State v Arus [2001] PGNC 121; N2081 (16 March 2001)

N2081

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]

CR No. 18 of 2001

Between:

THE STATE

And:

KENNEDY ARUS

GOROKA: KANDAKASI, J
2001: 14th & 16th March

CRIMINAL LAW - Sentence - Armed robbery of a PMV bus on highway whilst still in motion - Offence committed whilst pursuing an unlawful purpose - Possessing and using illegally homemade guns - Forceful takeover of driving of bus and endangering lives - Passengers and driver abandoned in unfamiliar area - Plea of guilty - No prior convictions - Time to increase tariffs set by the Supreme Court - National Court obliged to follow guidelines set by the Supreme Court - 8 years imprisonment imposed - Criminal Code (Chp. 262) s. 386

Cases Cited:
The State v. Sabarina Yakal [1988-89] PNGLR 129
The State v. Jason Dongoma Unreported National Court judgement delivered on 13 December 2000) N2038.
The State v James Guruve Guba (Unreported National Court judgment)
Public Prosecutor v Don Hale (Unreported Supreme Court decision) SC564
Tau Jim Anis & Two Ors v The State (Unreported Supreme Court decision) SC642
Gimble v The State (1988-89) PNGLR 271

Counsel:
Mr Umpake for the State
Mr Apie’e for the Defendant

16th March 2001

DECISION ON SENTENCE

KANDAKASI, J.: The accused pleaded guilty to one count of armed robbery under s. 386 (1) (2) (a) and (b) of the Criminal Code (Chp. 262) (hereinafter "the Code").

The Allegation

The charge against the accused is this. On the 27 September 2000 at Korofeigu, Bena, in here in the Eastern Highlands Province, he stole from one Mr. Apa Waundo and others with actual violence a motor vehicle, namely, a white Toyota Coaster PMV 25 seater bus, Registration number P. 463W (hereinafter "the bus"), money in the sum of K350 in cash and various other items the property of Mr. Waundo and others. At the time of the offence, the accused was armed with two dangerous weapons, namely two home-made guns and was in the company of five others.

The Facts

The State alleges and is accepted by the Defendant that, the bus had originally travelled in from Kundiawa and was heading to Lae. It stopped at the Goroka market bus stop to drop off passengers who wanted to get off in Goroka and to pick up new ones intending to go to Lae. The accused and his five other accomplices got in the bus pretending to be passengers wanting to travel to Lae. The bus then drove out of Goroka heading for Lae. When it reached Korofeigu in the Benabena area here in the Eastern Highlands Province, the accused and his accomplices drew two homemade guns and held up the driver Mr. Waundo and the other passengers in the bus at that time. Then one of the accomplices took over the driving of the bus by force from Mr. Waundo and drove off the Okuk Highway into the Benabena High School road with the driver and passengers still inside. The hold-up took place whilst the bus was still in motion.

The accused and his accomplices drove pass the Benabena High School and stopped some distances away and ordered everybody in the bus to step out and they searched them at gunpoint. They then stole from the driver and the other passenger's money totalling K350.00 in cash, a pair of shoes and a wrist watch.

After robbing the driver and his passengers, the accused and his accomplices abandoned them and drove away in the bus toward Goroka. Most of the victims were not familiar with the area where they were abandoned. After the accused and his accomplices left, the victims managed to walk to the Benabena Police Station and from there they contacted Goroka Police and reported the robbery. Goroka Police immediately attended to the report and apprehended the accused and three others who were heading for Goroka after having committed the offence. According to Police evidence on file, the accused and his three accomplices tried to escape so the police wounded them. They were then taken to the Goroka Base Hospital for treatment and then to the police lock up. They have since been kept in custody.

There is no evidence on file to show whether the accused’s accomplice who took over the driving forcefully from the driver of the bus was a properly licensed and experienced driver. It is however, clear from evidence on file that, he drove in a very dangerous manner putting at risk lives of the passengers and the legal driver of the bus. That was in addition to the bus itself which was valued at about K107, 000.00 at the time of the offence. The bus was recovered but it is not clear whether the cash and the other items stolen from the passengers and the driver were recovered.

After arraigning the accused, I entered a provisional plea of guilty and then admitted into evidence without any objection from the defence counsel, the depositions together with the antecedent report. After reading the depositions, I was satisfied that, there was sufficient material to support the accused’s guilty plea. I therefore, proceeded to confirm the guilty plea and convicted the accused on the one count of armed robbery under s. 386 (1)(2)(a) and (b) of the Code. Before that, there was no s. 563 of the Code application by counsel for the accused.

