State v Loavi [2006] PGNC 104; N3384 (24 October 2006)

N3384

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR NO. 865 of 2005

THE STATE

-V-

PATRICK PUPPY KAIKARA LOAVI

Kerema: Kandakasi, J.
2006: 6 and 24 October

DECISION ON SENTENCE

CRIMINAL LAW – SENTENCE – Armed robbery of store – Use of firearm - Threat of force and violence – Stealing cash register with K39.00 – Most of the cash and goods stolen recovered - Guilty plea – No prior conviction - Sentence of 10 years imposed - Criminal Code Sections 386(1) (2) and 19.

Cases cited:
The State v. Sabarina Yakal [1988-89] PNGLR 129.
Dori Inaria v. The State (10/07/02) SC688.
The State v. James Gurave Guba (12/99) N2020.
The State v Jimmy Banes Ere (24/7/02) N2254.
The State v. Tomkuk Herman Itagau CR 1522 of 2005, decision delivered on 20th October 2006.
Gimble v. The State [1988-89] PNGLR 27
Public Prosecutor v. Don Hale (27/08/98) SC564.
Tau Jim Anis v The State (25/05/00) SC642
Dadly Henry Gorop v. The State (03/10/03) SC732.
The State v. Vincent Malara (20/02/02) N2188.
The State v. Edward Toude, & Ors (No 2), (18/10/01) N2299.
Nelson Ngasele v. The State (03/10/03) SC731.
The State v. Paul Maima Yogol and Dama Teiye (21/05/04) N2583.
The State v. Warip Mondol & Ors. (19/08/04) N2707.
The State v Gilbert Monai (09/06/04) N2617.
Bosco Bedy v. The State SCR 45 of 2004, delivered on 30th August 2006.
In The State v. Donald Angavia, Paulus Moi and Clement Samoka (No 2) (29/04/04) N2590.
The State v. James Yali (19/01/06) N2989.
The State v. Terence Ago (20/05/04) N2673.
The State v. James Gatana & 3 Ors (19/04/01) N2127.
The State v. Raphael Kimba Aki (No.2) (28/03/01) N2082.
The State v. Danny Makao (25 or 27/10/05) N2996.
The State v. Kennedy Arus (16/03/01) N2081.

Counsels:
Mr. D. Mark, for the State.
Mr. P. Kapi, for the Prisoner.

24 October, 2006

1. KANDAKASI J: On Wednesday the 11th of this instant, the State presented you and you pleaded guilty to a charge of aggravated armed robbery contrary to Section 386 (1) and (2) of the Criminal Code.

The Facts

2. The relevant facts as put to you in your arraignment as well as the evidence from the depositions which this Court is entitled to take into account[1] are these. The State alleged and you admitted that on 1 April 2005, here in Kerema town, you went armed with a home made pistol to the Kerema Traders Store. With the aid of the home made pistol, you jumped over the serving counter where two ladies were serving customers. You forced the ladies out of their cash registers using the home made gun. As soon as they were out of the way, you helped yourself to one of the cash register’s trays with K39.00 in it. You jumped out of the serving counter with the cash register tray with the money in it.

3. Police who are stationed almost next to the store learned of your robbery and came to you and asked you to surrender but you tried to run away. This caused them to fire warning shots into the air. That did not stop you and you continued to run away and the police gave chase. Whilst continuing to run, you took aim with your home made pistol and tried to shot at the police. Police responded by shooting you on one of your legs. You then fell onto an old tank and dropped the cash register tray that you stole as well as the pistol and a live A2 bullet. The cash register with K17.00 in it was recovered to the owner, while the police confiscated the home made pistol and the live bullet. Meanwhile, you continued to run away very quickly. Around 9:00am the next day, being 2 April 2005, you surrendered to police.

4. Eventually, the police charged you with armed robbery. You admitted to committing the offence in your record of interview. Later when police had you brought to the Kerema District Court for your committal hearing, you admitted to committing the offence. Accordingly, you were committed for sentencing by the National Court. You maintained your admission, when the State presented the indictment against you.

Allocutus and Submissions

4. In your address on sentence, you said sorry for what you have done. You attributed the commission of the offence to an unspecified family problem. Since your arrest on 2 April 2005, you said you have been in custody for 1 year and 6 months. Accordingly, you asked for a court fine. In advancing that plea, you pointed out that your father is dead and you have a sister who is paralysed. Further, you pointed out that your mother is old and is alive. Finally, you said you did not steal much and you can repay what you stole.

