State v Sovou [1998] PGNC 108; N1961 (9 November 1998)

Unreported National Court Decisions

N1961

PAPUA NEW GUINEA

[NATIONAL COURT OF JUSTICE]

CR1417 OF 1997
THE STATE
V.
DANIEL JESSY SOVOU

Kimbe

Sakora J
4-6 November 1998
9 November 1998

CRIMINAL LAW – Sentence – Aggravated robbery – Supreme Court guidelines for tariffs – Criminal Code (Ch. 262), s. 386(2).

CRIMINAL LAW – Sentence – Aggravated robbery – Armed gang of four – Robbery of bank officer at airport – Large sum of money – Policeman injured – Criminal Code (Ch 262), s.386(2).

CRIMINAL LAW – Sentence – Aggravated robbery – Escalating lawlessness – Gratuitous violence – Increasing community concerns and frustrations – Increasing incidence of self-help instant justice – need for review of the sentencing guidelines – Criminal Code (Ch 262), s.386(2).

Counsel

Mr J. Gah for the State.

Mr O. Oiveka for the Prisoner.

SENTENCE

9 November 1998

SAKORA J: You were ch that on 20 Aug0 August 1997 at Hoskins Airport here in West New Britain Province you stole from another person, Robinson Watiu, with actual violence money in ttal sum of K380,000.00 the property of the Westpac Bank, Kik, Kimbe Branch. It was the State’s case that you committed this offence whilst in the company of three other persons and that you were armed with dangerous weapons, namely, two pistols and one kitchen knife.

Upon being arraigned on Thursday 4 November 1998 you pleaded “Not Guilty” to the charge. And pursuant to a Notice of Objection served on the State contesting the voluntariness of the Record of Interview conducted on 26 August 1997, alleging impropriety and illegality on the part of the police, the Court conducted a voire dire to determine whether or not the subject Record of Interview should be admitted into evidence against you. The Court then ruled against you. You then changed your original plea and pleaded guilty to the charge; whereupon I confirmed your guilt and convicted you of the offence of robbery.

The facts upon which you were arraigned and subsequently pleaded guilty to were as follows. On 20 August 1997 you and three accomplices were at Hoskins Airport when an Air Niugini flight arrived from Port Moresby about 4.00 pm. You had been seen leaving a PMV at the airport around 8.00 am, and being there throughout the rest of the day.

When the flight arrived an officer of the Westpack Bank Kimbe Branch, Mr Robinson Watiu, accompanied by a bank security officer and a regular policeman took possession of a metal box that had been unloaded from the plane. The box contained money in the amount of K380,000.00 cash. This money was the property of the Westpac Bank, Kimbe Branch.

When the box was loaded onto a motor vehicle and Mr Watiu and the two officers were about to enter the vehicle to transport the box to Kimbe, you and your accomplices approached and “held” them up, threatening them with the weapons you had in your possession. One of you who had been holding the kitchen knife threatened the policeman, Senior Constable Paul Irisia, with it, placing it on the back of the neck. The policeman struggled with his assailant and, in the process, received knife wounds across his chest and on both hands. It would appear that the left hand received the more serious injury. In any case, he had to be rushed to Kimbe General Hospital for immediate medical attention and treatment.

You and your accomplices then commandeered the motor vehicle and drove off, the box with the K380,000.00 cash still in the vehicle. The vehicle was abandoneddoned near a place called Rikau. A total sum of K70,100.00 cash was recovered later in the night when police stopped a logging company’s truck at Gavuvu Mission Station and youyour accomplices escaped ined into the bushes.

Some five days after the robbery you led the policemen behind your parents’ house at Gaungo village to a spot in the bushes where you indicated you hid your share of the stolen monies and two weapons. The police dug at two places, locating a green army bag containing cash in the total amount of K88,000.00, and a pump-action shotgun and an air pistol both wrapped in white bags.

What you and your three accomplices did here would put this into the category of one of the most serious robberies on record. This is borne out, firstly, by the large sum of money involved and, secondly, by the use of such dangerous weapons and the accompanying gratuitous violence threatened and infact offered to one of the three persons directly responsible for the safe custody of the money. This together with the subsequent unlawful use of a motor vehicle enabled your ready escape from the scene of the crime.