The facts as outlined above, appear from the various witness statements and other material constituting the depositions. The accepted practice is for me to use the depositions to extract the relevant facts for sentencing purposes, in the absence of any sustainable objections and I have done that. For the relevant authorities on that see The State v. Sabarina Yakal [1988-89] PNGLR 129 and The State v. Jason Dongoma Unreported National Court judgement delivered on 13 December 2000) N2038.

Allocatus

The accused in his allocatus repeated his admission of guilt and went on to say that, at the time of his and his accomplices apprehension, the police set up a road block and on coming into contact with the road block he and his accomplices surrendered. They were then ordered by police to lie down on the grass and the police proceeded to shot at them with high-powered guns. He claims that fortunately that happened at a place where there were villagers who came to where they were and that prevented the police from further shootings. He confirms other evidences on file that, they were then taken to the Goroka Base Hospital for treatment and thereafter the police lock up. From there, they were sent to Bihute CIS for further detention awaiting their trial. He claims that, there were no further treatment given to him and he is still hurting from the injuries he sustained from the police.

For his personal background, he says he is an ordinary villager in a family of six children. His father died in 1994 but his mother is alive and is living in the village. He says he has three coffee gardens with one house pig. Also, he says he used to look after those things by himself as the eldest in the family but all of them are being jeopardized and affected by his continued incarceration.

Address on Sentence

The accused counsel, Mr Apie’e adopted what his client said in relation to his client’s background and added that, his client is over 21 years old and he comes from Gogo village in the Chuave District of the Simbu Province. At the time of the offence the accused was at Faniyufa for about 24 hours and was caught up in the commission of the offence with which he has been charged and he has pleaded guilty to. He has a wife who is pregnant with his first child. That wife lives in the village with the accused’s mother and his siblings.

In his client’s mitigation, Mr Apie’e urges the court to take into account the fact that his client has pleaded guilty to the charge, a position he took from the moment he was arrested by police. That meant a lot of savings in terms of time and cost that would have been incurred in conducting a trial. He further submits that, this was his client’s first ever offence and that, all of the items stolen were recovered, including the bus. Furthermore, he asks the Court to note that, his client was shot at and wounded by police and that, he has been in custody for over five months two weeks and three days as of the 14th March 2001.

Mr Apie’e draws the Court’s attention to the Supreme Court decision in the Public Prosecutor v Don Hale (Unreported Supreme Court decision delivered on 27th August 1998) SC564 and Tau Jim Anis & Two Ors vs The State (Unreported Supreme Court decision delivered on 25th May 2000) SC642. He then submits that, an appropriate sentence for his client would be a sentence between five and ten years imprisonment. He concedes that the offence of armed robbery is a serious one. He also concedes that, there are some serious aggravating factors but argues that, they are not of the "worse type" as no personal injuries were caused to any of the victims. He also points out that most of the items stolen, including the bus were recovered.

Mr Umpake of counsel for the State argues that, armed robbery is a serious offence and carries the maximum prescribed penalty of life imprisonment. He points out that, there are serious aggravating factors present and points to the having in possession and use of two home-made guns. That in itself he submits, is an unlawful act or purpose in that, it is indicative of an illegal manufacturing of the guns, being in possession of them without a license and using them to commit a serious offence. Another factor he submits is that, the robbery took place on a highway involving a bus loaded with passengers and the hold up took place whilst the bus was still in motion. It therefore, endangered the lives of the driver and the passengers in the vehicle at that time. It is submitted for the State that, this was akin to a hijacking of an aircraft, which is a serious offence. Further, the victims of the offence, the passengers of the bus with its driver were abandon at a place they were not familiar with, which gave rise to further risks to their lives. Finally, Mr. Umpake submits that the offence of armed robbery is a prevalent one and a tough deterrent sentence is called for so as to make our highways free of criminals so that people can freely travel up and down our highways. He then submits that, an appropriate penalty should be between eight and ten years imprisonment.

The Supreme Court in Gimle v The State [1988-89] PNGLR 271 at p. 274 to 275 set out the guidelines for sentencing in armed robbery cases. Four categories of robbery are set out and these are:

1. Robbery of a dwelling house with a starting point of seven years imprisonment;
2. Robbery of a bank with a starting point of six years imprisonment;
3. Robbery of a store, hotel, club, vehicle on the road or the like with a starting point of five years imprisonment; and
4. Robbery of a person on the street with a starting point of three years imprisonment.
   

