State v Vanua [2006] PGNC 11; CR 783 of 2005 (22 May 2006)

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]

CR NO.783 of 2005

THE STATE

v

VERE VANUA
DENIS KODESI
CHARLIE JERICHO &
SADRACH LAKATANI

Alotau: Jalina J
2006: 11 & 22 May

CRIMINAL LAW- robbery -sentence- robbery of person on a street and in company – actual physical violence employed to effect robbery- plea of guilty- young first offenders- expressed remorse- prevalence of crime of robbery – suspended sentence on probation considered appropriate-Criminal Code Act, s.386 (1 ) & (2)(a), (b) &(c) .

Cases Cited:
Gimble v The State [1988-89] PNGLR 271
Public Prosecutor v Don Hale (1998) SC564
Tau Jim Anis v The State (2000) SC642
The State v Peter Simon (Unreported, 22 May, 2006, Jalina J- Alotau)

Counsel:
Mr. A. Kupmain, for the State
Mr. J. Mesa, for the Offenders

22 May, 2006

1 JALINA J. You have each pleaded guilty to a charge of robbery whilst in company of each other and with actual physical violence against the victim contrary to s. 386 (1) & (2) (b) & (c) of the Criminal Code Act.

2. A summary of the allegations by the State were that at about 6 pm on 13 January, 2005 after drinking at Ganaibeu Village here in Alotau, you were all walking down the main road when the victim, one Emmanuel Miguel, drove up to your village to leave his friend. As he was driving back, you blocked the road causing him to stop. You then asked him to give you K50.00. When he took out his wallet to give you the K50.00 one of you grabbed him by the shirt, hit him, and ordered him to give his wallet which he did. You all then took the wallet and ran away into the bush. The wallet contained K360.00 in cash, two bank cards and a driver's license. Those items belonged to the victim; Emmanuel Miguel.

3. May I also mention here that; except for the bank cards and the driver's license which were recovered from you and handed over to the victim after intervention by police and your village leaders, the K360.00 in cash is yet to be recovered.

4. The maximum penalty for robbery with actual violence and in company is life imprisonment pursuant to s. 386 (1) & (2) (b) & (c) of the Code; subject to the discretionary power of the Court under s.19 (Of the Code].

5. The Supreme Court has however; set sentencing guidelines for this crime through the oft cited case of Gimble v The State [1988-89] PNGLR 271. The court in that case 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:

1. robbery of a house – seven years;
   
2. robbery of a bank – six years;
   
3. robbery of a store, hotel, club, vehicle, on the road etc – five years;
   
4. robbery of a person on the street – three years.
   
5. on a guilty plea, sentence lower than those suggested above.
   
6. Where aggravating factors are present, such as actual violence, the amount stolen being large, or the robber is in a position of trust towards the victim, a sentence higher than that proposed can be imposed.
   

6. For the benefit of those who may have access to this judgment, let me repeat what I said earlier today in The State v Peter Simon that there have been differing views and practices by judges when dealing with sentences for robbery. Those cases are too numerous to list here. The divergence of opinion is understandable because each judge or court makes independent assessment of the evidence and the facts and circumstances surrounding each case and then arrives at a decision. As demonstrated in the Peter Simon case, different co-accuseds were dealt with by two different judges and different sentences were imposed here in Alotau. The case of The State v Dickson Sandy was heard by Kapi DCJ (as he then was) in December, 2001 and his co- accuseds to the robbery, namely Steven Sebuloni Talawani and Tuksy Kuku appeared before Los J in 2002. His Honour Kapi DCJ imposed 20 years on Dickson Sandy who pleaded guilty while Los J imposed 10 years on Steven Sebuloni Talawani on conviction following a trial. Tuksy Kuku was given 7 years on a plea of guilty to robbery. These sentences have been confirmed by the respective warrants of commitment from Gili Gili Correctional Service. The respective judgments are not immediately available for me to ascertain the reasons for their Honour's decisions, but they demonstrate the divergence of opinion on sentencing for robbery alone.

7. As I said also in Peter Simon's case, even the Supreme Court has had differing views on the application of Gimble's case. In Public Prosecutor v Don Hale (1998) SC564, the three-member bench in that Court when dealing with an appeal by the Public Prosecutor against inadequacy of sentence of less than seven years for robbery of a dwelling house and increasing that sentence to ten years, said that in view of the prevalence of violent crimes involving the use of guns, the ranges of sentences recommended in Gimble's case were having no effect and were no longer relevant. It went on to say that Gimble's case was out of date and crimes of violence have increased and the community was calling for heavier punishments as deterrence; hence its view that the starting point for robbery of a dwelling house should be ten years.

