State v Lahu [2005] PGNC 161; N2798 (25 February 2005)

N2798

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]

CR NO 184 OF 2005

THE STATE

V

AARON LAHU

KIMBE: CANNINGS J
21, 25 FEBRUARY 2005

SENTENCE

CRIMINAL LAW – indictable offence – Criminal Code, Subdivision VI.1.D (stealing with violence etc) – Section 386 (the offence of robbery) – sentence on plea of guilty – claims made in allocutus that may be significant mitigating factors for sentence – claims not addressed in prosecutor’s summary of facts, to which accused pleaded guilty – claims seemed far-fetched – no applicable and appropriate law as to how to deal with such claims – formulation of appropriate rule – National Court’s duty to develop underlying law – acceptance of claims in allocutus – combined home invasion and store robbery – guilty plea – gang of robbers – actual violence committed during robbery – use of firearms and other offensive weapons – threats made – victims put in real danger of being killed or injured – no attempt to shield vulnerable victims – cash and goods stolen worth K18,500.00 – offender played minor role in robbery – offender gave himself up – cooperated with police – nothing tangible done re compensation etc – starting point for head sentence – identification of relevant considerations – application of relevant considerations – whether appropriate to suspend whole or part of sentence – need for properly documented pre-sentence report – sentence of 3 years – 1 year must be served – balance of 2 years may be suspended on application to the National Court.

Cases cited:
Agiru Aieni and Others v Paul T Tahain [1978] PNGLR 37
Gimble v The State [1988-1989] PNGLR 271
Michael Gende v The State (1999) SC626
Moses Aikaba and Others v Tami [1971-72] PNGLR 155
Phillip Kassman v The State (2004) SC759
Public Prosecutor v Don Hale (1998) SC564
Tau Jim Anis v The State (2000) SC642
The State v Bafe Quati and Others [1990] PNGLR 57
The State v Edward Toude and Others (2001) N2299
The State v Joe Ivoro and Gemora Yavura [1980] PNGLR 1
The State v Mark Kanupio and Others (2005) CR Nos 238-242 of 2003, 25.02.05, unreported
The State v Nickson Pari (No 1) (2000) N2037
The State v Steward Pariwan (1999) N1834

Counsel:
F Popeu for the State
O Oiveka for the accused

CANNINGS J:

INTRODUCTION

This is a decision on the sentence for a man who pleaded guilty to armed robbery.

BACKGROUND

Incident

The incident giving rise to the charge took place at Hoskins, West New Britain, on the night of 5 March 2004. It was alleged that the accused was a member of an armed gang that robbed a store and house at gunpoint.

Indictment

On 20 January 2005 the accused was committed by the District Court and remanded in custody. On 21 February 2005 he was brought before the National Court and faced the following indictment:

Aaron Buka Laho of Duwusei, Siwai, North Solomons Province, stands charged that he on the 5th day of March 2004 at Hoskins ... stole from one Leila Thiagen with actual violence K3,500.00 in cash and assorted store goods valued at K15,000.00 the property of Centre Point Trading Ltd. And at the same time [he] was armed with 3 homemade guns, 2 pinch bars, 4 bushknives and stones, being dangerous and offensive weapons and was in company with other persons and wounded one Norbert Pologau.

The indictment was presented under Section 386 of the Criminal Code.

FACTS

Allegations

The following allegations were put to the accused for the purpose of obtaining a plea.

On the evening of Friday 5 March 2004 the accused and his gang of about 10 to 15 other men travelled in a dinghy from Gigo beach, Kimbe, to Hoskins beach. They had armed themselves for a robbery. They took three homemade guns, two pinchbars, one crowbar, four bushknives and stones. By 8.30 pm they arrived at Hoskins and went to a large store, the Hoskins Mart, and held up the store manager, Leila Thiagen, her family and the store’s security guards. They threatened physical violence with the weapons that they were carrying. The gang stole K3,500.00 cash and store goods worth K15,000.00. In the course of the robbery one of the security guards, Norbert Pologau, was cut with a bush knife, sustaining a wound to his right shoulder. The gang then ran back to the Hoskins beach and escaped in the dinghy.

Conviction

The accused pleaded guilty to those facts. I entered a provisional plea of guilty and then, after reading the District Court depositions, confirmed the plea and convicted the accused. He is now referred to as the prisoner.