Robbery is one of the most serious offences under our laws. This is reflected in the sanction the law prescribes against offenders, which is the maximum sentence of life imprisonment. Being in company with other persons and armed with or in possession of dangerous weapons at the time of the commission of the offence are aggravating factors compounding an already serious offence. And when violence is aly olly offered or inflicted in the process, matters become really and very very serious indeed. When a policeman is hurt or injured at the hands of criminals i due execution of his legal legitimate duties, a further ager aggravating factor comes into consideration.

It would be stating the obvious to note that offences of this nature have now reached alarming proportions with their frequency and the nature and extent of their accompanying violence. This has had the corresponding deriterious and constantly worrying effect on all law-abiding people in the country. Ordinary villagers, business and professional people, government officials, urban families and tourists, going about their legitimate daily activities are affected by such criminal activities. Their personal and family safety and lives are at constant risk. Their personal and business or corporate assets are in constant jeopardy. Great inconvenience and costs are caused and incurred as a direct result of these offences.

It is not without significance to note that ordinary people in the village communities, urban settlements and streets are already fed-up with criminals such as yourself and are venting their increasing frustration by taking the law into their own hands. They are not waiting for the police and the law courts. They are helping themselves to justice, dealing out instant on-the-spot punishment to the criminals before the police arrive or before handing them over to the police.

Whilst this vigilante type community and street justice cannot be condoned, nor encouraged, it is a growing fact of life these days that this is the only and natural direct reaction of ordinary hard-working law-abiding people who are constant victims of the escalating lawlessness in the country. Their growing concerns with the attendant frustrations now find practical expression through this kind of retaliation.

On the very serious question of punishment for your offence, I have had the benefit of hearing both yourself and your lawyer, as well as the lawyer for the State. According to your lawyer you are 19 years old, but other information including the record of your interview with the police say that you are 22 years old. I am inclined to accept the latter source of information. You are originally from Lipan village, Baluan, in the Manus Province. At the time of this offence you were residing with your parents at Gaungo village near Kimbe.

Both of your parents are alive, and you are the second eldest in a family of three girls and three boys. You attained Grade 12 secondary education at Sonoma Adventist College in the East New Britain Province. It would appear that since leaving school at the end of 1993 you have not been successful in obtaining formal employment.

The problem of employment was the main reason you advanced for your involvement in this offence. Before this offence you had never been in trouble with the law. In your own address to the court on sentence you said that after being unsuccessful at finding employment after leaving school you felt that life was unfair to you. You suggested, therefore, that if you had been in gainful employment you would not have committed this offence. Whilst this court acknowledges this very plight of many many young people throughout the country, it cannot accept this as an excuse for criminality. It certainly can explain why an offence may have been committed but it cannot excuse it. In the end you asked for the merciful consideration of this Court on the punishment to be imposed.

Your lawyer also pleaded for the Court to consider your personal circumstances, which I have done so in the overall consideration of an appropriate sentence. I have also taken account of your “guilty plea”, whilst noting also that you only did so after I had ordered the admission into evidence of the record of interview containing your voluntary confession to the offence, following your initial plea of “not guilty” and the subsequent challenge in a voire dire. It would seem that you were quite prepared to question and impugn the professional and personal integrity of some members of the Police Force, more particularly D/Sgt. Philip Sege and S/C Miki Philip. Be that as it may, your pleading guilty at this juncture saves the State time, effort and expense in bringing witnesses to this Court to prove the case against you. In this respect I note that some 20 witnesses have been listed on the indictment.

I have also taken into account in your favour the fact that you are a young first offender. Now, against all these favourable considerations and factors in mitigation of this very serious offence must necessarily be balanced the obvious aggravating factors and circumstances that I have mentioned already. One matter that has been taken due account of in this respect is the fact that a large sum of money, K221,900.00, still remains unrecovered and unaccounted for. The fact that this was a well-planned and executed robbery is beyond doubt. And this planning and execution was greatly enhanced by having access to some inside information about the transmission of such a large sum of money by air from Port Moresby.

