State v Moriloma (No 2) [2003] PGNC 109; N2395 (23 May 2003)

N2395

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE AT LAE]

CR. 385 of 2002

THE STATE

- vs -

TIMOTHY THOMAS MORILOMA (No. 2)

Lae: Manuhu, AJ

2003: 23rd May

CRIMINAL LAW - Particular offence –Armed robbery –Sentencing considerations in contested case – ‘Accidental’ killing in the course of robbery.

Cases cited:
Andrew Uramani & 4 Others v. The State [1996] PNGLR 287.
Anna Max Marangi v. The State (2002) SC702.
Gimble v. The State [1988-1989] PNGLR 271.
Jerry Wasu v. The Sate (2002) SC697.
Public Prosecutor v. Don Hale [1998] SC564.
Tau Jim Anis v. The State (2000) SC642.
The State v. Abel Airi (2000) N2007.
The State v. Danny Pakai (2001) N2174.
The State v. Frank Suwari (2001) N2173.
The State v. Gore Yogal (2001) N2080.
The State v. Jimmy Yasasa Lep (1996) N1495.
The State v. Kennedy Arus (2001) N2081.
The State v. Marety Ame Gaidi (2002) N2279.
The State v. Steward Pariwan (1999) N1834.
The State v. Wallen Yamevi and Kem Dano (1990) N949.

Counsel:
Ms. C. Nidue, for the State.
Mr. Mwawesi, for the prisoner.

23rd May 2003.

JUDGMENT ON SENTENCE

MANUHU, AJ: The prisoner, Timothy Thomas Moriloma ("The prisoner"), was convicted on two related counts of armed robbery on 5th May after a trial.[1] I must now sentence him.

Relevantly, the facts are as follows. On 13th August 2001, at about 2.30pm, the accused and five accomplices went to Mangola Street, Lae, where the business premises of Lings Freezers were situated. They were armed with a factory made pistol and some knives. They held up a cashier forcefully took about K2,000.00 in cash and rushed out of the store. They then pointed a pistol at a driver and his crew, and ordered them to get out of their security-firm vehicle. The prisoner and his accomplices then got into the vehicle and drove away from the scene. As the stolen vehicle made its getaway, a shootout took place between the robbers and a James Wong. The stolen vehicle was eventually abandoned and the robbers fled in various directions.

About one hour and fifteen minutes later, following a search, the prisoner was located within the search area from underneath the pallets at the back of Laurabada Secondhand Clothing. He had been wounded and was bleeding from the face. An accomplice was also found wounded in the abdomen. He later died in the hospital. An innocent bystander also lost his life from a stray bullet during the shootout. The prisoner was taken to the police station and then the hospital. The prisoner escaped from the hospital in the evening of 14th August. He was later apprehended on 27th October and charged for the armed robberies.

The appropriate sentence may be ascertained firstly by ascertaining the current sentencing trend in like offences. In that regard, the oft-cited Supreme Court case of Gimble v. The State[2] ("Gimble") sets the course for the apportionment of sentences in various categories of armed robbery cases. This case falls in the third category, which fixes a sentence of five years in a contested case, where a group of young first offenders, carrying weapons, use threats of violence and rob a store, a vehicle, etc. A lesser sentence may be imposed in a plea of guilty but a higher penalty may be imposed if aggravating factors are found.

From mid-nineties, however, Gimble came under pressure when repeated calls were made to increase sentences for armed robbery. See for instance The State v Jimmy Yasasa Lep[3] ("Jimmy Lep"), Public Prosecutor v Don Hale[4] ("Don Hale"), and The State v Steward Pariwan[5] ("Steward Pariwan"). In Don Hale, for instance, the Supreme Court said:

"We feel that the starting point to an appropriate sentence involving the robbery of home owners at night with use of firearms to threaten the victims should be [ten] years."

Eventually, in Tau Jim Anis v The State[6] ("Tau Jim Anis"), the Supreme Court re-affirmed and applied the suggested denominator in Don Hale. Using the same denominator, the Supreme Court, in upholding the appeal, reduced the sentence in Tau Jim Anis for robbery of a store from ten years to eight years. That is an increase of three years from Gimble’s five years in the relevant category.

