State v Chris [2003] PGNC 4; N2575 (3 October 2003)

N2575

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]

CR. NO. 1349, 1350, 1351, 1352 and 1353 of 2003

THE STATE

-V-

GRAHAM CHRIS,
KEVIN WANI,
NORMAN WANI,
ROBIN DORIGA, AND
BOB GABRIEL

WEWAK: KANDAKASI, J.
2003: 23rd, 28th and 30th October

DECISION ON SENTENCE

CRIMINAL LAW – SENTENCING – Armed gang robbery of a PMV on a highway – firearms and other weapons used – Threats and actual violence used – Property stolen not recovered – Estimated value of cash and goods stolen totalling K1,105.00 –– Some prisoners with no prior conviction and some other offenders - Village Councillor prepared to supervise any community based correction - Sentence of 12 years part suspended sentence less time spent in custody awaiting trial imposed - Criminal Code section 386(1) and (2) and 19.

Cases cited:
Gimble v. The State [1988-89] PNGLR 27.
The State v. Kennedy Arus (Unreported judgment delivered on 16/03/01) N2081.
The State v. Abel Airi (28/11/00) N2007.
Hawai John v. The State (Unreported judgment delivered on 02/04/98) SCR 09 of 1995.
Tau Jim Anis & Ors v. The State (Unreported judgment delivered 25/05/00) SC642.
Acting Public Prosecutor v. Don Hale (Unreported judgment delivered on (27/08/98) SC564.
Dadly Henry Gorop v. The State. (Unreported and yet to be numbered judgment delivered on 03/10/03) SCRA 35 of 2002.
The State v. Vincent Malara (Unreported judgment delivered on 20/02/02) N2188.

The State v. Edward Toude & Ors, (No. 2) (Unreported judgment delivered on 18/10/01) N2299.

Ala Peter Utieng v. The State (Unreported and unnumbered judgment of the Supreme Court delivered in Wewak on the 23rd of November 2000) SCRA 15 of 2000.

The State v. Nickson Pari (No.2) (Unreported judgment delivered on 10/01/01) N2033.

The State v. Fabian Kenny (Unreported judgment delivered 16/05/02) N2237.
The State v. Tony Pandua Huahahori (N0.2) (Unreported judgment delivered on 21/02/02) N2186.

Counsel:

M. Ruari for the State
S. Maliaki for the Accused

30th October 2003

KANDAKASI, J: 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 starting at 8 years. She referred me to the Supreme Court decision in Gimble v. The State,[1] which sets out sentencing guidelines and set a starting sentence of 5 years for robbery at shops, on streets and highways. Counsel for the State referred the Court to the case of The State v. Kennedy Arus.[2] There, I imposed a sentence of 8 years on a guilty plea by a first time offender for armed gang robbery of a PMV on a highway.

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 fairly treated and opportunity given to him to reform. I alluded to these competing interests in a number of cases starting with the case of The State v. Abel Airi.[3]

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. I start that process by considering the relevant facts.

The Facts

The facts in your case are straightforward. On Wednesday 16th April 2003, you all conducted a roadblock at about 4:30am at Kombikum, along the Maprik and Wewak highway. At that time, a PMV loaded with passengers was heading for Wewak from Maprik when you held it up. You armed yourselves with two homemade shotguns and bush knives. According to evidence on file, this was an execution of a planned robbery. When this vehicle arrived at the scene, three of you jumped in front of the vehicle from your respective places of hiding and ordered it to stop using the guns and the bush knives you had with you.

Once the vehicle came to a stop, you ordered the driver and his passengers to get out of the vehicle and lay face down. The driver was quiet slow in following your orders so one of you hit him on his head with the butt of one of the guns. Additionally, you cut a part of the body of the motor vehicle. This ensured compliance of your orders. You then proceeded to steal from the driver, his crew and the passengers. You stole cash totalling K1,105 and other properties of the driver, his crew and others including a string bag with two kilograms of vanilla. After having committed the robbery and before leaving the scene with the stolen property, you again hit the driver on the head and ordered the driver to turn the vehicle back toward the Maprik way, and after ensuring compliance, you fled from the scene.