It certainly was not an offence or crime of “opportunity”. You and your accomplices seemed to have known where the money was coming from, how, and when. Moreover, you seemed to know who was to be at the receiving end on its arrival. Therefore, you went to Hoskins Airport in the morning for the sole purpose of robbing that money, and waited throughout the day until it arrived later in the afternoon. One witness to the robbery, an employee of Islands Aviation, Kelly Tobo, had seen you arrive by PMV at the airport around 8 am, and throughout the day had observed the four of you hanging around inside the parking area under an oil palm beside the security fence. When Kelly Tobo had finished work about 2.45 pm, he said he and his boos then closed up the office and went out to the canteen area where one of your accomplices, identified as “Wik”, approached and asked when would the plane arrive. Upon being enquired as to what plane, Wik replied: “Air Niugini”. He was then informed that the arrival time would be 3.55 pm.

Learned counsel for the State emphasised the seriousness of this offence and submitted that the circumstances were such as to attract a heavy penalty. He, just as your learned counsel did, drew my attention to the guidelines set down by the Supreme Court in the case of Gimble v. The State [1988-89] PNGLR 271. These sentencing guidelines for different categories of robbery offences have been of great assistance to subsequent National Courts in the last 9 years or so. But they are, with respect, just guidelines only, and the trial court has the ultimate responsibility and authority (subject, of course, to the powers of the Supreme Court on appeal) in the exercise of the sentencing discretion under the particular circumstances of each case.

Under the Gimble guidelines, the circumstances of your offence place it in the third category: robbery of a store, a vehicle etc. Whi bank official in the cthe company of security personnel (one of whom was a serving member of the Police Force) was robbed of monies belonging to the bank, the robbery took place outside and away from actual bank premises. It took place in a vehicle about to transport the money. Thus, this would be, according to the Supreme Court’s guidelines and opinion, less serious than if it were committed in the bank premises itself.

The Supreme Court said in Gimble, under the third category, that where a group of young first offenders, carrying weapons, use the threat of violence to rob a store, etc, a sentence of five years imprisonment would be appropriate in a contested case, that is, in a trial. The Court went on to add this (pp. 274-275):

A lesser sentence should be imposed in an uncontested case. If certain aggravating factors are present, a sentence of more than five years imprisonment is appropriate. These include if actual violence is used, if the sum stolen is large, or if the robber is in a position of trust towards the victim, for example, if the robber is the manager or other employee of the victim.

In this offence there is no doubt that two of the aggravating factors mentioned by the Supreme Court: actual violence and large sum of money are present. Gimble was decided some 9 years ago. Since then serious crimes, especially robbery, have escalated in prevalence, daring and accompanying gratuitous violence. Criminals are not content only with getting away with the properties they rob, they almost invariably inflict unnecessary physical injuries on their victims. And these, as I have adverted to already, cause a great deal of concern, suffering and frustration. The courts of this country must take due heed of these concerns of the majority law-abiding people in our communities.

Thus, I would respectfully suggest that it is now time that is long overdue for the Supreme Court to have another look at the Gimble guidelines. Otherwise the concerns and frustrations in the communities could very well reflect an undesirable upsurge in vigilante style self-help justice I have adverted to already.

But for this offence, and for you the offender before me, it is my considered opinion, firstly, that I should exercise the discretion the law vests in me pursuant to s. 19 Criminal Code Act to consider a sentence less than the maximum period prescribed for the offence. And, secondly, that sentence less than 5 years (because of your guilty plea under the Gimble guidelines) would be inappropriate and inadequate under the circumstances.

It is, therefore, the judgement of this Court that you be sentenced to a term of imprisonment for 9 years in hard labour. Taking nt of the 8 months nths you have spent in custody awaiting trial, I deduct this period from the head sentence of 9 years, leavin the balance of 8 years and 4 months to serve.

Lawyer for the State: Public Prosecutsecutor

Lawyer for the Prisoner: Public Solicitor