State v Saku (No 3) [2006] PGNC 162; N3284 (22 December 2006)

N3284

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR NO. 1771 OF 2003

THE STATE

-V-

RICHARD SAKU,
PETER KEN YAHU
& NAKIKUS KONGA (JUNIOR) (No.3)

Kokopo: Lenalia, J.
2006: 22 December

CRIMINAL LAW – Armed robbery – Sentencing principles - Sentence – Matters for consideration – Criminal Code s.386 (2) (a) & (b)

CRIMINAL LAW – Sentencing principles – Mitigating and aggravating factors – Term of years appropriate warranted – Robbery in front and door steps to company office – No respect and no fear for the law – Offence committed on public place.

Cases cited

The State v Marava Kanaio [1979] PNGLR 319
Gimble v The State [1988-89] PNGLR 271
The State v Tom Morris [1981] PNGLR 493
Paulus Pawa v The State [1981] PNGLR 498
Allan Koroka v The State & Mariano Wani Simon v The State [1988-89] PNGLR 131
Public Prosecutor v Don Hale (1998) SC564
John Arua Peter v The State (2000) SC638
McKenzie Bonny v The State (2003) SCRA 78 of 2002
Richard Sebastian v The State (SCRA 43 of 2002
The State v Anton Gilom (2006) CR.N0.142 of 2004

Counsels

L. Rangan, for State
T. Potoura, for the 1st Accused.
P. Kaluwin for 2nd & 3rd Accused.

22 December, 2006

1. LENALIA, J: The three prisoners pleaded not guilty to one count of armed robbery an offence contrary to s.386 (2) (a) (b) & (c) of the Criminal Code. A trial was jointly conducted. After the trial had been almost completed, Richard Saku (1st Accused) wanted to amend his not guilty plea into guilty so that, Mr. Potoura of counsel for that accused applied for the plea to be amended that is from the not guilty plea to that of a guilty one. No objection was raised by the State Prosecutor and the court re-arraigned accused Richard Saku.

2. He pleaded guilty to the charge. The allocutus was administered and his case was adjourned for addresses on sentence after the ruling on the verdict on all the evidence put to the court by the prosecution against accused Peter Ken Yahu and Nakikus Konga (Jr.)

3. On the 5th of this month, I handed down the decision on which I found the second and third accused guilty for the offence charged and convicted them both.

FINDING OF FACTS

4. The findings of facts on the trial before me against the two who were tried is fully stated on my decision dated 5th of this month. The State evidence against the two accused is that on 28 May 2003, at Talina AGMARK premises in Kokopo, the two accused were amongst a group of four or five men who conducted an aggravated armed robbery upon Ms. Julie Tamur and Daniel Tarutia who were AGMARK employees and stole from them with actual violence an amount of K25, 000.00 and a motor vehicle white in colour a single cabin utility Reg.N0.IAA.685. The cash sum and the vehicle stolen were the property of AGMARK Ltd.

5. Evidence tendered were a number of statements from eye witnesses. Exhibits "1" "2" and "3" and "4" to "19" on the back of the indictment are statements of other witnesses. In case of eye witnesses Ms. Julie Tamur, the driver Mr. Daniel Tarutia an AGMARK Ltd, security guard Billy Rusiat and David Taplar all gave an account of how the robbery was conducted right on the door steps to the company office.

6. In case of Julie, she was a cashier with the company and was in that vehicle with the driver Daniel returning from the Bank of South Pacific after doing a withdrawal cash-out payment for salaries of the company employees in the head office and the Rabaul branch office.

7. All other pieces of evidence confirm and corroborate each other in terms of the participation by the second and third accused. From the above evidence the following finding of facts were made on my decision on the verdict on the above date.

8. The second and third accused met up with the first accused on the beach front at Kokopo. As they saw the Agmark vehicle Reg.N0.IAA.685 being parked at the front of the old Bank of South Pacific premises, they somehow knew that, the staff from Agmark were coming to withdraw money for the staff salaries because it was the company pay-week. They then planned to rob the victim company and to execute their evil intentions. And in order for them to carry out their evil intentions, they proceeded to Talina Agmark premises and waited for the vehicle to return.

9. The gang was armed with two shotguns. The rest of the other gang members were not armed. As they drove into the car park, Julie left the vehicle with the black bag containing several small bags. Those bags contained the amount of money allegedly stolen during the hold up.

10. When Julie was walking out of the vehicle, a man pointed a gun at her. She shouted alarming the driver. As Daniel heard the shouts he came out of the car only to be surprised by another armed man pointing a factory made gun right on his forehead.

