring Mai to join in assaulting him drawing a village councillor to intervene and to take the prisoner to the nearby Police Station of Buluma where he was arrested and charged for the crime. The prisoner was convicted on a guilty plea and sentenced to 8 years imprisonment. Time spent in custody was deducted and the balance was suspended with conditions.

20.	In The State v David Bandi CR No 72912003 per Cannings J, the offender- robbed was convicted after a trial of robbing a PMV near Kimbe, West New Britain Province. He was in company with others and used a firearm. Three hundred kina (K300) was stolen. The offender was sentenced to six (6) years imprisonment.

21.	In The State v Negol [2005] N2801 per Cannings J, the offender and three others armed themselves with a factory-made shotgun and bush-knives and forcibly entered the family home of the Kimbe branch manager of Lae Biscuit Company. The accused's gang used bolt-cutters to cut through the fence and then broke into the house and & held up the manager and his family. They pointed the gun* at the manager. The gang demanded money, whilst threatening to take away the manager's young daughter. The manager acceded to the gang's demands and handed over a company moneybag with K5,000.00 cash in it and his wallet, which contained another K300.00. The gang then fled without causing further harm to the family. The-offender pleaded guilty and was sentenced to seven (7) years imprisonment in hard labour. The mitigating factors were: 

(i)	There was no actual physical violence committed during the course of the robbery.
(ii)	He co-operates with the police throughout their investigations.
(iii)	He pleaded guilty thus saving the State the trouble and expense of mounting a trial and relieving the victims of the inconvenience and trauma associated with coming to court to give evidence.
(iv)	He showed a moderate degree of remorse in his allocutus.
(v)	He was a youthful offender.

22.	The aggravating factors were: 

(i)	There were threats of violence. The gang threatened to shoot the father of the household and then threatened to take away his daughter.
(ii)	The gang had a firearm and other weapons, so there was a real danger that someone would be killed or injured.
(iii)	This was a robbery of a family home, with a mother and children present. Those people have to live with the memory of this incident for the rest of their lives.
(iv)	The amount of money stolen was not small. It was more than K5,000.00.
(v)	The prisoner did not give himself up to the police.
(vi)	There was no evidence that the prisoner has done anything tangible towards repairing his wrongs: no compensation, no repayment, no apology.
(vii)	This was not his first offence. He has a previous conviction for possession of dangerous drugs.

23.	In the case of The State v Endekra [20071 N3185 per Cannings J, the victims were traveling in a truck along the main road from Bialla and the truck was carrying cargo belonging to the Gilo oil palm estate. As the truck was  travelling up a small mountain the three prisoners and two others ran onto the road and pointed guns at the driver. They were armed with two homemade guns and two bush knives. They forcefully removed the driver and the two passengers from the truck and used the bush knives to inflict injuries. One of the victims was wounded on his ear and the other was cut on the hand. The three prisoners got into the vehicle with their accomplices and drove the truck away with cargo on board. They stole the cargo worth K600.00, but it was later recovered. Each offender had an equal level of involvement in the crime and the manner in which they have educated themselves since committing the crime and - their personal circumstances are similar. Therefore, they are treated the same for sentencing purposes. The mitigating factors were that the offenders co-operated with police; they pleaded guilty; they were first offenders; they changed their lives; they were assaulted by police and there was a protracted delay in dealing with their cases. The aggravating factors were that actual violence was committed; victims were threatened; there was real danger of people being killed; no regard for vulnerable victims; a large amount of money stolen; the offenders did not play minor roles; there was no compensation or apology; and no remorse expressed by the prisoners. Each offender was given a head sentence of five (5) years imprisonment. The presentence period in custody was deducted from the time to serve; and no part of the sentences were suspended.

24.	In the case of The State v Willie [2014] N5786 per Cannings J, the prisoner was convicted after trial of one count of armed robbery. The offender and two other men held up the victim and his wife at knifepoint as they were walking along the road. The prisoner stole a boom box worth K 180.00, a bilum and Save Card and K300.00 cash. The total value of the stolen property was K530.00. The mitigating factors were -that the prisoner. has no prior convictions and no actual physical violence was inflicted. The aggravating factors were that a large amount of money stolen — for the victims; the offender acted in a gang; the victims were inevitably traumatised by the incident and there was a breach of trust as the victims were neighbours. A sentence of five (5) years was imposed.