ANTECEDENTS

The prisoner has one prior conviction. In October 2004 he was convicted by the District Court for conveying dangerous drugs (marijuana) and sentenced to 12 months imprisonment.

ALLOCUTUS

I administered the allocutus, ie the prisoner was given the opportunity to say what matters the court should take into account when deciding on punishment. A paraphrased summary of his response follows:

I was not supposed to commit this trouble. I was not aware of the original plan. I was sitting down at Gigo beach when the main characters involved met me. They told me to get on the boat and come with them to Hoskins to do something. I got in the boat and saw an esky. I thought we were going fishing. After a while, they opened the esky and I saw the guns. They then told me of their plan. It was difficult for me to make a decision not to be involved as we were travelling at sea. After we got to Hoskins I went with the others to the store but I was not holding a gun or a bushknife or anything. I did not threaten anyone. I stayed outside when the others went in. It was only when they came out that I went in and grabbed a schoolbag and six round-necked shirts. On the way back, I was given K20.00 cash. So I did not benefit much. I know that I am wrong and I have broken a law of this country. I apologise to this honourable court. I say sorry to the victims. I promise that I will never do anything like this again. I was with my mother when the police arrested me. I am the only child in the family. My father died in 1996 in the Bougainville crisis. I am in custody and no one is helping my mother. She needs someone to help her do her marketing. It is very easy for disease to spread in the gaol. When the police arrested me I made it very easy for them. Now I am making it easy for the court. So I am asking for the court’s mercy. Please put me on a good behaviour bond or give me probation.

DEALING WITH CLAIMS IN ALLOCUTUS THAT WERE NOT IN PROSECUTOR’S SUMMARY

Claims in mitigation

Before I heard submissions from counsel I pointed out that the prisoner had made claims in his allocutus which, if accepted, may be significant mitigating factors to take into account on sentence. He claimed that he was not the ringleader, he had not planned the robbery, he only got involved by accident, he was at sea when he realised what was happening, he did not use any firearms or offensive weapons, he got little out of it and he cooperated with the police after he was arrested. These things – particularly the extent of his role in the robbery – were not brought out in the prosecutor’s summary. So how should the court deal with them? Ignore them because they have not been proven? Accept them because a person who pleads guilty should be given the benefit of the doubt on sentence? What rules of law are applicable?

I put to counsel that some of the claims – particularly that he was minding his own business on Gigo beach and just happened to be asked to go for a dinghy ride to Hoskins and he thought he was going fishing and only realised on the way that he was part of a gang heading to commit an armed robbery – seemed a bit far fetched. When I pressed Mr Popeu he said that the prosecution did not take issue with them. I had reservations about that approach and decided that I needed to state and apply some clear principles to deal with this situation.

Search for principles

In searching for the applicable and appropriate principles I found nothing expressly on the point in the Constitutional Laws or the relevant statute, which is Section 593 of the Criminal Code.

Section 593 (convicted person to be called on to show cause) states:

Where an accused person—

(a) pleads that he is guilty of an offence; or

(b) on trial, is convicted of any offence,

the proper officer shall ask him whether he has anything to say why sentence should not be passed on him, but an omission to do so does not invalidate the judgement.

Section 593, however, only creates a right for the convicted person to say something. It does not indicate how to deal with claims that may be mitigating factors.

I found nothing in the common law that is applicable and appropriate to the circumstances of the country today. The position at common law immediately before Independence Day, 16 September 1975, apparently was that a convicted person only had the right to address the court on questions of law and had no right to raise matters in mitigation. (See Moses Aikaba and Others v Tami [1971-72] PNGLR 155, pre-Independence Supreme Court, Raine J.) That is substantially at variance with the longstanding practice in the courts of Papua New Guinea which is that the person convicted has almost a free reign to say anything to the judge that might be relevant to the question of penalty.

I found nothing expressly on the point in any previous Papua New Guinea case.

Development of underlying law

In light of the above, there appears to be no rule of law applicable and appropriate to the circumstances of the country. I am therefore obliged to formulate an appropriate rule as part of the underlying law pursuant to Schedules 2.3 and 2.4 of the Constitution.

