State v Monai [2004] PGNC 152; N2617 (9 June 2004)

N2617

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR 925 of 2002
&
CR 926 of 2002

THE STATE

-ats-

GILBERT MONAI

Kimbe: Sevua, J
2004: 3rd & 9th June

CRIMINAL LAW – Sentence – Armed robbery – Dangerous weapons – Shotguns and knives - Threats of violence – Use of weapons to threaten - Actual use of violence – Use of weapons to assault – Plea for good behaviour bond and or probation – Aggravating circumstances – Need for immediate punitive custodial sentence – Good behaviour bond or probation inappropriate for armed robbery with aggravating circumstances - Personal and public deterrence – Sentence of 12 years and 15 years respectively.

Cases cited:
Gimble v The State [1988-89] PNGLR 271
The State v Augustine R Aililo (CR 995/2001) unreported & unnumbered, 4th June 2004
Jimmy Amos Rake v The State and Wena Pokarop v The State; (SCRA 42/2003 & SCRA 44/2003); unreported and unnumbered, 25th May 2004
John Mare v The State and Avivi Bulu v The State; (SCR 53/2003 & SCR 54/2003); unreported and unnumbered, 26th May 2004.

Counsel:
F. Popeu for State
O. Oiveka for Prisoner

9th June 2004

SEVUA, J: The accused pleaded guilty on 3rd June to two counts of armed robbery and was convicted following his plea of guilty. Sentence was reserved to today.

The facts which the prisoner admitted are these. In respect of the first count, on 18th August 2001, the prisoner and seven others, armed with guns and knives held up one John Konimor and his wife in a Toyota Prado Registration KAB 548 at Forest Hill, Buvussi, between Kimbe and Bialla and stole the said vehicle valued at K57, 897.00 owned by Dami Research Center. The victims were then placed in the back seat and driven to section 1, Buvussi where they were left in the bushes guarded by some other youths. The prisoner and the others then drove away with the stolen Toyota Prado.

In relation to the second count, the prisoner and his companions while driving around in the stolen Toyota Prado drove to Titiro Club at Hoskins at about 11 pm on 19th August 2001 and threatened the employees of the Club and stole K1, 280.00 in cash and other items valued at K4, 366.69 then escaped. The total value of cash and goods stolen was K5, 646.69.

Then on the next day, 20th August 2001, at approximately 2 o clock in the early morning, the prisoner and his companions drove to where the victims of the first robbery were, in the bushes, at Buvussi and picked them and drove around with them until they realized that they were being followed. The prisoner and his friends then abandoned the victims and the vehicle and escaped.

At the time of these offences, the prisoner and his friends were armed with six guns and knives.

The prisoner is 20 years old from Tangu village in Bogia, Madang Province. His parents are still alive. He is uneducated and unemployed. At the time of these offences he was also unemployed and resided at Section 10 in Kimbe. He has no prior conviction, however he was an escapee when he committed these crimes, so in my view, this is aggravating circumstance even though he was only recently convicted of escape. One wonders why the prisoner cannot go back to his home province and work the land to make a living instead of trying to make a living by committing serious violent crimes.

In allocutus, the prisoner apologized for what he did and acknowledged that it was not right to do such things. He said he was a disable person therefore urged the Court to be lenient with him and consider a good behaviour bond or a release on probation. Furthermore, he asked the Court to send him to Lae Angau Memorial Hospital so that he could attend the Prosthetic Clinic to get a new prosthetic limb in accordance with a Referral Letter dated 27th May 2004 by a visiting doctor, Dr Scott Cameron of the Prison Fellowship International.

Mr. Oiveka, counsel for the prisoner submitted that the Court should consider the prisoner’s plea of guilty to two counts of robbery; his expression of remorse and plea for mercy when considering sentence. In referring to the Court’s judgment in the case of The State v Augustine Aililo, (CR 995/2001); unreported and unnumbered, 4th June 2004; counsel submitted that the offence of armed robbery is increasingly prevalent, however asked the Court to take into account that the offences were committed on a vehicle on the road and in a club, which fall into the third category in Gimble v The State [1988-89] PNGLR 271.

However, counsel did correctly submit that such sentences are out dated and following recent trends of sentencing in robbery cases by the National Court, he submitted that sentences in the present case should be in the range of 8 to 12 years and should be considered.