25.	Mr. John in his submission on sentence has referred this Court to a number of case authorities, which I have outlined above,  such case authorities include The State v Ibor (2018 N7584  where the prisoner pleaded not guilty to the charge of armed robbery (his co-accused absconded whilst on bail).  In this case, Paul Ibor, (and three others) entered Kada Lama Copra Trading Depot in Rabaul, ENBP between 9 am and 10am on 7 September 2015. Whilst in the Copra Depot, the prisoner, Paul Ibor and another rushed over to the company truck which had just driven in and stopped with some company workers on board. Yawing Kitum was armed with a pistol. He went straight to Nick John, threatened him with the pistol and removed the money bag from him while Paul Ibor forced the driver out of the vehicle and made him lie face down on the ground. After the robbery they got in another vehicle and drove away. They were apprehended by the security guards working for NKCL Security Company and taken to Rabaul Police Station later in the afternoon of the same day. An amount of K12 000.00 in cash was stolen. Only K3772. 00 was recovered from the prisoners’ possession. He was armed with firearms.  The accused was sentenced to 10 years imprisonment. 

26.	In the State v Charles [2001] N2187, the prisoner pleaded not guilty to armed robbery of contrary to section 386(1), (2)(a) and (b) of the Criminal Code ("the Code"). The offence is alleged to have been committed on the 1st of May 2000 at the Veawa Melanesian Hotel (the "Hotel"),  in Alotau. The State alleges that you were armed with one pistol, one factory made shotgun, one homemade gun and one knife, all being dangerous weapons. After holding up the Hotel employees, you made off with its cash register, K250.00 cash and a number of alcoholic spirits and wines ("drinks"). The State alleges the total of the cash and value of all of the items stolen is K1,906.00. He was sentenced to 13 years

27.	Overall, Mr. John submitted that a starting point of a prison term of 4 years is appropriate noting the recent case of State v Ata [2024] N10806. Further, I note that you are a young offender and given the recommendation of the Pre-Sentence Report, which are relevant factors in terms of the exercise of discretionary powers of the Court with regard to a prisoner’s plea on leniency and the benefit of reasonable doubt in regard to contentious facts of the case.  

28.	Mr. John also submitted that pre custodial period of be deducted pursuant to s 3 (2) of the Criminal Justice (Sentence) Act, with the balance of the head sentence suspended on terms pursuant to s 19 of the Criminal Code and that you be sentenced on the rising of the Court. 

29.	Mr. Panpan for the State on the other hand, submitted that this is a case where you, robbed the victim of their cash of K400.00.You applied physical violence on their persons (employees). Mr. Panpan submitted that you; at, immediately and during the commission of the offence you were armed with a homemade gun, a factory-made firearm and applied personal violence on one of the victims. Therefore, an appropriate custodial sentence is necessary, as a deterrent factor, both personal and generally, this is so that others who are tempted to carry out such activities are deterred from doing so. 

30.	Mr. Panpan also submitted that these sort of offending is a serious crime as it attacks the very essence of the Constitutional guarantees accorded to every men, women, and child of this nation, who should be allowed the freedom to live, move around and go about their lawful business anywhere and at any time of the day, without fear and or unwarranted attacks. 

31.	Regarding sentence, Mr. Panpan submitted that this Court has wide discretion under s 19 of the Criminal Code to impose an appropriate penalty; including discretion to also suspend wholly or partly a sentence and impose supervisory conditions on terms.  A number of case authorities were cited in support of his submission. Such case authorities include the case of The State v Malara [2002] N2188, where the prisoner had pleaded guilty to the charge of armed robbery of a supermarket and stole cash and cheques and goods to a value of K26,000.00 in company of others. They were armed with gun, pinch bar, and other weapons. They broke down the doors to the supermarket. He was sentenced to 15 years imprisonment; pre-trial custody period was deducted, and the balance of prison term served in custody.

