State v Komine [1998] PGNC 43; N1813 (10 June 1998)

Unreported National Court Decisions

N1813

PAPUA NEW GUINEA

[NATIONAL COURT OF JUSTICE]

CR NO. 1218 OF 1997
THE STATE
V
SPAKMAN SEPI KOMINE

Goroka

Sawong J
9 June 1998
10 June 1998

CRIMINAL LAW - sentence - armed robbery of motor vehicle - Plea of guilty - appropriate sentence - robbery is a serious crime - violence and prevalence - immediate punitive and deterrent custodial sentence is appropriate - parity of sentence -

Cases Cited

Gimble v The State [1988 - 89] PNGLR 271

Yamogo Yoanes v The State, Unreported Judgement of Supreme Court, dated 27 November 1997.

Counsel:

C. Ashton-Lewis, for the State

J. Hasu, for the Accused.

10 June 1998

SAWONG J: The accused pleaded guilty to a charge of armed robbery, an offence contrary to s. 386 (2) (D) of the Criminal Code. You were convicted and I adjourned sentencing you to today.

The facts of the case are as follows.

On evening of 25 April 1997, you were at your village, when some five other young men approached you. They told you of a plan to go to the Highway and set up a road block to rob people travelling on the said highway. And so you were persuaded to accompany them and all six of you then went to the said highway and hid yourselves near the Bena Bridge waiting for oncoming vehicles. At that time the six of your were acting together and in each others company. The evidence shows that between the six of you, you were carrying four (4) shotguns and two knives. While you were hiding and waiting, a white mazda truck driven by Kumono Mogia and owned by Bormal Tinemau, was seen approaching the place where you and your friends were hiding. The people in the truck were driving to Madang to pay a bride price. They were then carrying three pigs, some cash and other personal properties. All those properties were valued at K2,540.00. When the people in the truck approached your hiding place, you and your friends then came out of your hiding place and block the road and forced the vehicle to stop. When the vehicle stopped, 5 of your friends jumped onto the back of the truck, whilst you went into the front cabin of the said vehicle. Once you were inside, you used a knife to force the driver of the said truck to leave the highway and onto a village road. As you were travelling, you and the driver struggled, and during the course of the struggle, the vehicle left the road and overturned. You were apprehended then and there, whilst the rest of your friends escaped.

I have listened and considered carefully all the matters which you told me yesterday. I note your own personal history, that you are a married man with a family, that you have gardens and so on. I also note that you said you were sorry for what you had done. You also asked me to put you on a probation. As I have said, I also note what you said about contacting illness whilst you have been in custody.

I take into your favour the fact that you have pleaded guilty, that you have co-operated with the police and that you are a first offender.

Against these, I must, as a judge take into account any aggravating factors. Here, I find that this was not a spar of the moment commission of a serious, prevalent and violent crime. The evidence shows that this was a planned robbery. Even then you were quite prepared to wait for as long as your wanted to await the arrival of unsuspecting victims. Secondly, I note that some of the victims were injured in and after the robbery.

This crime of armed robbery is a very very serious crime. You could end up going to jail for the rest of your life. That is how serious this crime is.

Your lawyer has referred to three case. One is Supreme Court case (i.e. the case of Gimble v The State [1988 - 89] PNGLR 271. The other two are National Court cases. The National Court cases are not binding on me and I do not in the circumstances of this case, intend to follow them because I do not consider the decision there to appropriate nor applicable to the facts of this case.

The Supreme Court in Gimble v The State set out, amongst many other matters the range of sentence the National Court may give in a number of different robbery cases. The court there said that in a robbery involving a vehicle, sentence of less than 5 years may be imposed in a case where the offender pleads guilty. The court further said that if there are aggravating factors then a sentence of more than 5 years may be imposed. That case was decided in 1989.

Recently, the Supreme Court in Yamogo Yoanes v The State (Unreported judgement dated 27 November 1997], confirmed a sentence of five years imprisonment I have imposed on an offender who pleaded guilty.

The facts of that case were quite simple. The appellant and his two friends, falsely pretended to a PMV driver that they had someone at the hospital to be collected. When they reached the hospital, the driver was told to drive further on and thereafter the appellant and his friends held up the driver and other passengers using guns and knives. They told them to get off the vehicle and they then drove off in the vehicle. However, soon thereafter, the vehicle had a punctured tyre and the appellant and his friends left the vehicle undamaged and fled. I sentenced the appellant to five years imprisonment, and he appealed to the Supreme Court saying that the sentence was excessive.

The Supreme Court dismissed the appeal and said, at p. 4,

“We are of the opinion that in an uncontested case of robbing of a vehicle etc, without aggravating factors, the starting point should be 5 years. In a contested case with aggravating factors, a sentence in excess of 5 years would be appropriate for this category of robbery.” --

In the present, I am firmly of the view that an immediate punitive and deterrent custodial sentence must be imposed. I do not accept what you said about being placed on probation, because clearly the facts of this case do not warrant the imposition of such a sentence. I had initially thought of sentencing you to five to six years imprisonment. But I changed my mind because of the sentence that I had given to your co-accused. If it was not for that fact, I would have had no hesitation in sending you to jail for five to six years.

Finally, I note that one of your co-accused was sentenced to 3 years imprisonment and was sent to the Erap Boys Town to serve his sentence. The main reason I gave him three years was because of his youthfulness (he was aged about 17 years). But it cannot be such with you. However because of the principal parity of sentence, I do not propose to impose a heavier sentence.

In all the circumstances, you are sentenced to 4 years IHL. I take away the period one year, 1 month and 15 days, being the time you were in remand, leaving a balance of two years, 10 months and 15 days IHL.

Lawyer for the Accused: Public Solicitor

Lawyer for the State: Public Prosecutor