State v Kenny [2002] PGNC 96; N2237 (16 May 2002)

N2237

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]

CR. NO. 281 of 2001

THE STATE

-V-

FABIAN KENNY

WEWAK: KANDAKASI, J.
2002: 15th and 16th May

CRIMINAL LAW – PRACTICE & PROCEDURE – Sentencing – Need to be guided by the purposes of sentencing – The sentence must reflect the seriousness of the offence and its effect on the victim and society - The effects of past sentences must also be consider - Failure by previous sentences to deter calls for higher penalties.

CRIMINAL LAW – SENTENCING – Armed robbery of a PMV on a highway – By gang of three – Use of weapons and threats of violence – No evidence of recovery of stole properties – Estimate value of cash and goods totalling K579.00 – Although value of cash and goods stolen not substantial they may be all that the victims may have had – Prisoner with no prior conviction but not young – No other factor in his mitigation – Sentence of 9 years less time spent in custody awaiting trail imposed - Criminal Code section 386(1) and (2) and 19.

Cases cited:

Gimble v. The State [1988-89] PNGLR 27.
The State v. Abel Airi (28/11/00) N2007.
The State v. Jimmy Yasasa Lep N1495.
The State v. Vincent Malara (20/02/02) N2188.
Tau Jim Anis & Others v. The State SC642.

The State v. Nickson Pari (No.2) (10/01/01) N2033.

Andrew Uramani & 4 Others v. The State [1996] PNGLR 287.
Thomas Waim v. The State (unreported judgement) SC519.
Ala Peter Utieng v. The State (unreported and unnumbered judgement of the Supreme Court delivered in Wewak on the 23rd of November 2000) SCRA 15 of 2000.
The State v. Tony Pandua Huahahori (N0.2) (21/02/02) N2186.

The State v. Max Charles & Anor (18/10/01) N2187.

Counsel:

Mr. M. Ruari for the State
Mr. R. Saulep for the Accused

DECISION ON SENTENCE

16th May 2002

KANDAKASI, J: Yesterday you pleaded guilty to one charge of armed robbery contrary to s.386 (1) and (2) of the Criminal Code.

In your address before sentence, you said sorry for what you have done and asked the Court to exercise mercy toward you. Your lawyer asked for a sentence between 3 and 4 years. He did not refer me to any authority to support his submission. The State on the other hand drew my attention to the Supreme Court decision in Gimble v. The State [1988-89] PNGLR 27, which sets out sentencing guidelines and set a starting sentence of 5 years for robbery of shops, on streets and highways. Counsel for the State also pointed out that recent Supreme Court judgements have now increased the starting sentence of 5 years by 3 years to bring the starting sentence to 8 years.

The law requires a sentencing judge to carefully consider the circumstances in which an offence has been committed as well as the effect of that on the victim and the community. The sentence must reflect the particular facts of the case as well as the competing interest of the community to punish offenders and the interest of an offender to be treated fairly and be given an opportunity to reform. I alluded to those competing interest in a number of cases starting with the case of The State v. Abel Airi (unreported judgement delivered 28/11/00) N2007.

Hence, to determine an appropriate sentence for you in this case I need to first consider the circumstances surrounding the commission of the offence. I must also consider the prevalence of the offence and the effect of that on the community. Further, I must have regard to the sentencing trends and the effect of that on this kind of offences, particularly as to whether it has deterred people like you from committing this kind of offences.

The Facts

The facts in your case are straightforward. On the Tuesday the 19th of December 2000, you with two others planned a robbery of a PMV along the Maprik and Pagwi road here in the East Sepik Province. The planning took place in your house. For the purpose of that robbery, you armed yourself with a shotgun, and two bush knives.

On the same afternoon about 5:00 p.m. you held up a PMV truck driven by a John Petau between Apusit and Kunjigini villages on the Maprik/Pagwi road. The PMV was on motion at the time. The driver speaks of being shocked and stopped the vehicle. At that time, you and one of your other gang members armed with a bush knife while the another was armed with the shotgun. The man with the shotgun held up the driver while you and the other went to the back of the truck and stole with threats of violence cash and property belonging to the driver and his passengers. The estimated value of both cash and goods taken was K579.00. After the robbery, you ran away to your village. However, due to good community help, you and your gang was caught and later arrested by police.