5. Your lawyer added by informing the Court that you are 31 years old and the third born of your family of 4 brothers and 4 sisters. You have reached up to grade 7 education. A glass and aluminium company employed you in Port Moresby previously but now you are not employed in the formal sector. By way of religion, your lawyer informed the Court that, you follow the United Church teachings. Finally, he urged the Court to note the fact that you have been in custody since 2 April, 2005.

6. After outlining your personal background in terms of the above, your lawyer then referred the Court to a number of armed robbery cases in which the prisoners pleaded guilty and the Court imposed sentences ranging from 9 years to mostly 12 years and one case up to 17 and another up to 20 years. Then whilst noting that Parliament has prescribed life imprisonment as the maximum penalty for armed robbery, the courts have being imposing the kinds of sentences imposed in the cases your lawyer has referred the Court to in the exercise of their discretion under s. 19 of the Criminal Code.

7. In making those submissions, your lawyer did acknowledge that you committed a very serious and prevalent offence, even though the amount of money involved is negligible. He acknowledged too that, the offence you committed was aggravated because you armed yourself and committed the offence with the use of a home made pistol.

8. Your lawyer also urged the Court to note at the same time number of factors in your mitigation. They are your guilty plea to a serious crime, the fact that you acted alone, your expression of remorse, and your family concerns that cause you to commit the offence. Your lawyer concluded with submissions for a sentence of 10 years having regard to the current sentencing trends and tariffs. The State endorsed these submissions having regard to the factors in your mitigation.

9. Simply because there is agreement between your lawyer and that of the State as to the kind of sentence you should receive, it does not mean that the Court should impose the sentence argued for. Instead, the Court is duty bound to consider the evidence before it, the submissions of the parties and the relevant sentencing trend and tariffs and then arrive at a decision on your sentence. I will first turn to a consideration of the offence and its sentencing guides, trends and tariffs, then the submissions in the light of the relevant sentencing guidelines, trends, tariffs and finally, arrive at an appropriate sentence for you.

The Offence and Sentencing Trend

10. In the decision, I just handed down in the matter of The State v. Tomkuk Herman Itagau,[2] I discussed the relevant sentencing guidelines, trends and tariffs in armed robbery cases. In summary, Parliament under s. 386 prescribed the maximum penalty of aggravated robbery such as the one you committed. However, the courts in the exercise of the discretion vested in them under s. 19 of the Criminal Code, have imposed sentences much lower than that and have come up with guidelines for sentencing. The often cited authority on point is the Supreme Court decision in Gimble v. The State,[3] which set the relevant sentencing guidelines. That decision suggested four categories of robbery, depending on where it is committed. Top on the list is robbery of a dwelling house, followed by robbery of a bank in the second place, store, hotel club, then robbery of a vehicle on a road, in third place and robbery on a street in the final place, with suggested sentences of, 7, 6, 5 and 3 years respectively.

11. Influenced by a number of National Court decisions, which were in turn influenced by an increased and prevalence of the offence of armed robbery, subsequent decision of the Supreme Court increased the suggested sentences for each of the categories. That started with the decision of Supreme Court in Public Prosecutor v. Don Hale[4] and followed by the one in Tau Jim Anis v The State.[5] That saw an increase in the suggested sentences by a factor of 3 years. Hence, robbery of a dwelling house increased to 10 years at the highest and 6 years for robbery on a street.

12. The increase in the sentences did not deter the commission of mostly aggravated robberies. Once again the National Court started to impose sentences beyond those suggested by the decisions of the Supreme Court in Don Hale and Tau Jim Anis cases. The Supreme Court in its recent decision in Dadly Henry Gorop v. The State[6] endorsed the National Court’s approached and held that a sentence of 20 years imposed by the National Court was not excessive for robbery on a street. However, the Supreme Court reduced the sentence to avoid a feeling of injustice when considering that, the National Court had up to that time, imposed sentences up to a maximum of 20 years after a trial. In so doing the Supreme Court referred to my decisions in The State v. Vincent Malara[7] and The State v. Edward Toude, & Ors (No 2).[8]

13. In the Vincent Malara case, I imposed a sentence of 15 years. That was on a guilty plea to armed gang robbery of a store using firearms, crow bars and such other weapons and tools to commit the offence. The prisoner had a prior conviction. The amount of money and property stolen were substantial and not recovered. The gang caused injuries to security guards employed to guard the property.

