N1231

PAPUA NEW GUINEA
[In the National Court of Justice]

CIR. /94

STATE

v.

JOHN PESA

POPONDETTA: INJIA, AJ
1994: 11 - 12 May

Criminal Law - Sentence - guilty plea to 3 counts of aggravated robbery - three robberies committed in close sequence but involving different victims in three different houses situated in the same area - cumulative sentence appropriate - appropriate sentence - 5 years imprisonment in hard labour on each count made cumulative - totality principle taken into account - each sentence reduced by 2 years - Prisoner to serve 9 years in total.

Cases Cited
Acting Public Prosecutor v. Konis Haha [1981] PNGLR 205
Acting Public Prosecutor v. Kerua [1985] PNGLR 85
Gimble v. The State [1988-89] PNGLR 271

C. Sambua, for the State
D. Sakumai, for the Prisoner

12 May 1994

INJIA, AJ: The prisoner pleaded guilty to the following three (3) counts of aggravated robbery pursuant to Section 386(2)(a)(b) of the Criminal Code Chapter No. 262.

"1st Count: 	JOHN PESA of EMBAEKAETA is charged that he on the 11th day of February 1994, at Irigi compound in Popondetta in Papua New Guinea stole from one DOEMO PAEMO with threat to use actual violence a sum of Ten Kina (K10.00) in cash, two (2) bedsheets, two (2) blue jeans, and national radio cassette player, a pair of soccer boots, two (2) stringbags and three (3) "T" shirts the properties of the said DOEMO PAEMO and including his wife's two (2) dresses.

And at this time aforesaid the said JOHN PESA was in company with two (2) others and were armed with dangerous weapons namely a home made gun and a grass knife and a home made pistol.

2nd Count: 	AND ALSO THAT the said JOHN PESA is charged that he on the 11th day of February 1994, at Irigi Compound, Popondetta in Papua New Guinea stole from one LEBAN SAGI with threat to use actual violence a sum of Forty Kina (K40.00) in cash the property of the said LEBAN SAGI.

And at this time aforesaid the said JOHN PESA was in company with two (2) others and were armed with dangerous weapons namely a home made shot gun and a grass knife and a home made pistol.

3rd Count: 	AND ALSO THAT the said JOHN PESA is charged that he on the 11th day of February 1994 at Irigi Compound, Popondetta in Papua New Guinea stole from one MAGURU NAPE with threat to use actual violence a sum of Forty Kina (K40.00) in cash the property of the said MAGURU NAPE.

And at this time aforesaid JOHN PESA was in company with two (2) others and were armed with dangerous weapons namely a home made shot gun and a grass knife and a home made pistol."

The circumstances of the three offences are as set out in the statements of various witnesses which are contained in the Court depositions. On the early evening of Friday the 11th of February 1994, the prisoner and two of his friends covered their faces with masks and armed themselves with a shotgun, a home-made pistol and a grass knife and went to Irigi Compound. At 8.30am they first went to the house of Doemo Paemo. Doemo was then employed as a harvester with the Oil Palm Company. Whilst Doemo and a friend of his were sitting on the verandah talking, the three men approached them and held them up. They threatened to kill Doemo unless he gave them the pay money he received that day. Doemo got scared and gave them K10.00 which money was the last portion of his money he had left with him from his pay of K40.00. After taking K10.00 from Doemo, they entered the house and held up Doemo's wife Aio who was cooking food in the kitchen. While one of the man held a pistol pointed at Doemo and Aio, the man with the shotgun entered the bedroom and took the personal belongings of the family. They took with them two bedsheets, two blue jeans, two stringbags, a national radio cassette player, a pair of soccer boots, three "T" shirts all of which were the property of Doemo. They also took two dresses belonging to Aio.

After robbing Doemo and Aio, the three men went to the house of Leban Sagi. The time was about 9.45pm. Leban's house was also situated at Irigi Compound. He also worked as a harvester with Higaturu Oil Palm. Leban was inside the house and was trying to make fire in the kitchen when the three masked men entered the house and held him up. The man with the shotgun ordered him to go outside to the verandah which he did. There the three men threatened to kill him unless he gave them the pay money he received that day. So he went to his bedroom and took out his pay money of K40.00 and gave it to them.

