SC638

PAPUA NEW GUINEA
[IN THE SUPREME COURT OF JUSTICE]

SCRA NO. 12 OF 2000

BETWEEN:

JOHN ARUA PETER
Appellant

AND:

THE STATE
Respondent

WaiganiKapi DCJ Sakora Sawong JJ
26 May 2000
1 June 2000

CRIMINAL LAW – Sentence – Aggravated robbery – Robbery of victim in a car – unlawful use of motor vehicle - Plea of Guilty – Sentence.

CRIMINAL LAW – Sentence – Appeal Against Sentence – Appeal dismissed – Sentence of 10 years imprisonment confirmed.

Cases Cited
Gimble v the State [1988–89] PNGLR 271
Norris v The State [1979] PNGLR 605
Public Prosecutor v Don Hale, Unreported Judgment No. SC564

Counsel
Appellant in Person
P. Kaluwin, for the Respondent

1 June 2000

KAPI DCJ SAKORA SAWONG JJ: This is an appeal by the Appellant against a sentence imposed by the National Court.

He was indicted and pleaded guilty to one count of aggravated robbery and one count of illegal use of a motor vehicle. He was convicted on both counts and was sentenced to ten (10) years imprisonment for robbery and two years for unlawful use of a motor vehicle. These were then made concurrent. He now appeals in person against the sentence.

The facts were that the Appellant and six other men acting together and using a gun held up the victim who was driving a vehicle he was in lawful possession of. After holding him up the appellant and his accomplices, demanded that the victim come out of the vehicle. When he did not the appellant and his accomplices took a stone and smashed the windscreen of the said vehicle. They also assaulted the victim with an empty beer bottle on the head which broke and cut him.

He raises two grounds in his Notice of Appeal and in his submissions. First he submitted that he had pleaded guilty, that he had co-operated with the police and that he was a first offender.

Secondly, he submitted that he was concerned about the welfare of his mother, because he thinks that his mother might pass away whilst he is in jail and that he would like to see and be with her when she passes away.

Mr. Kaluwin submitted that all the matters urged upon us were taken into consideration by the trial judge. He further submitted that the appellant has not shown where the learned trial judge had fallen into error in the exercise of his sentencing discretion.

The proper principle to be applied by an appeal court in an appeal against sentence is as has been expressed by Kearney J in Norris v The State [1979] PNGLR 605 at 612 – 613, "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 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 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".

Mr. Kaluwin has referred to the penalty provision prescribed in s.386(2) of the Criminal Code Act, where the maximum penalty for aggravated robbery is life imprisonment. He then referred to the case of Gimble v The State [1988 – 89] PNGLR 271, which suggested some sentencing guidelines in aggravated robbery cases. In that case the Supreme Court said that in a case of robbery of a victim of his vehicle, where the offender pleads guilty, is a young first offender with no aggravating factor the sentence ought to be less than five (5) years. In a contested case or where there are aggravating factor(s), for instance where the victim has been assaulted or is injured the sentence ought to be more than five (5) years.

Mr. Kaluwin then referred to a recent Supreme Court decision in Don Hale v the Public Prosecutor, Unreported Judgment No. SC564. The facts of that case are quite different from the present case. There the case involved the robbery of victims in their homes. The accused and his accomplices held up the victims in their house. The group of man were armed with a gun and in the course of the robbery the gun was fired but no one was injured. The accused pleaded not guilty and at his trial was found guilty and convicted. The offender was a 19 year old first offender. The trial judge convicted him and sentenced him to 5 years imprisonment and then imposed a fine of K1000.000. The trial judge then suspended the whole of the 5 years imprisonment term upon the payment of the fine and placed the respondent on a good behaviour bond.

The Public Prosecutor appealed against the sentence as being manifestly inadequate and insufficient in that the trial judge erred in law in imposing a sentence which was out of proportion to the circumstances of the crime and that he had given insufficient weight to the seriousness of the offence.

The Supreme Court allowed the appeal and said, at p.4:

We find that with the prevalence of violent crime involving the use of guns the ranges of sentences recommended in Gimble’s 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 court went further and made the following observation which respectfully we consider to be relevant. The Court at p.4-5 said:

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.

In the present case the appellant is 23 years old. He is a first offender and he pleaded guilty. He co-operated with the police and readily made admissions. All these matters were taken into consideration by the trial judge

On the other hand the victim was assaulted with a beer bottle and he suffered injuries.  The offender cannot be regarded as a youthful offender.

In so far as his concern for the welfare of his mother is concerned, we are of the view that many other offenders are in the same position as he is. His concern is of no exceptional circumstances which would warrant us interfering with the sentence.

We find that the matters the appellant has raised before us were raised before the trial judge who took them into account in arriving at the sentence.

In the circumstances we find that the trial judge has not made any errors in the exercise of his sentencing discretion. Consequently we dismiss the appeal and confirm the sentence.

__________________

Lawyer for the Appellant: Appellant in Person
Lawyer for the Respondent: Public Prosecutor