Schedule 2.3 (development, etc, of the underlying law) states:

(1) If in any particular matter before a court there appears to be no rule of law that is applicable and appropriate to the circumstances of the country, it is the duty of the National Judicial System, and in particular of the Supreme Court and the National Court, to formulate an appropriate rule as part of the underlying law having regard—

(a) in particular, to the National Goals and Directive Principles and the Basic Social Obligations; and

(b) to Division III.3 (basic rights); and

(c) to analogies to be drawn from relevant statutes and custom; and

(d) to the legislation of, and to relevant decisions of the courts of, any country that in the opinion of the court has a legal system similar to that of Papua New Guinea; and

(e) to relevant decisions of courts exercising jurisdiction in or in respect of all or any part of the country at any time,

and to the circumstances of the country from time to time.

(2) If in any court other than the Supreme Court a question arises that would involve the performance of the duty imposed by Subsection (1), then, unless the question is trivial, vexatious or irrelevant—

(a) in the case of the National Court—the court may; and

(b) in the case of any other court (not being a village court)—the court shall,

refer the matter for decision to the Supreme Court, and take whatever other action (including the adjournment of proceedings) is appropriate.

Schedule 2.4 (judicial development of the underlying law) states:

In all cases, it is the duty of the National Judicial System, and especially of the Supreme Court and the National Court, to ensure that, with due regard to the need for consistency, the underlying law develops as a coherent system in a manner that is appropriate to the circumstances of the country from time to time, except insofar as it would not be proper to do so by judicial act.

Relevant considerations

In formulating an appropriate rule I have had regard to all matters referred to in Schedule 2.3(1)(a) to (e), in particular:

• The basic right of all persons under Section 37(1) of the Constitution to the full protection of the law, especially when a person is charged with an offence. This suggests that the benefit of any reasonable doubt on issues of penalty should be given to those who have pleaded guilty.
  
• The enshrinement of the principles of natural justice by Section 59 of the Constitution. Thus the minimum requirement of natural justice is the duty to act fairly and, in principle, to be seen to act fairly. It is consistent with these principles that once a person has pleaded guilty, a full opportunity, or right, should be given to allow mitigating factors to be put to the court. (Agiru Aieni and Others v Paul T Tahain [1978] PNGLR 37, National Court, Wilson J; Michael Gende v The State (1999) SC626, Supreme Court, Hinchliffe J, Jalina J, Sevua J.) That right should be able to be exercised flexibly. Hard and fast rules should not be laid down about what a convicted person can say in mitigation and what the person’s legal representative can say. A convicted person should basically be allowed to say what he or she likes. On the other hand the principles of natural justice work both ways. The prosecution should be allowed to have its say if it disagrees with something said by a person in their allocutus.
  
• Rules have been developed by the courts in PNG to deal with aggravating or mitigating matters discovered by a judge on reading the depositions after a person has pleaded guilty. I stated the rules in a recent Kimbe case, The State v Mark Kanupio and Others (2005) CR Nos 238-242 of 2003, 25.02.05, unreported. The basic principle is that the convicted person should be given the benefit of the doubt, subject to the prosecution’s right to test, by calling evidence if necessary, what has been discovered. An analogy can be drawn between that situation and statements about mitigating factors made in an allocutus that might have a bearing on sentence. It makes sense for similar rules to apply in both situations.
  
• The practice in Papua New Guinea is that the allocutus has gone well beyond its limited role at common law of allowing the prisoner to raise points of law that would prevent the judge imposing sentence. (Moses Aikaba v Tami [1971-72] PNGLR 155, pre-Independence Supreme Court, Raine J.) For example, allegations of police brutality can be raised in an allocutus and, if proven, regarded as a mitigating factor, reducing the sentence (The State v Bafe Quati and Others [1990] PNGLR 57, National Court, Doherty AJ). What a person says in an allocutus can taint a guilty plea and their conviction can be set aside (The State v Joe Ivoro and Gemora Yavura [1980] PNGLR 1, National Court, Kapi J; The State v Nickson Pari (No 1) (2000) N2037, National Court, Kandakasi J.)
  

In formulating an appropriate rule I am perhaps not actually laying down a new principle of law. I am stating what has become a practice. I do not consider it necessary to refer the matter to the Supreme Court and therefore I exercise my discretion under Schedule 2.3(2) not to do so.

