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. Tfence was committed underunder s.387(1),(2)(a) & (b) of the Criminal Code Chapter No.262. I now pass sentence on offn offence.

I have traversed the evidence supporting your guilt in my judgment on verdiverdict, delivered on Friday, 18 April.&#1or the purpose of sentence, I will refer only fairly brieflriefly 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 as relatives ases as they sat on the lawn of their house at Stage One. One of your friends pointpd a pistol at David Tibu and demanded the key to his vehicle parked nearby, while you and the third person opened the door to tehicle and got in. The person whe pistol rema remained outside threatening the victimictims 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 es while you you were caught and taken into custody by police. D the incident the pistol stol was fired at David Tibu.

ur lawyer has pointed to a number of factors and urged me to consider as being in your favo favour. re aged 25 years and nmarrnmarried with no children.&#en. This ur first time to be i be in trouble. You are staying with your parents and have been loyed since you left school in 1983. You a priorprior convictioiction which is unrelated to this conviction. There is nothing to say about your background or the offence. However,ever, I note that you did not seem to be the leader and State does not allege the offence was carried out at your instigation. You were also not thson whon who held held the pistol.

On the other hand have committed a serious oous offence for which in law, you may be sentenced up to 14 years imprisonment. Luckily for you, no as huet when one of your meur members discharged the pistol. If thatbeen the case and sand someone sustained wounds, you would the prosect of being sentenced to life imprisonment.

When you set out in accompany oany of two others, one of whom you knew ord have known was armed with 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, was only a fala false sense of physical security which I hope you have now realised. When yournds abandoned youd you, members of the Police Force and the public assaulted you. Most people my, you deserveserved to be n up. And it is also common sense that persons who steal or tried to do so from otherothers with violence, will expect strong ron against them by the victims in thrse of proteprotectinecting their properties. I do not however,the CourtCourts for that matter will not condone actions of police and the public which go beyond legal limits. I accept the prr had suffesuffered from thawful beatings and I take that into account in your sentencntence.

But you must understand that when you and the likes of you or tried to do so from others with threats of violence or e 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 pe you included, whe, wherever they may happen to be; be theyhe streets, parks, roads and public highways, public resortesorts, in offices, warehouses, shops, banks, church, in their villages, gs or in their homes have thve 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 caor heavier penalty from what may be imposed in the range ofge of robbery cases. This is because thieves ores or robbers strike at residential homes, the security of homes, their private lives are invaded and the safety of occupants; men, women and childre their properties are put in great risk of harm. Your Your offeas a failed iled robbery of a vehicle at a residential home, aggravated by you being in accompany of others and armed with a dangerous weapon. Because the pists dischargcharged, the offeordered on the most seriousrious attempt robbery under s. 387(3), for which the maximum sentence is life imprisonment.

I propo impose a sentence which not only serves as personal deterreterrence 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 end toed 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 ce. This however, does not mean the exercise of your constitutional right to contest test your case in a trial is affected. Yo entitled to test the Sthe State’s case against you, but in so doing, you also “waive” your entitlement to a mtion factor that is allowed for in a plea of guilty.

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

Lawyer for the Stae State: Public Prosecutor

Lawyer for the Accused: A/Public Solicitor