State v Aldu [2004] PGNC 136; N2640 (31 August 2004)

N2640

PAPUA NEW GUINEA

[N THE NATIONAL COURT OF JUSTICE]

CR. 762 of 2004

THE STATE

-v-

WESLEY ALDU

Lae: Manuhu, AJ

2004: August 11, 27 & 31.

JUDGMENT ON SENTENCE

CRIMINAL LAW – Particular offence – Armed robbery –Watchman – Sentencing.

Cases cited:
Don Hale v The State (1998) SC564.
Gimble v. The State [1988-1989] PNGLR 271.
Tau Jim Anis v. The State (2000) SC642.

Counsel:

Ms. T. Ganai, for the State.
Mrs. A. Raymond, for the Prisoner.

31st August 2004.

MANUHU, AJ: The Prisoner, Wesley Aldu, stands charged that he on the 22nd February 2004, at Lae, stole from Wama Rangip, with threats of violence, monies in the sum of K1,280 in cash, the property of Simon Kep. I must now, following his plea of guilty, sentence him.

On 22nd February 2004 between the hours of 3.00 am and 4.00 am, the Prisoner and his two accomplices were at Willie Club, owned by Simon Kep, at Sialum Compound, in Lae. When the patrons and the barman were not looking, the two accomplices went into the Club while the Prisoner acted as a watchman. The accomplices broke into the Club and held up Wama Rangip who was inside. The Prisoner at this time was keeping watch outside. The accomplices took K1,280.00 in cash from the till together with some cigarette packets from the Club. The accomplices then fled from the scene.

In his allocatus, the Prisoner said he was never part of the initial plan. He was already in the Club when the two men arrived. The two men asked him to be a watchman and his mistake was he obliged. The Prisoner said he did not benefit from any of the stolen cash and cigarettes. No one was injured or assaulted during the robbery but the Prisoner was assaulted and wounded in retaliation. The Prisoner has expressed remorse which I accept. I note that the Prisoner has also asked for good behaviour bond.

Accordingly, a Pre-Sentence Report was collated for the Prisoner. It was found, unfortunately, that the Prisoner does not have a fixed address. He was thus found to be an unsuitable candidate for probation supervision.

The maximum penalty for the crime of armed robbery is, subject to s. 19 of the Criminal Code, life imprisonment term. The Prisoner is a first time offender who has pleaded guilty and has cooperated with police. He has therefore saved the Court a lot of time. He is 25 yearsold, is married with no children. His highest educational level is Grade 6. He is third out of six children, five of whom are sisters. The Prisoner is the only brother to the five sisters. His parents are alive and are in the village. He resides presently at Boundary Road. He was a PMV driver at the time of the crime.

Counsel for the Prisoner referred me to the case of Gimble v State[1] where various sentencing guidelines are established. This case falls under category three where a sentence below five years is appropriate in an uncontested case. I note however that sentencing tariffs, following Don Hale v. State[2] and Tau Jim Anis v. State[3], have increased generally by three or so years. The increase in tariff is conditioned by the prevalence of the offence. The people of PNG are simply fed up of the crime of armed robbery.

The Prisoner stated that he was only a watchman. He was not part of the initial plan and he did not benefit from the crime. It is difficult to believe that the Prisoner assisted strange men without any immediate or future benefit to himself, but without the appropriate evidence, the Prisoner is entitled to the benefit of doubt. It is not right but sadly true that sometimes people do not care too much about whether they are in the right or not until it is too late. Accordingly, the lesser role of the Prisoner in the commission of the crime could warrant a lesser sentence. In the Gimble’s case:

"The general rule is that all active participants in the crime should be sentenced on the same basis. The court does not normally stop to consider whether a particular prisoner actually held up the victim, or held the gun, or the iron bar, or was a watchman outside, or was the driver of the getaway vehicle. All are equally guilty because without each playing his full part the crime could not be perpetrated."

However, I accept that the Prisoner was not in the initial plan and did not benefit from the crime. On the other hand, the two armed men must have been the main perpetrators of the crime; they armed themselves appropriately; and they executed the armed robbery according to plan. Comparatively, therefore, the criminal tendency of the three men, including the Prisoner, varies, and; such variation must be reflected in sentencing.

In all the circumstances, I will impose a comparatively short custodial sentence to serve as a reminder to the Prisoner that his stupidity has brought him here and he should be more responsible in future. I sentence the Prisoner to four years in hard labour. The custody period of six months and one week is taken into account and deducted. The Prisoner has three years, five months and three weeks to serve in hard labour.

Sentenced accordingly.
__________________________________________________________________
Lawyer for the State : Public Prosecutor
Lawyer for the Prisoner : Public Solicitor

---

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