State v Munduai [2000] PGNC 75; N2036 (12 December 2000)

N2036

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]

CR No 1360 of 2000

THE STATE

-v-

ZIMA MUNDUAI

LAE: KANDAKASI, J.
2000: December 5, 12

Counsel:
N. Miviri, for the State
M. Mwawesi, for the Defendant

12 December 2000

KANDAKASI, J: The State presented an indictment against the Defendant on the 5th of December 2000, charging him with one count of armed robbery under s.386 of the Criminal Code Act (Ch. 262) hereinafter "the Code"). The Defendant pleaded guilty to the charge and was accordingly convicted. That followed the Court reading the depositions and being satisfied that there was sufficient facts to support the guilty plea.

Facts

On the 30th of June 2000, the Defendant in the company of 3 others went to the Bugandi High School at about 2.30pm. They were armed with a toy pistol and two home-made guns. They used those weapons to threaten teachers and steal from some female teachers their bags. After the offence was committed the Defendant and his accomplices ran away. Subsequently, the Defendant was arrested by police.

In his record of interview, the Defendant admitted committing the offence and has since co-operated with police. He has also pleaded guilty before this Court thereby saving the associate costs and time that would have been spent on a trial. These factors will be taken into account in his mitigation.

Allocutus

In his allocutus, the Defendant said this was his first offence and has no prior conviction, which is confirmed by the antecedent report. He said he was sorry for what he had done before this Court and God. He was influenced by his accomplices to commit the offence. He was not the main actor or the mastermind of the robbery. The pistol he had was just a toy not intended to kill or hurt anyone. He then asked the Court to consider his background as a young first time offender. He is the only one looking after his mother who is crippled together with his younger siblings. His father is deceased and the sister after him is married and she lives with her own family. He is employed on a casual basis by the University of Technology mess as a kitchen hand. In his conclusion he asked the Court to be merciful toward him and place him under probation or a good behaviour bond so he can continue to support his mother and younger siblings.

Address on Sentence

Mr. Mwawesi, for the Defendant adopted what his client said in his allocutus and added that his client is a 19 year old, single and come from Guvu Pindiu, in the Kabwum District of the Morobe Province. His client is educated up to Grade 8. He is a follower of the Lutheran Church. He has spent 5 months and 5 days in custody awaiting his trial up to the 5th of December 2000.

In his client’s mitigation, Mr. Mwawesi asked the Court to consider the fact that his client has pleaded guilty to the charge and that his client has co-operated with police. He has no prior convictions and is a first time young offender. There were no serious injuries inflicted upon any of the victims and he has not benefited from the offence. Mr. Mwawesi then concluded by arguing for a non-custodial sentence. Counsel did not however assist the Court by his failure to point out why a custodial sentence was inappropriate. He did not address the Court on any of the aims and purposes of sentencing. Therefore much of the work was left to the Court to arrive at an appropriate sentence.

Mr. Miviri for the State made no submissions on sentence.

Pre-Sentencing Report

Before going onto determining an appropriate sentence I request a pre-sentencing report from the Probation Service. On the Probation Officer’s indication, the matter was adjourned to the 12th of December 2000. The Probation Officer in a letter dated 11th of December 2000 informed the Court that the pre-sentencing report will not be ready by the 12th of December. The matter was therefore adjourned to the 20th December 2000 when that service indicated the report would be ready.

The report is now before the Court and the Court is grateful to the Probation Service for having that completed within the limited time and resources given. This Court has carefully considered the report and its recommendations. That is reflected in the sentence to be given to the prisoner shortly.

Sentence

The offence of armed robbery is prescribed by s.386 of the Code. It carries a maximum of life imprisonment. However, in the exercise of the discretion given to the Courts by s.19 of the Code, sentences far less than that have been imposed. The Supreme Court in Gimble v. The State [1988-89] PNGLR 271, first set the guidelines for sentences in armed robbery cases. In so doing, it came up with four categories of robberies with the more serious one, robbery of a dwelling house at the top and the less serious one of a robbery of a person on the street at the bottom. Between those two are robbery of a bank and robbery of a store, club or a vehicle on the street and the like at the second and third categories respectively. The starting sentence for each of those categories were put at 7 years, 6 years, 5 years and 3 years respectively.

