State v Pakai [2001] PGNC 36; N2174 (17 December 2001)

N2174

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]

CR NO. 765 of 2001

THE STATE

-V-

DANNY PAKAI

WEWAK: KANDAKASI, J.
2001: 13th and 17th December

CRIMINAL LAW & PRACTICE – Sentencing a co-accused of one already convicted – Need to avoid disparity of sentence unless exceptional circumstances exist – Co-accused already sentenced to 8 years – Not clear whether on plea of guilty or after a trial and whether co-accused had any prior convictions – 8 years sentence given.

CRIMINAL LAW - Sentence – Armed gang robbery – Armed with two homemade shot guns, a bush knife and a bolt cutter – Value of property stolen totalling K2, 023.84 – Part of property stolen recovered – Guilty plea – One prior conviction – expression of remorse – 8 years imprisonment imposed – Criminal Code ss. 386 (1) and (2) (a) and (b), 7, 8 & 19.

Cases cited:
Gimle v The State [1988-89] PNGLR 271

Public Prosecutor v. Don Hale (1998) SC564
Tau Jim Anis & Others v. The State SC642
The State v. Abel Airi (20/11/00) N2007
The State v. Lawrie Patrick & Ors [1995] PNGLR 195
The State v. Edward Toude & Ors (CR 964 of 2001)

Counsel:

M. Ruarri for the State
G. Korei for the Accused

DECISION ON SENTENCE

17th December, 2001

KANDAKASI J: You pleaded guilty on Thursday the 13th of this month to one count of armed robbery contrary to section 386 (1) and (2) (a) and (b) of the Criminal Code.

The Facts

The facts leading to your charge and plea of guilty are straightforward. On the 27th of May 2000, around midnight, you were in the company of four others. You were armed with two home made shotguns, a bush knife and a bolt cutter. You went to the Shell Deport here in Wewak and gained excess to the premises using the bolt cutter to cut your way through the fence. Once inside the premises, you held up three security guards that were guarding the premises that night. You then got into the office and stole from there a computer set with a monitor and a keyboard and other items including personal items the three security men had with them that night. The monitor was valued K1, 500.00 and the keyboard was valued K350.00. The total value of all of the items you stole was K2, 023.84.

Following good police work, most of your accomplices were arrested and were eventually sentenced to 8 years imprisonment. Also, some of the items stolen were recovered.

The Law

The offence of armed robbery is prescribe by section 386(1) and (2) of the Criminal Code in these terms:

"386. The offence of robbery.

(1) A person who commits robbery is guilty of a crime.

Penalty: Subject to Subsection (2), imprisonment for a term not exceeding 14 years.

(2) If a person charged with an offence against Subsection (1)—

(a) is armed with a dangerous or offensive weapon or instrument; or

(b) is in company with one or more other persons; or

(c) at, immediately before or immediately after, the time of the robbery, wounds or uses any other personal violence to any person,

he is liable subject to Section 19, to imprisonment for life."

The Supreme Court in the much celebrated case of Gimle v The State [1988-89] PNGLR 271 at pp. 274 – 275, set out the guidelines for sentencing in armed robbery cases. In so doing, it set out the following four categories:

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 Public Prosecutor v. Don Hale (1998) SC564, 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 in Tari in the Southern Highlands Province. The Public Prosecutor appealed against that decision. 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 (supra). 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 (supra) 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 in that case. It then expressed the view that, armed robberies of dwelling houses should be increased from seven years to ten years.

Subsequently, in Tau Jim Anis & Others v. The State SC642, the Supreme Court increased the tariffs for armed robberies in the third category per Gimble’s case (supra) 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 just over K20, 000.00. The money was recovered.

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."

(Emphasis mine)

As I said in The State v. Abel Airi (20/11/00) N2007,

"... [T]he 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 imposed for similar offences depending on the nature and circumstances in which the offence is committed."