Formulation of rule

I formulate the following rule on what to do when a person makes a claim in their allocutus that might be a mitigating factor, when the claim has not been addressed in the prosecutor’s summary of facts, to which the person has pleaded guilty:

• The effect of a plea of guilty is that an accused person admits to the elements of the offence and the facts that have been put to the accused.
  
• Once the court considers the depositions, accepts the plea and enters a conviction, the accused must then be given the benefit of any reasonable doubt on matters of penalty.
  
• If the judge detects any significant mitigating matters in the allocutus that were not put to the accused in the prosecutor’s summary of the facts the judge should ascertain whether there is agreement between the prosecution and the defence on those matters.
  
• If there is agreement, the judge should work on the basis of what has been agreed to unless the claims made in the allocutus are so beyond the bounds of possibility as to be unbelievable.
  
• If there is a dispute between the parties about those matters, it would be appropriate for the court to take sworn evidence on them. The accused can be invited to give evidence, but cannot be forced into the witness box.
  
• If, however, the court does not take sworn evidence and there is no agreement between the parties as to the contentious matters, the court must act on the version of the facts which, within the bounds of possibility, is most favourable to the accused.
  

Application of rule

I now apply the above rule to the present case. As indicated previously the prosecution took no issue with the version of events portrayed by the prisoner in his allocutus. There was agreement. I thought the claims seemed a bit far-fetched, but they are not so far beyond the bounds of possibility as to be unbelievable.

The court therefore accepts all the claims made by the prisoner in his allocutus and will take them into account as mitigating factors.

SUBMISSIONS BY DEFENCE COUNSEL

Mitigating factors

Mr Oiveka also referred to mitigating factors. The prisoner has pleaded guilty, saving the trouble and expense of a trial. He admitted to the police at the outset what he had done. He accepts responsibility for his actions. He was not aware of the original plan. Only a handful of his accomplices have been charged. He played a minor role and got little out of it.

Personal particulars

He is now aged 23 and is single. He has to look after his mother as his father is deceased and he is the only child.

Precedents

Mr Oiveka asked me to consider three Supreme Court decisions:

• Gimble v The State [1988-1989] PNGLR 271, Bredmeyer J, Los J, Hinchliffe J. The court suggested sentencing guidelines for cases of aggravated armed robbery on a plea of not guilty by a young first offender carrying weapons and threatening violence. The court considered that a family home, when compared to other places such as a bank, a store or a street, was the most serious place in which an armed robbery can occur. The following starting points were suggested:
  
  • ➢ robbery of a house – seven years;
    
  • ➢ robbery of a bank – six years;
    
  • ➢ robbery of a store, hotel, club, vehicle, on the road etc – five years;
    
  • ➢ robbery of a person on the street – three years.
    
• Public Prosecutor v Don Hale (1998) SC564, Amet CJ, Woods J, Kirriwom J. The court upheld an appeal by the Public Prosecutor against a sentence of five years imposed on a man who was part of a gang, which broke into a house at Nine Mile, Lae, and threatened the family with a shotgun and fired shots. The court stated:
  

We feel that the starting point to an appropriate sentence involving the robbery of home owners at night with the use of firearms to threaten victims should be ten years.

• Tau Jim Anis v The State (2000) SC642, Sheehan J, Jalina J, Kirriwom J. The court upheld an appeal against a sentence of 10 years imposed by Injia J. The offenders robbed a coffee factory of K20,000.00. They were young (aged 15) first offenders, there was little physical violence and they pleaded guilty. The Supreme Court felt that the sentence imposed by the trial judge had involved too big a jump in the applicable tariffs. The court felt that the Gimble categories (which set different starting points depending on where the robbery took place) were still valid. As this robbery happened at a factory, it fell into the third category. The Gimble starting point was five years. But the court said it should now be eight. The court felt that the trial judge had not given sufficient consideration to mitigating factors, eg the age of the offenders and their guilty plea. It substituted a sentence of 7 years.
  

Mr Oiveka submitted that this was a robbery of a store so a starting point of five years should be applied. There were a number of mitigating factors, so a term of imprisonment of a lesser term than that is appropriate.