On the 27th of August 1998, the Supreme Court in Public Prosecutor v. Don Hale [1998] SC564 increased the guidelines set for robbery of a dwelling house to 10 years. In so doing the Court reasoned as follows:

We first of all find that the trial judge erred in considering the appropriate tariff to start with in considering the appropriate sentence. Gimble’s case suggest starting with 7 years but the trial judge started even lower than that. We find that with the prevalence of violent crime involving the use of guns the ranges of sentences recommended in Gimble’s case are having no effect and are no longer relevant. Gimble’s case was decided in 1989 and crimes of violence have definitely increased with the use of guns being more prevalent and the community is calling for heavier punishments as a deterrence. We feel that the starting point to an appropriate sentence involving the robbery of house owners at night with the use of firearms to threaten victims should be 10 years.

The Court went further and made the following observations which I consider are also of relevance to the present case:

The judge having set a sentence of imprisonment then proceeded to suspend the term. Whilst we agree that a judge has a discretion in sentencing convicted persons such a discretion must be exercised according to normal principles. We agree that there are many circumstances which should be applied in the consideration of an appropriate punishment for a particular offender and a judge should refer to these circumstances. There are first of all a number of circumstances of aggravation such as the amount of violence used in a robbery, and the amount of damages done and property taken and whether victims were further injured apart from the fear of the threats. Then there are matters that may be considered in mitigation of the punishment. Of course the first factor in mitigation is whether there have been any admissions of guilt however in this case before us today the appellant pleaded not guilty so the State and the Courts was put to the time and expense of a trial with the calling of witnesses. So any mitigation for admissions and remorse have limited application. The age of the respondent was considered by the judge as a mitigating factor. We have not seen the appellant so we do not know what type of 19 year old he was. 19 years of age is not necessarily a young offender in PNG society, at that age a person is a full adult with the right to vote and marry. There is no clear report whether this 19 years was a young 19 years still living with his parents or whether he was living as a full responsible adult. It appears from his antecedent report that he had left his home area and therefore left his parents home and had been living in different parts of Port Moresby and even having an adult job. So it appears that he may have been acting and behaving as a full responsible adult and not still under the care and control of his parents. If a judge is to consider some leniency on sentence because of age it is incumbent on him to obtain the relevant report such as a pre-sentence report, especially around the age of 17 to 19. Age considerations may of course be more obvious to a judge if an offender is under the age of 16 years. Then for such a drastic suspension of sentence a further help to the Court would be a community report from the community to which the offender belongs and whether the community, seeing that the incident happened within that community, has any views on an appropriate punishment or whether the community is prepared to assist with any community management of any bond period. The Courts are bound under the philosophy of the Constitution to be in touch with the aspirations and attitudes of the people of PNG and the punishment of criminals definitely has an effect on the ordinary people. So community involvement with the punishment of offenders should be considered especially if the Court wishes to return an offender to the community instead of imposing imprisonment. And we note here the relevance of the Criminal Law (Compensation) Act 1991. A return to the community should mean an appropriate report of the attitude of the community and whether the community is prepared to take some responsibility for their own offending members and supervise any alternate punishment.

However in this case before us now the trial judge had no pre-sentence report nor any report from the community in the supervision of this suspended sentence. This is a clear error if he was to suspend a sentence for this kind of aggravated robbery.

Later on in Tau Jim Anis & Another v. The State (2000) SC642, the Supreme Court increased the guidelines set for armed robbery in the third category to 8 years. That followed the Court acknowledging that the offence was becoming prevalent and the guidelines set by the Gimble’s case are no longer appropriate.