It is not clear, whether the cash and goods you stole were returned to their respective owners. In the absence of any evidence to that effect, I find that they were not recovered. There is also no evidence of either you or any of your gang members ever saying sorry and making it right with any of the victims of your offence. I consider this critical, given your call for mercy from this Court in your address before sentence.

There is not much information about you. Based on your lawyer’s submissions all there is, is that you are a grade 6 lever and unemployed. You are a first time offender and come from the village Gunigi in the Wosera area of this Province and aged 24 now. So you must have been 23 years or so old at the time of the commission of the offence.

The Law

The offence of armed robbery carries a maximum of life imprisonment. In the much celebrated case of Gimble v. The State (supra), the Supreme Court however, set sentencing guidelines for armed robbery cases lower than that in the exercise of the sentencing discretion vested in the Courts by s.19 of the Criminal Code. On a plea of not guilty by a young first offender carrying weapons and threatening violence the starting sentence for the robbery of a:

(a) dwelling house should be 7 years;
(b) bank should be 6 years;
(c) store, hotel, club, vehicle on the road or the like should be 5 years, and
(d) person on the street should be 3 years.

Where there are features of aggravation such as actual violence, the amount stolen or its value is large, or where the robber is in a position of trust towards the victim, a higher sentence may be justified. On the other hand, a plea of guilty may justify a lower sentence.

It is now accepted that these guidelines especially the tariffs are considered well out dated: see The State v. Jimmy Yasasa Lep N1495. In The State v. Abel Airi (supra), I examined the sentencing trends in armed robbery cases on a guilty plea starting with the Gimble (supra) case and ended up with the Supreme Court decision in Tau Jim Anis & Others v. The State SC642. In that case, the Supreme Court increased the guidelines set by the Gimble (supra) case for armed robbery cases falling in the third category to 8 years on an appeal against a sentence of 10 years by the National Court. That was a case of planned robbery of a factory with actual violence involving just over K20, 000.00. There were mitigating factors like young first offenders and a guilty plea.

As I recently observed in The State v. Vincent Malara (20/02/02) N2188, here in Wewak, in nearly all of the cases to date, the Courts have expressed hope or considered either expressly or by implication that the sentences they were imposing would deter the offenders or other would be offenders from committing such offences. Unfortunately, as nearly all judgements to date on this kind of offences acknowledge, the kinds of sentences that have been imposed to date have failed to meet that hope. The effect of that is as I said in The State v. Nickson Pari (No.2) (10/01/01) N2033, offences such as "armed robberies are on the increase." They are every day occurrences throughout the country. As of this circuit, the total number of pending armed robbery cases here on the Wewak circuit alone have not significantly dropped since the last circuit. Instead it is on the increase. I noted in some of my recent judgements as in The State v. Max Charles & Anor (18/10/01) N2187, the Courts to date have failed in my view, to also increase sentences to correspond with the increase in the offences.

That is the case despite having correctly described how bad the crime is. What I am unable to comprehend easily is, how does a short term of 8 years compare to the suffering and the loss a robbery brings upon the victims specifically or the society at large as described in the judgements such as Tau Jim Anis v. The State (supra). This in, my view, does not compare and or reflect easily to the pain and suffering both physically and psychologically such frightening experiences and loss, offences like armed robbery or rape brings upon, the immediate victims and the society at large. On the long term, if nothing substantial is done to curb the increase in this kind of crimes, services provided by law abiding people might shut down and the entire community might be left to bear the effects of such criminal conducts. Logically, if all it would take is a few short years, one could afford to commit such serious crimes because offenders would know that, they would get away lightly. This in my view is partly contributing to the increase in this kind of offences.

Parliament after having considered all things prescribed the maximum penalty of life imprisonment. It is the Courts that have started with sentences such as 5 years per the Gimble (supra) guidelines and 6 years with 2 years suspended as in Andrew Uramani & 4 Others v. The State [1996] PNGLR 287, by the Supreme Court because of the principle of no disparity of sentences between co-accused.

