State v Joseph [2004] PGNC 149; N2613 (14 May 2004)

N2613

PAPUA NEW GUINEA
[NATIONAL COURT OF JUSTICE]

CR 1754 of n2003

THE STATE

v.

ROBSON JOSEPH

Kavieng: Sevua, J
6th & 14th May 2004

CRIMINAL: LAW – Sentence – Armed robbery – Threats of violence – Armed with bush knife

L. Rangan for State
A. Turi for Accused

14th May 2004

SEVUA, J: The accused pleaded guilty to a charge that on the 15th July 2003 he, and another, stole alcoholic drinks at the Islands Store Pty Ltd in Namatanai with threats of violence. He was convicted and sentence reserved to today.

The facts were that on the night of 15th July 2003 at Namatanai Town between 8 and 9 o clock in the evening, the prisoner and another went to the premises of Islands Store Pty Ltd and whilst the prisoner threatened the security guards and kept them at bay outside the shop with a bush knife he was armed with, while his friend, Willie Watkin, broke into the store and stole alcoholic drinks valued at K3, 527.80, the property of the said company.

In his allocutus, the prisoner gave a long statement, the essence of which is that he was called by his friend Willie Watkin to commit this offence and he went along. He was the one armed with the bush knife and was told by his friend to threaten the security guards and keep watch over them while his friend (Willie) went and stole the liquor in the shop. After Willie had loaded the liquor into a bag he came out then they left the scene of the crime. The prisoner also told the Court that sometime after they had committed this offence, his brother, Milson was walking past the scene of the crime when he was shot and killed by police who had been called to the scene after the offence had been committed and the offenders had escaped. He is concerned about his old parents who are still alive and residing at Namatanai and asked for leniency and a release on probation.

The prisoner said sorry to the company, the province, the Court and to his family for bringing a bad name to the family and the province. Above all he said he was remorseful that his participation in this offence had led to the shooting and killing of his brother. He promised not to offend again and if he is released on probation, he will return to his parents and care for them as his brother who usually cared for them is now deceased. He asked for mercy and leniency and a non-custodial sentence.

Ms Turi, counsel for the prisoner, adopted the factual circumstances surrounding the commission of the crime as put forth by her client and made a number of submissions in mitigation - prisoner is 22 years old from Tasitel village in Mussau Island, New Ireland Province, but was 21 years at the time of the offence; is single and has no formal education; and his friend and partner in crime, Willie Watkin, was also arrested by police but released.

On sentence, counsel cited Gimble v. The State [1988-89] PNGLR 271 and submitted that sentences have increased to 10 years and more in serious cases and I agree with that as that is the trend at the present time. Counsel also submitted that this case falls into the third category – robbery of a store which the starting point in a contested case is 5 years, however counsel acknowledged that this starting point is no longer relevant and I agree with that submission too. Counsel also referred to Public Prosecutor v. Don Hale, SC564, unreported, 27th August 1998 and Tau John Anis v. The State however, Don Hale’s case was a robbery of a house so is not applicable to this case. Anis’s case might be relevant as it is a robbery of a factory.

It is also submitted for the prisoner that although the offence is very prevalent and a knife used, the prisoner only threatened the victims and did not use violence nor was there any injury caused. Whilst the use of a bush knife is an aggravating factor this case involved alcohol abuse by your people and that is why no alcohol was returned to the owner of the shop. Counsel submitted that a suspended sentence would be appropriate and made an application for a Pre Sentence Report (PSR) to ascertain the possibility of rehabilitation.

As the State had no objection to the application, the Court granted the application and a PSR ordered to be filed by yesterday, 13th May 2004. The Report has now been provided and the Court acknowledges the assistance of the Probation Officer. It is noted from the report that the prisoner is remorseful and was influenced by another person, he is willing to return home to look after his parents and get involved in Church activities if released on probation. The Court has noted that the Report does not, strictly speaking, recommend a release on probation, it states that "the offender may be a suitable candidate for Probation Supervision with additional condition to do community work".

The crime of armed robbery is very prevalent through out the country today. Almost no day passes without media reports of armed robberies. Innocent law abiding citizens are being harassed, threatened and harmed, even killed mercilessly by gutless thugs who act as if they control the society we live in. They armed themselves with offensive weapons and leave a lot of trauma and nasty experiences in the lives of innocent people, who at times, become hopeless because of the use of actual violence or threats of it associated with the weapons carried by these criminals.

Whilst I acknowledge that the sentencing guidelines have been set by the Supreme Court in Gimble’s case, Courts are now repeatedly saying that those guidelines are outdated and no longer suitable to the circumstances of Papua New Guinea at the present time. I agree with that observation as I, myself, have said the same thing in many other cases that have come before me. Despite the fact that the maximum penalty for armed robbery under s. 386 (2) is life imprisonment Courts are still imposing lenient sentences.

I have taken into account that the prisoner is young and a first offender. He has pleaded guilty to this charge. He might well feel that an injustice has been done to him because his friend, Willie Watkin who seemed to have been the ringleader, for reasons unknown to the Court, was released by police. However, this cannot be the basis for setting the prisoner free. Furthermore the killing of his brother shortly after the commission of this offence is a matter that the prisoner will have to live with for the rest of his life. His concerns for his parents is not a mitigating factor. The prisoner should have thought about his parents before he set out to drink and commit this crime. The total value of the stolen alcohol is not a very substantial amount and no injury was caused to the security guards.

I consider that a whole suspension is inappropriate. The prisoner, whilst a young man, ois not a teenager. He is a mature person and one would assume that he would have had the brain and the responsibility of an adult. I am of the view that he must serve some time in jail to teach him that crime does not pay. I hope that by going to jail the prisoner will learn a valuable lesson and will not offend again because if he does, he will get more than what he will get now. The sentence will hopefully deter him personally and will also act as a general deterrence to likeminded young people of the same age and from the same ethnic origin.

The Court is of the view that the prisoner should initially be imprisoned but that part of his sentence suspended on condition that he is released on probation. I note too that this case involves alcohol abuse and self intoxication.

In all the circumstances, I sentence the prisoner to 7 years imprisonment in hard labour. I order that 4 years be suspended and he be placed on probation for 2 years . The terms of the Probation Order are as follows:-

1. The prisoner returns to Kudukudu village, Susurunga, Namatanai and resides there until he is contacted by a Probation Officer.
2. He shall report to the Probation Officer when required to do so.
3. He shall keep the peace and be of good behaviour.
4. He shall not change his address without the knowledge of the Probation Officer.
5. He must not consume liquor or go within 50 metres of a licensed premises.
   

Lawyer for State : Public Prosecutor
Lawyer for Prisoner : Public Solicitor