SC642

PAPUA NEW GUINEA

[IN THE SUPREME COURT OF JUSTICE]

SCRA NO. 01 OF 2000

BETWEEN:

TAU JIM ANIS,
WARANA GEORGE ANIS
and EMIAS GIAMSING
-Appellants-

AND:

THE STATE
- Respondent -

LAE: SHEEHAN, JALINA AND KIRRIWOM, JJ.
2000: 22 & 25 MAY

CRIMINAL LAW – Appeal against severity of sentence – Armed Robbery – Plea of Guilty – Sentence of 10 years – Sentence excessive - Robbery of a factory – Group of armed first time young offenders – substantial mitigating circumstances – error in the exercise of sentencing discretion – Appeal upheld.

Cases cited:
Public Prosecutor v Don Hale SC564 (SCRA 33 of 1996)
Gimble v The State [1988-89] PNGLR 271
Norris v The State [1979] PNGLR 605

Counsel:
Mr. Auka for the Respondent
Appellants in person

DECISION

BY THE COURT: This is an appeal against severity of sentence. The appellants were convicted of armed robbery and each sentenced to ten (10) years imprisonment in hard labour.

The appellants were charged with stealing with actual violence from one Rumba Anis and others a sum of K20,234.04 in cash whilst armed with home-made shot-guns and axes, the property of Yahauka Coffee Pty. Ltd. The corporate victim of the robbery was Yahauka Coffee Mill owned by Yahauka Coffee Pty. Ltd and situated at Aseki in the Menyamya District of Morobe Province. At the time of the offence on the 11th of December, 1999 Rumba Anis and others were at work when the three appellants and one Mesaia Yapet went to the coffee factory whilst armed with guns and an axe held them up demanding money and threatening to shoot them. In so doing one of them kicked one Thomas Tom and urged him to hand the money over quickly and which they did eventually. The appellants took the money and ran away.

The appellants pleaded guilty and were convicted by Injia, J. and were each sentenced to ten (10) years imprisonment. In appealing against the sentence the appellants claim that the sentence imposed upon each of them is manifestly excessive in the circumstances in that the trial judge erred in not giving due consideration to the reasons for their action and also, in so far as Warana George Anis and Giamsilin Emies are concerned, he failed to give sufficient weight to their youthfulness in that they were 15 at the time they came before the court.

The appellant Tau Jim Anis appears to be the more matured of the two younger appellants. There were four people allegedly involved in the trouble and it was claimed in the National Court and before this Court that these three were only carrying out instructions of a plan that was already masterminded by an insider who was a company worker. The story about an insider seems to be an afterthought because in the record of interview Tau Jim Anis claimed that it was his plan to rob the company and he led the other co-offenders to join him in this robbery. This story appears to be consistent with the general trend of the evidence where this appellant appears to be the more active of them who is breaking into the offices and breaking open the boxes with his axe searching for money. Even Warana says in his record of interview that it was Jim’s plan for them to rob the factory. He says he was given some K2200 which he shared with his uncle and his wife. He gave his age as 20 to the police in his record of interview. He claimed the factory made shot-gun that was carried by the co-offender Yapet to be his. He said he bought the gun from a person in Wau for hunting. Emies Giamsiling also told the police that it was Jim’s idea for them to rob the factory. At the time of interview with the police he was 17 years old and he said he had completed Grade 3.

All three appellants have now shifted their defence strategy by blaming someone else whom they say was a company workman who planned the robbery. They say they only carried out the plan. They also claim that all the money stolen had been recovered however there is no clear evidence of such restitution being made and his honour did make note of this although there was mention of some money being recovered from Tau Jim Anis. Apart from this the appellants contend that the trial judge made no concession in their sentences for their pleas of guilty and the fact that they were entirely honest and truthful since the time of their arrest by cooperating with the police. 

We note that the appellants were quite ably represented by counsel who presented to the court in mitigation of penalty those possible factors he obtained by way of instructions the most obvious one being the young age of Warana and Emies Giamsiling. Against the opposing view of the trial judge as to his estimate of the ages of Warana and Emies, counsel strongly maintained his belief of his clients’ instructions that they were both 15 years of age. But his honour’s estimate was otherwise and he disbelieved them. His Honour was entitled to come to his own conclusion as to their age by judging from their physical appearance under the Evidence Act. Section 63 provides:

In any legal proceedings, if the court does not consider that there is evidence or sufficient evidence to determine the age of a person the court, having seen the person, may itself determine the question.