More recently in The State v. Abel Airi (a decision I delivered in Waigani) N 2007, I considered the above developments and started with a sentence of 6 years and deducted 2 years of that on payment of K3,000.00 compensation within six months to the victim and the balance, after allowing for time spent in custody suspended on the Defendant entering into a good behaviour bond and meeting a number of terms which were intended to be an alternative to serving time in prison.

The Court was able to arrive at the above decision because, the defendant had excellent character references, an excellent pre-sentencing report which met with good impressions created upon the Court by the demeanour of the defendant during arraignment and administration of his allocutus. The offence was committed out of an alcoholic intoxication with no intend to rob. There was no planned robbery and the defendant was in the company of accomplices much older than himself. I found in that case that the defendant’s expression of remorse was genuine and that the defendant did make definite changes in his life for the better. Further, the Court was ably assisted by counsel acting for the defendant by referring to relevant authorities. Furthermore, the items stolen were recovered and the defendant had already initiated steps to fully restore the victims damages and pay compensation.

Present Case

In the present case, the court did not get the impression that the defendant was genuine in his expression of remorse. That was obvious from the way the Defendant was expressing himself in allocutus. He said the pistol he used was "just a toy not intended to kill anyone" with emphasis on those words. There was a planned robbery. Although the defendant says he was not the principle, s.7 of the Code makes him a principle. He has not taken any steps to say sorry to those he terrorised with the use of the toy pistol, which the victims took to be a genuine one, evidence by their compliance of orders issued by the defendant and his accomplices. The defendant has no character references. The pre-sentencing report makes references to interviews with a Lutheran Church Pastor and two of the Defendant’s uncles. They speak for the Defendant and ask for a non-custodial sentence.

The Court notes the defendant’s background as described by himself in his allocutus and adopted by his counsel in his address. But the court pauses to wonder why the defendant did not consider his background before committing the offence. For example, if he was concerned about the welfare of his mother and his younger siblings, he could not have gotten himself involved in the commission of the offence. The Court is of the view that, he had full appreciation of the consequences of his intended action before acting on them. Besides the pre-sentencing report does not support the defendant on his claim that he is the only one supporting his mother and younger siblings. Instead the report states that the Defendant was raised and is look after by one of his uncles.

Nevertheless, I take the defendant’s background into account in addition to his mitigating factors of pleading guilty, he is a first time offender and have no prior convictions. I also note that he has not benefited from the offence and that he was not the main actor. I also note the recommendations in the pre-sentencing report. In the circumstances I am compelled to follow the Supreme Court in the Tau Jim Anis & Other case and start with a sentence of 6 years in hard labour. Of that 5 months 15 days will be deducted on account of time spent in custody awaiting trial. That will leave him with 5 years 6 months 15 days. Of that a period of 3 years will be suspended after having served a period of 2 years 6 months and 15 days in hard labour. The suspension will be on the condition that the defendant immediately enters into a recognisance with a surety of K300.00 for 2 years and meeting the following additional conditions:

1. find meaningful employment in Lae if he can within 2 months from the date of his release from prison;
   
2. failing the finding of employment in accordance with term 1 above, return to his village of Guvu Pindiu; Morobe Province;
   
3. Not to leave his village of Guvu Pindiu or his place of residence in Lae which ever the case may be without first obtaining the approval of this Court;
   
4. Not to be in the company of any person except his immediate family members;
   
5. Be home bound between the hours of 6.00pm and 6.00am;
   
6. Attend the nearest Lutheran Church faithfully every Sunday or if he changes his Church his new Church on its day of worship;
   
7. Render voluntary 8 hours community service every week by attending upon and cleaning at the Bugandi High School subject to the direction of the school and supervisor of Probation Services in Lae.
   
8. Allow and facilitate probation service to supervise and report to this Court on a quarterly basis, on the basis of which these terms may be varied.

__________________________________________________

Lawyer for the State: Public Prosecutor
Lawyer for the Accused: Public Solicitor