N2127

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]

CR. NO. 70 OF 1999

THE STATE

-V-

JAMES GATANA
MICHAEL OTLY
TONNY PIDIA
THOMAS DAMSY

KOKOPO: Lenalia, J.
2001: 11, 19 April

Criminal Law – Sentence – Aggravated armed robbery – Armed robbery of vehicle on the street – Stealing with actual violence – Guns and knives – Use of – Criminal Code s.386 (1)(2)(c) - (Ch. No. 262).

Criminal Law – Sentence – Armed robbery – Aggravating circumstances – Armed robbery in office using vehicle obtained in first count of armed robbery – Use of guns and knives – Office equipment left in disarray – Criminal Code s.386 (1)(2)(a)(c) – (Ch. No. 262).

Section 386 (1) and (2)(a)(b) and (c) provides:-

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

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

(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.

Held:	(1)	Where property in an armed robbery has been recovered whether by hot pursuit or the use of violence by the owner or police to recover the thing stolen should be an aggravation and criminal culpability is not reduced, though it may be taken into consideration on sentence.

(2)	Despite the strong plea on mitigation, armed robbery in all circumstances of the four categories of armed robberies discussed in the case of Gimble –v- The State [1988-89] PNGLR 271 are of prevalent nature. In both charges before me, the amounts involved were quite substantial and sentences ought to be more than the suggested tariff in the Gimble case.

(3)	Where a first offender is a co-accused of another or others who have previous convictions, leniency be exercised toward the first offender on sentence.

CASES CITED:

The following cases are cited in judgment:

Gimble –v- The State [1988-89] PNGLR 271.
Don Hale –v- The State [1996] SC564.
The State –v- Herman Kenny & Junio Henry [2001] CR Nos. 396 & 132 of 2001.
The State –v- Lasi mauwe & Maki Onapika [1988] N1886.
Acting Public Prosecutor –v- Joe Kovea Mailai [1981] PNGLR 258.
Paulus Mandatitip & 2 ors –v- The State [1978] PNGLR 298.

Counsel:
L. Rangan,	for the State
W. Donald,	for four Accused

19 April 2001

This was a judgment delivered in the course of sentencing two prisoners for two counts of armed robbery.

SENTENCE ON PLEAS OF GUILTY

LENALIA, J.	The four accused were charged with two counts of aggravated armed robbery. On the first count, the State alleged that on 15th of September 1998, at Tokua/Rainau road junction they each and severally stole with actual violence a vehicle Nissan Navara No. AGK. 492, 4x4 Double Cabin white in colour with red stripes which vehicle they stole from it’s owner Norbert Marus. On the second count the State alleged that using the vehicle stolen on the first count, the four accused after having blind-folded Norbert Marus and his only female passenger Anna Kamo, drove back to Boroko Motors office at Takubar whereupon they each and severally stole from Dianah Timie and others with threats of actual violence a sum of K1,364.85 in cash and two cheque books valuing at K617.70, the property of Boroko Motors Ltd. The State further say that at the time of the two armed robberies, the four accused were armed with two guns, one being factory made while the other a home-made one and bush knives. These offences are against s.386 (1)(2)(a)(b) and (c) of the Criminal Code.

These matters were set for trial, but on arraignment, accused James Gatana and Michael Otly pleaded guilty while Tonny Pidian Berevy and Thomas Damsy entered not guilty pleas. Pidian and Damsy’s cases were later dismissed on the date I took their pleas since the State offered no evidence and their bails were ordered refunded.

The facts to which James and Otly pleaded to were as follows: On 15th of September 1998, the two victims of the first armed robbery, Norbert Marus and his only female inlaw passenger Anna Kamo took off from Kokopo with intention to go to Ulaveo Plantation. On the way on the junction to Tokua Airport and Rainau road, Norbert stopped for purposes of relieving himself. So he pulled up along side the road leading to Rainau. When he was about to get out from his vehicle, two mask men hastily walked towards him and stood on his sides, one on the right and the other on the left pointing two guns at him. His female passenger was still in the vehicle when the mask men ordered victim Norbert to give them the ignition at the same time ordering him to get on to the back of his vehicle. Both victims noticed there were five mask men.

Once on top at the back of his vehicle, Norbert was ordered to lie flat on the back of his vehicle and whilst lying down, he was blind-folded and the spare tyre was placed across his body. Two of the gang members got into the vehicle, one of them Alphones and another, blind-folded the female victim then Alphones drove the two victims and gang back to Boroko Motors at Takubar. On arrival at Takubar Boroko Motors premises, the person sitting at the back told Norbert to close his eyes and keep them shut despite being already blind-folded.

