State v Anish [2005] PGNC 49; N2887 (21 July 2005)

N2887

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE IN MADANG]

CR 1252 OF 2004

THE STATE

-V-

KEVIN ANISH
&
BANIK KAIMAN

MADANG : SAWONG, J
2005 : 11TH & 21st JULY

CASES CITED:
Gimble v The State [1988-89] PNGLR 271,
Public Prosecutor v Don Hale (1998) SC564,
Tau Jim Anis v The State (2000) SC564
The State v Timothy Thomas Moriloma (2003) N2395
The State v Gore Yogol (2001) N2080,
The State v Kennedy Arus (2001) N2081
The State v Frank Suwari (2001) N2073
The State v Danny Pakai (2001) N2174

COUNSEL:
J. WALA, for the State
D. JOSEPH, for the Accused

DECISION

21st July, 2005

SAWONG, J: The two accused pleaded guilty to a charge of aggravated robbery, an offence contrary to s.386 (1), (2), (a), (b) of the Criminal Code Act as amended to date.

The facts for the purposes of sentencing you are as follows. Prior to the night of incident, the evidence shows that the two of you together with five (5) other men, planned to break into and rob the NAA Limited shop at Kinim Government Station on Karkar Island. And so, on the night of the incident you and your accomplices executed the plan. At that time, you and your accomplices were armed with several home-made guns and other dangerous weapons such as bush knives and grass knives and went to the said shop. There using the said weapons, you held up the security guards. You and your accomplices tied up the security guards and locked them up in the nearby generator building. Thereafter, you and your friends then broke into the shop and stole cash and properties valued over K19,000.00.

The Prisoners

Kevin Anish – is 33 years old and unemployed. He has two wives and four (4) children. I note his other personal antecedent are set out in the antecedent report. He is not a first offender for he has a prior conviction for having in possession and unlicensed firearm. He was convicted by the District Court in 2003 and imprisoned for six (6) months. Whilst the prior conviction is not related or similar to the common robbery nevertheless I cannot ignore the fact that you have prior conviction.

I have also taken note of and considered the matters you had raised in your allocutus.

Banik Kaiman – is also aged about 33 years old. He too is married with four (4) children. I also have noted his other personal antecedents as set out in the antecedent report. I have also taken into consideration the matters you have raised in your allocutus.

Mr Joseph had filed written submissions on behalf of the two (2) accused and I have read and considered his submissions. In his submissions he has referred me to the Supreme Court decision in Gimble v The State [1988-89] PNGLR 271, Public Prosecutor v Don Hale (1998) SC564, Tau Jim Anis v The State (2000) SC 564, The State v Timothy Thomas Moriloma (2003) N2395, The State v Gore Yogol (2001) N2080, The State v Kennedy Arus (2001) N2081, The State v Frank Suwari (2001) N2073 and The State v Danny Pakai (2001) N2174.

He submitted in essence that in the light of the sentences imposed in those cases and the presence of mitigating factors, the courts should impose a part suspended sentence. Mr Wala submitted that the accused should be sentenced to eight (8) years imprisonment and no part of it be suspended.

The maximum possible sentence is, subject to s.19, life imprisonment. Of course it is trite law that the maximum sentence should be reserved for the worse type of a particular type of crime. That is why the courts have over the years imposed severe sentences on those who commit aggravated robbery.

Sentencing guidelines for aggravated robberies were set out in Gimble v The State. Subsequently, the Supreme Court in Acting Prosecutor v Don Hale (supra) suggested the starting point of ten (10) years imprisonment for aggravated robbery of victims in their homes at night. In Tau Jim Anis v The State, the Supreme Court reduced the sentence of ten (10) years imprisonment on the prisoner and others who had robbed a factory.

Aggravated robbery is a serious prevalent crime of violence and as such, in my view it calls for an immediate and punitive custodial sentence unless there are exceptional circumstances.

In the present case this was a robbery of a store which is a third category of robbery cases as set out in Gimble’s case. As shown by the case that I have cited, the tariff for robbery of a store, a factory and the like, attracts sentences between six (6) to ten (10) years imprisonment.

In the present case I accept in your favours that you are first offenders. Secondly, you have both pleaded guilty. I note in that respect that when you were arrested you readily confessed and made admissions of your involvement. Coupled with that is your expressions of remorse. And so, in those circumstances I consider your plea of guilty to be genuine ones.

You have expressed some concern about the welfare of your families. Unfortunately, families suffer because of the criminal conduct of their fathers and husbands and so you are not alone in that respect.

Given the facts and circumstances of your case and taking into account the mitigating as well as aggravating factors, I consider a sentence of eight (8) years imprisonment would be appropriate. From that I deduct the remand period of one (1) year and one (1) month, leaving a balance of six (6) years and eleven (11) months to serve.

____________________________________________________________________
LAWYERS FOR THE STATE : PUBLIC PROSECUTOR
LAWYERS FOR THE ACCUSEDS : PARAKA LAWYERS