All these could mean that, using the same denominator, the new sentencing guidelines for armed robbery should now be ten years for robbery of a house in a contested case; robbery of a bank should be nine years; robbery of a store, a vehicle, etc, should be eight years, and; a street robbery should be six years. In each category, a lesser sentence may be imposed in a plea of guilty but a higher penalty may be imposed if aggravating factors are found. Unfortunately (or fortunately), the Supreme Court in Tau Jim Anis just fell short of increasing the tariffs set in Gimble.

In any event, the mood in Don Hale and Tau Jim Anis became evident in subsequent decisions. Under the category relevant to this case, in The State v Gore Yogal[7] ("Gore Yogal"), the defendant was sentenced to seven years upon a plea of guilty when he robbed PNG Motors in West Goroka. The defendant was armed with a gun and was in the company of another. The defendant stole about K5,000.00 in cash and cheques. In The State v Kennedy Arus[8] ("Kennedy Arus"), a sentence of eight years was imposed after the defendant pleaded guilty to an armed robbery of a PMV bus in motion on a highway. In The State v Frank Suwari[9] ("Frank Suwari"), a sentence of six years was imposed after the defendant pleaded guilty to an armed gang robbery. A shotgun was used and various properties were stolen. In The State v Danny Pakai[10] ("Danny Pakai"), after a plea of guilty, the defendant was sentenced to eight years. The defendant was in the company of others and they were armed with two homemade shotguns, a bush knife and a bolt cutter. The value of the property stolen was over K2,000.00. The defendant also had a prior conviction.

Very recently, however, sentences for armed robbery may have taken a quantum leap. In The State v Marety Ame Gaidi[11] ("Ame Gaidi"), the trial judge referred to certain unreported judgments where sentences ranging from fifteen to twenty years were imposed. His Honour then imposed a term of seventeen years. The defendant was convicted after a trial, two members of the gang were in police uniform during the commission of the robbery, no physical violence or injury was caused and, properties of substantial value (K9,600.00) were stolen. Whilst the case involved a robbery upon an office in a residence, which is classified in Gimble as most serious, the sentence imposed still represents a substantial increase. It is seven years more than the suggested ten years tariff in Don Hale. If Ame Gaidi is the beginning of a new trend in relation to sentencing, it should now begin to impact on other categories of armed robbery.

However, for present purposes, for a number of reasons, the prisoner may be saved from any flow-on effects of Ame Gaidi. Firstly, Ame Gaidi falls in the first category of armed robbery whilst this case comes under the third category. Secondly, the inclination is to keep as close as possible to Gimble, Don Hale and Tau Jim Anis. As pointed in Tau Jim Anis, there is a need to increase "the tariff generally for all categories of armed robberies in Gimble but it must be done progressively rather than by leaps and bounds."

Thirdly, the courts often resort to increasing sentences on the basis of a particular offence being prevalent without inquiring into the reasons for the prevalent state. A number of factors could be responsible. It could be due to plain anti-social behaviour. It is up to defence counsel to do more than the routine inquiry to ascertain this from a defendant. Such information could assist the court in understanding criminal behaviour patterns so that sentences are apportioned justly.

Inadequacy of past sentences could also be a cause for a particular offence becoming prevalent but no research or study has been carried out to determine the validity of such assertions. In the absence of such information, and public outcry is usually not a reliable data, the courts cannot be certain about the appropriateness or otherwise of past sentences.

Furthermore, the increasing crime rate could also be conditioned by the apparent inequality in the distribution of income and, consequently, the widening gap between the rich and the poor. What about unemployment? What about corruption in high places? What about the high costs of living? Could these situations lead to general civil disobedience and widespread anti-social behaviour? Yes. And if the State has, consequently, mismanaged the country, which is identified as a root cause of the current state of lawlessness, why should it pass the buck onto a defendant, a mere by-product of the State’s failures, by increasing his or her sentence?

