State v Bimaru [2000] PGNC 58; N2025 (9 November 2000)

N2025

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]

CR 1104 of 2000

THE STATE

V

BILLY BIMARU

LAE: GAVARA-NANU, J

2000 : 9 November

CRIMINAL LAW – Sentence – Plea of Guilty to arm robbery – Robbery in company with others – Robbery of a house – Violence used – House damaged – Prisoner acting as a watchman – Principal Offender by virtue S.7 of the Criminal Code

CASES CITED:
Public Prosecutor v Don Hale SCRA No.333 of 1996

Tau John Anis & Ors v The State SCRA No.1 of 2000
Gimbles v The State [1988-89] PNGLR 271 at p.274

Counsel:
J. Kaumi for the State
N. Miviri for the Accused

SENTENCE

GAVARA-NANU, J: The prisoner is 17 years and is charged with arm robbery under Section 386 of the Code. The maximum punishment for this robbery is life imprisonment by virtue of SS. (2) of Section 386 of the Criminal Code because, weapons were used during the robbery and the prisoner was in company with others and actual violence used on the victims.

Applying the sentencing guidelines given in Gimbles v The State [1988-89] PNGLR 271 at p.274, this is a category ‘1’ robbery, because it was a robbery of a house. Gimble says, that in a contested case, the sentence should be around 7 years, but less in an uncontested cases, where the offender pleads guilty, but then says, if actual violence it used, a higher penalty may be justified in uncontested cases.

The robbery was planned and the prisoner and his friends were determined to carry it out. This can be inferred from the fact that, the prisoner and his co-offenders walked for 5 hours to get to the scene of the crime. The prisoner in his record of interview says they started walking at 6.30 pm from Taraka which is near Lae city and arrived at the scene of the crime in Wau township at 11.30 pm. They carried two homemade shotguns, 2 bush knives and a crew bar.

The prisoner says, they purposely went to hold up the Manager.

The way the two State witnesses described the robbery makes it most terrifying for those who were in the house at the time, especially the Manager who the prisoner and his co-offenders were after.

There is evidence that the doors of the house they robbed were smashed and household goods such as TV and other things were destroyed. The Manager and the other eyewitness say they were looking for him and asking where he was. He saved himself by hiding and the other State witness who was in the house telling them that he had gone out. There is no doubt that, they could have harmed him had they found him. He was the only person they were after because they left the others alone.

A large quantity of goods were also stolen from the house including gold valued at K9,000-00.

The prisoner says he acted as a watchman, by staying outside of the gate. He says, his accomplices were the ones who went into the house and did the robbery. However, there is evidence that, he planned the robbery with the others and indeed took an active part in it. In any case, he is a principal offender by virtue of S.7 of the Criminal Code.

Everything that was stolen was never recovered. The gold was sold for K3,900-00 and the proceeds were used by them. During the course of the robbery, the house was damaged and occupants tied up. I have no doubt that that was a night of terror for them. It happened at about 12.30 am according to one of the victims.

In the case of Tau John Anis & Ors v The State (SCRA No.1 of 2000), the Supreme Court substituted 10 years imprisonment with 7 years for a factory robbery where a group of young men who were first offenders used violence and stole money. The prisoners were aged from 15 to 20 years old. The circumstances of this case as outlined above are different. In this case, there were a number of serious aggravating factors, for example, the violence used on the victims, the damage done to the house, a large quantity of goods were stolen, none of which were recovered, the fact that robbery was done about midnight and that the robbery was aimed at the Manager, who only escaped possible serious injuries or even death by hiding. In Public Prosecutor v Don Hale SCRA No.33 of 1996, the Supreme Court said, "We feel, that the starting point to an appropriate sentence involving robbery of home owners at night with the use of firearms to threaten victims should be 10 years". Hale’s case involved a group of men who went to a house at 9 mile, in Port Moresby and threatened the family with a shotgun and actually fired shots at them and he and his compatriots stole a TV set. After his compatriots got away with the stolen TV, the prisoner was seized and detained by other residents and handed him over to the police. He pleaded not guilty. After trial, he was found guilty and was sentenced by the National Court to 5 years IHL, but suspended the whole term and fined him K1,000-00 and put him on a good behaviour bond for 2 years and ordered him to go back to his home Province. The Supreme Court said it was difficult to increase the sentence because the trial judge was no longer a judge of the National Court at the time the appeal was heard and the prisoner had already paid the fine of K1,000-00 and had returned to his home Province thereby serving part of the sentence. The appeal was also heard two years after the sentence was given, therefore the Supreme Court said, it was reluctant to impose a fresh term of sentence. The Supreme Court therefore considered that the only convenient order it could make was to order the prisoner’s arrest and to serve the 5 years suspended sentence.

The suggestion by the Supreme Court that the starting point should be 10 years in cases such as Hale’s case was in the event of a full trial. In this case the prisoner has pleaded guilty and by the prisoner’s own admissions, he did not go into the house. He was a watchman. According to Gimble’s principles, because the prisoner pleaded guilty, the starting point for this case for an appropriate sentence is less than 7 years but because of the serious aggravating factors, and adopting the principles adopted by the Supreme Court in Hale’s case, I consider 8 years to be the appropriate sentence in the circumstances of this case. The prisoner has been in custody for 1 year 6 months and 3 weeks which I deduct. The prisoner will therefore serve the balance of the term which is 6 years 5 months and 1 week IHL.

_________________________________________________________

Lawyer for the State: Public Prosecutor

Lawyer for the Accused: Public Solicitor