Two armed men worked out from the vehicle which was already stationary, across to Boroko Motors, office where a staff member and relatives were having lunches ordered them to keep still and not to move while one of the robbers walked toward the cashier Dinah Timie and ordered her to give him the money. The rest of the staff members of Boroko Motors stood speechless and hopelessly watched as the mask men threw down files and stationaries to the floor, and walked out with a metal money box containing K1,364.85 and two cheque books valuing at K617.70, the property of Boroko Motors Limited.

As the robbers were driving out from Boroko Motors premises, a police vehicle on routine patrol sighted a mask man sitting at the back of the stolen vehicle then gave a chase along the Tokua road to Kabakaul/Bitapaka junction then on to the Tapo road thence further into the Rainau road where the robbers had an accident on which accused James Gatana and another Albert Baulten suffered serious injuries. Albert Baulten on the evening of the date of this armed robbery passed away at the Vunapope Hospital. Accused James Gatana was treated and discharged.

THE TWO PRISONERS

Prisoner James Gatana comes from Hanahan Village in Buka Island, Bougainville. He comes from a family of eleven children. He is the 4th born. He is married with five (5) children with ages ranging from 7 – 13 years. Two of his children are in school. He is currently employed by the Makurapau Plantation as a field supervisor. He earns K120.00 per fortnight. He has one previous conviction for a similar offence of armed robbery, was convicted by the National Court at Kokopo and sentenced to four (4) years and 7 months imprisonment in 1992.

In allocutus, James Gatana quoted from 1st John Chapter 1:9 which provides that if we confers our sins Jesus is faithful and just to forgive us. This I believe was quoted in relation to his guilty plea. The prisoner is well aware too that unless he is born again, he cannot see heaven as he quoted from Mathew 18:19 and John 3:3.

Pastor Sialis John of Kokopo Bible Baptist Church gave character evidence in favour of accused James Gatana. Pr. John said he had known James Gatana since Christmas of 1997. Prisoner James Gatana was one of those twenty-four (24) men and women who gave their lives to the Lord during a religious out-reach programme conducted at Makurapau Plantation during which a video show called "The Judgment Seat" was shown by the Bible Baptist Church here at Kokopo. The prisoner got baptised on 1st of February, 1998. He publicly made a commitment giving his life to Jesus. After the prisoner was arrested and put in Keravat, Pr. Sialis visited him three weeks afterwards gave the prisoner words of encouragement whereupon the prisoner re-dedicated his life to Jesus.

Pastor Sialis was quite frank when asked in examination in chief said, his church and is personal view on the offence of armed robbery and other offences is totally morally wrong not only from the community’s point of view but the scriptures condemn such activities. Pastor Sialis ended by saying that he would wish to see prisoner James Gatana be completely reformed. In cross-examination Pr. Sialis said in answer to a question put to him by the prosecuting counsel, if at all the prisoner was to be imprisoned, would it not be possible for the prisoner to continue his out-reach to win other souls in the prison, Pr. Sialis said it was possible but if the prisoner was outside he would get more support from his church.

On prisoner Michael Otly, he was educated up to Grade 8. He is single and unemployed. He is a fourth (4th) born in a family of eight children. At the time he committed the offences, he was about 19 years old. He would be about 21 years now. In allocutus Michael said, this is his first time to come to court and has now realised that what he did was wrong. He further said, he did not want to commit this offence.

On behalf of the two prisoners, the defence counsel submitted that his clients have pleaded guilty and each of them shown remorse and that with prisoner Michael Otly, he is a first and youthful offender. Mr. Donald quite correctly cited the case of Gimble –v- The State [1988-89] PNGLR 271. which sets out sentencing guidelines in relation to various categories of arm robberies and quite rightly said his clients’ cases fall under the third category on which the Supreme Court there said in the case of first young offenders who carry offensive weapons and use threats of violence to rob a store or a vehicle as in the two cases of the current two prisoners, a sentence of 5 years should be appropriate in a contested case and less than 5 years where there is a guilty plea.

The Defence also cited the case of Done Hale –v- The State [1996] SC564 where the Supreme Court said at 4 of their judgment that with prevalence of violent crimes involving the use of guns, the sentencing guidelines laid down in Gimble’s case are no longer relevant for reasons that Gimble –v- The State (supra) was decided in 1989 and the fact that use of violent crimes using guns is becoming too prevalent. Mr. Donald also referred to the case of The State –v- Herman Kenny & Junior Henry (2001) CR. Nos. 396/2000 and 132/2001 on which, I sentenced the two co-accused to 5 years imprisonment in hard labour with 3 years suspended. With respect the facts of that case are slightly different from the two cases before me now and I shall return to this later.

The facts of the two cases before me are very serious. This was a well planned armed robbery. Both prisoners in the instant case said in their respective record of interviews that, Gilbert (deceased) and Alphonse planned to steal some money from Boroko Motors the night before the robbery took place. They both said they were asked the night before the offence was committed to accompany Gilbert and Alphonse and so James and Otly decided to accept the offer. I find this argument irrelevant by application of s.7 of the Code. 