The victims eventually reported the robbery to the police. Police acted on that report by turning up at your village. They received assistance from the villages. That made it possible for the police to round you all up and have you arrested. The village people also assisted in the return of the properties you stole from your victims, except for the K1,105.00 cash.

The Law

The offence of armed robbery carries a maximum of life imprisonment. In the much celebrated case of Gimble v. The State,[4] 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. Higher up on the sentences, it recommends is 7 years for robbery of a dwelling house and robbery of a person on the street at 3 years.

These guidelines also provide for an increase or decrease from these starting points depending on the factors in aggravation and mitigation. 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 and an absence of any of these aggravating factors may justify a lower sentence.

Subsequent judgements of the Supreme Court have held that these guidelines, particularly the recommended sentences are outdated and have increased them. This started on 2nd April 1998, in Hawai John v. The State.[5] In that case, the Court considered a sentence of 8 years on a guilty plea was too lenient. There the appellant’s accomplish also pleaded guilty and was given a sentence of life imprisonment. On appeal, the Supreme Court reduced the sentence to 15 years. The reduction was because of a huge disparity between the appellant and his co-offender. Otherwise, the Court found that the offence was most serious because it was a planned robbery carried out with reckless disregard for others using firearms resulting in one of the victims of the offence being rendered blind. In the Court’s own words, it said at pages 2 to 3:

"We agree that this was a most serious offence – a planned robbery carried out with reckless disregard of others. The carrying of firearms is always seen as serious aggravation of an offence because of the danger to life. As this offence shows that danger was realised with the blinding of the company driver. It was the appellant who fired the shot.

We are of the view that in such a case as this the imposition of a life sentence might well have been open to the Court. Despite there being no loss of life, the blinding of a young man-breadwinner of his family has effectively imprisoned him for life in a world of darkness.

... [W]hile the sentence viewed in isolation may not be said to be manifestly excessive on its own, the Court on the occasion was dealing with the second of two co-offenders."

That was a case of robbery on a street, which falls in the last category under the Gimble v. The State,[6] guidelines. The victim was transporting bags of money in cash totalling K1,798.00 and cheques totalling K215,000. 00 in a company vehicle. The appellant and his accomplishes followed the victim and shot into the screen of the vehicle on the driver’s side. That injured the driver rendering him fully blind. The money was stolen with the cash distributed and the cheques destroyed. Therefore, the company lost financially.

Subsequent judgments of the Supreme Court did not consider this judgment perhaps due to it not being numbered and circulated amongst the judges. A judgment that does not take into account that judgment is Tau Jim Anis & Ors v. The State[7] citing Acting Public Prosecutor v. Don Hale.[8] Neither of these cases cited Hawai John v. The State.[9] In the first of these two cases, the Supreme Court increased the range of sentences. It did so by a factor of 3 years going by the judgment in the Acting Public Prosecutor v. Don Hale.[10] That saw an increase of the previous highest recommended sentence of 7 years to 10 years for robbery of a dwelling house and other categories also increased by the same factor with the last category of robbery on a street, increased to 6 years.

In my view, if the Court in these cases were aware of the judgment in Hawai John v. The State,[11] there would have been a greater increase in the sentence than the ones recommended in the Tau Jim Anis & Ors v. The State.[12] The Supreme Court recently confirmed this in Dadly Henry Gorop v. The State.[13] There the Court said:

"... [W]e of the view that if that was done [considered the judgement in the Hawai John’s case] the sentence ranges recommended in the subsequent judgements could have been beyond what the Court was prepared to settle at. But because that has not happened everyone has been proceeding on the basis of the judgements in Tau Jim Anis & Ors v. The State ...and Acting Public Prosecutor v. Don Hale.... This has resulted in sentences after a trial reaching as high has 20 years as demonstrated by The State v. Edward Toude, & Ors (No 2)..."

The Supreme Court has taken this position because of the prevalence of this offence and the past sentences appearing not to deter other would offenders from committing armed robberies.