11. The gang demanded Julie to give them the money bag. Fearing for her life, she handed over the money bag to them. Two of the gang members got into the back of the vehicle while two or three demanded the driver to give them the vehicle ignitions.

12. The gang swore at the driver and he handed over the vehicle key to one of them. The gang further ordered Daniel to get onto the back of the vehicle. He quickly ran to a nearby parked vehicle and took cover in case he was shot.

13. The gang then got into the stolen vehicle and escaped. Only the company vehicle was recovered sometime later. A detailed discussion of the decision on the evidence and findings of facts can be read in my judgment dated 5 December 2006.

ALLOCUTUS

14. On allocutus the first accused read his typed statement. In it he says he is now very sorry for what he did and he has now realized that the consequences of what he did will not benefit him or the future generation. He says, his life was ruined in 1995 when his father died living his mother, his eight sisters and himself without anyone to support them.

15. He said he had kept himself from further offending when he witnessed several break outs from the Keravat Correctional Services Centre. He asked the court to be merciful to him on sentence. He requested the court to give him a good behaviour bond or a set of probation orders.

16. In case of the second accused, he also read his prepared and written statement. He said he has written his statement on the understanding that the third accused had made incriminating statement against him both in the record of interview and his confessional statement. The second accused in fact is raising the defence of alibi and he blamed his lawyer for not calling alibi evidence.
    

17. In fact the court is of the view that, if there was any alibi evidence, the defence was given ample opportunity to call them and as well the accused Peter Ken Yahu himself never gave any evidence. Right from the start, during the record of interview, in answer to each question asked by the interviewing officer, he said, he would tell the court his side of the story. Despite such assertions, the accused never gave any evidence in court.

18. The third accused said, he did not plan to commit the offence but when he came to town that morning in the bus in which he was a crew, he found a person by the name of Jerry Tano who told him that he wanted to steal some money. Having heard that, he gave him some money. It was then that this person Jerry invited the accused to drink with him.

19. They bought some alcoholic drinks and drank on the beach front. He further said after drinking, they planned to go up to Talina Agmark premises and waited for the Agmark vehicle to come.

20. When the vehicle transporting the money arrived, he said he was surprised when his friends held up the driver and a female staff. He admitted receiving a share of the proceeds amounting to K3, 000.00. He further said his family and parents want to repay the amount in full.

ADDRESSES ON SENTENCE

21. On behalf of the first accused, Mr. Potoura submitted the following antecedents:

- accused is a single man
- age about 32 years
- a member of the Seventh Day Adventist Church,
- has been employed previously by N0.1 Security Services,
- he is the fourth child in a family of eight (8) siblings,
- his father died in 1995,
- when his father died, it affected accused’s education and general up-brining,

22. On mitigations counsel submitted that, his client has been kept in custody for three (3) years and over two (2) months now. He is first offender with no previous convictions. He submitted the court should consider the fact that, his client pleaded guilty to this very serious charge. Counsel cited the case of Gimble v The State [1988-89] PNGLR 271 for the sentencing guidelines which should be considered when sentencing the accused.

23. Mr. Kaluwin of counsel for the second and third accused made a brief submission for the second accused. He raised comments about the second accused’s allegation of alibi witnesses. He submitted that in the course of receiving instructions the second accused never at all indicate if there were alibi witnesses.

24. When the court inquired with counsel if he had any intentions of abandoning and withdrawing the Public Solicitor’s services to that accused because of the suggestion by the second accused that, Mr. Kaluwin did not act in the best interest of his case, counsel submitted that it was not worth abandoning the accused on the eleventh hour. He submitted the following antecedents and mitigations on behalf of the second accused:

- he is married with 1 child,
- comes from Buyang village Lorengau, Manus Province,
- has been in custody for over 3 years,
- he is the 4th born in a family of 8 children, and
- he may have some previous convictions.

25. For the third accused, counsel submitted that, he is:

- married,
- he comes from North Coast of this Province,
- he is 28 years of age, and
- has been in custody awaiting trial for a period of three years four months, and
- that he is a youth.

26. Mr. Kaluwin submitted that, for his two clients, sentences should not be so crushing on them. He said for the accused Peter Ken Yahu, the court should consider the fact that there is no direct evidence against him. He asked the court to consider the fact that though the offence was committed with attempted violence, nobody was hurt. He submitted on behalf of the third accused that his client is willing to pay compensation to cover the full value of the amount he was given, meaning K3, 000.00.