Robbery is defined by Section 384 of the Criminal Code which provides –

"A person who steals any thing, and at, immediately before or immediately after, the time of stealing it, uses or threatens to use actual violence to any person or property in order to obtain the thing stolen or to prevent or overcome resistance to its being stolen is said to be guilty of robbery."

The offence of robbery is created by s.386 (1)(2)(a)(b)(c) which provide –

"(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 submission (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 Parliament had apparently distinguished between offences of robbery committed without the use of violence and those offences as defined by s.386 (2)(a)(b) and (c). Such differences is quite apparent. Offences perpetrated under s. 386 (1), the prescribed maximum penalty is a term of imprisonment not exceeding 14 years. This to this Court, is a less serious form of robbery. Whereas, the prescribed maximum penalty for s.386 (2)(a)(b)(c) is subject to Section 19 imprisonment for life. This is a revelation of how serious the Parliament views the crime of armed robbery. It is therefore abundantly clear that the law seeks to protect individuals as well as corporate entities.

The often quoted case of Gimble –v- The State (supra) sets out the sentencing guidelines and tariffs for various categories of armed robberies. As alluded to the instant cases fall into category three. The suggested starting point there is 5 years in contested case. It could be less in uncontested matters and the penalty could be more where circumstances of aggravation do exist. In my view, quite apart from what was said in Gimble’s case, circumstances of aggravation are set by the terms of s.386 (2)(a)(b) and (c). That is to say where a person commits an offence of robbery, so long as he is armed with arms or any offensive weapons and where he is in company of others who then use violence or threats of violence immediately before or after the robbery would in my view be sufficiently serious to attract a very high penalty.

Obviously there is now an apparent departure from the sentencing trend and guidelines laid down in the Gimble’s case. As correctly put by the defence counsel the case of Done Hale –v- The State (supra) on which, the Supreme Court commented that the guidelines set in Gimble’s case are no longer appropriate to circumstances of today’s cases of armed robbery committed with the use of arms as in the case of the two prisoners in the instant case. In fact, it is not only the Supreme Court which commented that the sentencing guidelines in Gimble are not now appropriate to our time. National Court judges have also referred to the Gimble sentencing guidelines as "out dated": (see the following cases): The State –v- Steward Pariwan [1999] N1834, The State –v- Lasi Mauwe & Maki Onapika [1998] N1886, and The State –v- Herman Kenny & Junior Henry [2001] CR. Nos. 396, 332 of 2000 & 2001. This court is of the same view that the sentencing guidelines in Gimble’s case are not relevant to circumstances of armed robberies committed now a days.

The two offences you committed are very serious and becoming too prevalent. Your cases are aggravated by the use of two guns and three bush knives. You threatened the two victims of the vehicle by pointing your guns and knives at them. Although, no injuries was caused to the victims and no damage was caused to their vehicle, the sight of guns and bush knives in ready position was more than threatening to them. Despite the fact that, Norbert and his female passenger were unarmed as usually is the case, and despite the fact that, they were already threatened, you went further and blind-folded the two of them. Victim Norbert, the owner of the vehicle you stole was further treated with great contempt by you placing a spare tyre over his body at the back of his own vehicle. His female counter-part despite being seated in the middle of two well armed men whoever they were you still blind-folded her. Such treatment is not only contrary to law but against the dignity due to Norbert Marus and Anna Kamo.

The starting point to determine the type of penalty in any criminal cases is to fix the culpability or blameworthiness of a prisoner. In your cases, the culpability is substantially clear. That is to say, the two of you amongst three others were the main perpetrators of the two offences of armed robbery. Despite what prisoner Michael Otly said about his non-involvement in the initial stages of planning the armed robbery, you are caught by the terms of s.7 of the Code and you both are principal offenders. You both fully participated in the commission of the two offences. You both willingly participated by your presence. Your presence also offered encouragement to those with whom you committed the two offences with.

There are other observations that I ought to make in relation to armed robbery cases. Offences of armed robbery is becoming a group activity participation. It is my view that the punishment for group activity armed robberies should be much high than what was suggested in Gimble’s case. This is no doubt based on the proposition that there is more strength in numbers than a case where an individual is involved. Sentencing of a number of co-accused involved in an armed robbery should be aimed at deterring such group activity participation. In fact this may be a restatement of what is envisaged by the terms of s.386 (2)(b) of the Code.