32.	In the case of The State v Patrick Puppy Kaikara Loavi [2006] N3384 per Kandakasi, J, the offender pleaded guilty to one count of armed robbery pursuant to section 386(1) and (2) of the Criminal Code. The offender on the 1 April 2005, at Kerema town, armed with a homemade pistol went into the Kerema Traders Store, held up two employees of the trade store and stole cash of K39.00 and fled.  He was subsequently apprehended by police, arrested, and charged. Only, K17.00 was recovered. In determining sentence, the mitigating factors in his favour were: he pleaded guilty, and this saved the State expense in running a trial. He was a first-time offender, co-operated with Police and showed genuine remorse. The amount of money stolen not substantial. Stole K39.00 and K17.00 was recovered. He acted alone and had family problems caused the offender to commit the offence. The aggravating factors on the other hand, were that armed robbery was a serious and prevalent offence, the offender was armed with a homemade gun. He was a mature adult and should have known that what he had done was wrong. The Court held that the factors in aggravation outweighed the factors in mitigation. The Court also held that the sentence should be immediate custodial sentence going beyond 15 years. The Court however imposed a sentence of 10 years and deducted the pre-custody period of 1 year, 6 months and 14 days. The balance sentence of 8 years, 5 months and 14 days was to be served in hard labour at Bomana Correctional Institution.

33.	In relation to the charge against you, Mr. Panpan submitted that the matters in aggravation outweigh the matters in mitigation. He submits further that armed robbery has now become the most prevalent offence and crime of violence confronting citizens and businesses every day and attacks the very essence of the Constitutional guarantees for every men, women, and children of this country to have freedom to live, move around and go about with his or her lawful business anywhere and at any time of the day without fear of unwarranted attacks: see The State v Magani (2011) N4555.

34.	I agree with and accept the submission of the State on the seriousness of the crime of violence confronting citizens and businesses throughout this nation of ours. I reiterate that crime of violence is repugnant to the fabric of a society and that such behaviour must be denounced in the strongest terms and to that I add and adopt the statement expressed by the Court in Public Prosecutor v Michael Wunap Ngudomp [1982] PNGLR 357 where the Court stated that crimes of violence are occurring frequently in this country. I refer to and adopt the statement of the Court where it expressed great concern in the case of The Public Prosecutor v. Kwalimu Goina, John Vele, Norman Leva and Tom Wari (Unreported Supreme Court judgment No. SC230 dated 27th July, 1982). At pp. 3-4 of that judgment, the court said as follows:
“…
…
The deterrent aspect of punishment is of primary importance in cases of this kind. Sentence should demonstrate to others tempted to engage in such lawlessness involving violence that the punishment to be imposed will be calculated to protect society from the deliberate attack made on it.

We are mindful of the increase of crimes of violence and the widespread public concern about such offence. Such conduct will be met by firmness on the part of courts, and we give a warning that sentences would increase substantially. This is particularly so when such crimes are committed by gangs”

Sentencing guidelines 

35.	Having stated the above, I now consider the sentencing guidelines as established in the case of Gimble v the State [1988-89] PNGLR 271 sets out the sentencing tariff at that relevant period where several indicators were used to determine the severity of sentence, and these were:

(i)	robbery of a house – starting point of seven years imposed. 
(ii)	robbery of a bank – starting point of six years.
(iii)	robbery of a store, hotel, club, vehicle on the road or the like – starting point of five years; and
(iv)	robbery of a person on the street – starting point of three years.

36.	On hindsight, the principle applied in the case of Gimble v State (supra), was decided more than 25 years ago. Since then, there has been an increase in the range of sentence terms imposed by the Courts due to the prevalence of such offences. In The Public Prosecutor v Don Hale (1998) SC564, the Supreme Court introduced the following starting point:

(i)	robbery of a house – ten years.
(ii)	robbery of a bank – nine years.
(iii)	robbery of a store, hotel, club, vehicle on the road etc – eight years.
(iv)	robbery of a person on the street – six years.

37.	Since then, in recent case of The State v Liliura [2014] N5785, the sentencing applied in the case of The Public Prosecutor v Don Hale was adopted and applied, Consequently, the sentencing tariff for such offending are as follows: 

(i)	robbery of a house – starting point of ten years imposed. 
(ii)	robbery of a bank – starting point of nine years.
(iii)	robbery of a store, hotel, club, vehicle on the road or the like – starting point of eight; and
(iv)	robbery of a person on the street – starting point of six years.

38.	So, in determining sentence and taking into account the whole of the circumstances of the case and your participation in the offending, I am invited by Counsel for and on your behalf and the State to consider the type of punishment that should be imposed on you. Your case attracts a penalty of 8 years imprisonment: Public Prosecutor v Don Hale (supra) and State v Liliura (supra) applied. 

39.	I also note that the State in their submission, submits that adherence to these tariffs will not adequately reflect the prevalence of this offence and has asked this Court to consider other case authorities which have dealt with similar offending and make a finding accordingly. 