In recent years, the National Court has been imposing sentences of up 15 years on a guilty plea. An example of that is the sentence I imposed in The State v. Vincent Malara.[14] In that case, the prisoner who had a prior conviction for arson pleaded guilty to one count of armed gang robbery. The arms included a gun, bush knives, a crow bar and a pinch bar. The gang used these weapons to execute the robbery of a store. In the process, they cut one of the security guards on his head twice. The total amount and value of goods or property stolen was about K18,228.80 in cash, K2,660.46 in cheques and K5,831.08 in cigarettes.

In other cases, I imposed sentences beyond 15 years but these were after a trial. An example of that is my judgement in The State v. Edward Toude & Ors (No 2) [15], which was cited in the Dadly Henry Gorop v. The State[16] where I imposed a sentence of 20 years against a prisoner whom I found was the leader. That was in a case of an armed robbery on a ship, which I placed in the same category as a robbery of a dwelling house, because a ship often serves as a house. Additionally, it involved the breach of an employer/employee trust relationship by an employee who was the leader of the armed gang robbers.

Having regard to this sentencing trend, the Supreme Court in Dadly Henry Gorop v. The State[17], reduced a sentence of 20 years to 18 years. In that case, the prisoner pleaded guilty to one charge of armed robbery. The amount of property stolen was not substantial, but the injuries occasioned to the victims were very serious. The victims were a Canadian couple, touring the country at the time. The prisoner acting alone bit the victims up very severely with a hockey stick. This resulted in fractured head injuries to both victims. The prisoner also knocked them down unconscious with one of them almost dying but for swift medical intervention.

In arriving at that decision, the Supreme Court said:

"Given these, the sentence of 20 years in your case would appear not to be manifestly excessive going by the guidance of the judgement in Hawai John’s ... case. At the same time however, given the kind of sentence the offenders have received in cases like that of The State v. Vincent Malara...following a guilty plea in the particular circumstances in those cases with a sentence after a trial as in The State v. Edward Toude, & Ors (No 2),...reaching 20 years, we are of the view that you would have a justified feeling of the sentence being excessive. We are therefore of the view that your sentence should be reduced to 18 years."

If anything is clearer from these judgments is the fact that, sentences in armed robbery cases have increased since the guidelines in Gimble v. The State.[18] The prevalence of the offence is the main contributing factor for the increase in the sentences. The lowest starting point for a simple robbery of a dwelling house is now 10 years. This may than be increased or decreased depending on the factors in aggravation as well as those in mitigation. However, if this is reconsidered in the light of the judgment in Hawai John v. The State,[19] the sentence could well start at 13 to 15 years.

Your Case

Having discussed the law and the sentencing trend and tariffs, let me now turn to considering an appropriate sentence for you in the context of the particular facts in your case.

I note in your favour that, you are all first time offenders with no prior convictions. You have all pleaded guilty to the charge after admitting to the commission of the offence following your arrest by police with the assistance of your community leaders. Your guilty plea has of course meant fewer expenses for the State and less time for the Court.

Following on from that, all of you said sorry to God, this Court and the victims and the people of Papua New Guinea for having committed this offence. At the same time, you asked this Court to treat you leniently by giving you either probation or good behaviour bond. This is to enable you to go back home to attend to your gardens, repay the money you stole after having returned the other goods you stole from the victims and become good citizens. Robin Doriga, you also want to go back home and continue your education.

Apart from the return of part of the goods you stole, there is no evidence of you having said sorry and paying compensation or something like that to show how sorry you are to the victims. They are the ones who suffered directly from your unlawful acts. As the Supreme Court said in Ala Peter Utieng v. The State,[20] an offenders’:

"... [U]tterance of sorry must be accompanied by something tangible which befits the wrong he has brought upon the victim, her family and relatives, if such utterances are to be of any value and meaning. In the present case, there is no evidence of the Appellant paying any compensation or has taken any step to correct the wrong he has perpetrated. This Court or any other court for that matter should be slow to act on such meaningless and or valueless pleas for mercy or leniency."