After robbing Leban Sagi, they proceeded to the house of Maguru Nape. The time was about 10.25pm. Maguru's house was also situated at Irigi Compound. He was also employed as a harvester by Higaturu Oil Palm Company. Maguru was inside the house while his wife Lily was sitting on the verandah with some relatives. The three masked men approached Lilly and her friends and held them up. Upon seeing them, Lilly shouted "Rascals, Rascals." Leban rushed out to see what was happening. One of the masked man, whom Leban identified later as John Pesa, the prisoner, pointed a gun at him and asked him where he had put his pay money which he received that day. Maguru got scared and took out the K40.00 pay money which he hid under a table inside the house and gave the money to them. The three men then told them to go inside the house which they did, the three men then locked the door from the outside and they left. On Saturday, the 12th February 1994, John Pesa returned to Maguru's house and gave back K20.00 to him because he "thought the house belonged to another person, he and his friends held them up." In fact he learnt the next day that Leban was a brother-in-law of his.

The prisoner admitted participating in the three robberies with his two friends. His admissions are contained in the Record of Interview, in his confessional statement and in his statement on allocutus. However, he said that he merely stood on guard outside the three houses whilst the other two boys went inside and held up the victims. He also said he himself was not masked, he was not armed with any of the weapons and that he did not receive any of the money taken in the first and second robberies. As for the third robbery, he recovered K20.00 which he returned the next day. As the State has not called evidence to prove these disputed facts, I must accept the prisoner's version of these facts.

The prisoner is aged about 18 years old. He voluntarily left school in Grade 4 in 1987 because his father died and he had to attend to his old mother, his father's 15 acres of Oil Palm Block and a small trade store. He says he earned about K120.00/week from sale of Oil Palm and about K80.00 - K100.00 per week from the small trade store. He has only one brother in his family who lives in Port Moresby. He says these three offences are his first offence.

It appears to me that even though he is a young man, he comes from a relatively good family background. He also appears to be an economically independent person. For instance, he says he has K1,000.00 in his personal savings bank account. He has offered to pay K500.00 of that money as compensation to the three victims. Yet I find it difficult to understand how a young man of his background chose to engage in criminal practices in order to obtain a little more money for his purposes.

The prisoner has pleaded guilty to three serious offences each of which carry a maximum of life imprisonment. There is clear evidence from his own admissions in the Record of Interview and confessional statement that these robberies were planned and well-executed.

In considering sentence, I take the following mitigating factors into account in his favour:-

1. 	His Youth.
2. 	His good family and economic background.
3. 	He co-operated with police in readily admitting the offence.
4. 	He pleaded guilty to all 3 counts of aggravated robbery.
5. 	In respect of the third offence, he demonstrated remorse by returning K20.00 to the victim.
6. 	He has no prior convictions.

In addition, he has offered to pay compensation of K500.00 to be shared between the three victims. I have given some thought to the question of whether or not this offer is to be taken into account as part of the punishment as provided for in the Criminal Law (Compensation) Act 1991. I have decided to take it into account as a mitigating factor - as evidence of his remorsefulness and good character rather than punishment because I do not think compensation as a form of punishment is appropriate in this case. The three offences being serious, the length of custodial sentence which I will impose is such that it will have little impact on the overall punishment because under the said Act, all that he will be entitled to receive by way of default penalty is for the K500.00 is a maximum of one (1) month only. See Sections 6(b) and Schedule 1 of the Act.

As to the circumstances of the offence, I accept that the prisoner did not actively participate in the three robberies except that he stood on watch as a guard. I also note that the three victims were not actually assaulted but merely threatened. Further, I note that one bedsheet and a "T" Shirt have been recovered.

The guidelines for sentencing in robbery cases were set out by the Supreme Court in the case of Gimble v. The State [1988-89] PNGLR 271. The present offences fall into the first category which deals with robbery of a house. The Supreme Court at Page 274 states:

"1. Robbery of a house
Where a group of young first offenders, carrying weapons, invade a house and use the threat of violence to rob the occupants, we consider that a sentence of around seven years imprisonment is appropriate in a contested case. A lesser sentence can be imposed in an uncontested case, that is, where the offender pleads guilty. When actual violence is used, for example if one of the victims is bashed or stabbed or shot, a higher sentence would be justified. If actual violence is attempted even though it fails, for example, if a shot is fired at a victim but it misses, that is an aggravated feature which would justify a higher sentence. We consider that the robbery of the occupant of a house is more serious than the robbery of a store or business because it is an invasion of privacy and family life. One of the basic rights enshrined in the Constitution is "protected for the privacy of their homes". A man's home, whether it is a mansion or a shack, is his castle and we think the punishment for robbery of a home should reflect those community values."

