Unreported Supreme Court Decisions
SC564
PAPUA NEW GUINEA
[SUPREME COURT OF JUSTICE]
SCRA 33 OF 1996
PUBLIC PROSECUTOR - APPELLANT
V
DON HALE - RESPONDENT
Waigani
Amet CJ Woods Kirriwom JJ
29 June 1998
27 August 1998
CRIMINAL LAW - Sentence - aggravated robbery - guideline for tariff.
Cases Cited
Gimble v The State [1988-89] PNGLR 271
Norris v The State [1979] PNGLR 605
Counsel
P Kaluwin for the Appellant
D Koeget for the Respondent
27 August 1998
AMET CJ WOODS KIRRIWOM JJ: This is an appeal by the Public Prosecutor against a sentence imposed following a trial and conviction for robbery.  The Respondent was with a group of men who went to a house at the 9 Mile Morobe Settlement and threatened the family with a shotgun and actually fired shots at them and he and his compatriots stole a Television set.  After his compatriots got away with the stolen TV set and the respondent went to join them he was seized and detained by other residents and handed over to the police.  He pleaded not guilty at the trial, however after hearing all the evidence the trial Judge found him guilty of robbery with violence and after noting the seriousness of such a crime as the robbery of a householder at night with the use of a firearm he took into account that the Respondent was aged 19 years and a first offender and had been beaten up at the time he was detained.  He imposed a sentence of 5 years imprisonment and then imposed a fine of K1,000 and then suspended the whole of the 5 years imprisonment upon payment of the fine and placed the Respondent on a Bond to return to his home area at Tari in the Southern Highlands.
The Public Prosecutor has appealed against the sentence as being in the circumstances manifestly inadequate and insufficient in that the trial judge erred in law in imposing a sentence which was out of reasonable proportion to the circumstances of the crime and he did not give sufficient weight to the seriousness of the offence.  The principles to be applied in an appeal against sentence have been expressed by Kearney J in Norris v The State [1979] PNGLR 605:
“...has the appellant shown that an error occurred which has the effect of vitiating the trial judge’s discretion on sentencing?  Such an error may be identifiable; thus, the trial judge may have made a mistake as to the facts; or acted on a wrong principle of law; or taken into account matters which he should not have taken into account; or failed to take into account matters he should have taken into account; or clearly given not enough weight or too much weight in a matter he properly took into account.  And...if a sentence is out of reasonable proportion to the circumstances of the crime, even though no particular error can be identified, this Court will infer that some error must have occurred in the exercise of the sentencing discretion.”
The Prosecutor has first of all referred to the provision of the Criminal Code S. 386 (2) where the penalty for robbery is life imprisonment.  He has then referred to the case Gimble v The State [1988-89] PNGLR 271 which suggested some guidelines for sentencing in robbery cases.  And in that case the Supreme Court said that in a case of robbery of a house the starting point would be a sentence of seven years in a contested case by a young first offender and that is the situation in the case before us now.  The Prosecutor has also referred to a number of sentences for robbery that have been handed down over the past year and they appear to be in the range of 4 to 8 years depending on whether it was a plea of guilty or a trial.  And in no instances has there been a complete suspension of the term of imprisonment.
We return to the particular sentence that the Judge handed down here.  The facts of the case were:
·         a group of men;
·         the use of a shotgun to threaten and the gun was actually fired to deter the victims;
·         the family were threatened at their house at night;
·         property was stolen, whilst it only appeared to be a TV set the judge did note that to people living in settlement the value of a TV set would be very high.
The above facts immediately put this robbery into the most serious category namely the robbery of people in their house at night with the use of a firearm, and the trial judge actually noted these aspects of aggravation.  However then the trial judge took note of the fact that the respondent was aged about 19 years and was a first time offender and had been badly beaten by his pursuers after the robbery.  But instead of starting at the suggested figure of 7 years from Gimble’s case he considered a sentence of 5 years and then proceeded to add on a fine of K1,000 and then suspended the 5 years on condition of a bond to be of good behaviour for 2 years and return to his home Province.  Presumably all this was done by virtue of the powers in Section 19 of the Criminal Code.  It would appear that the fine was imposed under S. 19 (1) (b) as in addition to the term of imprisonment.  The suspension on the bond appears to have been ordered under subsection (6).
