SC894

PAPUA NEW GUINEA
[IN THE SUPREME COURT OF JUSTICE]

SCR NO. 59 OF 2005

BETWEEN:

BOBOLAN MEBU PETER
Applicant

AND:

THE STATE
Respondent

Wewak: Mogish, Manuhu & Hartshorn, JJ.
2007: June 26 & 27.

DECISION

CRIMINAL LAW – Appeal against sentence – Aggravated Robbery – Sentencing guidelines.

Cases cited.

Gimble v The State [1988-89] PNGLR 271.
John Peter Arua v The State (2000) SC638. 
Philip Kassman v The State (2004) SC759.
Public Prosecutor v Don Hale (1998) SC564.
Tau Jim Anis v The State (2000) SC642.

Counsel:

The Applicant in person.
S. Kesno, for the Respondent.

27 June, 2007

1.	BY THE COURT: Introduction: The Applicant is seeking a review of his sentence after he pleaded guilty and was convicted for aggravated robbery by the National Court and sentenced on 26 October, 2005 to thirteen years with hard labour.

Facts

2.	On 9 June, 2004 the Applicant and other accomplices were at Warimap Bridge outside of Wewak town. They placed a log across the bridge and waited for a vehicle to come by. At about midday, a motor vehicle owned by Mercy College Yarapos drove by and was immediately set upon by the Applicant and his accomplices. They were armed with home-made guns, sling shots and bush knives with which they threatened the passengers. The Applicant and his accomplices stole K2,200.00, which was to be used to pay employees of the college, house and office keys, a purse, lunch, grocery items, a calculator and a deposit book.

The issues

3.	The Applicant argues that the trial Judge did not give due weight to his plea of guilty which made it easy for his case to be completed quickly. The Applicant also points out that he was a first offender and he expressed remorse for what he did. The Applicant also attaches two warrants of commitment where sentences of seven and five years were imposed on defendants who were older than him. The issue, ultimately, is whether the sentence imposed is excessive. It is necessary therefore to consider the Applicant’s sentence against the current sentencing guidelines for robbery cases. 

The sentencing guidelines

4.	On the facts, this particular robbery falls under the category of robbery of a vehicle on the road which attracts a starting point of five years in a plea of not guilty: Gimble v The State [1988-89] PNGLR 271. However, the starting point in Gimble was increased by three years in Public Prosecutor v Don Hale (1998) SC 564 which was subsequently reaffirmed by Tau Jim Anis v The State (2000) SC 642. This means that the starting point for a robbery of a vehicle on the road is eight years which may vary by one or two years depending on the facts of each case. 

5.	Consequently, the Supreme Court has confirmed a sentence of ten years in a number of cases. In John Peter Arua v The State (2000) SC 638, for instance, which case was referred to us by Mr. Kesno, where the prisoner pleaded guilty to one count of aggravated robbery and one count of illegal use of a motor vehicle, the Supreme Court found that "the trial judge has not made any errors in the exercise of his sentencing discretion" and dismissed the appeal against a sentence of ten years. 

6.	Similarly, in Philip Kassman v The State (2004) 759, which was also referred to us by Mr. Kesno, where armed men attacked a bank customer outside the precincts of the bank and stole K128,464.24, the Supreme Court said that applying the three year denominator in Don Hale’s case the sentence should have been around eight years. However, while "the sentence of 10 years is slightly above what might be the starting point of 8 years, we do not, however, consider that the sentence of 10 years was manifestly excessive in all the circumstances." 

7.	We have considered and decided against reviewing and fixing a new set of sentencing tariffs for robbery cases but we have not had the benefit of full arguments particularly when the Applicant is unrepresented. We reaffirm the sentencing guidelines in Gimble, Don Hale and Tau Jim Anis and note that it is within the sentencing Judge’s discretion to increase or decrease by one or two years depending on the facts of each case: Philip Kassman and John Peter Arua.

Application of sentencing guidelines 

8.	This case is categorized as a robbery of a vehicle on the road which attracts a sentence of eight years on a trial leading to conviction. The crime of armed robbery is a prevalent crime. The Applicant and his accomplices were armed with knives and guns which they used to threaten innocent passengers. The crime was premeditated. It was committed in broad daylight and daring. It was a demonstration of disregard for the rights and wellbeing of others and a challenge to the rule of law. The Applicant and his accomplices stole K2,200.00. The money was intended for the salaries and wages of employees of the college who would have suffered as a consequence. However, the Applicant pleaded guilty, is a first time offender, and cooperated with the police. 

9.	In the circumstances, a sentence of eight years was appropriate but a sentence of ten years, according to Philip Kassman and John Peter Arua, would have been within the trial Judge’s discretion to impose. The trial Judge did take into account all the mitigating and aggravating features but did not refer to the sentencing guidelines before arriving at the sentence of thirteen years. Sentencing guidelines are just guidelines but if followed they render consistency in sentencing. We are of the view that, on the facts, the sentence of thirteen is a significant departure from the sentencing guidelines. 

Conclusion

10.	For the foregoing reasons, we are satisfied that the sentence of thirteen years was manifestly excessive and should be quashed. Consistent with the sentencing guidelines and the particular circumstances of this case, we impose a sentence of ten years with hard labour. 

___________________________

Public Prosecutor: Lawyer for the Respondent