State v Pariwan [1999] PGNC 13; N1834 (5 March 1999)

Unreported National Court Decisions

N1834

PAPUA NEW GUINEA

[NATIONAL COURT OF JUSTICE]

CR 23 OF 1999
THE STATE
V
STEWARD PARIWAN

Wewak

Sawong J
2 March 1999
5 March 1999

CRIMINAL LAW - Sentence - Armed Robbery by a gang - Robbery of a Trade Store at night - victim shot - suffers permanent - injuries - Custodial Sentence - 11 years IHL appropriate.

Counsel

Mr. Ruarri for the State.

Mr. Tusais for the Accused.

5 March 1999

SAWONG J: You pleaded guilty that you on 31 July 1997 at Wewak, stole from one Matthew Kaugugin and others with actual violence the sum of K1,800-00 in cash the property of Hinabak Trade Store and that at that time you were in the company of 7 others.

FACTS

The short facts which you pleaded guilty and which I accepted were these. On the evening at about 7:15pm on 31 July 1997, you and 7 other men who were armed with two shotguns, bush knives and grass knives rushed into the Hinabak Trade Store in Wewak. Using those weapons, you then held up the Manager and other employees of the said store. One of your gang members fought with the Manager one Matthew Kaugugin, and during the course of the fight another of your accomplices shot Mr. Kaugugin on his face with a gun injuring him. After that you and your accomplices took about K1,800 in cash from the cash register and escaped from the scene.

THE PRISONER

You are aged about 22 years old. You have a sister who is still in school. You completed grade 8 after which you were transferred to go and attend a High School in Goroka. Unfortunately, this did not eventuated as the people you were going to live with moved out of Goroka.

When I administered the allocutus to you, you said you were sorry for committing this crime. You also told me why you committed it - you committed it to get some money to pay for your school fees to attend a Vocational Centre. You told me your parents are both alive but unemployed and you asked for the Court’s leniency.

You also told the court that you are a youthful offender and asked the Court either to impose a short custodial sentence or impose a wholly suspended sentence.

Armed robbery in any form is a very serious crime. It is also a crime of violence and it is becoming so prevalent in our country. The crime attracts a maximum sentence life imprisonment. The courts have warned over many years now that the courts will not hesitate to impose higher sentences in appropriate cases.

Your lawyer has referred me to the case of Gimble v The State. In that case the Supreme Court categorised various different kinds of robberies. It said there are about 4 different categories, and these are robbery of victims in their homes, robbery of a bank, robbery of trade store or vehicle, and the less serious is a street robbery. It then set out various tariffs against each of these categories. It suggested that in case like your case, on a plea of guilty without any further aggravating factor(s) the starting point should be less than 5 years imprisonment. If, however any aggravating factor is present then the sentence should be more than the suggested tariff. I wish to make several observations in regard to that decision.

The first is that the decision was made in 1988, more than 10 years ago.

Secondly, with respect to the Supreme Court, there was no statutory basis for creating or categorising various categories of robbery cases.

Section 386 (2) of the Criminal Code Act, ch 40, does not create any categories of robbery cases as categorised by the Supreme Court in Gimble’s case. That particular provision makes no distinction between a robbery of a person in a house or a robbery of a person on the street. It is quite plain that if Parliament had intended that there should different types of aggravated robbery cases, it should have said so. In the absence of such expressed intention, the conclusion is that the legislature did not intended that there ought be different types of aggravated robbery cases.

In the absence such a clear and unequivocal expressession, the Court should not legislate and create different types of aggravated robbery cases where none was intended by the legislature.

Because of this creativity by the Supreme Court, offenders who have been convicted of aggravated robbery have been treated and sentenced according to the different categories of robbery case as set out in that decision. Since that decision, the frequency of the commission of armed robbery in its varied forms or categories have increased. It is now so prevalent.

Even though the crime is so prevalent, the sentences that have been imposed by various trial judges in the National Court show that the sentences for the various categories of aggravated robbery cases have varied from partial suspended sentences to terms of imprisonment. (See Summary of Sentences, compiled by Woods J, from 1988 - 1998). But the terms of imprisonment do not, with respect equate with the seriousness and the prevalence of this particular crime.

The Supreme Court in Public Prosecutor v Hale [1998] SC 564, held that the various range of tariffs for various categories of robbery cases in Gimble may no longer be appropriate. In Hale, the Supreme Court suggested that the sentence for robbery of victim in their homes at night using firearm should be 10 years.

For the reasons I have given, I consider that the range of suggested tariffs in Gimble’s case is no longer appropriate nor is it any longer useful. Its relevance and applicability are questionable.

Furthermore, those were merely suggestions or guidelines only and are therefore not binding nor do they in any way take away the trial judges sentencing discretion. I consider that in principle the suggested different types of aggravated robbery cases should not be followed and the suggested sentences should now be adjusted upwards.

In the present case the offender committed an aggravated robbery. I consider that, for the reasons I have given, the tariff for a robbery of store by single person using firearms or other dangerous weapons, with threats of violence, and who plead guilty and who is a first youthful offender, the starting point should be 9 years. If however there are any other aggravating factors the starting point should be more than 9 years. These would include a group person, acting together, the dangerous weapon is actually used, the victim is assaulted, the victim suffers injuries. In such a case, upon a plea of guilty by youthful first offender the sentence should be 10 years or more.

If it is trial, then the suggested tariff should be more than what I have suggested. Before coming to the appropriate sentence, I take not of the following mitigating factors.

First you pleaded guilty. Your guilty plea has saved the State and this Court time and costs in mounting a trial.

I also note in that respect that your plea of guilty is consistent with your co-operation and admissions you made to the police when you were apprehended. Thus your plea of guilty is a genuine one.

Secondly, I note that you are a youthful first offender. But you cannot be treated as a young offender. Even though you are a first offender, the offence you and your accomplices committed, reduces that mitigating factor significantly.

As a judge, I must also take into consideration any aggravating factors. In your case, there are several factors which are against you. The first is this, the robbery was committed by a group of about 7 to 8 men acting together. All of you were armed with dangerous weapons which included several shotguns, bushknives and grassknives. Actual violence in the form of serious assault was caused to one of the victims. That victim was assaulted by one of your accomplices and during the course of the assault, another of your accomplices shot him on the side of his left face with a shot gun. The victim received injuries as result and those injuries are of a permanent nature.

Accordingly, you are sentenced to 11 years imprisonment in hard labour. I deduct the period of 4 months and 2 weeks being time spent in custody awaiting your trial. You will therefore serve the balance of 10 years 7 months 2 weeks imprisonment in hard labour.

Lawyer for the State: Public Prosecutor

Lawyer for the Accused: Public Solicitor