State v Nawe [2000] PGNC 67; N2030 (14 November 2000)

N2030

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]

CR 705 of 2000

THE STATE

v.

BILLY NAWE

LAE : GAVARA-NANU, J
2000 : 14 November

CRIMINAL LAW – Sentence – Robbery committed with actual violence, Rape committed on female victim during robbery an aggravating factor – Victims not without blameworthiness – Opportunity crime- Offender in company with others.

CASES CITED:
Gimble v The State [1988-89] PNGLR 271

R -v- Herowa Poia & Others [1964] PNGLR 187

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

SENTENCE

GAVARA-NANU, J: The prisoner is charged under Section 386 of the Criminal Code for arm robbery. The maximum is life imprisonment by virtue of SS. 2, of Section 386 of the Criminal Code, because at the time of the offence, the prisoner was with three others and were armed with dangerous weapons, namely a home made gun, axe and a grass knife; and during the robbery they used violence on the victims by tying the male victim and cutting him with a grass knife while the female victim was raped.

The three co-offenders of the prisoner are not before the court. Nonetheless, the prisoner is here and for his part in the commission of the crime, I find following facts against him:-

(i) Although, he himself was not armed, he aided the others in the commission of the crime including the rape of the female victim by one of his co-offenders.
(ii) He says, at first, he was told by one of his co-offenders that they were going to get firewood, but later, when it was revealed to him that they were going to do a robbery, he went along with them and willingly participated.
(iii) He actually took part in tying up the male victim.
(iv) He helped steal the vehicle because he was in it when one of his accomplices drove it away.

He therefore actively took part in the robbery and was involved from the beginning to the end.

During the robbery one of the offenders raped the female victim. The stolen vehicle was recovered later, but its stereo and the rear mirror were either stolen or damaged during the robbery. The stolen vehicle belonged to Steamships Trading Company. As the result of the damages done to the vehicle, the owner did suffer loss.

The prisoner is a man of 24 years of age and single. He has some education because he reached Grade 9. He is a first offender and has co-operated with the police and pleaded guilty to the charge. These must mitigate his sentence. He has been in custody for 10 months.

This was a robbery of a vehicle and falls into the third category of the type of robberies discussed in Gimble v The State [1988-89] PNGLR 271. The court at p.274 said, "... where a group of young first offenders, carrying weapons, use the threat of violence to rob a store, etc, we consider that a sentence of five years imprisonment is appropriate in a contested case. A lesser sentence should be imposed in an uncontested case," then it went on to say "... 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". Applying these principles, the main aggravating factors were that there was actual violence used on both victims and the female victim was raped by one of the prisoner’s co-offenders. I find that an aggravating factor to take into account here, although the prisoner has not been charged with rape.

Last week, I sentenced a young first offender to 6 years IHL for arm robbery while in company with others, but in that case, there was no actual violence used on the victims. There was only threat to use violence and the amount stolen of K17,674.80 was recovered in full. In this case, although no money was stolen, there was serious violence committed on the victims, one of which is rape.

There is one aspect of the case which I cannot ignore in determining the appropriate sentence for the prisoner, and that is, how and where the robbery took place. The location where the offence took place is along the old Nadzab airstrip which is an isolated place. The victims went there to have lunch, but in my view, for them to go and have lunch in such an isolated location was inviting trouble. The prisoner says the two victims were in fact having sex in the vehicle when they held them up. The victims do not say anything about that but, if they did have sex then that is a factor in the prisoner’s favour because that would have tempted the prisoner and his co-offenders to do what they did, is rob and rape, see R. v. Herowa Poia & Others [1964] PNGLR 187 at p.191. The male victim does refer to the female victim as his girl friend so one thing certain is that they were on lovers’ outing when they met this trouble. I think it was plain silly of them to go to where they went to have lunch. Why could not they have lunch somewhere in town or someplace else where it was safe for them. They therefore in a way contributed to their own misfortune. If it was not for this factor, I would have imposed 7 years IHL. The victims by their actions encouraged the prisoner and his co-offenders to commit the crime, therefore for the prisoner and his co-offenders, this was an opportunity crime. In the circumstances of the case, I impose 6 years IHL.

The prisoner has spent 10 months IHL. I deduct that period. The prisoner will therefore serve 5 years 2 months IHL.

I recommend that the prisoner serve his term in Popondetta CIS.

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Lawyer for the State: Public Prosecutor

Lawyer for the Accused: Public Solicitor