State v Kindou [2002] PGNC 111; N2215 (18 April 2002)

N2215

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]

CR 149 OF 2002

THE STATE

-V-

KENKEN KINDOU

POPONDETTA : JALINA, J.
8TH & 18TH APRIL 2002

CRIMINAL LAW – Sentence – Robbery of vehicle on a road – Guilty plea – First offender – Aggravating factors – Actual violence to victim – Prevalence of robbery – Custodial sentence necessary – Criminal Code s.386 (2)

Counsel:

Ms. M. Boni for the State
Mr. P. N’dranoh for the Prisoner

18th April 2002

JALINA, J. You have pleaded guilty to one count of armed robbery with actual violence between 11 pm and 12 midnight on 28th September 2001, along Gorate Street, Popondetta while you were in company of others and were armed with a shot gun. After ordering the victim Chris Tondiwi, an Estate Manager with Higaturu Oil out of the company vehicle a Toyota Hilux open back you and your friends ordered him to climb into the back of the vehicle with his two (2) friends. You then drove towards Sorovi Blocks. While you were driving around the victims were assaulted and personal items including cash were stolen from them. Police were altered and later that night recovered the vehicle as well as arrested two suspects including yourself.

The maximum penalty for armed robbery is life imprisonment under s.386 (2) subject to the Court’s discretion to impose a lesser sentence under s.19 of the Code. This is because the three (3) aggravating factors specified under sub-section (2) are present in your case.

But the practice of the Court has been to impose a term of years under s.19 and in line with the sentencing guidelines set by the Supreme Court in Gimble –v- The State [1988-89] PNGLR 271. For the robbery of a vehicle on a road the Supreme Court has suggested a term of 5 years as the starting point after conviction following a trial. A lesser sentence could be imposed on a plea of guilty provided there are no aggravating factors.

In the present case not only are the three (3) aggravating factors referred in s.386 (2) present but the case has further been aggravated by assaults on the victims as well as those victims being left near Sorovi Blocks to find their own way back to their homes.

In your statement on the allocutus you have stated that you are a first offender and that you were sorry for what you had done. You also stated that you were wounded by police on your head and your right foot. You also said sorry to those whose car you and your friends had stolen and those whom you had assaulted as well as to your province and this country. You asked to be placed on good behaviour bond or on probation.

Your lawyer has also pleaded for leniency on your behalf and put before me for consideration certain mitigating factors such as you being a first offender, your plea of guilty, your expression of remorse, lack of injury to the victims, lack of damage to the vehicle and assault on you by police.

I have taken what you have said as well as that your lawyer has said when considering the length of sentence I should impose. I am however, concerned about the assaults on the victim which to my mind was unnecessary as there is no evidence that they resisted your demands. They also did not try to fight you. I am further concerned that your driving them towards Sorovi Blocks and leaving them there was unnecessary. I cannot see any justification for you doing that when you took them away from their homes and families. How did you expect them to get back to their respective homes? What would you have done if they were attacked there or some other bad things have happened to them? I have said on many occasions in the past to robbers that they should not go beyond the need to rob. If they went to rob someone of money or whatever, just rob them and leave them alone. Do not assault them, commit rape on females or even take them away to some far away places and leave them there helpless.

I am also concerned about the prevalence of the crime of robbery and in many instances robbery with violence in our towns and cities. No one feels safe to move around with peace of mind even during daytime because of the fear of being robbed. In all the circumstances of this case and taking into account all the mitigating factors as well as the aggravating factors, I am of the view that the offence of robbery let alone robbery with actual violence is too serious to accede to your request and release you on probation or good behaviour bond.

I consider that a custodial sentence is necessary so as to act as a deterrent both to you and others in future. The period I consider appropriate is 9 years imprisonment in hard labour. I deduct from that sentence the 6 months and 3 weeks spent in custody which leaves 8 years, 5 months and 1 week in hard labour which you shall serve at Biru Corrective Institution.

_____________________________________________________________________
Lawyer for the State: Public Prosecutor

Lawyer for the Prisoner: Public Solicitor