SUBMISSIONS BY THE STATE

Mr Popeu, for the State, submitted that the prisoner was guilty of a serious offence. This was not only a robbery of a store, a family home was also held up. He referred to a Wewak case decided by Sawong J in 1999: The State v Steward Pariwan (1999) N1834. A gang of eight held up a trade store. Firearms were involved. Someone was shot and permanently, but not fatally, injured. His Honour expressed the view that the sentences that had been imposed for such crimes were too low. The trend is towards severe penalties for this type of offence, especially if firearms are involved. The court must consider the prevalence of such crimes and impose a penalty that provides a deterrent against this sort of thing becoming widespread. The sentence was 11 years. The court should therefore regard the present case as a serious one, Mr Popeu argued.

RELEVANT LAW

Crime of robbery

Section 386 of the Criminal Code states:

(1) A person who commits robbery is guilty of a crime.

Penalty: Subject to Subsection (2), imprisonment for a term not exceeding 14 years.

(2) If a person charged with an offence against Subsection (1)—

(a) is armed with a dangerous or offensive weapon or instrument; or

(b) is in company with one or more other persons; or

(c) at, immediately before or immediately after, the time of the robbery, wounds or uses any other personal violence to any person,

he is liable subject to Section 19, to imprisonment for life.

Mr Popeu indicated that the State was relying on Sections 386(2)(a) and 386(2)(b). I was satisfied that the elements of those provisions were adequately set out in the indictment, that the prisoner was aware of their significance and that the summary of the facts pleaded to by the prisoner supported those elements.

The prisoner is therefore liable to a penalty of imprisonment for life.

Discretion

That is the maximum penalty. The court has a considerable discretion whether to impose the maximum penalty by virtue of Section 19 of the Criminal Code. For example:

• a shorter term of imprisonment may be imposed (Section 19(1)(a)); or
  
• a fine up to K2,000.00 may be imposed instead of or in addition to a term of imprisonment and the prisoner can be imprisoned until the fine is paid (Sections 19(1)(b), 19(1)(c)); or
  
• the prisoner may be given a ‘good behaviour bond’ (Section 19(1)(d)); or
  
• the prisoner can be discharged and the sentence postponed (Section 19(1)(f)); or
  
• the court can suspend all or any portion of the sentence imposed, subject to conditions (Section 19(6)).
  

DECISION MAKING PROCESS

To determine the appropriate penalty I will adopt the following decision making process:

• step 1: what is the appropriate head sentence, in terms of years?
  
• step 2: should all or part of the sentence be suspended?
  
• step 3: if all or part of the sentence is suspended, what conditions should be imposed?
  

STEP 1 - WHAT IS THE APPROPRIATE HEAD SENTENCE?

Approach

In setting an appropriate head sentence I will take this approach:

• first, I will identify an appropriate starting point;
  
• secondly I will set out the considerations that should be taken into account in deciding whether to impose a sentence equal to, lesser or greater than the starting point; and
  
• thirdly I will apply those considerations to the facts of the present case, thus arriving at a head sentence.
  

Starting point

The Supreme Court in Gimble used the terminology ‘starting point’ to describe the head sentence around which the courts should work in armed robbery cases. The term has since been employed in numerous cases, both in the Supreme Court and the National Court. Though a number of judges (eg Kandakasi J in The State v Edward Toude and Others (2001) N2299, National Court) have expressed the view that the Gimble starting points are now too low, no great issue has been taken with the concept and its usefulness. So I will identify a starting point for this case.

As to what it should be, I have considered a recent Supreme Court decision on the subject, Phillip Kassman v The State (2004) SC759. The court heard an appeal against sentence by a man involved in an armed robbery of an ANZ Bank customer, in the bank car park, at Waigani. The prisoner was in a gang of four who robbed the victim at gunpoint of more than K120,000.00 cash, the takings of a company he worked for. The trial judge imposed a sentence of ten years. The Supreme Court noted that if the Gimble categories were used the starting point would be (for an armed robbery of or near a bank) five years. But times have changed. The court considered the previous Supreme Court decisions in Hale and Anis and agreed that a "three year increase denominator" should be applied. That meant the starting point was eight years. The court said that the trial judge had properly considered the aggravating factors. The robbery was committed in broad daylight at the doorsteps of the bank at a time and location where many people would be expected to be present. There was a high risk of injury to innocent bystanders. The Court did not disturb the ten years sentence.