The two of you have committed a serious offence aggravated by the use of two guns and bush-knives. You threatened to use violence against those from whom you stole the vehicle and money. The two offences you committed are punishable by an imprisonment term of life. This Court has the power to sentence you to a lower term than life imprisonment under s.19 of the Code. The case of Acting Public Prosecutor –v- Joe Kovea Mailai [1981] PNGLR 258 was a break and enter and stealing, but the principle laid there would in my view be applicable in your case. The principle laid there is that a youthful offender cannot expect any leniency from the Courts unless there exist exceptional circumstances. By authority of those few cases I have cited, both the Supreme and National Courts have said that even where the prisoner is young but the offence committed is serious and quite prevalent, youthful offenders such as Michael Otly may not require special treatment unless exceptional circumstances are shown: Paulus Mandatitip & 2 Ors –v- The State [1978] PNGLR 298.

In mitigation and in consideration of appropriate sentences for the two offences you have committed, I take into account your guilty pleas. You both said sorry for committing the two offences. In the case of prisoner James Gatana I have also considered your religious background and exposure to your new found faith. Pastor Sialis’ character evidence has also been taken into account. With prisoner Michael Otly, I take into consideration your guilty plea and the fact that you are a first young offender with no prior convictions. I have also taken into account your lawyer’s submission about those factors raised in your favour. Having mentioned those brief mitigating circumstances about each one of you, where do I place the Court’s position in terms of sentencing the two of you.

If the sentencing discretion of a judge is to be fairly exercised, not only must I look at the background history of the two prisoners, but objectively take into account other factors such as the aggravating circumstances associated with the commission of the crime of armed robbery or any other offences for that matter. There has been much debate academic and judicial as to the purposes of punishment and the effectiveness or otherwise of both public and personal deterrence and the need to punish an offender. In our criminal justice system, there are two conflicting concepts or responsibilities placed on a sentencing judge. The first is leaning toward the prisoner and taking into consideration all mitigation with view to rehabilitation outside the prison bars, whilst the other concept calls for retribution and punishment with view to public and personal deterrence. It must always be born in mind why we have a criminal justice system in any organised society. To bring those who have offended against the State and its law and the public to justice.

Your lawyer submitted in your behalf that the properties you stole with violence were all recovered. With respect such properties were recovered by force. The police vehicle gave chase after the vehicle you stole, your driver could not control the stolen vehicle properly and you had an accident giving time for the police to catch up with you. Had it not been for that accident, both the vehicle and the money would have gone and may be the vehicle would have been damaged. This court is of the view that although the vehicle you stole on the first count of armed robbery and amount stolen from Boroko Motors in the second count were fully recovered, it does not in anyway reduced culpability, but may be taken into account on sentence and which I have in fact taken into consideration.

In the case of prisoner James Gatana, you have had a previous conviction for a similar offence for which you were imprisoned by the National Court to 4 years 7 months. This is an aggravating factor against you. You are not so young and not so old and there are no existing exceptional circumstances which the Court could take in your favour. With Michael Otly, you are a youthful offender. This is also your first time to appear in Court. There are no special circumstance attaching to your background. In sentencing the two of you, the court has to bare in mind, the public interest and the interest of the business community. This court hopes that the sentences which are about to be pronounced upon each of you will have the effect of deterring you as well as those who may have similar dispositions to commit similar offences. The offence of armed robbery is quite prevalent and the court must ensure that sentences imposed upon the two of you must reflect the public concern on armed robbery and similar offences.

Because accused James Gatana has had a previous conviction, your sentences will be higher than the sentences that will be imposed on your co-accused. This means, prisoner Michael Otly must be treated as first offender with no record of previous convictions. I sentence the two of you in the following terms.

Count 1
James Gatana: You are sentenced to a term of five and a half (5 ½) years in hard labour.

Michael Otly: You are sentenced to a term of four (4) years in hard labour.

Count 2
James Gatana: You are sentenced to a further term of five and a half (5 ½) years in hard labour cumulatively upon the sentence for count 1 making a total of 11 years. The Court suspends 4 years from the total sentences and you shall serve 7 years in hard labour.

The condition on the suspended portion is that on your release you shall enter into a recognizance to keep the peace and be of good behaviour for a period of 2 years. The custody period of 1 year 3 months 3 weeks be deducted from the balance.

Michael Otly, on Count 2 you are sentenced to a term of four (4) years in hard labour to be served cumulatively upon the sentence for the first count, making a total of eight (8) years. The Court suspends three (3) years from the sentence and you shall serve the balance of five (5) years.

The condition on the suspended portion of your sentence is this that upon your release you shall enter into recognizance to keep the peace and be of good behaviour for a period of 2 years.

The custody period of 1 year 3 months 3 weeks be deducted from the balance.

All the bail monies of the two prisoners shall be refunded to each one of them.

Sentenced accordingly.
_____________________________________________________________________
Lawyer for the State		:	The Public Prosecutor
Lawyer for the Accused	:	Namaliu Lawyers