State v Anton [1990] PGNC 7; N866 (26 February 1990)

Unreported National Court Decisions

N866

PAPUA NEW GUINEA

[NATIONAL COURT OF JUSTICE]
THE STATE
V
SAMUEL ANTON

Popondetta

Jalina AJ
20 February 1990
26 February 1990

CRIMINAL LAW - Criminal Code s 386(2) - Robbery with actual violence and in Company - Large amount of money not recovered - Youthful first offender - Passive role - Received part of proceeds of robbery - Spent the money - Sentence - Plea of guilty.

Case Cited:

The following cases are cited in the jugment.

Kuri Willie v The State N 617.

William Ukukul Gimble v The State SC 369.

26 February 1990

JALINA AJ: You are ch on indictment tent that on 5th day of October, 1989 at Popondetta you stole from Adrian Tataembo and Oliver Edmond with actual nce and in company of others the sum of K28,971.25 the property of the State. You have plea pleaded guilty to the charge.

The facts of this case are that at about 9.30 on the morning of 5th October, 1989 one Oliver Edmond who was employed as paymaster with the Department of Works and Supply here in Pondetta went with three other employees to the Papua New Guinea Banking Corporation’s Popondetta Branch to cash two cheques totalling K28,971.25 - the money being salaries of employees of the Department of Works and Supply. After cashing the cheques Mr Cliver Edmond with Adrian Tataembo and two others came out with some of the, money in a brief case some money in a bag and as they were about to get into their vehicle, they were confronted by a group of men. One of the gang members had a gun and another had a knife. The one with the gun pointed it at the victims saying “Hands up. Your money of your life”. The paymaster was stabbed in his arm so he dropped the briefcase containing the money. The robbers took the briefcase and the bag of money and fled in a waiting vehicle. You were picked up at your huose by the others on their way to Popondetta town. You got in the car and came to town because some of them were known to you. You did not take part in the robbery. You were sitting in the car. Later you were given K1,000 which you spent.

On allocutus you said that you are very small and that you are not prepared to spent a long time at Biru Corrective Institution and you asked the court to give you a short time or give good behaviour bond or impose a fine.

In his submission on mitigation of sentence, your lawyer has asked me to consider the extent of your involvement in the commission of the offence. He said that most of those involved were people you did not know but because one of them (Langsford) who drove the vehicle was you just jumped in the vehicle and came to Popondetta town and later found yourself outside the bank and because of your uncertainly you stayed in the car. You were all the time in the car and in no way tried to assist them. You were not involved in the planning. In the situation that you were in and being small, you could not do anything about it. Your lawyer also says that the amount of money given to you to shut your mouth was small compared to the actual amount of nearly K29,000. Your lawyer further says that because you did not take an active part in the planning and the execution of that plan coupled with the comparably small amount of money given to you and your young age, sending you to prison will do you more harm than good because you could be exposed to influence by the more mature and hard-core criminals. In support of this submission Mr Takin, your lawyer, relies on the case of Kuri Willie v The State (N617) a case of break enter and steal by a young first offender. This was a case where the appellant stood as a “look out” or “watchman” whilst a number of others broke and entered a store and stole property valued at K6,642.93. The appellant then entered the store after the others had left but he was disturbed soon after and ended up getting nothing. He was sentenced to 3 years imprisonment by the District Court for break enter and steal. He appealed to the National Court on the grounds that:

1. ـ҈ T60; The sene sentence was manifestly excessive

2. & T60; The learned magistrate did not properly exercise his discretion under s 19 of the Criminal Code.

His Honour Hinchliffe J al the l, ded sen to ionment and the appe appellant was released on probation for tfor two (2wo (2) yea) years. Mrs. Mr Takin strongly relied on a passage in R v Taggart which is quoted by his Honour. That passage reads:

“A Judge or a magistrate who sends a young man to prison for the first time takes on a grave responsibility. It is not practical or desirable to lay down a general rule but in many cases it is desirable to take the risk to save a young man or woman from the consequences of prison”.

The case of Kuri Willie is distinguishable from the present case in the following ways. I do not have a pre-sentence report, there is no report or even oral testimony from his parents as to the condition of his home and his character generally. As armed robberies are committed all over the country I do not, with respect, consider that Kuri Willie’s case is appropriate where young boys are involved in an armed robbery. If Kuri Willie’s case is to be applied then it could be applied to other offences and only in an exceptional case should it be applied to an armed robbery case. Such an exceptional case could be when the factors considered and applied by his Honour is Kuri Willie’s case are present. The case before me is not one such exceptional case. This is because you should have seen the gun when they went to your house and picked you up and decided not to accompany them. If you did not see the gun at the time they picked you up you certainly saw the gun when they came to town and went out with it. You said this to the police in your record of interview. You could have run away and left them. But instead you willingly waited for them to return with the proceeds of their dangerous criminal act. After the robbery you were given K1,000. To show that you were forced into accompanying the others, you could have returned the money to the police. But instead you spent that money. In my view you willingly and knowingly took part in that robbery. In my view you were correctly charged for armed robbery pursuant to s 386 through the operation of s 7 of the Code.

With regard to minor role played by an offender in an armed robbery, the Supreme Court said in Gimble’s case as follows:

“Mr Gene argued that the trial judge did not distinguish the accused’s lesser role; 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”.

It causes me great concern for peace and harmony in our country when very young persons like yourself get involved in robbing and terrorizing your own people. If you do not obey the law and respect the lives and property of others when you are young how do you expect to respect others and to obey the law when you grow up? Something must be done about this to try and reduce the prevalence of this crime. A custodial sentence is therefore appropriate in my view.

The penalty for robbery where there are aggravating features is, subject to s 19, imprisonment for life.

Sentencing guidelines for various categories of robberies were set by the Supreme Court in William Ukukul Gimble v The State SC 369. The category of robbery in the case before me is a street robbery and as such it comes under category 4 of the category set by the Supreme Court. That category carries a sentence of three years in a contested case and a lesser sentence can be imposed on a plea of guilty. However, in circumstances of aggrevation e.g. where a large sum of money such as a payroll is taken or where actual violence is used, the Supreme Court was of the view that a sentences of more than 3 years would be justified.

The aggravating features in your case are the use of a gun, the large amount of money which was stolen and which money is yet to be recovered and, on the more serious side, someone was stabbed with a knife in the course of the robbery.

I have taken into account in your favour the fact that you have not been in trouble with the law before and that you have pleaded guilty thus making the job of this court and the police easier. Taking all those things into account I sentence you to imprisonment in hard labour for 4 years. I deduct the 1 month you spent in custody so you will only have to serve 3 years and 11 months effective from 19 February 1990. I hope this will serve as a warning to young boys that if they associate themselves with criminals, the courts, in order to protect the innocent and law abiding citizens, will not be easy on you.

I advise that if you are not happy with this sentence you may appeal to the Supreme Court within 40 days from today.

Lawyer for the State: Public Prosecutor

Lawyer for the Prisoner: Public Solicitor