I have taken into account what has been urged upon me by both the prisoner and his counsel. I have considered the request made by the prisoner in relation to a trip to Lae for a prosthetic limb. I note from the Referral Letter that he was shot by police, however, no medical report has been provided to the Court and besides, there is nothing before me which says that the prisoner was shot at the time he committed these offences. Therefore I am not certain if I should accept the prisoner’s unsworn statement from the dock during allocutus without any other documentary evidence. My view is that the crime of armed robbery is very serious that a good behaviour bond or a release on probation is not the suitable sanction for it and I have taken this attitude since I imposed the first sentence for robbery at the beginning of this circuit, and I have maintained this in accordance with what the Supreme Court said in separate recent appeals at Kokopo last month, and I will be alluding to those cases a little later.

Despite the submissions by defence counsel, the Court considers that the facts of this case are very serious. In the first offence, not only threats of violence were made against the victims, but there were circumstances of aggravation which make that offence very serious. The victims, John Konimor and his wife were deprived of their liberty and held in bushes with armed criminals keeping them quiet where they were being detained. Their constitutional rights and their liberty were deprived and the prisoner and his companions had not right at all to deprive this couple of their liberty. There is also evidence that when the victims were eventually picked up, attempts were made in the car to sexually molest the wife in the presence of her husband. This is not only an aggravating factor, but an insult, and embarrassing and degrading to the husband, in whose presence these sexual attempts were being made. I wonder the prisoner would feel if these attempts were being made to his own mother, in the presence of his father. It demonstrates a blatant abuse of one’s civil rights and the prisoner cannot come and invoke the Court’s power to enforce his civil right to receive treatment for his leg.

The second charge is even worse. There is evidence that the prisoner and his companions had actually assaulted the employees of Titiro Club at the time of robbery. They had gone there earlier and bought two cartons of beer. The second time that they came was when they assaulted the employees of the club. They were armed with six guns. They assaulted the barman after he tried to escape but slipped and fell then the prisoner and his companions pulled the barman inside and bashed him after the barman had surrendered cash in the sum of K1, 280.00. In fact, there is evidence that one of the criminals was William Kapis, a well known criminal who was an escapee at that time. It is to be reiterated that the prisoner at that time was also an escapee. So there is no doubt that criminals who had escaped from prison were responsible for these crimes and were responsible for reigning terror on innocent victims.

The evidence of Mathew Mark, the barman is crucial here. He served two of the gang members who came in and bought mutrus, the second time they came to the club. Then one of them went to the window and signalled to the others in the vehicle who came, and as they entered the door, one fired a shot into the air and one smashed a beer bottle. The offenders ordered five of the club patrons to lie on the floor while one of them went to the barman and held a gun at him, but the barman ducked and fled and hid in another room. He attempted to jump out of the window, however the criminals smashed down the door and he climbed down. He was hit with the butt of a gun. Then the criminals demanded money and one further struck the barman on his face with the butt of a gun wounding him and causing bleeding from his wounded face. The barman then tried to escape, but fell and they pulled him back into the club and threatened to kill him if he did not give them money. The victim said he two guns were pointed at him and he was told that if he did not give them the money, he would be killed. He consequently handed to them the sum of K1, 280.00 in cash, which they got then fled in the stolen vehicle with other stolen goods.

This account is enough to tell the Court that violence was used over and above the force necessary to steal. In my view there was no need for the violence. The barman had the right to protect his earnings. He worked hard to earn the money. The prisoner and his ban of marauding gang had no right whatsoever to go and steal the money. No law can justify the kind of blatant disrespect for the constitutional rights of others, innocent as they were, who became victims and prey to people like the gun totting criminals in this case, who think they can destroy the hard work of other law abiding citizens and destroy their lives, without the slightest consideration that what they were doing was wrong, unlawful and unconstitutional.

There can be no doubt in any one’s mind that this is a serious case. All cases of robbery involving violence and the use of guns are very serious therefore demanding close attention by the Courts. There can be no doubt that this case involves circumstances of aggravation that the punishment must reflect that aspect of the case, and or course, the Courts’ concern and the community’s concerns on crimes of violence perpetrated with the use of guns. It is no coincidence that the print media in the past two weeks have published in the two daily newspapers serious concerns expressed by the leaders and members of the community. We cannot allow this country to be controlled by criminals who display no common sanity and show no respect for human lives and the property of others.

