State v Bandi [1990] PGNC 6; N802 (23 February 1990)

Unreported National Court Decisions

N802

PAPUA NEW GUINEA

[NATIONAL COURT OF JUSTICE]

(CR: 1056 OF 1989)
STATE
V
ROBERT BANDI

Waigani

Hinchliffe J
23 February 1990

CRIMINAL LAW - Sentence - Robbery - Appropriate tariff - Plea of mitigation - Family man - Sole breadwinner - No previous record - Factors considered - Plea of not guilty - Deterrence.

The accused, a 39 year old married man upon a plea of not guilty to a charge of robbery was later convicted.

Held:

In the circumstances of the case and the prevailing law and order situation a term of two years imprisonment with hard labour was appropriate.

Cases Cited:

William Ukukul Gimble v. The State SC 360.

Sentence:

The following reasons were given on sentence.

Counsel:

C. Manek, for the State.

F. Pitpit, for the accused.

23 February 1990

HINCHLIFFE J: Robandi, you have been foun found guilty that on the 17th day of June, 1989 at Six Mile you stole from one Aron Bandi with actual violence, a wrist watch, a sum of about K400 in cash and a Papua uinea Banking Corporation Pion Passbook, the property of the said Axon Bandi, in contravention of Section 386 of the Criminal Code.

I am satisfied that at about 3.00 a.m. to 3.30 a.m. on the 17th June, last, you had just come from your work place and were standing by the side of the road near Thiess Watkins at Six Mile. At the time you were drinking beer with some friends who remain unknown.

Aron Bandi, who was slightly drunk, came along and greeted you with the words “in law” and attempted to put his arms around you. You were also slightly intoxicated, shook him aside saying words to the effect of: “I’m not your in-law, clear off.” The victim fell and when he stood up he was attacked by your friends and robbed of property as set out in the indictment.

I was satisfied that you were part of the group that attacked the victim and that you did nothing to disassociate yourself from the robbery.

You are from the Chimbu Province and are about 39 years of age. You are married with five children and you live at the Hebou Constructions compound at Six Mile.

Your lawyer has asked me to take into account a number of matters when considering an appropriate sentence.

1. You have no prior convictions.

2. ـ Ypu su yort your old fathefather and family and they wholly on

ـ҈& That you have full employmploymentyment as a as a driv driver ater at the the AirwaAirways Motel.

Your lawyer, Mr. Pitpit referred to a den of the Supreme Court, William Ukukul Gimble v. The State SC 369 (4th August, 1989)1989) in which the Court said, inter alia, the following:

“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.”

In your case Gimble would suggest that a term of three years imprisonment or more is appropriate. But Mr. Pitpit submitted that you fall into the “special circumstances” category and that I should suspend any term of imprisonment. He said that the special circumstances are that:

1. ; You aresthe &#le “br20;breadwinner”.

2. ـ Your rase was minor.

3. &##160; ҈ ave asve astandeco dhat you have no prio prior coor convictnvictions ions at that the age of 39 years.

I cannot agree with Mr. Pitpit. In many cases that come before ationurt the accused ised is the sole provider for the family. Uly. Unfortunately it is usually the family that suffers when the male head of the family is sent to prison but that is how the system operates. More often than not though, the wife and children are provided for in the absence of the husband and father because of the very strong family ties in the country. I do not consider it to be a special circumstance.

2. ҈ The prisoner playedlayed a minor role. Again I do not agree with Mr. Pitpit and I refer to Gimble when the Court said as follows: “Mr. Gene argued that the trial judge did notinguhe ac’s less lesser rser role; ole; did not give proper weight to the fact that the accused was a watchman and not one of those who went inside and committed the assault. Again we do not think that the trial judge erred on this. The general rule is that all active participants in the crime should be sentenced on the same basis. The court does not normally stop to consider whether a particular prisoner actually held up the victim, or held the gun, or the iron bar, or was a watchman outside, or was the driver of the get away vehicle. All are equally guilty because without each playing his full part the crime could not be perpetrated.”

After all you were the first to have contact with the accused and it was after you showed aggression towards him causing him to fall that your friends went on the attack.

It is quite possible that if you had not behaved in the way you did then the robbery may never have occurred. In light of Gimble I do not consider that the role played by you could be one to attract consideration in the special circumstances category.

3. ـ Y6ur outstanding reng record. At 39 years you have no prior convictions. Even though I have taken that into account I cannot see that that is a special circuce. Tis no specbout a prisoner having no prio prior coor convictnvictions ions and in fact most people who come before the National Court as accused persons do so with no prior convictions recorded against them.

I would have thought that the words “special circumstances” are actually referring to exceptional circumstances and I am firmly of the view that your situation is neither exceptional or if you like, special.

When considering matters in your favour I must also consider matters that are not in your favour. Clearly this is a serious offence and you could be sent to jail for life. This type of offence is on the increase and it is now becoming quite unsafe for people to walk alone at night in most parts of the city. If they do there is a very strong chance that they will be bashed and robbed by a group of cowardly people who have little to do except drink alcohol and go around making life unpleasant for the majority of the people who in fact are law abiding citizens.

This Court has yet again seen a serious criminal offence carried out by men who were under the influence of alcohol. There is no doubt in my mind that alcohol abuse is one of the main contributors to the law and order problem in this country today. Sadly calls for reorganisation of alcohol content in beer, sales and supply, have fallen on deaf ears.

Finally you have not hesitated to go into the witness box and tell lies on oath and that also does not assist you.

I make the following order: You are convicted and sentenced to two years imprisonment in hard labour.

Sentenced accordingly.

Lawyer for the State: Public Prosecutor

Lawyer for the Accused: Public Solicitor