40.	Whilst acknowledging the submission from the State, I also note that it is settled law in this jurisdiction that the maximum penalty for an offence should ordinarily be reserved for the very worst types of cases and thus the question then arises as to whether this present case is such a case and I make references to the following cases; SCR No. 1 of 1984; Re Maximum Penalty [1984] PNGLR 418, Avia Aihi v the State [1982] PNGLR 92 and Ure Hane v the State [1984] PNGLR 105 to assist the Court arrive at a determination based on the facts and circumstances of each case on its own set of facts in order to determine an appropriate penalty. For your case, you have pleaded not guilty to the commission of the offence. This Court has found you guilty on the bases that the armed robbery was consciously carried out by you in the company of other persons who are still at large.  

41.	In addition, this Court is given wide discretionary powers under s 19 of the Criminal Code to determine penalty. This also includes the exercise of discretion to suspend the minimum sentence is provided for under s 19 (1) (d) of the Code  (State v Waim [1998] PNGLR 360 at 363 per Injia J (as he was then)  is also available to the Court and must be based on some proper basis: Public Prosecutor v Thomas Vola [1981] PNGLR 412, for instance, a first time young offenders; 18 years or below; Gimble v The State  [1988-89] PNGLR 271  at 275; and is of good character and good family background; State v Frank Kagai  [1987] PNGLR 320 and State v Justin Nyama [1991]  PNGLR  at 127 or on medical grounds;  Public Prosecutor v William Bruce Tardrew  [1986] PNGLR 91. 

42.	Given the foregoing, I am also required to weigh the consequences of sending offenders to prison for “non-violent crimes” and those which have been categorised as “violent crimes”: Doreen Liprin v. The State (supra) and off course, the established principle of law which states that the maximum penalty should be reserved for the worst type cases: Goli Golu v The State (supra).  The Court has taken into account all that you have said in your allocutus and have considered the address by their lawyer on mitigation. 

43.	Whilst I consider that the case is serious, it cannot be categorised as the worst type of offence. In light of the assessment contained in the Pre-Sentence Report and your consistency in attending to your bail conditions and your show of your remorse as expressed in Court shows how badly, your actions have affected you individually as a person. 

44.	Hence, I have arrived at a conclusion that the circumstances of the case do not warrant the imposition of the maximum years of jail sentence. I consider that a lesser sentence be imposed based on the sentencing guidelines in The Public Prosecutor v Don Hale (1998) SC564 with a starting point of sentence ranging from 4 to 8 years with movements up and down as proposed by counsel for the State based on the factual circumstances of the case.  I also note that you did use force or used other forms of weapons to threaten the victims during the commission of the offence. 

Deliberations on penalty

45.	In consideration of an appropriate sentence, I note that you have by you have pleaded not  guilty to the charge. However, I also note that you have consistently been attending to your matter in court and had complied with your bail conditions. You have also apologised to the Court and the victims through this Court. I note that you are a first offenders and this is confirmed by the antecedent report presented by the State. These matters are taken into consideration because they support the submission presented for and on your behalf by your lawyer. 

The Pre-Sentence Report

46.	A short summary of the pre-sentence is as follows:- The offender is a mature person, married with one child. He completed grade 12 in 2002 and received a certificate in IT from International Training Institute and a Diploma in Accounting in 2015. He was employed by Lae City Authority with the cash/revenue section from 2015 to 2018. He moved to the Ward 5 administration office and was there until his arrest. He is now self-employed and sells poultry and SME marketing to sustain him and his family. He has no health issues and has no immediate plans to further his education.

47.	Several community leaders were interviewed for the compilation of the pre-sentence report. A Mr. Max Ananuka, spoke well of the offender. He said that the offender was respected by the youths in the community and has complied with his bail conditions by not reoffending. Mr Ananuka pledged to supervise the offender if he is given probation In addition, a pastor, Mr. Bakine Mitihata, a pastor at Kisim Bek Parish, said that he knows the offender well as a member of the parish. He also spoke well of the prisoner. Further, the wife of the offender has also given her views on the prisoner and continued to maintain his innocence.

48.	Overall, the Pre-Sentence Report concludes by saying that the offender is of no threat to the community and recommended that he be placed on probation with a condition that he be of good behaviour amongst others.

49.	Taking all these matters, all the evidence including the mitigating and aggravating factors into consideration, I find that the matters in aggravation outweigh the matters in mitigation. 

50.	Consequently, I am of the view that a custodial term. is warranted. In this case, a prison term within the range of 4 to 8 years which is within the category set out in the case of State v Liliura (supra) and Public Prosecutor v Hale (supra)  is appropriate. 