On the question of leniency of sentence in a case where the court is dealing with young first offenders, 18 years or above, the Supreme Court stated at page 275.

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

In the instance case, the offender is not very young. Indeed, I have said he appears to be a mature young man who demonstrates a sense of responsibility and economic independence. I also consider that these two factors do not constitute "special circumstances" which would justify a suspension of the sentence or a part thereof because it is those very things which should have discouraged him from committing these offences.

I consider that a sentence of 5 years imprisonment in hard labour for each offence is appropriate.

Having decided the appropriate sentence in each case, I must now consider whether the sentence should be made concurrent or cumulative. There are three principles involved. One of those principles was set out in Acting Public Prosecutor v. Konis Haha [1981] PNGLR 205 and the two others were further added on in Public Prosecutor v. Kerua [1985] PNGLR 85. These three principles are set out in Kerua's case at pages 90-91:

"The National Court has a discretion whether a sentence should be concurrent or cumulative but that discretion should be exercised in accordance with well-known principles. The latest local case on those principles in Acting Public Prosecutor v. Konis Haha [1981] PNGLR 205. We follow that case and the useful statement of the English law found in Thomas, Principles of sentencing (2nd ed), at 53-61. The first principle is what Thomas calls "the one-transaction rule": where two or more offences are committed in the course of a single transaction all sentences in respect of the offences should be concurrent. The Supreme Court in Tremellan v. The Queen [1973] PNGLR 116 made the same point in different words (at 117): Although it is neither desirable nor possible to lay down any all embracing rule as to when sentences for two or more convictions should be made concurrent, sentences should generally speaking be made concurrent where a congeries of offences are committed in the prosecution of a single purpose or the offences arise out of the same or closely related facts.

"The facts of Tremellan's case illustrate this rule. The counts were paired for stealing and for fraudulent and false accounting, and the Supreme Court on appeal imposed concurrent sentences. Other examples are a series of sexual assaults or frauds on the same victim. There can be exceptions to this rule and the Court of Appeal in England has upheld sentences which appear to offend this rule because the court considered that the totality of the sentence was correct. It is more a rule of thumb or a guiding principle than a strict rule and it is subject to the totality principle which we mention in a moment.

"The second rule is that where the offences are so different in character, or in relation to different victims, cumulative sentences are normally applicable. Examples given by Thomas are burglary and violence to the householder, assault plus escaping from custody, and sexual assaults on different victims. Wari Mugining v. The Queen [1975] PNGLR 352 affords a local example. Cumulative sentences were upheld for grievous bodily harm and assault with intent to commit rape. Konis Haha's case (supra) supplies another local example; rule, like the first one, is flexible; it is a rule for guidance only and like the first rule is also subject to the totality rule.

"The third rule, the totality rule or principle, is that when the sentence has arrived at appropriate sentences and decided whether they should be concurrent or cumulative he must then look at the total sentence and see if it is just and appropriate. If it is not, he must vary one or more of the sentences to get a just total. The court must look at the total sentence and see if it is just and appropriate for the totality of the criminal behaviour."

Applying those principles to this case, I consider that although the three offences are similar in character and were committed in the same evening in close sequence, the victims in all three cases are different. Accordingly, I consider that the sentences should be made cumulative. Indeed counsel for the prisoner quiet correctly conceded this point. This means that the prisoner will serve a total of 15 years in gaol.

The final issue is whether or not the total sentence offends the principle of just total as set out in Kerua's case, supra. In deciding this issue, it is also relevant to take into account the young age of the offender and impose a total sentence which avoids a crushing effect on his efforts in prison to reform his life in order to live a normal life after he is released from prison. I consider that a total of 15 years imprisonment is excessive punishment for the prisoner's participation in the three crimes. It would also have a crushing effect on his future. Therefore, I reduce 2 years from each sentence. This means that he will serve a total sentence of 9 years imprisonment in hard labour less the period of 2 months and 18 days he has already spent in custody.

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Lawyer for the State: Sir Kina Bona, Public Prosecutor
Lawyer for the Prisoner: Ellenas Batari, Public Solicitor