Again as I said in the Vincent Malara (supra) case, the Courts have in my view, been unnecessarily restricted in the proper exercise of their sentencing discretion under s. 19 of the Criminal Code, by principles such as no "disparity of sentence between co-accused" as is shown by Andrew Uramani & 4 Others v. The State (supra) and no "quantum leap" as in the Tau Jim Anis v. The State (supra) and Thomas Waim v. The State (unreported judgement) SC519. Yet, there is no statutory prohibition against say a judge imposing a sentence that represents a "quantum leap" or disparity of sentences. Like I said in the Vincent Malara (supra) case again, the application of such principles does not reflect the particular circumstances or the particular facts of a case. This inevitably allows for ignorance or paying lip service to the purposes of sentencing in criminal cases such as, deterrence and retribution. In my view, the Courts should allows be guided by the purposes of criminal sentence more than not.

Offenders have taken advantage of a ready application of these principles and have gone into committing an increased number of crimes more particular, serious crimes like robbery, which is evidenced by the never-ending increase in this type of offences. In so far as the offenders are concerned, the application of these principles means a shorter term of years regardless of the many calls for stiffer penalties by the community to correspond with the particular circumstances of the offences they commit. Offenders are now becoming more organised and sophisticated, something I noted in the Vincent Malara (supra) case.

I found the robbery in that case to be an evidence of the level of organization and sophistication. The mere number of persons twelve (12), involved in the planning and the execution of the robbery in that case was alone indicative of the sophistication. Added to that was the use of heavy tools like crowbars and pinch bars to breakdown doors to gain access to premises like supermarkets. Further still, was a display of pride in committing the offence demonstrated in the purchasing of a lot of beer and openly talking about the robbery. That I took to be a clear indication of the kind of contempt offenders have for the system of law and order in our country.

When this is the case, a much stiffer sentence is called for, for the protection of the society and to serve both as a personal and general deterrence for other persons from committing such serious offences in future.

Further, as I have expressed the view else where, the effect a crime such as robbery has, on the immediate victims and the community or the country as a whole should always be borne in mind by a sentencing judge. That as of necessity requires a consideration of how the people would have dealt with an offender. Under our Constitutional framework, the people’s judicial power is vested in the National Judicial system, which is exercised by the Courts. The Courts are therefore, under an obligation to consider and determine sentences for criminal offenders as near as possible as to what the people could administer to the offenders, but within the constraints of the law.

The effect of crimes such as armed gang robbery is very obvious and very devastating for the victims and the community at large. The victims may be left with physical loss of the function of a part or parts of their body where actual physical harm has been occasioned. And in any case, psychological trauma and pain may be suffered over a period of time or for the rest of their lives depending upon the circumstances and the way in which they may have been treated. The Community is forced to suffer in terms of lack of adequate services and progress in their areas for fear of robbers. This is in turn partly discouraging both local and international investors from investing in the country. That is denying the country of much needed in flow of foreign currencies and investments generally to form a solid foundation for employment of more citizens and internal income revenue base for the country.

Repeating what I said in other cases before, the Sepiks are well known world wide for what it can offer to the outside world. They featured well in terms of her place in the Second World War, her carvings, her other cultures and traditions and even expeditions up the Sepik River. However, after more than 27 years of independence, the Province and the country as a whole has not progress but has gone backwards partly because of the level of such violent crimes as armed robbery, rape and murder. Many people are reluctant to come into the Province and the country with their money and skills to help develop us.

Realising these bad effects of crime on the community as a whole and the victims of such crimes generally, there are repeated calls for stiffer penalties by the community. As noted earlier, whilst the Courts are talking about no "quantum leaps" the level of crime has taken a quantum leap. Society is hence calling upon the Courts even today to exercise the peoples judicial power vested in them by giving stiffer penalties to offenders.

Your Sentence

In your case, I note that there are few factors in you favour. First you a first time offender and secondly you pleaded guilty to the charge against you. You admitted your involvement in this robbery from the day you were caught on the basis of which I find that you co-operated well with the authorities.

Your guilty plea has saved this Court and the State considerable time and money which could have been expended on a trial against you. You have in the past had very good record evidenced by no prior convictions until you committed this offence. There is no evidence of you being forced into the offence by any of your co-accused. Instead there is evidence of you freely participating in the planning and execution of the robbery. So you made a deliberate choice to commit the offence. This factor operates against you.