We first of all find that the trial judge erred in considering the appropriate tariff to start with in considering the appropriate sentence.  Gimble’s case suggests starting with 7 years but the trial judge started even lower than that.  We find that with the prevalence of violent crime involving the use of guns  the ranges of sentences recommended in Gimble’ case are having no effect and are no longer relevant.  Gimble’s case was decided in 1989 and crimes of violence have definitely increased with the use of guns being more prevalent and the community is calling for heavier punishments as a deterrence.  We feel that the starting point to an appropriate sentence involving the robbery of home owners at night with the use of firearms to threaten victims should be 10 years.
The judge having set a sentence of imprisonment then proceeded to suspend the term.  Whilst we agree that a judge has a discretion in sentencing convicted persons such a discretion must be exercised according to normal principles.  We agree that there are many circumstances which should be applied in the consideration of an appropriate punishment for a particular offender and a judge should refer to these circumstances.  There are first of all a number of circumstances of aggravation such as the amount of violence used in a robbery, and the amount of damage done and property taken and whether victims were further injured apart from the fear of the threats.  Then there are matters that may be considered in mitigation of the punishment.  Of course the first factor in mitigation is whether there have been any admissions of guilt however in this case before us to-day the appellant pleaded not guilty so the State and the Court was put to the time and expense of a trial with the calling of witnesses.  So any mitigation for admissions and remorse have limited application.  The age of the respondent was considered by the judge as a mitigating factor.  We have not seen the appellant so we do not know what type of 19 year old he was.  19 years of age is not necessarily a young offender in PNG society, at that age a person is a full adult with the right to vote and marry.  There is no clear report whether this 19 years was a young 19 years still living with his parents or whether he was living as a full responsible adult.  It appears from his antecedent report that he had left his home area and therefore left his parents home and had been living in different parts of Port Moresby and even having an adult job.  So it appears that he may have been acting and behaving as a full responsible adult and not still under the care and control of his parents.  If a judge is to consider some leniency on sentence because of age it is incumbent on him to obtain the relevant report such as a pre-sentence report, especially around the age of 17 to 19.  Age considerations may of course be more obvious to a judge if an offender is under the age of 16 years.  Then for such a drastic suspension of sentence a further help to the court would be a community report from the community to which the offender belongs and whether the community, seeing that the incident happened within that community, has any views on an appropriate punishment or whether the community is prepared to assist with any community management of any bond period.  The Courts are bound under the philosophy of the Constitution to be in touch with the aspirations and attitudes of the people of PNG and the punishment of criminals definitely has an effect on the ordinary people.  So community involvement with the punishment of offenders should be considered especially if the court wishes to return an offender to the community instead of imposing imprisonment.  And we note here the relevance of the Criminal Law (Compensation) Act 1991.  A return to the community should mean an appropriate report of the attitude of the community and whether the community is prepared to take some responsibility for their own offending members and supervise any alternate punishment.
However in this case before us now the trial judge had no pre-sentence report nor any report from the community and sought no help from the community in the supervision of this suspended sentence.  This is a clear error if he was to suspend a sentence for this kind of aggravated robbery.
The trial judge also made some concession for an alleged beating that the respondent had received yet there is no evidence such as medical evidence of the nature and extent of this beating.  It is clear that the trial judge has erred in some of the basic principles to be considered in the sentencing of convicted persons.  He has erred not only in explaining why he did not follow the range of sentences suggested in Gimble’s case but also in suspending the whole of the sentence without the appropriate material to support any mitigating circumstances.
This however leaves the court in some difficulty.  It is not simply a matter of increasing the sentence as there are clearly matters that a court, either this court or the trial court, should consider.  It is not possible to remit the matter back to the trial judge for sentence as the trial judge is no longer a Judge of the National Court.  Further the respondent has apparently paid the fine and gone to his home Province and presumably been behaving himself within the law for the past two years.  And we are reluctant to impose a fresh term of years on him without giving him the opportunity to be heard.  The fact that an officer of the Public Solicitor’s Office did appear on the hearing of the appeal may not be enough as that officer had to admit that his office had had no contact with the respondent since the trial.
We find that the trial judge erred in his considerations on sentence and we find that the trial judge commenced with a too lenient sentence, however on the overall consideration of all factors in this case and the delay over the appeal we quash the suspension order made by the trial judge following the sentence and we order that the respondent be re-arrested and is to serve the balance of the sentence of 5 years imposed by the trial judge.
Lawyer for the Appellant:  Public Prosecutor
Lawyer for the Respondent:  Public Solicitor