State v Mirape and Kobi [1989] PGNC 22; N831 (20 October 1989)

Unreported National Court Decisions

N831

PAPUA NEW GUINEA

[NATIONAL COURT OF JUSTICE]
THE STATE
V
DAVID MIRAPE
AND WILLIAM KOBI

Mendi

Brunton J
13 October 1989
20 October 1989

CRIMINAL LAW - sentencing - armed robbbery s.386(2).

CRIMINAL CODE - suspended sentence s.19(1)(f) Criminal Code - young first offender - pistols and shot-gun used - goods K2583.13 stolen - Gimble -v- The State SC369 discussed.

Sentence:

David Minape: 4 years in hard labour. William Waraja Kobi: 4 years in hard labour, partially suspended on probation-like conditions, after serving another two years (effective custodial period two years, three months, and two weeks), on condition that he not be convicted while serving his sentence of escaping or attempting to escape; that he enter into a two year good behaviour bond in an amount of K200; and that he agrees to the supervision and conditions imposed upon him by the Probation Officers at Mendi.

Held:

There appears to be some difficulty between the decisions of the Supreme Court in Gimble -v- The State (1989 Unreported Judgement SC369) and the majority judgements in Acting Public Prosecutor - -v- Clement Makei and Tom Kasen (1981) unreported Judgement SC205). Makei and Kasen followed.

Counsel:

Lawyer for the State: Mr Poiya

Lawyer for the Accused: Mr Wogaro

JUDGEMENT ON SENTENCE

BRUNTON J:

THE INDICTMENT

The prisoners pleaded guilty to an indictment that they robbed one Peter Kayoka of properties to the value of K2586.13 at Ambua Gap near Tari, contrary to Section 386(2) of the Criminal Code. It was alleged that the accused were armed and in company. The maximum sentence of this offence is imprisonment for life.

THE FACTS

On the 26th of May 1989 the two prisoners, and four others who have not been apprehended, made a plan to hold-up vehicles at the Ambua Gap, near Tari. They were armed. Tendered before the District Court, but not in this Court, were a home-made shot-gun and a pistol. The prisoner David Minape was armed with a bush-knife. The prisoner Wamja Kobi was not armed, and his role was that of watchman to the gang. The gang blocked the road at the Ambua Gap by cutting down a pandanus tree. They were unsuccessful the first time a vehicle came past. It was a 15 seater bus and somehow it evaded the road-block. One of the guns was fired at the bus, but the shot missed. This was not put to the prisoners when they pleaded. The gang then waited for another vehicle. They found one parked a little way down the road, it was the Hagen Bakery vehicle, and the driver was answering a call from nature. They went up to the driver and demanded that he give them the money. The driver handed over a bag of coins and cheques to David Minape. They were not satisfied with that, they demanded he give them notes; the driver gave the notes. They also stole a radio. The total value of the cash, cheques and radio came to K2,586.13. They ran away and the money was divided up.

There was an air of amateurism about the robbery. In order to get to the scene of the crime the gang had hired a brown land-cruiser allegedly owned by Mr Haralu Mai. This vehicle dropped them near the scene, and later picked them up. The vehicle was spotted by the District Co-ordinator, Mr Yaki, in the morning before the robbery, who concluded it was up to no-good, and he took steps to gather his police and set up a road-block. After monitoring the movements of the vehicle in the afternoon and evening it was stopped at Tibigi. There was a struggle on the Tigibi bridge. Three suspects jumped into the river and escaped while the two prisoners now before the Court were arrested.

THE PRISONERS

David Minape is twenty-five years old, from Yangome village near Tari, he is single, no education, and the Antecedent Report shows his occupation as a subsistence farmer. He has no prior convictions. His father is dead, his mother is old. He asserted that the others involved in the crime influenced him. He has been in custody for three months and two weeks.

