State v Daniel [2003] PGNC 26; N2476 (14 July 2003)

N2476

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]

CR: NO. 517 OF 2003

THE STATE

-V-

KALAMA DANIEL

KOKOPO: Lenalia, J.
2003: 9, 14 July

CRIMINAL LAW – Arm robbery – Plea – Matters for consideration - Sentence – Criminal Code s. 386 (1)(2).

CRIMINAL LAW – Armed robbery – Several charges – All offences arising from separate facts – Totality principle – Applicability of – Four separate acts of armed robbery committed within one day – Just total of sentences – Sentence.

CASE CITED:

The following cases are cited:
Public Prosecutor -v- Terrence Kaveku [1977] PNGLR 110
Gimble -v- The State [1988-89] PNGLR 271
Public Prosecutor -v- Don Hale (1998) SC564

Tau Jim Anis -v- The State (2000) SC642

Manuel Boi -v- The State SC No. 14 of 2000
The State -v- Lucas Yovura CR No. 2002 of 2000, 25th May 2003 N2366
The State –v- Jamie Campbel Fereka CR. No. 1043of 2002 N2359 of 7th April 2003

Acting Public Prosecutor -v- Joe Kovea Mailai [1981] PNGLR 258

The State –v- Manja [1987] PNGLR 477 & The State -v- Frank Kagai [1987] PNGLR 387.
Mase -v- The State [1991] PNGLR 881
Public Prosecutor -v- Kenis Haha [1991] PNGLR 205
Secretary for Law -v- Witrasep Binengim [1975] PNGLR 172
Goli Golu -v- The State [1979] PNGLR 653
The State –v- Chris Romen & The State -v- Chris Romen & Tiotam James Tiralom (2000) N2260

Counsel:
L. Rangan, for the State
M. Peter, for the Accused

SENTENCE

July 14th 2003

LENALIA, J. The accused pleaded guilty to four counts of armed robbery pursuant to s. 386 (1)(2)(a)(b) & (c) of the Criminal Code. The first count was committed with actual violence whilst the remaining three were committed with threatened violence.

FACTS

The accused was amongst a group of four young men which held up a driver, Aurther Maradi on 5th of December 2001 at Tokua. When the first victim wanted to drop two passengers to pick their cocoa bags, the accused and his gang came out from nearby cocoa and coconut trees and pointed a home-made gun and a factory made pistol at him. The gang used actual violence by tying Aurther’s hand with heavy duty sticky-tape after which they told him to wait there until they came back. They told him they were to use his vehicle to get some money from a saving and loans, which they did not name and that they were to return his vehicle. They demanded Aurther to give them the vehicle keys and they drove off.

The gang used the stolen vehicle Reg. No. H. 2410, which is owned by Elias Marangit to come to town at Kokopo and at SCHOWHEGAN, they went into the Motor Vehicle Insurance Trust office where they threatened Ms. Timie Diana to give them money. Having realised what was happening the victim of the second charge Diana Timie shouted at the top of her voice raising an alarm to employees in that business centre and the gang escaped in that same vehicle. They took of from there to the Omorong Service Station.

At Omorong Service Station, the accused and his gang held up the employees there and pump attendants. They pointed a homemade gun and the pistol at them and threatened to shoot if money was not given to them. There they stole a cash sum of K1566.17 from Beldeon Koi and others the property of Omorong Service Station.

On the fourth charge, using the same vehicle stolen at the first armed robbery they took off toward Takubar and the gang proceed straight to where they had left Aurther Maradi. They picked him up and proceeded toward the airport where they met up with the fourth victim. The driver of the stolen vehicle and other gang members saw a Nissan Navara 4x4 red in colour driven toward them and their driver drove right on the centre of the road almost blocking off passages of on coming vehicles. The driver of the Nissan Bredly Tareu having seen this, slowed down to avoid collision and stopped.

Members of the gang jumped out from their stolen vehicle and held up Bredley. They threatened him to use the guns against him if he did not surrender the vehicle keys to them. He surrendered the keys and all the gang members including the accused drove away in the Nissan Navara. The vehicle was the property of Boroko Motors – Kokopo.

