State v Kora [2001] PGNC 93; N2092 (28 May 2001)

N2092

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]

CR No. 1482 of 2000

THE STATE

V

SUL KORA

GOROKA: KANDAKASI, J
2001: 14th & 21st

CRIMINAL LAW – Sentence – Robbery in a public toilet – Items stolen not of substantial value – Plea of Guilty – No prior convictions – Six years part suspended and community work order sentence.

PRACTICE AND PROCEDURE – Need to call for Pre-Sentencing Report – Consideration of Pre-Sentencing Report – Recommendations in Pre-Sentencing Report not binding on the Court.

Cases cited:
Gimble v The State [1988-89] PNGLR 271
Public Prosecutor v Don Hale (Unreported Supreme Court decision) SC564
Tau Jim Anis & 2 Ors v the State (Unreported Supreme Court decision) SC642
State v Kennedy Arus (Unreported & Unnumbered judgment delivered in Goroka on 16th March 2001) CR No. 18 of 2001.
State v Gore Yogal (Unreported & Unnumbered judgment delivered in Goroka on 16th March 2001) CR No. 1462 of 2000

Counsel:
Mr K. Umpake for the State
Mr M. Apie’e for the Accused

28th May 2001

DECISION ON SENTENCE

KANDAKASI, J.: On the 14th March 2001, the State presented an indictment against you, charging you with one count of armed robbery under s. 386 of the Criminal Code (Chp. 262) (the Code). You pleaded guilty to the charge and I entered a provisional plea of guilty. The depositions were then admitted into evidence with the consent of your lawyer. After reading the depositions, I was satisfied that there was sufficient material to support the guilty plea. I therefore, confirmed your guilty plea and convicted you of the charge.

In your allocatus, you confirmed your guilty plea but went on to say that, although you had a knife, you did not use it at the time of committing the offence. You also said you were a bit drunk at that time. Further, you said you only punched the victim before stealing from him a packet of cigarette, Cambridge 20s brand. Upon hearing that, I asked your lawyer to seek your instructions and then let the court know whether you were maintaining your guilty plea or changing it. I then adjourned the proceedings to 1:30pm the same day to enable your lawyer to get your instructions.

At the resumption of the hearing, your lawyer informed the court that, you were maintaining your guilty plea. He also informed the court that, although you did drink some beer and were under the influence of alcohol, you knew what you were doing and as such you were not raising any defence under the Code. Further, your lawyer informed the Court that, although you had a knife with you at the time of the offence, you did not use it. Therefore, he argued that your conduct did not amount to armed robbery but robbery with violence within the meaning of s. 386 (1)(2)(c) of the Code. In any case, your lawyer asked the Court to re-administer your allocatus and I did. Through that process, you maintained your earlier position and I considered it safe to proceed to confirm your guilty plea and convicted you of robbery under s. 386(1)(2)(c) of the Code.

Relevant Facts

The brief facts are that, on the 18th September 2000 at Goroka, a Mathias Moses (the victim) went to the public toilet to urinate. After he had urinated and was pulling up his zipper, you pushed open the door and punched the victim and stole from him a packet of Cambridge 20s brand cigarette. You then escaped. Immediately after that, the victim reported the incident to Goroka Police who eventually arrested and charged you. There is no evidence of any injuries sustained by the victim. There is therefore, no evidence to tell whether the victim sustained any permanent injury.

Address on Sentence

Mr Apie’e, your lawyer, argued for a non-custodial sentence and in the alternative, a term of imprisonment between 1 to two years. In your mitigation he pointed out that, you pleaded guilty to the charge and that you have no prior convictions. He also pointed out that, although you had a pocket knife, you did not use it to commit the offence. Further, he submitted that, the offence was not committed in association with other persons. It was a simple or less serious robbery and as such, the court should be very lenient on you when deciding what punishment to give you.