Your Case

In your case, I note that there was no actual violence but there were threats of it. You were armed with dangerous weapons, namely, two home made shot guns, a bush knife and a bolt cutter which you used to commit the offence. Only part of what you stole was recovered. You have a prior conviction by the Wewak District Court for escape from lawful custody.

Your counsel urges me to find that you only played the part of a watchman. As such, you did not play a major part. Therefore, the argument is that, you should be given a sentence not exceeding 5 years. That submission ignores established law that by virtue of sections 7 or 8 of the Criminal Code, if an offence is committed in the company of others, every person involved is a principle. Indeed the Supreme Court in the Gimble case (supra) made that clear in these terms:

"...Again we do not think that the trial judge erred on this. The General rule is that all active participants in the crime should be sentenced on the same basis. The Court does not normally stop to consider whether a particular prisoner actively held up the victim, or held the gun, or the iron bar, or was a watchman outside, or was the driver of a get-away vehicle. All are equally guilty because without each playing his full part the crime could not be perpetrated."

(Emphasis mine)

This principle has been continuously applied in a large number of cases where the offenders were not the main actors but only aided or assisted in the commission of the offences. An example of that case is The State v. Lawrie Patrick & Ors [1995] PNGLR 195.

What all these means in short is this. The law requires you to be treated as a principle when considering an appropriate sentence for you. In other words, it does not matter what part you played as long as you were a part of the armed gang that committed the armed robbery. Hence, I do not accept with respect your counsel’s submissions that I should take into account the fact that you were only a watchman. Even then, going by the Supreme Court decision in Gimble (supra), I have to start at a sentence of 5 years imprisonment and then move upwards or downwards. In this regard, I must be guided by the particular circumstances of your case and the current sentencing trends.

In you favour however, I take into account the fact that you have pleaded guilty to the charge. I also not that you are a young man of 20 years of age and that you are an unemployed resident of Wewak. You have been educated up to grade 8 and that you have not entered the formal workforce.

The authorities such as the Supreme Court decision in Tau Jim Anis v. The State (supra), suggest that the kind of sentences suggested in the Gimble case (supra) are out dated. Therefore, the sentences ought to be increased to correspond with the increase in the kind offence you have committed. Bearing these in mind, I have recently in Alotau imposed a term of 20 years and 17 years in the case of The State v. Edward Toude & Ors (CR 964 of 2001). I delivered that judgement on the 16th of October 2001 for armed robbery without any violence on a ship after a trial.

In this case, if it were not for your guilty plea, I would have imposed a sentence closure to the case mentioned above because of the prevalence of the crime of armed robbery and past sentences appearing not to deter would be offenders like you. In addition to your guilty plea, I note also that, your accomplices were given 8 years sentences. Where such is the case, the law requires me to give you a similar sentence: see Andrew Uramani & 4 Others v. The State [1996] PNGLR 287. The only exception to that is where there a strong either mitigating or aggravating factors such as a trial or prior convictions exist. I do not have much information on the sentences of your co-accused. As a result, I do not know whether the sentence they received was after a trial or on a guilty plea and whether they had any prior convictions. In any case, I am not satisfied that your case falls under the exception to the rule to ensure no disparity of sentence.

Considering all of the above factors, I am constrained to imposed a similar term has your co-accused, rather than imposing a term higher than that. In so doing, I reject with respect your counsel’s submission for your sentence not to exceed 5 years. This is to confirm with the trend of increasing sentences to reflect the increase in the kind of offence you have committed. As I said already, I would have given you a sentence closure to 20 years if it were not for your guilty plea and your accomplishes receiving a sentence of 8 years. In that sense you are fortunate.

In the end result I order that you serve a term of 8 years in hard labour at the Boram CIS, less the time you may have already spent in custody awaiting your trial.
___________________________________________________________________
Lawyer for the State: Public Prosecutor
Lawyer for the Accused: The Public Solicitor