So I take your utterances of sorry without anything more and more importantly the money, which you stole having not being returned to date, could mean nothing. In this context, I note your preparedness to repay but these are to come from your parents.

I also note that, you are all below the age of 20 years and as young as 16 years. In this regard, I note that Graham Chris, you are about 16 years old, while Kevin and Norman Wani are 19 and 18 years respectively. As for Robin Doriga and Bob Gabriel, you are aged 16 and 20 years respectively. The authorities support calls for lenient sentences for young first time offenders particularly in your age group. At the same time, however, I note that, people in your age group is responsible for most of the violent offences such as armed robbery, murder and rape. I am therefore of the view that, the practice of treating young offenders leniently needs to be carefully reconsidered particularly in cases of serious offences committed by a gang of two or more as in this case.

Next, I note that, you are all unemployed villagers except for Ronald Doriga, who was attending primary school at the time of committing the offence. You all claim to have vanilla and cocoa trees, some of which are ready for harvesting.

Touching specifically on your individual family backgrounds, I note that Graham Chris’ mother passed away while you were a baby. You reside with your father and your stepmother and attend the SDA Church. You have half-completed grade 6 studies. Kevin Wani, you come from a family of three and you are the first-born. You are a Christian following the Catholic faith by way of your religion. You are educated up to grade 6 primary education.

As for Norman Wani, I note you are the only one in your family. You reside in your village with your mother. You are a member of the Catholic Church and have been up to grade 6 education. Your father is deceased and your mother has remarried.

Robin Doriga, you are the first born out of four children in your family. Your father is deceased and you are a student. You follow the AOG Church and were attending primary school at the time of committing the offence.

Finally, Bob Gabriel, you reside with your mother, who is blind. You are the first born out of 11 children in your family. You had a casual employment previously and were an ordinary villager at the time of committing the offence. Your father lives in Kimbe. He has been there for 15 years now. He is married to two wives.

At the same time, I note that, none of you is able to show how your personal backgrounds have anything to do with the commission of the offence. Therefore, I am not too sure what consequence your respective family and personal backgrounds should have on your sentence. Such factors could be relevant if you were able to show how they caused you to commit the offence.

Turning now to the factors against you, I note that, you committed the offence in the company of each other. It is clear now that, acting in the company of another and more seriously, a group provides more strength and encouragement. As such, those who act in a group deserve higher penalties than one who acts alone.[21]

Next, you used two homemade shotguns and bush knives, all offensive weapons, to commit the robbery and injure the driver and his motor vehicle. As the Supreme Court said in Hawai John v. The State,[22] the involvement of firearms and the use of it is a serious aggravating factor, because it has the serious risk of claiming human life.

Members of your community assisted the police by identifying you and helping them to arrest you. Given that, you had no choice but to admit the commission of the offence. Therefore, your claim of freely cooperating with the police and other authorities is not necessarily correct.

Now weighing the factors for you on the one side and those against you on the other side, I need to arrive at a sentence that best befits the offence. The sentence has to fit the circumstances in which you committed the offence, the effects of that on the victims and the society as a whole, your attitude to it and the community’s response to it.

The crime of armed gang robbery on our highways as in this case, is on the rise. That is why in nearly all of the cases that have gone before the Courts, the Courts have expressed hope or considered either, expressly or by implication that, the sentences they were imposing would deter the offenders themselves and 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 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),[23] the offence is on the increase. They are every day occurrences throughout the country.

In this circuit, I note that, the total number of pending armed robbery cases have not significantly dropped since the last circuit. Instead, it is on the increase. This could be attributable to the fact that, the Courts have to date failed, in my view, to also increase sentences to correspond 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 a short term of 8 years for example, compare to the suffering and the loss a robbery brings upon the victims specifically or the society as described in the various judgments such as Tau Jim Anis v. The State.[24] 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 we allow this to continue by continuing to impose lenient sentences, services provided by law-abiding people might shut down and the entire community could suffer the consequences 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.