For your background, your lawyer submitted and I note that, you are a villager. You come from Karamal village, in the Simbu Province. Your father is deceased whilst your mother is alive and she is living in the village. You are married with one wife who is pregnant with your first child and she is also living in the village. You have no formal education and employment. You have a coffee garden and have some pigs representing your form of wealth. At the time of the offence you were visiting your uncle a Korona Kurna and you were in Goroka for only 24 hours before committing the offence.

Pre-sentencing Report

In view of your lawyer’s submissions, I called for a pre-sentencing report for my consideration before sentencing you. This Court received that report on the 21st of March 2001. I then asked both your lawyer and that of the State to make further submissions, if they wished to in the light of the pre-sentencing report and they did very briefly, although not in any substantial manner.

The report is based purely on an interview the author had with you. There has been no input from the police, the victim or any other member of the community except your uncle, Korona Kurna. There is no indication of what role the community is prepared to play if you are given a non-custodial sentence and yet it recommends that you be placed under probation for 36 months. It does not say how such a sentence will be supervised. The report is therefore, not a well balanced report and one that is reflective of the community’s view as to what kind of punishment you should receive.

In The State v. Joe Butema Arua (unreported judgement I delivered in Lae on the 28th of March 2001) N2076, where there was also no input from the police, the deceased’s relatives and other members of the community, I said these at page 10:

"The report has inputs mainly from your relatives and a community leader. For reasons only known to the author of the report, no one from the deceased side has been interview for the purposes of the report. There is also no input from the police on the kind of sentence they consider is appropriate for you. In my view inputs from the deceased relatives as well as the police, especially the police investigating and arresting and or charging officer necessary if a pre-sentencing report is to be considered fair and well balanced and serve the interest of justice. I view this important because it is the relatives of a deceased person or the victims of an offence are the persons who really feel and suffer the lost of a life and or the sufferings that criminal acts bring upon them. They are the ones that demand justice. Thus, unless the courts are able to take into account the kind of punishments these persons wish to see an offender receive, any punishment imposed may not necessarily be justice to them. This may lead to an apprehension of justice not being done and an offender let off lightly.

As for in puts from the police-investigating officer, I consider that appropriate and important because they alone will be in a better position to tell the court what kind of a person a prisoner is. That they will do, having regard to whole process of receiving complaints of an offence being committed, investigating into it followed by an arrest of the offender and charging him. They would also be in a better position to say whether the prisoner who is waiting for his sentence is a threat to society and therefore, needs to be lock away or a non-custodial sentence on terms would be appropriate. It would be defeating the whole purpose of law enforcement, if offenders who deserve to be dealt with severely are left of easily based on a pre-sentencing report which highly favour an offender without any inputs from the police and other sectors of the community who have a right or interest in seeing offenders receive a punishment that is befitting the offence they have committed. It may also be counter productive to send an offender back to the society on say a suspended sentence or probation without knowing whether the police will approve of such sentence and they will be in a position to help police compliance of any terms that may be imposed. Allowing for inputs from the police will also help eliminated the risk of offenders failing to meet any conditions that may be imposed on offenders for letting them out of prison. It will also help encourage better police work for they will come to appreciate that the courts appreciate their work and or the role they play in society."

I have also said in a number of other cases as in The State v. Ottom Masa (2000) N2021 at page 3 that:

"... a pre-sentencing report cannot substitute or dictate the kind of sentenced to be imposed in any one case. They only assist the courts in the process of assessing what kind of sentence to give in cases before them. The courts still have the power to decide on the appropriate sentence to give after having regard to all the factors that need to be taken into account, including any pre-sentencing report. If the situation were otherwise, than there would be no need for the courts to administer justice in criminal cases."

In The State v. Abel Airi (2000) N2007, the pre-sentencing report had inputs from a number of people, including church leaders and the defendant’s employer who provide good character references for the defendant and showed their willingness to see to the defendant reforming and becoming a good law abiding citizen. In the circumstances, I decided to impose a six years suspended sentence.