PRISONER

The accused said pursuant to s. 593 of the Code that he is very sorry for committing these offences. That having realised what he and others had done, he wishes to extend his apology to his community, the victims and the Court. He further added that three weeks after the four crimes were committed his gang did a reconciliation ceremony. He asked for the mercy of this Court.

The prisoner is 22 years old and he is married with no children. He completed Grade 7 and left and had been in the village until he and his colleagues committed these offences. I am required to take into account the accused guilty pleas and his previous good record. Mr. Peter of counsel for the accused confirmed that there was in fact a reconciliation ceremony organised by a number of the gang members during which all victims were invited. Some victims did not however attend.

On sentence Mr. Peter for the accused submitted that, the Court take into account the accused guilty pleas to the four serious charges. In fact the charges are very serious and on the first count actual violence was used toward the victim Aurther Maradi. My view is, in a serious case such as the ones before me, a guilty plea may be of little significance. Count one of the crimes you committed was accompanied by violence. For all offences you committed, guns were used to threaten the victims. Pursuant to s. 386 (2)(a)(b) and (c) you could be sentenced to life imprisonment for the first crime. Actual violence was used in the first count while on the remaining three, you and your gang threatened to use violence to those various victims.

There is a growing lawlessness in this country. There is no respect for people and their property and there is no respect for the law. People who conduct business in this Province and in the country as a whole must have the confidence to invest their money in this country. With the down-turn of the Papua New Guinea currency due to the devaluation of the Kina, small businesses and those of us ordinary people are suffering but some manage to survive because they work hard for what they earn.

The sentencing guidelines set in Gimble -v- The State [1988-89] PNGLR 271 have been referred to by other judges of this Court to be not suitable to the circumstances under which armed robberies are being committed in our time. The guidelines set there allow for sentences up to 7 years at the top end of a robbery in a dwelling house and 3 years for a robbery in the street at the lower end. Those are for guilty pleas and first time young offenders with no aggravations. Note here, these are only guidelines and actual sentences may vary either over or below those recommended due to circumstances of each case.

As seen from the cases of Public Prosecutor -v- Don Hale (1998) SC564 an aggravated armed robbery in a house where the respondent and his compatriots fired shots over the heads of the family and carried a TV set away. He was sentence to 5 years but the sentence was fully suspended with orders to pay a fine of K1,000.00 a bond given with a condition to return to his area in Tari, Southern Highland Province. The Public Prosecutor appealed against the sentence and the Supreme Court ordered reinstatement of the 5 years sentence. The comments made there are however significant to armed robberies committed at home during the night. I also note comments made in Tau Jim Anis -v- The State (2000) SC642.

What is interesting in Don Hale’s case is that armed robberies carried out in dwelling houses at night perpetrators could expect good sentence up to 10 years. The Supreme Court there expressed the following concern at 4 of that judgment:

"We find that with the prevalence of violent crimes involving the use of guns the ranges of sentence recommended in Gimble’s case are having us effect and no longer relevant. Gimble’s case was decided in 1989 and crimes of violence have definitely increased with the use of guns being more prevalent and the community is calling for heavier punishments as a, deterrence. We feel that the starting point to an appropriate sentence involving the robbery of home owners at night with the use of firearms to threaten victims should be 10 years".

As alluded to, I note comments made in Tau Jim Anis -v- The State (supra) which seems to say that the range suggested in Don Hale’s case is for home owners only but with greatest respect, on commencement of the quote above (see my first emphasis), the Supreme Court also referred to other categories of arm robberies. It is my view that sentences for other categories of arm robberies ought also to be raised but it must be by a gradual increase.

The case before me involves a gang armed robbery on four separate locations in one day. They involved separate acts of arm robberies involving four different sets of victims. The four arm robberies involved two vehicles on the streets one in an office and the other on the service station bouzer involving fuel pump attendants. With the sentencing guidelines in Gimble’s case, you would expect to be sentenced to five and six years on your pleas, see Gimble’s case. However the sentencing trend is changing due to the prevalence of the crime of armed robbery. The use of guns is common and most frequent. In Manuel Boi -v- The State SC No. 14 of 2000, the Supreme Court confirmed the sentence of 10 years for an armed robbery of a PMV on the road. The 10 years was confirmed on consideration of parity since the Appellant’s co-offenders had pleaded guilty earlier and sentenced to 10 years.