Those guidelines were set more than ten years ago. They were for uncontested or guilty plea cases. The Court left open the discretion to impose sentences both below and above those guidelines in appropriate cases. In its own words the Supreme Court said at page 275;

In suggesting sentencing tariffs in the above four categories of robbery, we have been considering young first offenders, eighteen years and above, and in those cases we do not consider that a suspension of any part of those sentences is appropriate. If however, the offender is very young or there are special circumstances, a suspended sentence may be considered. If the offender has a prior conviction, then the suggested tariffs may be exceeded and suspension of any part would rarely be appropriate.

In the case before it, the Supreme Court found that, the case fell into the third category where the victim was knocked unconscious and the case was contested. There was no evidence of the victims suffering any permanent injuries. In the circumstances, the Court was of the view that, seven years imprisonment was appropriate. Accordingly, it reduced a sentence of nine years imprisonment by the National Court to seven years.

In the Don Hale case, the Court was concerned with a robbery of a dwelling house, which was on the top of the categories, or worse type of robbery cases. The National Court imposed a five years suspended sentence on the condition that the offender pays a fine of K1, 000.00 and return to his home area at Tari in the Southern Highlands Province. The Public Prosecutor appealed against that decision and the Supreme Court upheld the appeal and found amongst others that the learned trial judge erred in not starting with a term of seven years in line with the guidelines set in the Gimble case. The Court also found that no pre-sentencing report was asked for and considered before imposing the sentence it imposed. Further, the Supreme Court acknowledge that, the guidelines set by the Gimble case was outdated and that it was not serving its intended purpose of deterring would be offenders from committing armed robberies. It therefore, considered it was time to increase the tariffs set by Gimble. It then expressed the view that, armed robberies of dwelling houses should be increased from seven years to ten years.

Subsequently, in the Tau Jim Anis & Two Ors case, the Supreme Court increase the tariffs for armed robberies in the third category per Gimble’s case to eight years. In that case, the offenders were first time young offenders and they pleaded guilty to robbery of a factory. The offence involved actual violence and money and just over K20, 000.00. The Supreme Court reduced a sentence of ten years to seven years and six years respectively for each of the appellants.

Before arriving at that decision, the Supreme Court at p. 6 to 7 of the judgment said:

What we are concerned about is that ten years for an armed robbery of a factory or shop by young first offenders with substantial mitigating circumstances without any indication as to whether any concession was made for the plea of guilty, full restitution and good character does not leave much incentive for any one to plead guilty to robbery, let alone the big jump. We quite agree that there needs to be an increase in the tariffs generally for all categories of armed robberies in Gimbles sense but it must be done progressively rather than by leaps and bounds. It seems to us that eight years could be more appropriate sentence in this case.

Before that in the early part of page 6 it said:

If the guidelines in Gimble are to be taken as the guiding principles in formulating appropriate guidelines in place of those in Gimble’s case as the Supreme Court in the Public Prosecutor v Don Hale (supra) purported to do, then ten years as a starting point in this case is wrong because Don Hale was a case of robbery of a dwelling house at night and terrorising the occupants therein with gun which Gimble categorised as the most serious category of armed robbery offences. Robbery of a factory, like a club or a store, according to Gimble guidelines attracted five years sentences and if ten years for robbery of a dwelling house in Don Hale was intended to raise the tariffs set in Gimble, then applying the same denominator of three years, the appropriate tariff for robbery of a factory ought to be eight years.

With respect, I do not consider the reasoning of the Supreme Court in those words correct. This is because, the exercising of a sentencing judge or court’s discretion is not a matter of mathematics but rather an application of that discretion judicially having regard to the particular circumstances of the case, noting that a case as to be determine on its own facts. Exercising that discretion may well defer from judge to judge and that they may well be differences in the number of years impose for similar offences depending on the nature and circumstances in which the offence is committed. Further, I also do not consider that imposing a term of eight years or ten years in their particular categories as suggested by the Tau Jim Anis and Don Hale meets the wishes and the interest of the community to see tougher and stiffer penalties being imposed against armed robbers. The legislature has prescribed a maximum penalty of up to life imprisonment. That is demonstrative of the fact that Parliament has considered it appropriate that people who commit this kind of offences need to be dealt with severely. Unfortunately, in my respectful view, the courts have been imposing sentences that do not come closer to life imprisonment. Perhaps that may be is the reason why we seem to have a growing number of armed robbery cases in our Country. That is reason enough for a serious re-look at the tariffs that have been set by the Supreme Court in Don Hale and Tau Jim Anis following on from the Gimble case, with a view to substantially increasing sentences well passed the eight and ten years imprisonment mark. Until the Supreme Court does that, this Court has no choice but to follow those guidelines.

