State v Basu [1997] PGNC 48; N1537 (23 April 1997)

Unreported National Court Decisions

N1537

PAPUA NEW GUINEA

[NATIONAL COURT OF JUSTICE]

CR NO. 1109 OF 1996
THE STATE
v
JOE REX STEVEN BASU

Waigani

Batari AJ
18 April 1997
23 April 1997

CRIMINAL LAW - Sentence - Attempt - Robbery - Aggravating factors - Mitigating factors - Considerations of.

CRIMINAL LAW - Sentence - Attempt - Robbery of vehicle at residence is in category of attempt robbery of a house.

CRIMINAL LAW - Sentence - Attempt robbery - Offence of violence is offence against freedoms and rights - Plea of Guilty as mitigating factor.

Counsel:

Ms T Suwae for the State

D Kari for the Accused

SENTENCE

23 April 1997

BATARI AJ: You have been found guilty and convicted following your trial on an indictment charging one count of attempted robbery. The offence was committed under s.387(1),(2)(a) & (b) of the Criminal Code Chapter No.262. I must now pass sentence on your offence.

I have traversed the evidence supporting your guilt in my judgment on verdict, delivered on Friday, 18 April. For the purpose of sentence, I will refer only fairly briefly to those facts.

On 27 May, 1996 you went to Air Niugini Housing Scheme at Kanage Street, Six Mile in the National Capital District about 0830 pm with two others and armed with a pistol. You confronted David Tibu and his relatives as they sat on the lawn of their house at Stage One. One of your friends pointed a pistol at David Tibu and demanded the key to his vehicle parked nearby, while you and the third person opened the door to that vehicle and got in. The person with the pistol remained outside threatening the victims to hand over the key to the vehicle. At their own risk of being shot by your friend, David Tibu and his relatives resisted and attacked your mob. Your friends escaped while you were caught and taken into custody by police. During the incident the pistol was fired at David Tibu.

Your lawyer has pointed to a number of factors and urged me to consider as being in your favour. You are aged 25 years and newly married with no children. This is your first time to be in trouble. You are staying with your parents and have been unemployed since you left school in 1983. You have a prior conviction which is unrelated to this conviction. There is nothing else to say about your background or the offence. However, I note that you did not seem to be the leader and State does not allege that the offence was carried out at your instigation. You were also not the person who held the pistol.

On the other hand, you have committed a serious offence for which in law, you may be sentenced up to 14 years imprisonment. Luckily for you, no one was hurt when one of your members discharged the pistol. If that had been the case and someone sustained wounds, you would face the prosect of being sentenced to life imprisonment.

When you set out in accompany of two others, one of whom you knew or would have known was armed with a fire-arm, you no doubt felt courageous and secured in the company of your friends and your gun. You felt you could do anything or take what you want from others forcefully irrespective of whatever consequences might flow from your conduct. In reality, that was only a false sense of physical security which I hope you have now realised. When your friends abandoned you, members of the Police Force and the public assaulted you. Most people may say, you deserved to be beaten up. And it is also common sense that persons who steal or tried to do so from others with violence, will expect strong reaction against them by the victims in the course of protecting their properties. I do not however, and the Courts for that matter will not condone actions of police and the public which go beyond legal limits. I accept the prisoner had suffered from the unlawful beatings and I take that into account in your sentence.

But you must understand that when you and the likes of you steal or tried to do so from others with threats of violence or actual violence, you do not only commit a serious offence, but a great deal of fear, anxiety and loss is caused to your victims. Such situation is becoming common occurrence in our society, today and law abiding members of the public are fed up. Every person, you included, wherever they may happen to be; be they on the streets, parks, roads and public highways, public resorts, in offices, warehouses, shops, banks, church, in their villages, gardens or in their homes have the right to freedom of movement, the right to freedom from unlawful assaults and other forms of violence and the right to peaceful enjoyment of their properties. When you and your friends tried to steal from your victims, you also violated those rights.

Where robbery is committed in the homes of victims, the offence is much more serious and calls for heavier penalty from what may be imposed in the range of robbery cases. This is because when thieves or robbers strike at residential homes, the security of homes, their private lives are invaded and the safety of occupants; men, women and children and their properties are put in great risk of harm. Your offence was a failed robbery of a vehicle at a residential home, aggravated by you being in accompany of others and armed with a dangerous weapon. Because the pistol was discharged, the offence bordered on the most serious attempt robbery under s. 387(3), for which the maximum sentence is life imprisonment.

I propose to impose a sentence which not only serves as personal deterrence but one which will also sent a warning to others who might be like minded that there is no gain in trying to steal from others with violence.

In your allocutus, you have expressed remorse. You are however not entitled to any discount which might be given in a plea of guilty. This simply means that because you had pleaded not guilty, you will not be given any discount from what might be the appropriate sentence for this particular offence. This however, does not mean the exercise of your constitutional right to contest your case in a trial is affected. You are entitled to test the State’s case against you, but in so doing, you also “waive” your entitlement to a mitigation factor that is allowed for in a plea of guilty.

I consider the range of sentence for attempted robbery following a trial to be from 2 years to 8 years imprisonment. The appropriate sentence in all the circumstances of the case is 3 years imprisonment IHL. I deduct 5 months for the time spent in custody. You are to serve 2 years and 7 months imprisonment IHL.

Lawyer for the State: Public Prosecutor

Lawyer for the Accused: A/Public Solicitor