14. In Edward Toude, & Ors (No 2), I imposed varying sentences to a gang of armed men who conducted a robbery out of a boat. I convicted the prisoners after a trial. In addition to being armed, the main offenders acted in breach of trust placed in them as employees by their employers. There were substantial amounts of money stolen. I likened the robbery on the boat to a robbery of a dwelling house because boats serve at times as houses for sailors and other sea going people.

15. In the Dadly Henry Gorop case, the prisoner attacked alone. He used a hockey stick to attack the victims, a Canadian couple who were touring Rabaul. The prisoner knocked them both down unconscious. The couple sustained multiple injuries, including fractures of some of their bones particularly in the head and facial area affecting the sight for one of the victims and the brain of the other. The male victim sustained a severe head injury, which would have proven fatal had it not been for the timely medical intervention. They both recovered from their injuries but require ongoing rehabilitation particularly for the male victim. Doctors were not able to rule out long-term residual disabilities.

16. On the same day of handing down its decision in the Dadly Henry Gorop case, the Supreme Court handed down its decision in Nelson Ngasele v. The State.[9] There, the appellant was part of an armed gang, which conducted two robberies in the night. Actual violence with damages and injury to persons and property were occasioned to secure the robbery. Cash and goods of substantial value were stolen of which, only a part was recovered. One of the robberies included the waking up of the victim who was sleeping in his house to open his canteen for the robbers to steal from it. The appellant was a first time offender and pleaded guilty to one charge of armed robbery. The National Court imposed a 5 year sentence against him. He appealed against his sentence claiming amongst others that, the sentence was excessive. The Supreme Court held that the sentence of 5 years was well below the tariff or range of sentences in similar cases. The Court further held that if the Public Prosecutor cross–appealed the sentence, it would have increased the sentence to one over 10 years.

17. Since the above Supreme Court decisions, the National Court has been imposing sentences beyond the 10 years mark. The Court’s decisions in The State v. Paul Maima Yogol and Dama Teiye,[10] The State v. Warip Mondol & Ors.,[11] and The State v Gilbert Monai,[12] are examples of that. In the first case, I imposed a sentence of 12 years on guilty plea. The prisoners, both first time offenders were part of an armed gang that held up a motor vehicle and stole from its driver and others cash and goods valued at about K1, 300.00. In the second case, the National Court per Lenalia J., imposed on a guilty plea a sentence of 12 years for armed gang robbery on a street. That was for robbery of a vehicle on a highway, with the use of bush knives with actual violence where a victim was cut by a bush knife. In the final case, the National Court, per Sevua J., imposed a sentence of 12 years and 15 years respectively for two separate counts of armed gang robberies with serious aggravating factors, which included the unlawful detention of the victims of the first of the two counts and physical injury to the victims of the second count.

18. More recently, the Supreme Court in Bosco Bedy v. The State,[13] endorsed the sentiments expressed by the Supreme Court in Dadly Henry Gorop. Then in the case before it, the Supreme Court expressed the view that a sentence of 8 years for aggravated gang armed robbery was lenient and fell well below the current tariffs. In that case, the appellant was part of an armed gang which conducted a robbery with threats and actual violence at a dwelling house. The items stolen included a generator set, a chain saw frame, a TV screen, 3 radios, a bag of clothes, K400.00 cash and other personal effects, all valued at K11, 429.05. The Supreme Court held that the starting sentence should have been 10 years following its earlier decision in Don Hale’s case. The Court said:

"If the appellant was appealing against the excessiveness of that term, it will be necessary to increase the sentence by virtue of the powers of the Supreme Court in s. 23 (4) of the Supreme Court Act. However, as the appeal is not against sentence, but on the disparity of sentences, we cannot disturb the sentence imposed by the National Court."

19. Most of the offenders in the above cases were youths and were first time offenders. None of these cases discussed the possible effect of the way in which Parliament has prescribed the penalties for armed robberies s. 386. My decision in The State v. Donald Angavia, Paulus Moi and Clement Samoka (No 2),[14] and other cases, I considered the provisions of s. 347 of the Criminal Code which deals with rape. That provision is in similar terms and arrangement as s. 386. There, I said the division between the two categories of the offence of rape and the respective sentences prescribed means that an aggravated rape should attract sentences beyond the maximum prescribed sentence for rape simpliciter. In other words, a sentence for aggravated rape should be beyond the prescribe maximum for a simple rape.