The present case involved an armed robbery of a family in their house, right next to the store which they managed and worked in. I accept Mr Popeu’s submission that it was not only a store robbery. It was also a home invasion by a gang armed with firearms and other weapons. It falls into the most serious of the Gimble categories. Applying the plus-three denominator sanctioned by Hale, Anis and Kassman, the starting point for the present case is ten years.

Relevant considerations

The things I consider should be taken into account when determining whether to increase or decrease the head sentence or leave it at the starting point are:

1. Did the offender and other members of his gang not commit actual violence during the course of the robbery?
   
2. Did the offender and other members of his gang not threaten the victims of the robbery with violence?
   
3. Did the offender and other members of his gang not put the victims or innocent bystanders in real danger of being injured or killed?
   
4. Did the offender and other members of his gang ensure that especially vulnerable victims such as children, women or older people were not threatened or treated badly?
   
5. Did the offender and other members of his gang steal money or property of a relatively small value?
   
6. Did the offender play a relatively minor role in the robbery?
   
7. Did the offender give himself up after the robbery?
   
8. Did the offender cooperate with the police in their investigations?
   
9. Has the offender done anything tangible towards repairing his wrong, eg offering compensation to the victims, repaying what he has stolen, personally or publicly apologising for what he did?
   
10. Has the offender pleaded guilty?
    
11. Has the offender genuinely expressed remorse?
    
12. Is this his first offence?
    
13. Can the offender be regarded as a youthful offender or are his personal circumstances such that they should mitigate the sentence?
    
14. Are there any other circumstances of the robbery or the offender that warrant mitigation of the head sentence?
    

Rationale

The above considerations have been framed so that an affirmative (yes) answer to any one can be regarded as a mitigating factor, a negative (no) answer will be an aggravating factor and a neutral answer will be a neutral factor. The more mitigating factors that are present, the more likely it is that the head sentence will be reduced. The more aggravating factors present, the more likely it is that the head sentence will be lifted above the starting point. However, sentencing is not an exact science. It is a discretionary process. When a factor is marked as mitigating or aggravating it does not mean necessarily that it is given the same weight as another mitigating or aggravating factor. Some mitigating factors may be ‘strongly mitigating’. Others may be ‘mildly mitigating’. The same goes for aggravating factors.

Another thing to note is that there are, in general, three sorts of considerations listed.

Numbers 1 to 6 focus on the circumstances of the robbery. All armed robberies are bad and their effect on the victims can be traumatic, devastating and long-lasting. But the gravity and the circumstances of each robbery are different. Some are worse than others. These considerations are intended to capture the circumstances of the incident.

Numbers 7 to 11 focus on what the offender has done since the robbery and how he has conducted himself.

Numbers 12 to 14 look at the personal circumstances of the offender and give an opportunity to take into account any other factors not previously considered.

Application of considerations

I apply the above considerations as follows:

1. No there was actual violence committed during the course of the robbery. A security guard was cut.
   
2. No there were threats of violence.
   
3. No the gang had a firearm and other weapons, so there was a real danger that someone would be killed or injured.
   
4. No no attempt was made to guard vulnerable victims against the trauma created by the gang’s actions. This was a robbery of a family home, with a mother and children present.
   
5. No the amount of money and properties stolen was not small. It was close to K20,000.00.
   
6. Yes the prisoner played a minor role. He was a victim of circumstance in some respects. He just tagged along for a ride in a boat, thinking that he was going fishing, not realising that he was part of a gang heading to commit an armed robbery. He stayed outside the store most of the time. He was not armed. He did not threaten or hurt anyone. He just helped himself to items when most of the damage was done. Apart from the bag and six shirts, he only got K20.00 cash from the robbery, which netted almost K20,000.00.
   
7. Yes the prisoner did give himself up to the police.
   
8. Yes he did co-operate with the police throughout their investigations. In fact he has identified the main protagonist, the ringleader of the robbery, and a number of others.
   
9. No there is no evidence that the prisoner has done anything tangible towards repairing his wrongs. No compensation has been offered to the victims. He has not returned the shirts that he stole or their monetary equivalent.
   