The use of firearms in the commission of serious crimes of violence like armed robbery is an issue that the media organizations have been portraying as a danger to the country. For far too long, the penalties for firearms related offences are ridiculously low, and pathetic to say the least. Instead of calling for a total ban on firearms like the Minister for Internal Security is envisaging, he should be looking at amendments to the Criminal Code and the Firearms Act to radically increase the penalties for firearms offences. With respect, he cannot impose a total ban when there is no evidence that firearms offences are committed by legitimate licensed holders. All thinking leaders should look at this issue as a matter of priority with a view to passing new legislations or amending existing ones to increase penalties for offences involving use of firearms. The community’s concerns should be the nation’s concerns and something must be done about it now. If leaders are genuine they will do something immediately and now instead of paying mere lip service to the nation when it comes to serious crimes of violence.

Just last week, the family members of the murdered Australian pilot attended a memorial in Mount Hagen to unveil a plaque in memory of their husband and father who was shot dead in the main streets of Mount Hagen in an armed robbery recently. That incident prompted the leaders of Western Highlands to do something about this crime in their town and province. That is a clear example of an unnecessary and senseless killing involving the use of guns in an armed hold up. The call to do something now rather than later is a timely wake up call to the country’s political leaders and legislators. The use of guns in armed hold ups is indeed a serious threat to every law abiding citizens whether he is a fellow Papua New Guinean or a citizen of another country. This country cannot continue to see innocent lives lost or maimed by criminals without seriously considering what should be done to control the escalating crimes of violence. In my view, the maximum penalty for armed robbery where guns are used should be death. Young people then might start thinking twice before getting involved in armed hold ups. If something serious is not done now, we will never get over this situation.

I believe that Courts also contribute in a major way to this issue. The maximum penalty for armed robbery involving the use of guns whether to threaten or cause injury to a victim is life imprisonment under s. 386 (2) of the Criminal Code Act. However, when some Judges in the National Court impose long jail terms in some cases, they are criticized by fellow Judges in the Supreme Court and told that they are imposing too severe penalties and jumping in leaps and bounds. When the law expressly prescribes life imprisonment as the maximum penalty, any lower or determinate term other than life is already a discounted sentence. With respect, I do not think the Supreme Court can continue to criticise Judges for imposing sentences from 15 years and upwards in serious robbery cases because this crime is just getting out of hand. If Judges of the National Court have to impose 50 years or life imprisonment in serious armed robbery cases, so be it. The Supreme Court should not be criticizing Judges for that. It is time, in my honest view, that the Supreme Court got out of this leaps and bounds mentality and be realistic in appreciating the sufferings of the innocent minority and allow the National Court to impose penalties prescribed by law.

Having said that, s. 19 of the Code grants a discretion to the Court to impose a penalty other than a life sentence in a robbery case where firearms are used or violence with the use of firearms are perpetrated. There is no reason we cannot be imposing sentence of 20 or 25 years on pleas of guilty in robbery cases with circumstances of aggravation. Whilst the Courts should not bow down to public demands, the reality is that Courts have been very lenient on violent offenders, and that is why the community is concerned that instead of the Courts protecting the rights of the innocent, Courts are protecting the rights of criminals. My view is that crimes of violence must be severely punished to bring the message home to those offenders that the nation as a whole is fed up with such crimes.

In the present case, it is my view that the prisoner’s plea of guilty and his previous good record become rather insignificant when innocent law abiding citizens were threatened and struck with guns by lazy no good doers criminals who have no regard for the lives and properties of others. Having considered the defence counsel’s submissions in the light of the serious aggravating factors of this case, it is my opinion that the prisoner must be severely punished for his crime. Of course, I have taken into account, the physical disability of the prisoner, however, I will reiterate as I alluded to earlier on, there is nothing before this Court that the injuries sustained by the prisoner was in relation to these offences. In any event, whilst I do not condone the shooting of innocent people by members of the police force, I believe the writing is on the wall for criminals. Police will, and must react decisively to violence offered by criminals, so that if criminals attack police with guns, police must react to that by the use of guns.

The Court notes with very serious concerns that the prisoner was an escapee when he committed these offences. At the material time, he and his cohorts were armed with several factory made and home made guns. An innocent man and his wife were placed in a situation where their lives could have ended tragically and prematurely. They were subjected to abuse of their constitutional rights including the deprivation of their liberty, and the wife was subjected to sexual abuses. For at least two days and two nights; they were detained by armed guards in the bushes. Not only threats of violence were offered with the use of guns, actual violence was used by the perpetrators. Gun butts were used to assault the barman at Titiro Club. A shot was fired to demonstrate the intention of the perpetrators. The armed robberies were led by notorious criminal and escapee, William Kapis, who I understand, has since been shot dead by police. All these are circumstances of aggravation that make this case very serious therefore warranting a severe penalty. They make the prisoner’s personal antecedent fade into insignificance.