I have responded to this by imposing sentences beyond those recommended by the Supreme Court in the cases already noted. A latest example of that and one that comes closer to your case is, The State v. Fabian Kenny.[25] That was also a case of robbery on a highway in this province but in the afternoon as opposition to being in the night. The prisoner was also a first time young offender. That was also an armed hold up of a PMV travelling in to Wewak and had goods and cash money totalling K579.00 stolen. I imposed a sentence of 9 years in the absence of any good pre-sentencing report recommending a sentence other than that.

In your case, there is a pre-sentencing report but is based only on inputs from you, and your councillor. There is nothing from your victims and other members of the community. I have already expressed the view that a Court must act on a well-balanced pre-sentence report. A pre-sentencing report that lacks any input from the victim’s side cannot be a well-balanced report.

Hence, in your case, whilst your village councillor has taken the trouble of coming into Court to show his preparedness to supervise any community-based sentence, I cannot act on that alone, unless there is support and or input from the victims on an appropriate sentence for you.

This is particularly necessary in view of the fact that, you committed a very serious crime that attracts a term of life imprisonment. It is also because PMV’s are the only best means of transport most people in Papua New Guinea have today. The roads are 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 throughout the country. In some cases, there are even deaths both in successful and unsuccessful robberies. A while ago, I had the unfortunate occasion to sentence a man 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).[26]

This can be demonstrative of one fact. The past sentences as low as 4 and as high as 8 years both before and after the Supreme Court set the guidelines in the Gimble case and subsequently varied by the judgments of the Supreme Court as in the Tau Jim Anis case are not having any effect on offenders and would be offenders. Therefore, the sentences must increase drastically to counter the drastic increase in the crime.

Taking into account all of the factors both for and against you as discussed above, I consider a sentence of 9 years appropriate for all of you. Out of this, I will reserve the discretion to suspend the whole or part of it conditional on you furnishing to this Court through the probation office, a well-balanced report in favour of it, within one month from today. That report should have inputs from each of the victims, their leaders, the police, other leaders in the area and users of the highway. The report should also cover the availability of supervision and its regularity, reporting of compliance and such other terms and conditions the Court might be prepared to accept.

In the meantime, I order that the sentence of 9 years less the period you have already spent in custody be deducted and the balance be served at the Wewak Boys Town if there is space for Graham Chris and Rodney Doriga because of your age. The rest of you shall serve your sentences at Boram CIS in hard labour.
__________________________________________________________
Lawyer for the State: Public Prosecutor

Lawyer for the Accused': The Public Solicitor

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^[1] [1988-89] PNGLR 27.
^[2] (Unreported judgement delivered on 16/03/01) N2081
^[3] (unreported judgement delivered 28/11/00) N2007.

^[4] Supra note 1.
^[5] (unreported judgement delivered on 02/04/98) SCR 09 of 1995.
^[6] Supra note 1.
^[7] (Unreported judgment delivered 25/05/00) SC642.
^[8] (Unreported judgment delivered on (27/08/98) SC564.
^[9] Supra note 5.
^[10](Unreported judgment delivered on (27/08/98) SC564.
^[11] Supra note 5.
^[12] Supra note 7.
^[13] (unreported and yet to be numbered judgement delivered on 03/10/03) SCRA 35 of 2002.
^[14](Unreported judgment delivered on 20/02/02) N2188 and cited in Dadly Henry Gorop v. The State supra).

[15] (Unreported judgment delivered on 18/10/01) N2299.

^[16] Supra note 13.
^[17] Supra note 13.
^[18] Supra note 1.
^[19] Supra note 5.
^[20] (unreported and unnumbered judgement of the Supreme Court delivered in Wewak on the 23rd of November 2000) SCRA 15 of 2000 at page 5
^[21] See The State v. James Gatana & 3 Ors (Unreported judgement delivered on 19/04/01) N2127 for example of a case formerly stating that.
^[22] Supra note 5.
^[23] (Unreported judgment delivered on 10/01/01) N2033.
^[24] Supra note 7.
^[25] (Unreported judgement delivered 16/05/02) N2237.
^[26] (Unreported judgment delivered on 21/02/02) N2186.