51.	Whilst I also note that discretion is available to the Court to take the recommendations in the Pre-Sentence Report into account and suspend a sentence once imposed, either wholly or in part. I am of the view that a wholly suspended custodial term is not warranted in your case, considering that you, Jerry Katu did not act alone in this case, you had committed this offence in company of other persons who are still at large. Furthermore, you and your accomplices had executed a sophisticated robbery on unsuspecting hotel staff and that offences of this kind are prevalent and are on the increase. 

52.	I also note your request for a wholly suspended sentence. In your cases, as earlier stated, a Pre-Sentence Report has been presented by the CBC Office as requested by your lawyers. Whilst I noted that submission by your lawyer, I find that the CBC Report does recommend a suspended sentence with supervisory conditions. These are important considerations and have been taken into account including this Court wide discretionary powers under s 19 of the Criminal Code Act.

53.	At the same time, I also take note of the fact that armed robbery is a serious crime. Sentences entered for the crime of armed robbery have increased considerably. The reason for the increase is due to the prevalence of this crime. This trend is reflected in a number of cases since the case of The Public Prosecutor v Don Hale (1998) SC 564 where the Supreme Court said: “the sentencing guidelines set in the case of Gimble v The State [1988-89] PNGLR.271 are not having any deterrent effect on offenders”. 

54.	I take note of comments made in the case of Public Prosecutor v Don Hale (1998) (supra) where the Supreme Court said, sentences imposed for armed robbery cases are not having any effect on offenders who commit the crime of robbery. What is clear is that now a days, the offence of armed robbery is freely and frequently committed invariably by young people. I also note that the aggravating factors against you far outweighs the mitigating factor. 

55.	Whilst I do note that you have expressed remorse for what you have done, I refer to and reiterate the statement made by his Honour Lenalia J in the case of The State v Richard Saku (No.3) (2006) N3284 where he referred to the comments made by the Court the case of Gimble v The State (supra) in which the Court stated: “that where an offence of armed robbery is committed with features of aggravations such as actual violence or where a robbery involves a large amount of money may justify a higher sentence. A plea of guilty should justify a lower sentence.” I adopt that proposition and agree that consideration be given to a lower sentence given your consistency in compliance with your bail conditions.

56.	However, having arrived at that proposition, I am of the view that as a matter of deterrence; the community’s perspective ought to be taken into account on deciding sentences for armed robbery cases and because of the prevalent nature with which robbery is being committed sentences must reflect the communities’ concern and I refer to the case of Phillip Kasman v The State (2004) SC759 where the appellant was a member of a gang which robbed the staff at the door step into the ANZ Bank in Waigani where they stole an unspecified sum of money. The trial judge imposed a sentence of ten (10) years. He appealed but the Supreme Court did not want to disturb the sentence as it was a public place, and more injuries could have been caused if the plan went wrong. 

57.	In your case, the robbery took place in town inside a hotel. It was a public place. You and your accomplices exhibited some bold approach to committing this serious crime without any fear for the law and respect for a commercial business. I say even ordinary people cannot be treated in the way you and your accomplices had treated the employees of the business at that relevant period. I also find that you did not display any respect for people who have worked hard and earned their living lawfully. Ordinary citizens should not suffer unnecessarily from the hands of cruel minority who have no respect for the law. 

58.	Reiterating and adopting the statement by Lenalia in The State v Richard Saku (supra) where he stated, and I quote:

“the legislative intent of prescribing the maximum penalty of 14 years for ordinary armed robbery and life imprisonment for those cases aggravated by the use of violence or threatened violence by those who act in concert carrying dangerous offensive weapons must meet the consequences of high penalties to reflect the community’s view on how serious the crime of armed robbery is” (end of quote).

59.	Having considered all the above mitigations and aggravations, I would adopt and apply the reasoning applied in the case of The State v Alus Tamagi and Paija Teke (supra). In that case two offenders pleaded guilty to the offence of armed robbery. In determining an appropriate sentence, the Court noted that the sentences that have been imposed for the offence of armed robbery has not served its purpose in deterring likeminded offenders. Therefore, the sentence the Court must impose must deter the offenders and other likeminded offenders. The Court considered a sentence between 8 years and 16 years and imposed a sentence of 15 years against the offenders, of which 1 year 7 months pre-custody period was deducted, and the balance of 13 years, 11 months and 3 weeks was to be served in hard labour at Ningerum Correctional Service. 