27. For that reason the court adjourned to today (22 December 2006) for sentence. But I am now informed that there is no pre-sentence report on the file. Before the court makes an order for the repayment of the amount received by the third accused, s.3 & s.4 of the Criminal Law (Compensation) Act require that a pre-sentence report must be filed. It is almost two (2) weeks now and the pre sentence report has not been filed.

28. In reply to the defence counsels submissions, Mr. Rangan of counsel for the prosecution said, the court should consider and sentence the first accused different from the second and third accused as he chose to plead guilty. He further submitted that, for the other two accused, they knew well that they had committed a crime but they chose to run a trial wasting time and resources.

LAW

29. Section s.386 (1) (2) (a) (b) (c) of the Criminal Code creates the offence of robbery. For an armed robbery committed without aggravations, the prescribed penalty is 14 years imprisonment.

30. Where an offence is committed with aggravations as defined in Subsection (2) (a) (b) and (c) of the above proviso, an offender could be sentenced to life imprisonment. The Court has discretion to sentence a person to a term of years by applying the sentencing discretion given it by s.19 of the Code.

31. The prisoners’ case falls into Subsection (2) of the Section charged. I quote the whole Section in the following terms:

"386. The offence of robbery.

(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

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

Instrument;

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

(c) at, immediately before or immediately after, the time the robbery, wounds or uses any other personal violence to any person,he is liable subject to Section 19, to imprisonment for life."

32. By definition of Subsection (2), the crime of armed robbery is aggravated by three factors. First, the three accused were armed with two dangerous or offensive weapons namely two shotguns. The evidence shows that, two persons pointed guns at the driver Daniel Tarutia and Ms. Julie Tamur both employees of Agmark Pacific Limited.

33. The two shotguns used on this armed robbery are lethal weapons and they were both fired at the time of robbery perhaps to scare people away from disturbing the execution of the robbery. Firing of the two firearms shows elements of preparedness with all the determination to commit the crime committed. Be that as it may, nobody was hurt when the crime was executed.

34. The second aggravation is that, the three prisoners were in a group of four or more persons. There is more strength where more people in a group joined together in committing an offence. When a number of people are in company of each other, it is a show of strength and it is usually said that, where there are more than one person, there is a lot of strength to commit an offence more boldly without fear than the case where only one person was involved. This was the situation in the case of the three co-accused before this court.

35. The third aggravating factor is that before the man who grabbed the bag of money from Julie, two of you fire shots into the air. As earlier alluded to, it was lucky no one was hurt. Though no one was hurt, you threatened to shoot Ms. Tamur and Mr. Tarutia.

36. To threaten someone to obtain something from him or her which is not lawfully yours, is violation of the Constitutional rights to privacy and the protection of property as provided for under s.386 of the Criminal Code. After you had threatened Ms. Julie Tamur and the driver, you stole a large sum of money which was not discovered.

37. At least, only one of you admitted to receiving a share of K3, 000.00 which he now wants to repay to the victim company. The rest of the proceeds of the robbery were never recovered meaning the money was either spent or hidden somewhere for future use.

38. The status of the law in relation to the offence of armed robbery and the current sentencing trend is increasing and the two defence lawyers asked the court to consider the sentencing guidelines set by the Supreme Court in the case of Gimble v The State [1988-89] PNGLR.271 where the Court set out four (4) sentencing guidelines and tariffs for the offence of aggravated robbery. I will return to the guidelines set in the above case a little later but let me now discus the status of each accused case on the case before me.

39. The circumstances of the three accused in the current case is that, the first accused pleaded guilty while the second and third entered pleas of not guilty necessitating the running of a trial lasting for a few days and wasting the resources such as money and the valuable time which should have been spent on doing other cases.

40. Though Mr. Kaluwin submitted that despite the fact that his clients case proceeded by trial, it was their Constitutional rights to have a fair trial pursuant to s.37 (3) of the Constitution, the principle in the above case setting higher starting sentencing points for not guilty plea cases is clear.

41. The more time spent in any one case by trial is a waste of every body’s time and resources. In case of the third accused, he knew well that, he was one of the gang members that robbed the company staff but yet he wanted to run a trial. As well as that, the second accused was found guilty by circumstantial evidence on the principles of law stated in The State v Tom Morris [1981] PNGLR 493, Paulus Pawa v The State [1981] PNGLR 498 and Allan Koroka v The State and Mariano Wani Simon v The State [1988-89] PNGLR 131.