We have had the opportunity of examining the appellants in court and have heard them plead their youth as a factor that the trial had not given much consideration. But it seems and we think his honour was quite correct to conclude that the age factor was being pleaded out of context in so far as the physical evidence of the persons before him was concerned. The appellant Warana could not have been possibly 15 at the time he appeared before his honour because he was already a married man without children but aged 20 at the time of interview. The appellant Emies Giamsiling was 17 at the time of interview with the police on 16th December, 1998 and he can’t have been 15 years old eleven months later when he appeared in court on 11th November, 1999.

We find that the trial judge had carefully examined the case and considered all the relevant authorities on sentence for robbery before arriving at ten years as the appropriate sentence for all three of them. His honour was correct in his approach to sentence. But we are of the view that a sentence of 10 years for first time young offenders like the two young appellants in this case who, according to the guidelines in Gimble v The State [1988-89] PNGLR 271 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 the Public Prosecutor v Don Hale (Unreported Supreme Court Judgment SC564) (SCRA NO.33 OF 1996) where the Supreme Court said:

"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. (Emphasis is ours).

The court went further and made these observations which we consider are also of relevance in this case:

"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."

If the guidelines in Gimble are to be taken as the guiding principles in formulating appropriate guidelines in place of those in Gimble’s case as the Supreme Court in Public Prosecutor v Don Hale (supra) purported to do, then 10 years as the starting point in this case is wrong because Don Hale was a case of robbery of a dwelling house at night and terrorising the occupants therein with gun which Gimble categorised as the most serious category of armed robbery offences. Robbery of a factory, like a club or a store, according to Gimble guidelines attracted 5 years sentences and if 10 years for robbery of a dwelling house in Don Hale was intended to raise the tariff set in Gimble, then applying the same denominator of 3 years, the appropriate tariff for robbery of a factory ought to be 8 years. In this respect, inter alia, we are of the view that the trial judge had erred. We find nothing in the case of Public Prosecutor v Don Hale (supra) to be laying down a blanket authority superseding the more detailed and categorically evolved principles in Gimble v The State. The excerpt we quoted from Don Hale above clearly indicates that the Supreme Court therein was referring to the robbery of a dwelling house in the context of Gimble guidelines. It seems that that discussion had been read and construed out of that context and in so doing already offends against the principles established in Gimble v The State which in our view is still good law. What the Supreme Court needs to do now is to prescribe new guidelines to supersede those in Gimble. The conclusion we have reached in this appeal finds support in the oft-cited passage in Norris v The State [1979] PNGLR 605 on error in the exercise of sentencing discretion at 612:

"So the question in practice on a sentence appeal is usually this-has the appellant shown that an error occurred which has the effect of vitiating the trial judges, 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 which he should have taken into account; or clearly given not enough weight or too much weight to a matter he properly took into account. There will also be vitiating error if upon the proved facts and making the fullest allowance for the advantaged position of the trial judge, the sentence is obviously (and not merely arguably) excessive, although no identifiable error can be shown; for, 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."

What we are concerned about is that ten years for an armed robbery of a factory or shop by young first offenders with substantial mitigating circumstances without any indication as to whether any concession was made for the plea of guilty, full restitution and good character does not leave much incentive for anyone to plead guilty to robbery, let alone the big jump. We quite agree that there needs to be an increase in the tariff generally for all categories of armed robberies in Gimble sense but it must be done progressively rather than by leaps and bounds. It seems to us that 8 years would be more appropriate sentence in this case. Both Warana George Anis and Emies Giamsiling as first time young offenders we believe were led astray by Tau Jim Anis who was the master-mind and the instigator of this robbery. And in view of their pleas of guilty and their cooperation with the police we make allowance across the board for all three of them and reduce their sentences to 7 years for Tau Jim Anis and 6 years respectively for Warana George Anis and Emies Giamsiling. Had it been a trial they would not be entitled to this concession. From the head sentences of 7 years and 6 years respectively we deduct the period the appellants have already served which we calculate as follows:

Tau Jim Anis		-	already served including pre-trial custody period
-	1 year 5 months 1 week and 6 days leaving him the balance of 5 years 6 months 3 weeks and 1 day to serve.

Warana George Anis	-	already served including pretrial custody period
-	1 year 5 months 2 weeks – leaving him with balance of 4 years 6 months 2 weeks to serve.

Emies Giamsiling		-	already served including pretrial custody period
-	1 year 5 months and 2 weeks - which leaves him a balance of 4 years 6 monhts and 2 weeks to serve. 

We therefore uphold the appeal on behalf of the appellants and quash their sentences of 10 years and substitute each of their sentence as detailed above vis à vis Tau Jim Anis will serve further term of 5 years 6 months 3 weeks and 1 day and both Warana and Emies will serve further terms of 4 years 6 months and 2 weeks and new warrants of commitment will issue.

Appeal upheld.
________________________________________________
Lawyer for the Respondent State: Public Prosecutor
Lawyer for the Appellants: nil