60.	Applying this principle to the case against you, the offence of armed robbery is serious as it involved the use of dangerous weapons namely homemade guns. You had stolen an amount of money which belongs to a business house.  I have taken into account the mitigating factors submitted in your favour and out of other mitigations, the only mitigating circumstance is that the court can consider is that you are a first-time offender and express remorse. The aggravating factors far outweighs the mitigating factors, and these include the fact that, you committed the offence with threat of violence. Whilst I consider the offending not the worst type of armed robbery, I must say that you have committed the offence of armed robbery in aggravating circumstances, an offence for which you must be punished as a deterrent to likeminded offenders and others tempted to engage in such lawlessness involving violence.

61.	Consequently, I consider that a custodial term of sentence is warranted. 

62.	In your case, the State has suggested a term of imprisonment between the range of 4 years to 8 years is warranted. Your lawyer on the other hand has suggested that a head sentence of 4 years be imposed less the pre-trial period that you have been remanded in custody and the balance of the sentence term be suspended on terms on the rising of the Court. 

Conclusion

63.	This then leads me to the question as to what the starting point in relation to sentence in your case should be. In order to deter such behaviour, it is proper that a custodial sentence of 4 years is an appropriate sentence to be imposed on you.  I also noted that you have already been in detention for a period of 8 months 9 days and thus will deduct the period of 8 months 9 days from the term of your sentence under s 3 (2) Criminal Justice (Sentences) Act.

64.	The next issue is to consider whether the balance of your sentence be suspended. Firstly, suspension of a sentence is at the discretion of the Court, to be exercised on proper principles and if it is recommended by a Pre-Sentence Report (Public Prosecutor –v- Don Hale (1998) SC564). Secondly, suspension may also be appropriate if it encourages reconciliation and restoration of damaged relationships: Public Prosecutor –v- Tardrew [1986] PNGLR 91

65.	For your case, the PSR does recommend suspend of the sentence. I note that there is feedback from the community on this aspect of consultation from community views overall.  Whilst the Pre-Sentence Report does recommend suspension of sentence and placement on probationary orders on the basis that you are not a dangerous person. 

66.	However, I am mindful of the fact that your accomplices are still on the run and thus have reservations and of the view due to the fact that the crime was committed in the company of other persons who are still at large which will cause difficulties for purposes of probationary assessment.

67.	With regard to the prisoner’s pleas for leniency and being a first time offender in court, this case can be distinguished from the case of Paulus Mandatitip and Anor -v- The State [1978] PNGLR 128  where youth was considered as a mitigating factor or the case of Kuri Willie v The State (1987) PNGLR 298 Hinchliffe, J (as he was then) discussed the need for courts to investigate alternatives to imprisonment when dealing with youthful first time offenders and the need to consider alternative mode of punishment to imprisonment. 

68.	However, although you are a first-time offender and young man, the crime of armed robbery which is committed with such impunity must carry with it some serious penalties as a deterrent factor. I therefore adopt the principle applied by Hartshorn J in the State v Taulaola Pakai (2010) N4125, where he stated that “Court’s should not lose sight of its duty to impose what is a just and fair punishment on an offender." A plea for leniency to avoid the suffering of one's family should have little or no weight when an appropriate sentence is being considered."

69.	In these circumstances, I consider that incarceration is an appropriate penalty and sentence you to 4 years imprisonment with hard labour. I deduct a period of 8 months 9 days  being the period that you have been held in custody pursuant to s 3(2) of the Criminal Justice (Sentences) Act. Further and in addition, in the exercise of discretion under s 19 of the Criminal Code, I suspend 12 months of the sentence term.  This means that you will now serve the balance of the term of sentence of 2 years 3 months 21  days in custody, to be served at the Buimo CIS. 

Sentence

70.	Consequently, having convicted you, Jerry Katu for one count of armed robbery contrary to 386(1)(2)(a) (b) of the Criminal Code; you are now sentenced as follows:

Length of sentence imposed: 			4 years. 	
Pre-sentence period deducted:			8 months 9 days.	
Balance of term of sentence to be served:	3 years 3 months 21 days.
Amount of sentence suspended:			12 months 
Time to be served in custody:			2 years 3 months 21 days. 

Sentenced accordingly
________________________________________________________________
Lawyer for the State: Public Prosecutor	
Lawyer for the offender: Public Solicitor