The paradox does not end there. There has been talk of reducing prison population, alternatives to imprisonment, community service, diversion, etc. on one hand whilst sentences continue to increase. And when the Criminal Law (Compensation) Act[12] came into effect, there seems to be a general lack of enthusiasm to integrate, promote and develop our own form of punishment. In the end, the law enforcement system is still engaged in the business of sustaining a large prison population despite our apparent inability to adequately care for and rehabilitate the offenders.

I also note the criticisms levelled at Don Hale and Tau Jim Anis in Kennedy Arus. It is technically correct that the legislature saw armed robbery as a very serious offence and has accordingly fixed a sentence of life imprisonment. Consequently, it is correct that courts should give effect to the legislative intent by imposing appropriate sentences. However, most of the penalty provisions were simply transferred into the Criminal Code[13] from pre-independence legislation. There was little meaningful consultation on the appropriateness and suitability of those borrowed penalty provisions. The Criminal Law (Compensation) Act became one way of responding to the unsuitability of our current sentencing regime but, as earlier mentioned, the foreign sentencing concepts still prevail.

Quite frankly, whilst I have twice been a victim of armed robbery, I respectfully think that sentencing in armed robbery should not be treated in the same way as sentencing in murder cases, even when they both carry a maximum penalty of life imprisonment. Whilst threat of violence was made to family members and me, once in a car and the other at our home at night, without any physical injury, I would not want the offender to be in jail for more than five years for the loss of material things. The totality of the crime of robbery, when contrasted with killing cases, does not warrant lengthy imprisonment terms as in Ame Gaidi.

On the basis of these considerations, I am, firstly, considerably hesitant to depart from established sentencing trends in my consideration of sentence in this case. Secondly, it maybe too late now but I hope the Supreme Court re-establishes and reaffirms the sentencing tariffs in Gimble. In the meantime, on the basis of sentencing views and tariffs in Gimble, Don Hale, Tau Jim Anis, Gore Yogal, Kennedy Arus, Frank Suwari and Danny Pakai, I will fix the prisoner’s sentence at this stage at eight years for each of the counts. This provisional sentence will increase or decrease after all the remaining sentencing considerations are finalised.

It is necessary now to address the prisoner’s views on sentence. In allocatus, the prisoner asked for a non-custodial sentence on the ground of his active involvement in prison fellowship. The prisoner has a Prison Fellowship Ministries certificate of baptism dated 22nd May 2002. In his letter of 7th March 2003, Cpl. Jack B. Taena, Chairman of Buimo Combined Church, said he finds the prisoner to be a very "dedicated, committed and faithful child of God." He is also a "spiritual leader" to the inmates as well as staff members of Buimo Correctional Services. The prisoner is also the coordinator of a newly established ministry, which the prisoner co-founded. Cpl. Taena thinks the prisoner "will be co-operative and helpful to the community if he goes out." Pastors Kumo Brandy, Philip Kanes, and James Salum provided similar accolades in their letter of 23rd November 2002. Pastor Justin Peter spoke in like manner in his letter of 31st March 2003.

It is permissible for the prisoner to request for a non-custodial sentence but the court’s response must be made judiciously and "must be exercised according to normal principles"[14]. To that extent, it is in the prisoner’s favour, and I accept, that he is a changed person. But that seems to be the only consideration in his favour. There are a number of considerations of equal importance that undermine his plea for a non-custodial sentence.

Firstly, it has already been observed that the current sentencing trend is against the prisoner. Indeed, if we consider Gimble strictly, and there is no reason to do otherwise, the prisoner placed himself at the wrong side of Gimble. According to Gimble, a request for a suspended sentence would usually be considered where a first young offender pleads guilty and no factors of aggravation are found.

That is not the case here. The prisoner denied the charges after he had been caught wounded in the shootout. He then escaped whilst receiving treatment. It has been found that he was not a witness of truth, and he failed to produce witnesses to support his alibi. In addition, whilst the prisoner rightly exercised his right to remain silent during the conduct of the record of interview, his silence deprives him of any mitigation for his wrong. The prisoner also has a prior conviction for assault in 1996. Assault and stealing with threats of violence are related offences. Furthermore, the prisoner was not a youthful offender. He was an adult at the time of the commission of the offences. He was 25 years old and married. With these considerations, the prisoner cannot expect a non-custodial sentence or sentence below the tariff of eight years in Tau Jim Anis.