8. Another three-member bench of which I was a member, said subsequently in Tau Jim Anis v The State (2000) SC642, that the principles in Gimble's case were evolved over many years and were still good law. It should be noted however; that the Court in Tau Jim Anis distinguished Don Hale on the basis that it was concerned with robbery of a dwelling house but did not expressly disagree with the view that violent crimes involving use of fire arms and other dangerous weapons were prevalent and higher sentences needed to be imposed as deterrence. That is the view I have of Don Hale and Tau Jim Anis, with respect.

9. This being a robbery of a person in a vehicle on a street would fall under Category 4 of the Gimble guidelines which would attract a sentence of 5 years as modified by prevalence of the offence of robbery and application of physical violence to the victim. That to my mind would increase your possible sentence to a period of between 5 and 10 years.

10. In determining the sentence I should impose, I have taken into account your respective statements on the allocutus and the submissions by your lawyer and the lawyer for the prosecution. In doing so, I note that the victim has been fortunate in that he did not suffer any major physical harm apart from being shaken. The other fortunate thing is that you co- operated and returned to the victim upon intervention by police and your village leaders, things that no doubt were very precious to the victim, They were his bank cards and his driver's license. Another factor in your favour is your admission to police and to this Court of your involvement in this crime. Your involvement appears to me to be without any pre- planning. It appears more to have been a spur- of- the- moment decision to rob the victim, your ability to make a rational judgment as to what you were really getting yourselves into having been affected by alcohol. Consumption of alcohol does not absolve one of from criminal responsibility but it can be considered as a mitigating factor.

11. In all the circumstances of this case therefore, the sentence I consider appropriate as a deterrent to each of you and to any young person to yourselves who may contemplate doing something similar in future, is a period of 8 years imprisonment in hard labour which I so impose on each of you. I deduct from that sentence the 1 year, 4 months and 10 days that Vere Vanua, Denis Kodesi and Charlie Jericho have been in custody awaiting trial which leaves 6 years 7 months and 11 days to serve. Sadrach Lakatani has spent 2 months and 2 weeks in custody prior to being released on bail so I deduct that period. That leaves 7 years 9 months and 2 weeks for him to serve.

12. Upon request from your lawyer in view of your young age, I ordered a Pre- sentence Report to be prepared which Mrs. Jonathan and her colleagues in the Office of Community Corrections here in Alotau have kindly done and made recommendations in favour of release on probation.

13. Without the need for me to analyse and comment on each report in detail, suffice it to say that each report reveals regret and embarrassment from your community and church leaders as well as your families. They were surprised at hearing of what you had done and blamed it more on you having consumed alcohol than you having done that intentionally appreciating all the consequences that would ensue from your actions. They have pleaded for release on probation as any further period of incarceration may result in you mixing with hardcore criminals in jail and come out knowing more about the art of committing crimes than when you went in.

14. I have considered the reports and I accept the recommendation. I would rather have you reformed and become law abiding citizens through probation supervision than have you converted into persons coached into the art of committing serious crimes through incarceration. I accordingly suspend the balance of your respective sentences and release each of you on probation for that period on the following conditions:

1. You shall each pay K90.00 to Emmanuel Miguel no later than 22 September, 2006.

2. You shall perform community work on Tuesday and Friday each week ( except public holidays) between 8 am and 4 pm supervised by the Officer in Charge (or his delegate) of the Parks and Gardens Section of the Alotau Urban Local Level Government.

3. You shall attend and participate in all activities of your church (including church services) supervised by the Pastor or Minister as the case may be.

4. You shall ensure that at the end of every second month your Supervisor and the Pastor or Minister separately submit to the Probation office in Alotau, a report showing whether you are complying with the respective conditions they have to supervise you to carry out.

5. You shall not consume alcohol or any dangerous drugs for the duration of your probation.

6. You shall not accompany or associate with known criminals.

7. You shall not leave your parents residence between 6pm and 6am the next day.

15. You must each ensure that you comply with each condition. If you fail to comply with one of them you can be brought before this Court to have a warrant of commitment issued for you to serve in prison the period that has been suspended. So whether one or some of you end up in jail is a matter for each one of you. You are now the master of your own destiny.
_________________________________________________________________
Public Prosecutor: Lawyer for the State
Public Solicitor: Lawyer for the Offenders