20. Cannings J referred to the above views and decided not to express any views in the case of The State v. James Yali.[15] I invited your lawyer to make submission as to whether I should arrive at a different and conflicting view in relation to the provisions of s. 386. Counsel was however of the view that the views I have expressed in Donald Angavia & Ors (No 2) were in order and that he was not able to argue for a different interpretation and meaning to be given to the provisions of s.386. Nevertheless, your lawyer argued that this Court still has discretion under s. 19 of the Code.

21. I continue to subscribe to the view as I just did in Tomkuk Herman Itagau’s case that, once there is a case of aggravated robbery, sentences should be considered in the range of 15 years to life imprisonment, unless very good mitigating factors exist and they warrant a sentence below that range. Such cases would be an exception rather than a norm, given the prevalence of the offence and the almost ready use of dangerous weapons like guns and bush knifes in the commission of these kinds of serious offences. I add that Parliament has the power to legislate. The courts have the power to only interpret and apply the law as it is. In my view, Parliament clearly indicated that aggravated robberies should be treated differently and should attract sentences up to life imprisonment in worst cases, from simple robbery cases which attract sentence up to 15 years. Hence, the courts would be entering into the province of Parliament if they started to consider sentence below 15 years as has been done for aggravated robberies.

Your Sentence

22. Bearing the above in mind, I now need to decide, what is an appropriate sentence for you? In order to determine that issue, I note and take into account your family background as you outlined and elaborated on by your lawyer in his submission. In addition, I need to take into account both the factors for and against you. I do that by first considering the factors in your favour. First, I take into account the fact that you pleaded guilty to a serious offence which carries a maximum penalty of life imprisonment. That saved the State the time and money it could have spent to successfully have you tried and convicted. It also saved the Court the time it could have spent in conducting a trial on the issue of your guilt or innocence.

23. Secondly, this is your first ever offence. This means you have not been in trouble with the law before. Usually, first time young offenders are treated more leniently. This is because of the belief that, imposing a more sever sentence against a first time young offender may turn him into a worse offender whilst in prison. It is also because of the well accepted fact that most growing young people do not have the maturity to clearly differentiate and appreciate the effects of getting involved with criminal activities. So once they are caught, opportunity must be given to them to appreciate their mistakes and rehabilitate. In your case, you are a mature man. So you are not in the same position as young offender, say 18 to 20 years old man. You were therefore in a better position to appreciate that, what you set out to do was wrong. Thus, I will take into account only the aspect of you being a first time offender but with the proviso that you were in a position to appreciate that, what you set out to do was wrong and proceeded to commit the offence regardless.

24. Thirdly, I take into account the fact that, consistent with your cooperation with the police and eventually this Court, you have expressed your remorse. Nevertheless, there is no evidence that you communicated that position to the victims of your offence and they have accepted it. Similarly, there is no evidence of say you paying compensation or returning the cash you stole from the victims. As I have said in a number of other cases already, an expression of remorse means nothing to an offender unless it is accompanied by say a payment of compensation or a restitution of the cash and property stolen in the case of an armed robbery.

25. Fourthly, I note and take into account the fact that the amount of money and goods you stole were negligible. In fact the cash register tray with K17.00 out of the K39.00 you stole was returned to the owner. You effectively stole only K22.00. This does not however mean that the offence you committed is negligible. Rather, it only means that your sentence must reflect that fact and attract a sentence that is lower than one imposed against an offender who steals much more cash and goods that are substantially not recovered.

26. Fifthly, I note that you did not commit the offence in the company of another person. As I said in The State v. Terence Ago:[16]

"It is clear now that acting in the company of another and more seriously a group provides more strength and encouragement. This makes the commission of an offence by a group more serious than a case in which only one person is the offender. As such, those who act in a group deserve a higher penalty."

27. Finally, I take into account your claim that family problems have caused you to commit the offence. Nevertheless, you did not elaborate on this. You did not specify what the problems were and how they caused you to commit the offence. Hence this plea of yours remains unsubstantiated. Accordingly, this cannot be of any assistance to you. I note that, you pleaded for your paralysed sister and old mother. Although you did not specifically say it, you are in fact saying to the Court that they need your support. Hence, you are effectively saying that, if this Court imposes a prolonged prison term, they will suffer. Unfortunately, you have to accept and appreciate that if they suffer, that will be the direct result of your own actions. It is not that of the Court or anybody else’s doing but yours.[17]

28. Against the above factors in your favour, I take into account the number of aggravating factors against you. First, you committed a very serious and prevalent offence. This offence is being committed almost every single day in our country. We witness one this month here in the little township of Kerema. People are constantly leaving in fear of their lives as well as fear of lost and damage to their properties. This is evidenced by high rise corrugated, wire mess or steal fences with barbed and razor wires throughout most parts of the country. They are giving an unfriendly and very ugly outlook for our cities and towns. The little township is a living testimony of that. Instead of enjoying the freedoms the Constitution grants every person in the country, your kind of people and their conduct are unnecessarily locking a vast majority of our people within their own prison camps, being their homes.