Secondly, there are a few cases where suspended sentences were given but they are still of no use to the prisoner. In Andrew Uramani & 4 Others v. The State[15] ("Andrew Uramani"), on an appeal against sentence, the Supreme Court substituted sentences of eight, seven and six years with a six year sentence and then suspended two years with conditions. The appellants, armed with a machine gun, a homemade gun and a bush knife, held up a Department of Works bus and stole more than K40,000.00. Actual violence was used.

The case is, however, distinguishable. It was an appeal against sentence on the ground of parity of sentence where a co-defendant had received a two year suspended sentence. In any event, the sentences were not completely suspended. Note also that the case has been superseded by more recent judgments where sentences for armed robbery have generally increased.

In Don Hale, the Supreme Court refused to accept the imposition of a five year suspended sentence where the defendant was convicted after a trial in an aggravated robbery of a house. The suspension was lifted. In The State v Abel Airi[16] ("Abel Airi"), after a plea of guilty, the defendant, a first time young offender, was given a sentence of six years. After deducting three months and seven days for the period spent in custody, the remaining part of the sentence was conditionally suspended. The offender was nineteen and was active in prison ministry. He was influenced by others to commit the robbery. I have recently been imposing non-custodial sentences on defendants who were basically first young offenders who have pleaded guilty.

It is apparent that the instant case does not fit into those cases where suspended sentences were given. In the instant case, among others, the prisoner denied the charges and was an adult at the time of the robbery. Consequently, a non-custodial sentence is inappropriate.

Thirdly, the request for a non-custodial sentence could be based on an erroneous belief that those in jail are people not worthy of integration into the community. In my view, however, most of the prisoners, by reason of religion, tradition, culture or discipline, are good people who are in jail only because that is the natural consequence of a serious mistake they have made. To that extend, it should be noted also that there are prisoners who, like this prisoner, have genuinely changed. What should we do to them? Should the court recall their cases and review their sentences? No. They must continue to stay in jail until their debts are paid in full.

Finally, there is a further twist in this case that further undermines the prisoner’s plea for leniency and a non-custodial sentence. Whilst the prisoner was injured, two persons lost their lives in the shootout. One of the deceased persons was one of the prisoner’s accomplices. He was shot in the abdomen and died in the hospital. The other deceased was an innocent bystander. I will give the prisoner the benefit of the doubt in relation to the question of blameworthiness for the death of the accomplice. It is arguable that, in the given circumstance, the deceased accomplice undertook the risk of being killed upon himself.

But the same cannot be said of the innocent bystander. The robberies took place in a busy industrial area of Lae. The busy marketplace was about one hundred metres away from Lings Freezers. In fact, the robbers made their getaway upon the streets along the marketplace. The robbers were armed with dangerous weapons, which were fired during the robberies and the attempted getaway.

In all the circumstances, it was reasonably foreseeable to the prisoner that someone could get killed during the execution of the robberies. I agree with the views expressed in The State v. Wallen Yamevi and Kem Dano[17] ("Kem Dano") that:

"...where guns are used in a robbery the chances that someone will get hurt, or killed are quite real, and that even if the offenders did not expect to kill, if a killing occurs accidentally, then they cannot expect too much leniency or mercy. The gap between a deliberate killing, as with wilful murder, and an accidental killing as when the accused armed with pistols and shotguns holdup a PMV is not great. The likelihood of someone getting killed is real."

I am also of the view that, where a killing (or injury) occurs accidentally during the commission of an armed robbery, it does not matter who fired the fatal shot. Those in pursuit of the robbers may have fired the fatal shot. The robbers may have fired the fatal shot. In both cases, the perpetrators of the armed robbery, for planning and executing an unlawful life-threatening operation, should not be exonerated from blame.

In this matter, therefore, the prisoner is responsible for the innocent bystander’s death. In other words, an ‘accidental’ killing in the course of an armed robbery must be considered as a factor of aggravation and, given its seriousness, must feature prominently amongst the factors of aggravation against the prisoner.