10. Yes he pleaded guilty, thus saving the State the trouble and expense of mounting a trial and relieving the victims of the inconvenience and trauma associated with coming to court to give evidence.
    
11. Yes he has shown genuine remorse, through his allocutus.
    
12. No this is not his first offence. He has a previous conviction for conveying dangerous drugs, but in his favour there is no suggestion that that was a violent crime.
    
13. No he is not a youthful offender. He is a young man who gave the appearance when he spoke of being intelligent and bright.
    
14. Yes there are other aspects of the robbery and its aftermath that warrant mitigating the head sentence. It seems that this prisoner has become the fall guy for the greater misdeeds of others. He played only a ‘bit part’ in a major armed robbery and he is about to be sentenced at a time when the main protagonists are not even in court.
    

Conclusion

I regard consideration Nos 1 to 5 as serious aggravating factors. The gang was large, firearms were involved, the disruption to the peace of a family and a business were serious and traumatic, someone could easily have been killed. It is a serious armed robbery case and in the absence of mitigating factors, the head sentence I consider would have been at least 12 years imprisonment.

There are some weighty mitigating factors: those numbered 6, 7, 8, 10, 11 and 14. He was a minor player, he has admitted that he did the wrong thing and has shown genuine remorse, while the other members of his gang have not been dealt with. The other considerations I have not specifically mentioned are those that I think are not significantly aggravating (Nos 9, 12, 13).

Taking all the above considerations into account and comparing this case with the sentences in Hale, Anis and Kassman, the head sentence in this case should be three years.

STEP 2 - SHOULD ALL OR PART OF THE HEAD SENTENCE BE SUSPENDED?

Request

This is a case where it was appropriate to consider suspending part of the sentence, given the age of the prisoner and the acceptance of his minor and limited role in the robbery.

To help me in making a decision on this issue I requested and received a pre-sentence report under Section 13(2) of the Probation Act in relation to the prisoner. The report was prepared by the Kimbe office of the Community Correction and Rehabilitation Service.

Report

According to the report Aaron Lahu resides at Gigo settlement, Kimbe. He lives with his mother in a semi-permanent house owned by his uncle. He has no intention of changing his place of residence. He is single, with no dependants. He was educated to grade 10 at Kimbe Secondary School. He was selected to do grade 11 but dropped out of school due to a fee shortage. He wants to continue with his education at the university centre in Kimbe, when he is released. He has no employment history. He has no money to pay a fine or compensation. His health is excellent. He is a member of the Catholic Church and attends church once in a while.

The report concluded that he is a suitable candidate for probation supervision. The assessment given of the prisoner is encouraging. It gives the impression that he is a young man, willing to work on his problems and become a good citizen.

Assessment of report

However, even accepting the report at face value, I do not consider it to be sufficiently detailed to warrant, at this stage, suspending the sentence. No firm conditions are recommended and there is no guarantee that if the prisoner were released into the community he would have the support of the community.

The court must also be mindful of the fact that the prisoner was involved, albeit in a limited way, in a serious armed robbery.

Qualified sentence

I will nonetheless qualify the prison sentence by ordering that it can be suspended after the prisoner has served a minimum term of imprisonment if before the expiration of the term prescribed the National Court approves a post-release parole period with strict conditions attached.

The conditions that I envisage would be suitable are, for example, that the prisoner do some strictly controlled community work; that he submit to regular counselling with an officially recognised and reputable local church or other place of religious worship; that his movements be restricted; that he refrain from consuming drugs; that he be of impeccable behaviour. The issue of compensation could also be addressed. Proof of genuine steps towards peace and reconciliation between the prisoner and the victims of his crime would be viewed favourably.

SENTENCE

The Court makes the following order:

1. Aaron Lahu, having been convicted of the crime of armed robbery, is sentenced to 3 years imprisonment in hard labour, 1 year of which must be served and the balance of 2 years of which may be suspended by order of the National Court if and when an application for suspension is granted.
   

2 For the avoidance of doubt:

(a) the suspension of the above sentence will only come into effect if and when ordered by the National Court; and

(b) there shall be deducted from the term of imprisonment the period in custody that the prisoner has already spent in relation to this offence.

Sentenced accordingly.
_____________________________________________________

Lawyers for the State : Public Prosecutor
Lawyers for the accused : Public Solicitor