The defendant in that case, was involved in an armed robbery and unlawful use of motor vehicle due to peer pressure and whilst being under the influence of intoxicating liquor. He pleaded guilty to the charges and volunteered to pay K3, 000.00 in compensation to the victim. The vehicle and the stolen properties were recovered with minimal damage.

In another very recent case, The State v. Micky John Lausi (26th of March 2001) N2073, there were very good inputs from the members of the community, which included church members and leaders and community leaders. They provided good references for the defendant and came to court and undertook to see to the defendant reforming. I was impressed with their inputs and preparedness to assist in efforts to reform the defendant. I therefore, placed him under probation with terms for two years and deferred sentence to the end of the probation period.

I was able to do what I did in the above cases after having due regard to what the Supreme Court said in Public Prosecutor v. Don Hale (1998) SC564 at page 5 of the judgement:-

"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-sentencing 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 for criminals definitely as an effect on the ordinary people. So community involvement with the punishment of offenders should be considered as firstly if the court wishes to return an offender to the community instead of imposing imprisonment. And we note here that the relevance of 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 make some responsibility for their own offending members and supervise any alternate punishment."

I reminded myself, in my own judgments in the above cases that, it is in the interest of the community to rehabilitate offenders so as to ensure they do not re-offend where possible to achieve the main objective of keeping the community free of offenders.

I also said, where the circumstance of the case warrants, suspended sentences should be imposed. However, that should be done only on the strength of a good well balanced pre-sentencing report and where the court is of the view that sending an offender to prison will not help deter the offender but turn him into an hard-core criminal. Imposing such a sentence is not an exercise in leniency but a form of punishment.

In this case, as I mentioned above, the report has no input from any member of the community. There is no indication as to what part the members of the community will play if I send you back to the community. I only have a report based on an interview between the Probation Officer and yourself and represent views formed of you by the Probation Officer. Your uncle wants to have nothing to do with you because he has learned that you are a criminal and have associations with criminals.

Considering all of the above, I am not inclined to follow the recommendation in the pre-sentencing report. I allow myself to be guided by the particular facts of the case and the prevalence of the offence as well as the sentencing trends.

The Offence and Sentencing Trend

The offence of robbery is prescribed by s. 386 (1) of the Code. Sub-section 2 of that provision provides for the circumstances in which the offence of robbery may become more serious or aggravated robbery than a simple act of robbery. Where violence or threat of violence is used, it becomes more than a simple act of robbery. It becomes an aggravated robbery under s. 386(2)(c) of the Code.

The Supreme Court set the guidelines for armed robbery cases in Gimble v The State [1988-89] PNGLR 271. In so far as is relevant, the Supreme Court in that cases said robbery of a person on the street should start with a sentence of 3 years imprisonment. In this case, it was not on the street per se but in a public toilet. In my view, this is serious. As such, I will consider sentence on that basis.

At the time of setting the guidelines, in the above case, the Supreme Court also, said that sentences lower than the ones suggested may be imposed on a plea of guilty or where there a very good mitigating factors. It also said that, if actual violence is used, then sentences higher than those suggested could be imposed.

Since the Gimble case, there have been increases in the crime of robbery generally over the years. The Supreme Court acknowledged that in the cases of Public Prosecutor v Don Hale (supra) and Tau Jim Anis & 2 Ors v The State (Unreported Supreme Court decision) SC642. It did so by increasing the recommended starting sentence of 7 years to 10 years for robbery of a dwelling house and 8 years for robbery of a factory respectively.

Having regard to the guidelines set by the Supreme Court, I have in a number of my own judgments in armed or aggravated robbery cases, expressed the view that the offence is one which is on the increase and the sentences that have been imposed to date appear not to deter would be offenders. I therefore, expressed the view that, sentences should now be increased to reflect the ever-increasing number of such cases. A very recent expression of that is in the case of the State v Kennedy Arus (16th March 2001) N2081.