It is necessary, therefore, to also draw the prisoner’s attention to sentences in similar fact situations. In The State v. Mek Keroa Nentepa[18] ("Mek Keroa"), a total sentence of twenty-two years was imposed after a plea of guilty to one count of unlawful killing, one count of armed robbery, and one count of unlawful use of motor vehicle. It has to be noted that the sentence for unlawful killing was added with the concurrent sentences for the other two related offences. Last month, I imposed a sentence of fifteen years after the prisoners pleaded guilty to murder in the course of an attempted armed robbery of a house at night. In Kem Dano, for murder in the course of an armed robbery, a sentence of fourteen years was imposed. I also agree with the views expressed therein that:

"One way of approaching the sentence in a case of killing in the course of an armed robbery would be to apply the principles of [Gimble], and then add an appropriate increment, on top of the tariff for robbery, to reflect the fact that a life has been taken."

It should also be noted that if the prisoner had been indicted for manslaughter, according to Anna Max Marangi v. The State[19] ("Anna Max") and Jerry Wasu v The Sate[20] ("Jerry Wasu"), a sentence of twelve years would not be inappropriate.

For all the foregoing reasons, I am unable to grant the prisoner’s wish for a non-custodial sentence. While I accept that he has "turned a new leaf", that consideration is overshadowed by the double robbery, the ‘accidental’ killing and the general factors of aggravation. Consequently, a suspended sentence in a case as serious as this would result in grave injustice. On the other hand, a custodial sentence would do justice to everyone, including God.

I must now ascertain the appropriate sentence. Consistent with the sentencing trend under the relevant category, I have already fixed a provisional sentence of eight years for each count of armed robbery. When I fixed the provisional sentence I also said that the sentence would increase or decrease after all relevant considerations are discussed. I have also stated that while I accept that the prisoner has "turned a new leaf", that consideration is overshadowed by the double robbery, the ‘accidental killing’ and the general factors of aggravation. Accordingly, the sentence must increase.

In the process of increasing the sentence, I note that in Don Hale, the Supreme Court suggested that in a robbery of a house, in a contested case, a sentence of ten years might be appropriate. The instant case falls in the less serious category of armed robbery but, among others, the ‘accidental’ killing takes it beyond all categories of armed robbery and, thus, beyond the suggested sentence of ten years in Don Hale. The appropriate sentence therefore should be between ten and twenty years.

I further note, again, the Supreme Court’s views in relation to sentence in unlawful killing cases in Jerry Wasu and Anna Max. I also note that the armed robberies and the unfortunate killing are part and parcel of the same unlawful transaction. They are not separated in time and location. I also note the sentences of fourteen years and twenty-two years imposed in Kem Dano and Mek Keroa, respectively. Against these cases, however, I am also mindful of the fact that the prisoner was not charged for unlawful killing. Consequently, a sentence of fourteen years as in Kem Dano may be excessive.

In all the circumstances, I am of the view that a sentence of twelve years is appropriate. In compliance with the technical requirements of sentencing, I impose a sentence of twelve years on each count. The sentences are made concurrent, which means that the prisoner will serve twelve years with hard labour.

Sentenced accordingly.
__________________________________________________________________

Lawyer for the State : Public Prosecutor
Lawyer for the Accused : Public Solicitor

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^[1] See judgment on verdict in State v. Timothy Thomas Moriloma (No. 1) (2003) N2395 .
^[2] [1988-1989] PNGLR 271.
^[3] (1996) N1495.
^[4] [1998] SC 564.
^[5] (1999) N1834.
^[6] (2000) SC642.
^[7] (2001) N2080.
^[8] (2001) N2081.
^[9] (2001) N2173.
^[10] (2001) N2174.
^[11] (2002) N2279.
^[12] The Act was enacted in 1991.
^[13] Chapter No. 262.
^[14] See Tau Jim Anis.
^[15] [1996] PNGLR 287.
^[16] (2000) N2007.
^[17] (1990) N949.
^[18] (1990) N878.
^[19] (2002) SC702.
^[20] (2002) SC697.