William Waraja Kobi is nineteen years old. He is single, from Jangome village near Tari. There was no Antecedent Report forwarded for him, so the Court ordered that a Pre-Sentence Report be prepared. William Waraja Kobi is the youngest of six children. All his other brothers and sisters are married and have their own families. He lives with his now aging mother and father. The family has had money problems. Although two of the brothers have paid employment, they do not contribute to William’s family. William attended the North Mendi Community school but had to drop-out because he could not pay for clothing, or the school-fees. He returned to the Tari District to attend Community School there in order to continue his education, and remarkably for a nineteen year old, was still at school when the offence was committed. The Pre-Sentence Report sums William’s history up this way:-

“He appears to have been very neglected by his parents and other members of his family. Despite the neglect by his family he has struggled hard to receive an education but his efforts for education now appear to be doubtful. Possibly due to his immaturity, the accused appears to be a person who can easily be persuaded by others even though he is quite able to exercise self-control.....his desparate financial situation appears to be the main factor surrounding his involvement in crime”.

THE SENTENCE

The Supreme Court in Gimble -v- The State SC369 has set guidelines for sentencing in robbery offences. For the robbery of a vehicle the guideline is set as five years in a contested case, and a lesser sentence on a plea. This guide is increased where actual violence was used. Accordingly the head-sentence in this offence should be set at four years. I can see no reason why any portion of this head sentence should be suspended in the case of David Minape, William Kobi’s case is different.

The Supreme Court has stated that it does not consider that suspended sentences in the categories of armed robbery dealt with in Gimble -v- The State should be imposed.

The Supreme Court in Gimble -v- The State SC369, after it had suggested sentencing tariffs at page 7 said:-

“In suggesting sentencing tariffs in the above four categories of robbery we have been considering young first offenders, 18 years and above, and in those cases we do not consider that a suspension of any part of those sentences is appropriate. If, however, the offender is very young or there are special circumstances, a suspended sentence may be considered. If the offender has a prior conviction then the suggested tariffs may be exceeded and suspension of any part would rarely be appropriate”.

The difficulty with this recent declaration of the law is to be found in reconciling it with the decision of the Supreme Court handed down in 1981 in the case Acting Public Prosecutor -v- Clement Makei and Tom Kasen SC205 (Unreported Judgement). That was an important case because it was the first time the Supreme Court was called upon to evaluate the propriety of the partial suspension of a prison sentence: per Miles J at p.30, and more pertinently because it dealt with the issues of suspended sentences and young first offenders. Makei and Kasen was an appeal in relation to offences of break, enter and stealing from a dwelling house at night, offences, which like armed robbery in company, carried a maximum sentence of Life Imprisonment.

Because of some reason which is not apparent, the Supreme Court’s decision in Makei and Kasen was not included in the Papua New Guinean Law Reports. It may be that their Honours in Gimble -v- The State were not aware of the decision Makei and Kasen. It is not cited in Gimble -v- The State, which is unusual, because Makei and Kasen contains, in its two majority judgements, a detailed analysis of the law as it relates to the sentencing of young first offenders, and of the judicial discretion to suspend or partially suspend a sentence under s.19 of the Criminal Code.

In contrast, the passage in Gimble -v- The State which appears to restrict the use of suspended sentences for armed robbery refers to no law at all.

There is difficulty in reconciling Makei and Kasen with Gimble -v- The State. One case permits the use of suspended sentences in conjunction with youthful first offenders, the other restricts the exercise of that discretion. The principle that the Supreme Court will depart from its earlier decisions only with the greatest reluctance: Acting Public Prosecutor -v- Kone Haha (Unreported) Judgement SC202 does not appear to have been addressed in Gimble -v- The State.

A judge sitting a Mendi, with no library, is in difficulty when faced with was appears to be two conflicting authorities. My disposition is to follow the principles in the Makei and Kasen case because they are well set-out and reflect a judicial consensus in a number of countries about the treatment of young first offenders.

In the case of William Waraja Kobi there are sufficient grounds to suspend some part of his four year head-sentence. He is young, he is a first offender, the court has a favourable Pre-Sentence Report before it. He was not armed, and took a minor role in the robbery.

Accordingly his sentence of four years is to be suspended under s19(1)(f) of the Criminal Code after he has served another two years in imprisonment. Taking into account the time he has spent in custody he will have served two years, three months and two weeks in jail before he can be released.

After that time his sentence is suspended on the following conditions.

· ҈&<;< t60; that he not be conv wted while serving his sentence of escaping or attempting to escape.

· ;ټ t60; that he enter ater a resancee of good beod behaviohaviour for a period of two years in an aman amount of K200.

· ; thaagrsehe vipern aion anon and cond convictions imposed upon him by the Prob Probation Officer at Mendi.

Lawyer for the State: The State Prosec/p>

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