Present Case

In the present case, I note that the victim was answering nature call in a public toilet. He could not reasonably have expected to be attacked and robbed. You forcefully opened the door, punched the victim and stole from him a packet of Cambridge 20s cigarette. Although the value of the cigarette may not be substantial the act of committing robbery against the victim was serious. It is getting involved in this kind of offence at the first place that results in commission of other more serious offences. Accordingly, I am duty bound to impose a sentence against you that will reflect the society’s disapproval of this kind of conduct.

When people go into public toilets, they do not expect to be robed or attacked. They are never on guard whilst relieving themselves. Public toilets are situated at places considered safe and accessible by the public. If the kind of conduct you engaged yourself in were allowed to pass without a stern punishment, other persons would do likewise for they will know that they will get away easily or lightly. People’s homes and our streets and highways are now becoming less safe because of people like you. Places such as public parks and gardens are becoming no longer safe for the ordinary and the majority of law-abiding citizens to enjoy. Your kinds of people are responsible for the very fast erosion of any sense or feeling of being secured in our own country. Tourists and other people from abroad who would come to help us develop are very reluctant to come and enjoy the beauty of this great land called Papua New Guinea. It is time now to get tough on offenders like you.

Sentencing is a community business or interest and the community should have a part in that. They should also play a part in helping first time offenders to be rehabilitated so they can be better law-abiding citizens in the future.

In the your favour, I note that you have freely admitted to having committed the offence both to the police and this court. That has saved the State and this court the expenses that could have been incurred in conducting a full trial. Also, I note that you have no prior convictions and this is your first ever offence. Furthermore, the offence was committed without the use of any dangerous weapons such as a knife or a firearm, although, you had a knife with him at that time. The value of the items stolen was not substantial.

I also note your family background, which has been described as an ordinary villager married with a two – three month old child with his father deceased and mother surviving. You have no formal education and are unemployed. According to the Pre-Sentencing Report, I note that your are responsible for the support and upkeep of your family. Nevertheless, I also note that, those factors should not operate in your favour on the basis that, you should have considered your background and family needs first before committing the offence. I have expressed that view in The State v Kennedy Arus (supra) case and The State v Gore Yogal (16th March 2001) N2080.

Taking into account all of the factors for and against you and the circumstances in which the offence was committed, I consider a part custodial and part non-custodial sentence is called for. I therefore, propose to impose a term of 4 years in hard labour. Of that, I will make 2 years custodial and the balance non-custodial on terms in the exercise of my discretion under s. 19 of the Code. Of the first part, I deduct a period of 8 months 10 days being the period you have already spent in custody. That leaves you with a balance of 1 year 3 months and 20 days to serve in custody.

The remaining two years be suspended subject to the probation Service or the Police Force establishment in your area prior to your release confirming to the satisfaction and acceptance of this Court their ability to closely monitor and supervise you and you meeting the following conditions:

1. Immediately on the rising of this Court you enter into a recognisance to be of good behaviour for a period of 2 years upon release from serving the 1 year 3 months and 20 days imprisonment term.
   
2. Before the end of the custodial term, you arrange with the police or the Probation Service to confirm their preparedness to supervise your compliance of these terms.
   
3. Return to and be bound to your home village of Karamal, Gumini District for 2 years upon release from prison.
   
4. Render not less than 3 hours free community service either by cleaning the road or the nearest public building as may be directed by the supervising authority every Mondays, Wednesdays and Fridays for 2 years from date of your release from prison.
   
5. Be home bound between the hours of 6 pm and 6am.
   
6. Allow for and ensure the supervising authority to closely monitor and report to this Court on a quarterly basis your compliance of these terms.
   
7. Any breach of any or all of these terms will immediately terminate the suspended sentence and you shall be obliged to serve in prison the full two years in hard labour.

_____________________________________________________________________
Lawyer for the State: Public Prosecutor
Lawyer for the Prisoner: Public Solicitor