The Sentence

In determining an appropriate sentence in the present case, I note the following aggravating factors against the prisoner:

1. Unlawfully made and carried home-made guns were used to hold up the driver and passengers of the bus which was in motion at the time of the hold up.
   
2. The value of the properties or items stolen exceeded K100, 000.00.
   
3. The offenders pretended to be genuine passengers and got onto the bus and proceeded to commit the offence.
   
4. The lawful driver of the bus was forced out of his seat and replaced by one of the prisoner’s accomplices.
   
5. The lives of the driver of the bus and the passengers in the bus at the time were put at great risk and or danger.
   
6. The driver of the bus and the passengers were abandoned at a place they were new to after having been robbed of their possession.
   
7. One unlawful purpose, namely having manufactured and or having in possession an unlicensed firearm led to the commission of another serious offence.
   

In favour of the prisoner, I note that, he has no prior convictions and that, he has freely admitted to having committed the offence both to the police and this Court. He has no formal education or employment and he is the eldest in his family. By reason of that, he is responsible for the continued survival of his surviving mother and siblings after the death of his father. I also note that, police has injured him during the time of his arrest. His counsel did not however, point me to any authority and I am not aware of any that allows for such a factor to operate in favour of a prisoner. Nevertheless, I will take that into account for the purposes of his sentencing to avoid apprehensions of double punishment.

Comparatively, in my view, the circumstances in which the offence was committed in the Tau Jim Anis case is less serious to the case before me. Also, the offenders in the Tau Jim Anis case were young offenders as opposed to the prisoner in the present case who is an adult married offender who is expecting his first child. The offenders in the Tau Jim Anis case were given seven and six years respectively. That was on the basis of their guilty plea and being young first time offenders. Noting that the offence of armed robbery is a serious offence and the maximum penalty prescribed is life imprisonment as well as the guidelines set by the Supreme Court in the Gimble case as varied by the subsequent Supreme Court decisions in the Don Hale and Tau Jim Anis cases, I consider an appropriate sentence for the prisoner in the present case would be eight years. Such a sentence, in my view reflects the prisoner's guilty plea and the fact that none of the victims were injured. It should also reflect the fact that police injured the prisoner at the time of his arrest and the need to avoid an apprehension of double punishment by the prisoner.

I do not consider it appropriate that his family background should operate in his favour for two reasons. Firstly, he should have carefully considered his own and family background before choosing to commit the offence at the first place. That is more so in the absence of any evidence of the prisoner being forced to commit the offence. Therefore, he should not argue against the consequences that should follow as a result of the choices he made in getting involved in the commission of a serious offence. By choosing to be involved in the commission of the offence he decide to put at risk his own live and welfare and that of his family. Secondly, I have not been referred to and am not aware of any authority, which obliges me to take this into account as a factor in mitigation of the prisoner. Even if there were such authorities, I would not be prepared to follow because of the first reason.

If it were not for his guilty plea, his clean prior record and the injuries he sustained from the hands of the police, I would have imposed a sentence much higher than eight years. That would be in view of the fact that, armed robberies on our highways are on the increase and is deterring law abiding citizens from freely travelling up and down the highways. It is also preventing tourists and other people who could help develop our country from coming into our country and travel up and down our highways and roads. It would be an injustice to society to continue to impose lenient sentences as the courts have been doing up to this time when the prevalence of the offence has not declined and the sentences thus far imposed, seem not to be serving their intended purpose of deterring would offenders from committing such offences.

Having regard to all of the above, I impose a sentence of eight years in hard labour against the prisioner. Of that, the period of five months two weeks and five days he has already spent in custody as of today shall be deducted. The prisoner is therefor, order to serve the balance of 7 years, 6 months, 1 week and 2 days in hard labour at Bihute.

Pre-sentencing Report

I have not called for and considered any pre-sentencing report because the prisoner did not argue for a non-custodial sentence. In any case the circumstance in which the offence was committed called for an immediate deterrent custodial sentence.

Compensation

I have given some consideration to compensation within the meaning of the Criminal Law(Compensation) Act 1991. Given the fact that the prisoner has no formal employment or a fixed source of income, I formed the view that, he may not be in a position to meet any order for compensation. Besides, the number of people he may have to compensate would exceed his capability. Accordingly, I have ruled out compensation.
_____________________________________________________________________
Lawyer for the State: Public Prosecutor
Lawyer for the Accused: Public Solicitor