29. Thirdly, you were armed with a homemade gun. You also had a live bullet. You used the homemade pistol to threaten and force two female employees of the Kerema Trading Store to comply with your orders. It is not a pleasant thing for a person to be subjected to a dangerous weapon pointed at him or her. Fear, shock and panic take over people who are subjected to these kinds of experiences. Some continue to have nightmares. In more developed countries, the State provides counselling services to help the victims to overcome the effects of such experiences. There is no such service in PNG. The victims are thus left to deal with the aftermath and effects of such unlawful acts.

30. Fourthly, as was submitted and I accepted in the case of The State v. Kennedy Arus,[18] the presence of a homemade gun meant an illegal manufacturing of the gun and being in possession of it without a license. As far as I know, no one has been licensed to manufacture any guns and similarly no one has been licensed to carry any homemade guns. These are two different and further offences. Hence, the commission of an armed robbery using a homemade gun is a far more serious offence compared to one merely using a bush knife or a grass knife.

33. Finally, I note that you are a mature young man. Therefore you were in a better position to appreciate that what you set out to do was wrong. It had the potential to contribute negatively to our desire as a nation to develop and advance into a peace loving, care free and more enjoyable country. Despite being in a position to appreciate these possible negative impacts, you proceeded to commit the offence.

34. Carefully weigh the factors in your favour and those against you, I note that, those in your aggravation far outweigh the factors in your mitigation. This is not a simple case of armed robbery coming under s. 386 (1) but is one caught by subsection (2) committed by a mature young man. Accordingly, your sentence should be an immediate custodial sentence going beyond 15 years, having regard to the wording, and in particular, the sentencing regime that has been prescribed in s. 386. However, having regard to the sentencing trend and tariffs as discussed in the foregoing, and your counsel not having given any careful consideration to the sentencing regime under s.386, I consider a sentence of 10 years is appropriate to avoid any sense of injustice. In future, I warned that the position I have taken regarding the sentencing regime under s. 386 shall be applied. By that time the Public Solicitor’s office and other lawyers who act for offenders and offenders alike will be fully aware of the sentencing approach just suggested.

35. Of the sentence of 10 years, I deduct the period of 1 year 6 months and 14 days as of today you have spent in custody awaiting your trial and sentence. That leaves you with the balance of 8 years 5 months and 14 days to serve in hard labour, which I order that you do at the Bomana Correction Service. A warrant of commitment in those terms shall issue forthwith.

__________________________
Public Prosecutor: Lawyer for the State
Public Solicitor: Lawyers for the Prisoner

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^[1] See The State v. Sabarina Yakal [1988-89] PNGLR 129; Dori Inaria v. The State (10/07/02) SC 688; The State v. James Gurave Guba (12/99) N2020 and The State v. Jimmy Banes Ere (24/7/02) N2254.
^[2] CR 1522 of 2005, decision delivered on 20th October 2006.
^[3] [1988-89] PNGLR 27.
^[4] (27/08/98) SC564.
^[5] (25/05/00) SC642.
^[6] (03/10/03) SC732.
^[7] (20/02/02) N2188.
^[8] (18/10/01) N2299.
^[9] (03/10/03) SC731.
^[10] (21/05/04) N2583, per Kandakasi J.
^[11] (19/08/04) N2707, per Lenalia J.
^[12] (09/06/04) N2617, per Sevua J.
^[13] SCR 45 of 2004, per Sevua, Kandakasi and Gabi JJ.) delivered on 30th August 2006.
^[14] ) (29/04/04) N2590, per Kandakasi J.
^[15] (19/01/06) N2989, per Cannings J.
^[16] (20/05/04) N2673, per Kandakasi J.; See also, The State v. James Gatana & 3 Ors (19/04/01) N2127 for similar statements.
^[17] See The State v. Raphael Kimba Aki (No.2) (28/03/01) N2082; The State v. Danny Makao (25 or 27/10/05) N2996.
^[18] (16/03/01) N2081.