In a more recent case of The State -v- Lucas Yovura CR. No. 2002 of 2000, 25th May 2003 N2366 my brother, Kandakasi, J. sentence the accused to 12 years for a gang armed robbery on plea in which the gang stole a total sum of K10,950.00 during the hot pursuit exchange of gun fire resulted and the accused was injured. In another case that of The State –v- Jamie Campbel Fereka CR. No. 1043 of 2002 N2359 of 7th April 2003, the same judge imposed a sentence of 12 years during which a firearm and fishing guns were used to execute the robbery and the property valued K7,000.00 were stolen. This was a guilty plea case on a wharf warehouse where three security guards were held up, their hands were tied and were blind folded with masking duty tape.

I adopt comments by judges on the above, cited cases and would only add that with the escalation in the frequency, volume and the accompanying violence in recent years, sentences for armed robbery must be raised considerably.

You being a young offender ought to be aware that holding up people on the public street and in the shop or office with dangerous weapon and threatening the owners and drivers and driving other people’s vehicles away is against the law and it shows no respect for the law, no respect for the property and their owners and there must I infer from your conduct that not be respect for your community as well. You now say you were influenced by others. But where is your independent decision making to discern and choose between good and evil.

I am obliged to take into account two factors. First I acknowledge your guilty pleas. It is in your favour that the Court will take this into account on sentence. Secondly, you are a young and first offender. This too, I must take into account. A plea of guilty to very serious crimes may or may not necessarily be genuine credit depending on the circumstances of each case. The principles set in Acting Public Prosecutor -v- Joe Kovea Mailai [1981] PNGLR 258 is that unless there are exceptional circumstances attaching to a case, youths must not expect leniency from the Courts: see case of The State –v- Manja [1987] PNGLR 477 & The State -v- Frank Kagai [1987] PNGLR 387.

Mr. Peter of counsel for the accused submitted correctly the principles involved in the totality and disparity of sentencing a co-accused or a number of them. First on the question of concurrent and consecutive sentences, the totality principle applies which requires that where consecutive sentences are imposed in a number of offences a final review of those sentences be made by the Court to ensure that the total is not excessive: Public Prosecutor -v- Terrence Kaveku [1977] PNGLR 110, see also Mase -v- The State [1991] PNGLR 881 and Public Prosecutor -v- Kenis Haha [1991] PNGLR 205. This principle guards against the situation where, a number of sentences are imposed and are made consecutively or cumulatively upon each other, resulting in arriving at disproportionate sentences. The aim is to see if a, just and appropriate sentences are imposed.

I also bare in mind the principle of sentencing parity where a co-accused have been sentenced earlier. This principle establishes that in fairness to an accused dealt with later, he should be sentenced to as much as the same period of time awarded earlier. Secretary for Law -v- Witrasep Binengim [1975] PNGLR 172 see also Goli Golu -v- The State [1979] PNGLR 653. Mr. Peter for the accused submitted that two co-accused of the current prisoner have been sentenced. In fact this .....................dealt with that case of The State –v- Chris Romen & The State -v- Chris Romen & Tiotam James Tiralom (2000) N2260 my sentences of 23rd July 2002. In fact Chris Romen received 11 years for the four charges on the second indictment.

Having said the forgoing, you no doubt have experienced life in prison. You know about the invariably overcrowded and unhealthy breeding grounds for all sorts of diseases in prison. Your involvement in these very serious charges could land you in life imprisonment. The Court has a discretion pursuant to s.19 of the Criminal Code to sentence you to lesser terms of imprisonment. Taking into account your guilty pleas, your lack of previous convictions, and you being the first offender. You are sentenced to the following terms:

Count 1: You are sentenced to 5 years imprisonment IHL.

Count 2: You are sentenced to 5 years imprisonment IHL.

To be served concurrently with Count 1.

Count 3: You are sentenced to 7 years imprisonment IHL.

To be served consecutively upon Count 2.

Count 4: You are sentence to 6 years imprisonment IHL.

To be served concurrently with sentence for Count 3.

The Court suspends 3 yrs from the sentence, on condition to keep the peace and be of good behaviour for 2 years after release.
____________________________________________________________________
Lawyer for the State : The Public Prosecutor
Lawyer for the Accused : The Public Solicitor