State v Banban [2004] PGNC 134; N2645 (31 August 2004)

N2645

PAPUA NEW GUINEA

IN THE NATIONAL COURT OF JUSTICE

CR. 766 & 764 of 2004

THE STATE

-v-

CHRIS BANBAN &
NARE STERI BANBAN

Lae: Manuhu, AJ
2004: August 11, 27 & 31

JUDGMENT ON SENTENCE

CRIMINAL LAW – Particular offence – Armed robbery – Robbery of a vehicle by night – Sentencing considerations.

Cases cited in the judgment:
Don Hale v The State (1998) SC564.
Gimble v. The State [1988-1989] PNGLR 271.
Tau Jim Anis v. The State (2000) SC642.
The State v Lasi Mauwe and Maki Onopika (1999) N1886.

Counsel:

Ms T. Ganai, for the State.
Ms A. Raymond, for the Prisoners.

31st August, 2004.

MANUHU, AJ: Both of you pleaded guilty to one count of armed robbery. On the 10th day of January 2004, at Yangola Creek, Kabwum, you stole from Benny Gawa and others with actual violence monies totaling K2,445 in cash and other personal items.

On 10th January, 2004 at about 7:00pm, the driver of Derim Health Centre, namely, Benny Gawa and others were travelling from Kabwum Station to Derim. The vehicle they were in was a Toyota Land cruiser, 10 Seater, white, Registration number BAB 014. As the vehicle approached Yangola Creek, you and your three friends sprang out of your hiding places armed with a grass knife and two homemade guns. You and your friends pointed the homemade gun at the driver and ordered him to stop. When the driver stopped the vehicle, you assaulted him and other passengers and stole from them personal items and the money bag containing K2,445. Other items include a wrist watch, a driving licence, and a POSF card. They belonged to the driver. You ordered everyone out of the vehicle and you ordered the driver to drive you to Indajen where you tied him up and escaped. When you were apprehended Chris had K341.20 in his possession and Nare had K400.00 in his possession.

Chris Banban: I take into account in your favour that you have pleaded guilty and have cooperated with the police. This has saved the Court a lot of time. You are a first offender. You have expressed remorse in your allocatus.

You said that it was not your liking and plan to commit this offence. You said you were influenced by others who had gone to the village from Lae City. When you got involved, however, I am satisfied that you did so at your own free will. You were old enough to make your own decision and you decided to commit the offence with the others. You said you wanted money to pay for your school fees and you thought committing the offence was a good idea to get easy money. Again, I am not convinced. If you were truly concerned about your education, you would not have committed this offence.

Your father is a subsistence farmer. He has planted a coffee plantation and, until your apprehension, you used to help your father. You are the older of the two male children in your family. You are worried about how your father will be assisted while you are away. Chris, you should have been worried when your friends talked to you about the robbery. If you were truly concerned about your father, the plantation, and the family, you should have made the right choice, which was to not get involved in this robbery. I did not ask you to come here. The police did not ask you to come here. You brought yourself here. You are 21 years old. You are a man. You have been educated to Grade 10 in 1998 at Wasu High School. You are old enough and educated enough. You should have made the decision to not get involved in the robbery.

Nare Steri Banban: I take into account that you have pleaded guilty and you have cooperated with the police. This has saved the Court a lot of time. You are a first offender. You have apologized for committing the offence. You wrote that you are a villager and does not have much to do with crime. You were a youth leader and you are concerned about your widow mother who has a knee problem.

If you were a youth leader, you have become a bad example to other youths in your village. You are supposed to be the first person to stay away from crime, and, at the same time, you are supposed to be dissuading others from criminal activities. Instead, you did the opposite, which is unacceptable. You should have known how to steer clear of a crime as serious as this one.

You further wrote that you were selected to go to a pastoral college and you needed money to pay for the fees. You got involved with the others in the robbery to obtain some money for your college fees. I do not understand you. How could you commit a crime as serious as this when your seniority in your youth group and your interest in a pastoral future should have conditioned you to be a good member of the village? In addition, you are a man. You are 26 years old. You have received sufficient education when you completed Grade 8. You have had some form of employment. You are sufficiently exposed to know the difference between right and wrong but you made the choice, at your own free will, to break the law.

I have perused both of your pre-sentence reports. There is no firm recommendation because, except Raymond Banban, your first cousin at Poasanag Elementary School, your reports have not included any input from other members of the community and the victim. The pre-sentence report is generally of no help to you. The only assistance I can draw from the reports is that K700 in cash, seven pigs, one cow and garden crops were given as compensation to the victim driver. In addition, houses were burnt by police following this armed robbery.

The crime of armed robbery is a very serious crime. It carries a maximum of life imprisonment term. It is prevalent. It is one of the reasons for our country’s bad image overseas. Investment into this country is affected continuously by the prevalence of this offence.

You have both tried to distance yourselves from this robbery but it was properly planned and properly executed. You threatened and assaulted innocent occupants of the vehicle for more than 30 minutes. You left them stranded and you got the driver to take you away. You then tied him up. During these times, you did not withdraw from the robbery. You had the courage to subject the driver and passengers into continuous threats. The driver thought you would kill him. You then got your share of the stolen money. At your ages, you should take full responsibility for the robbery. Do not blame anyone else. It may have been initiated by someone else but you chose to be a part of the plan and you stuck with the plan. If the driver had not recognized one of you, no one would have caught you.

The sentencing guidelines in armed robbery cases are established in Gimble v. The State[1] but the tariffs have increased generally. See Don Hale v The State[2] and Tau Jim Anis v. The State[3] for instance. These subsequent decisions essentially increase the tariff by three years. In The State v Lasi Mauwe and Maki Onopika[4], for instance, Kirriwom, J. imposed a sentence of eight (8) years in an armed robbery of a vehicle upon Bena bridge at night, which facts are similar to the facts of this case. In the process of sentencing, his Honour said:

"You two are young men. Lasi Mauwe, you are 21 years old and a Grade 10 school leaver, single and you live in the village. And you Maki Onopika, you are 20 years old, single and you are employed by the New Tribes Mission. Both of you are first offenders. I take these things into account.

"However I must tell you that robbery on a public highway in the middle of the night when help is no where near is not an exciting or joyful experience for anyone on the receiving end. In this case it is fortunate that no-one was harmed. Gimble’s case set the starting mark of highway robbery at five years imprisonment. Both the Supreme Court and this Court have time and again said that Gimble is out of date. The prevalence of this crime now requires tougher sentences. Young men like you must learn to respect the law and stay within the Law. You achieve nothing good for yourself or your family by misbehaving. You bring trouble upon yourselves. In your case a strong deterrent sentence is necessary to bring you into line and to send out warning to other like minded people."

You will note, I trust, that the case I just cited was decided five years ago, and sentences are usually increasing.

Ultimately, I remind myself of the factors in your favour, factors against you, compensation payments, your general background, and the sentencing guidelines I have referred to. In all the circumstances, I am of the view that a custodial sentence is warranted to punish you and demonstrate the community’s disapproval of the crime you have committed.

I sentence you to seven years in hard labour. Your custody period of seven months, one week is deducted. You have six years, four months, and three weeks to serve in hard labour.

Sentenced accordingly.
_______________________________________________________________________
Lawyer for the State : Public Prosecutor
Lawyer for the Prisoners : Public Solicitor

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^[1][1988-1989] PNGLR 271.
^[2] (1998) SC 564.
^[3] (2000) SC 642
^[4] (1999) N1886.