The Court also notes that the prisoner has two other charges relating to the same incidents as the present charges still outstanding and those are unlawful use of motor vehicle and deprivation of liberty, I understand the State intends to file a nolle prosequi in each matter. However, the prisoner also has another charge of armed robbery relating to a robbery at Mt Otto still outstanding. If he is not careful, he might spend the rest of his life in prison, but that’s a matter for him.

The Supreme Court had suggested guidelines on sentencing in Gimble’s case (supra), however Courts have repeatedly said that those guidelines are outdated and no longer applicable to the circumstances of Papua New Guinea today. In fact, Mr. Oiveka’s submission that this two offences fall into the third category is correct, except that with respect to counsel, the Courts have departed from those guidelines in many cases. In fact, the trend at present is that armed robbery without the use of violence now attracts a term of 10 years on a plea of guilty. Even the Supreme Court, in many cases have dismissed appeals against sentences of 10 years on pleas of guilty where prisoners have appealed against the severity of sentences of 10 years. I will refer to some of those recent appeals later on.

However, I consider that the prisoner’s plea for a good behaviour bond or a release on probation is nothing more than a means of escaping punishment for serious crimes he has committed. This Court has always maintained that a good behaviour bond or probation is not the appropriate punishment for armed robbery. In my view, it is tantamount to a pat on the prisoner’s back and telling him, you have committed a very serious offence but its okay you don’t have to go to jail you are free to go. This is quite ridiculous and that is not the purpose of criminal law. I adopt what the Supreme Court said in several appeals recently at Kokopo and that is, "robbery, being a crime of violence, must be punished with immediate punitive custodial sentence, unless exceptional circumstances exist to warrant a partial suspension." See: Jimmy Amos Rake v The State and Wena Pokarop v The State; (SCRA 42/2003 & SCRA 44/2003); and John Mare v The State and Avivi Bulu v The State; (SCR 53/2003 & SCR 54/2003); unreported and unnumbered judgments of the Supreme Court, Kokopo, 25th and 26th May 2004 respectively.

While the Court acknowledges that the prisoner suffers from some kind of disability, the Court knows very little about the nature of the injury and how it was sustained. In the absence of any confirmed medical evidence, the Court just cannot accede to this kind of request, although the Referral Letter refers to a prosthetic limb. Without the benefit of a full medical report, it is my view that there are no exceptional circumstances that exist to warrant a partial suspension or a non -custodial sentence, and I do not think the disability, per se, is an exceptional circumstance unless it is from birth.

In any event, the power to transfer detainees from one institution to another, vests with the Commissioner of Correctional Service by virtue of s. 96 of the Correctional Service Act 1995. By virtue of s. 101 of the Act, the Commissioner has power to authorize the absence of a detainee from a correctional institution. Sub-section (3) sets out some of the purposes which a prisoner can be authorized to be absent from a prison, and it is noted that sub-section (3) (c) relates to attending a doctor, dentist, hospital or clinic. It is therefore up to the prisoner to seek authorized absence from the Commissioner. The Court will not make an order to that effect on the basis of what I have adverted to above.

The Court has considered all the mitigating and aggravating factors of this case. After considering everything for and against the prisoner, it is my view that a custodial sentence is appropriate on both counts of robbery. This crime is very prevalent right across the breath and width of the country. The sentences on both counts must therefore act as a personal and a public deterrence. They must also reflect the prevalence of the crime and the concerns of the community

It is therefore the judgment of the Court that the prisoner, Gilbert Monai of Tangu village, Bogia, Madang Province, be sentenced to12 years imprisonment with hard labour on the first count, and furthermore, on the second count, the said, Gilbert Monai, is sentenced to15 years imprisonment with hard labour. I order that the sentence for the first count be served concurrent with the sentence for the second count, which means the prisoner will serve a total of 15 years. I also order that 2 years 9 months be deducted for time spent in custody awaiting trial therefore leaving the balance of 12 years 3 months to serve. A Warrant of Commitment for that balance is issued forthwith.

Pursuant to s 600 (2) (b) of the Criminal Code Act, I further order that, one (1) week after his discharge from prison, the prisoner returns to his home village at Tangu in Bogia, Madang Province, and there shall he abide for 5 years.

Orders accordingly.

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