You said sorry in Court for what you did. But there is no evidence of you having said sorry to the victims of your offence and making it right with them. As the Supreme Court in Ala Peter Utieng v. The State (unreported and unnumbered judgement of the Supreme Court delivered in Wewak on the 23rd of November 2000) SCRA 15 of 2000, said, an expression of sorrow like you have, unaccompanied with anything tangible is worthless. So I do not place much weight on your expression of sorrow in the absence of any evidence of you making it right with the victims. This is a factor also operating against you.

There are other more serious factors operating against you. First, you were in the company of two others. Next you were all armed with a shotgun and two bush knives. Thirdly, the weapons you carried were used against the victims to commit the offence. No doubt, great fear and anxiety must have been created amongst the victims. When you held up the driver of the moving PMV you put lives of the drive and his passengers at great risk. Indeed the driver says he was in a state of shock and brought the vehicle to stop for his and his passengers’ safety. Fortunately it did not result in any accident and therefore injuries.

Further, there is no evidence of the items you stole from the driver and the passengers being returned. The total amount of all the cash and goods you stole was K579.00. Although this amount could be regarded small compared to other robbery cashes in which large sums of money have been stolen, I nevertheless consider this was significant to the victims. In the absence of any evidence to the contrary, I take it that the driver and the passengers were ordinary people just trying to live as best as they could in this difficult times. What you stole from them may have been all that they had at that time. To them therefore they lost a great deal apart from the fear and anguish you put them through by holding them up with dangerous weapons.

PMV’s are the only best means of transport most people in Papua New Guinea have today. The roads a very bad and it costs the PMV operators a great deal of money to allow such essential services to be still on the road. When robbers like you steal from them, you are not only ruining them but are also seriously affecting may be the only means of transport for a good number of people and or community of peoples.

The crime of armed hold up and robbery of PMVs is now a common occurrence almost every day. It is happening not only here in the East Sepik Province but through out the country. In some cases there are even deaths both in successful and unsuccessful robberies. Just last circuit, I had the unfortunate occasion to sentence a men to life imprisonment for killing another person out of a failed robbery of a PMV. That was in the case of The State v. Tony Pandua Huahahori (N0.2) (21/02/02) N2186. This can be demonstrative of one fact. The past sentences as low as 4 and as high as 8 both before and after the Supreme Court set the guidelines in the Gimble case (supra) and subsequently varied by the judgement in the Tau Jim Anis case (supra) are not having any effect on offenders and would be offenders. Therefore the sentences have to be drastically increased to counter the drastic increase in the crime.

Bearing this in mind, I imposed a sentence of 13 years in The State v. Charles Max & Anor (17/10/01) N2187. That was after a trial in a case of an armed gang robbery of a hotel involving cash and goods totalling K1, 906.00, most of which were not recovered. The prisoners were first time offenders and that was the only factor operating in their favour.

Again taking into account the points discussed above, I imposed a sentence of 15 years against the prisoner in the Vincent Malara (supra) case. That was however on a guilty plea but the factors against him in my view were serious. He had a prior conviction for arson. It seemed that soon after his time in prison he committed the offence. About twelve men armed with guns, bush knives, crowbars and pinch bars conducted the robbery using those weapons injuring a security guard in the process. The amount of money involve was substantial, just over K26, 000.00. Further the prisoner gave a reason for stealing, which was contrary to evidence on file, and he showed contempt for law and order generally.

In you case, considering both the factors for and against you as noted above, I consider a sentence of 9 years appropriate. In arriving at that view I repeat what I said in the Charles Max & Anor (supra) case:

"... that it was the intent of Parliament that unless an offender, like you two, is able to demonstrate a case for a sentence much lower than the prescribed maximum, the maximum should be imposed. You should therefore, consider yourselves fortunate that I have decided not to impose the maximum of life imprisonment or a term closer to that. I feel constraint to give the sentence I have just mentioned simply to avoid a substantial quantum leap from the sentences that have been imposed to date, which have failed to meet the desire of deterring other would be offenders like you from offending."

In the end therefore, I sentence you to a term of 9 years to be served in hard labour at the Boram CIS. Of that, the period of 1 year 3 months you have already spent in custody awaiting your trial is deducted leaving you with a balance of 7 years and 9 months to serve. I make orders in those terms.
_______________________________________________________________________
Lawyer for the State: Public Prosecutor

Lawyer for the Accused': The Public Solicitor