42. Despite being found guilty, he still maintains that he is innocent when he was given all the time to give his alibi evidence and call alibi witnesses.

43. I will reiterate what I said in my judgment dated 5th of this month, that each of the two accused who pleaded not guilty had all the right under the Constitution to remain silent on their trial and no adverse inferences would have been drawn from that fact: The State v Marava Kanaio [1979] PNGLR 319.

44. On the current sentencing trend on the law in relation to the offences of armed robbery and the current sentencing trend, the two defence counsels asked the court to consider the sentencing guidelines set by the Supreme Court in the case of Gimble v The State [1988-89] PNGLR.271.

45. In the above case it was stated that the Court set out four (4) sentencing guidelines and tariffs for the offence of aggravated robbery. The Court said in that case that in a plea of not guilty by young offenders carrying weapons and threatens to use violence for an armed robbery committed in the following places with the suggested starting number of years:

(a) robbery in a house, a starting point of seven year

(b) robbery in the bank, starting point of six years,

(c) a robbery in the store, hotel, club and vehicle on the road a starting point of five years; and

(d) robbery on the street, starting point of three years.

46. Comments made by the Court in the above case is that where an offence of armed robbery is committed with features of aggravations such as actual violence or where a robbery involves a large amount of money may justify a higher sentence. A plea of guilty should justify a lower sentence.

47. I totally agree with the above propositions. (See Gimble v The State) (supra). The first accused in this case pleaded guilty and he will be treated differently on sentence from the second and third accused.

48. Recently sentences for the crime of armed robbery have been considerably increased. The reason for the increase is due to the prevalence of this crime. This view has been reflected in a number of cases since the case of Public Prosecutor v Don Hale (1998) SC 564. In that case the Supreme Court said, the sentencing guidelines set in the case of Gimble v The State [1988-89] PNGLR.271 are not having any deterrent effect on offenders.

49. I will quote a number of authorities which the Supreme Court has either up-held or dismissed appeals for reasons reflected in Don Hale’s case. In John Arua Peter v The State (2000) SC 638, the appellant was sentenced to a term of ten (10) years. Another two years were imposed to be served concurrently for an offence of unlawful use of a motor vehicle. The offence was aggravated by forcefully breaking the windscreen and thereafter, the robbers used a bottle of beer to assault the victim’s head. The appellant appealed on the grounds of severity.

50. The Supreme Court dismissed the appeal and said the sentence imposed was appropriate due to the serious nature of the offence.

51. In McKenzie Bonny v The State (2003) SCRA 78 of 2002 an aggravated case of armed robbery in Madang, the appellant was sentenced to 8 years imprisonment. His grounds of appeal were that the trial judge did not consider the fact that, the appellant was a student at the University Centre in Madang and that during the robbery; he was merely a watchman for those who committed the actual robbery. His appeal was dismissed as the Court found the appeal had no merits.

52. I note comments made in the case of Public Prosecutor v Don Hale (1998) (supra) where the Supreme Court said, sentences imposed for armed robbery cases are not having any effect on offenders who commit the crime of robbery. What is clear is that now a days, the offence of armed robbery is freely and frequently committed invariably by young people.

53. All of you are not youths but you are all adults now and I would have thought that you would have been wiser than you were before you committed this very serious crime.

54. The reason advanced in Don Hale’s case (supra) for the view that, Gimble’s case was decided in 1988 and the law stated therein is no longer good law is because as a matter of deterrence; the community’s perspective ought to be taken into account on deciding sentences for armed robbery cases and because of the prevalent nature with which robbery is being committed sentences must reflect the communities concern.

55. In an armed robbery that took place on the highway on a public road that of Richard Sebastian v The State ( 2003) SCRA N0.43 of 2002, the appellant appealed against the sentence of 9 years imprisonment for a well planned armed robbery of a PMV on the highway between Maprik and Pagwi Districts in the East Sepik Province. He pleaded guilty to the charge and was sentenced accordingly.

56. His appeal was dismissed on the grounds that though no physical violence was used to the passengers of the PMV truck, passengers were harassed and robbed of their cash and valuable items amounting to K579.00.

57. The facts of the case before me are similar to that of the case of Phillip Kasman v The State (2004) SC759 where the appellant was a member of a gang which robbed the staff of the door step into the ANZ Bank in Waigani where they stole an unspecified sum of money. The trial judge imposed a sentence of ten (10) years. He appealed but the Supreme Court did not want to disturb the sentence as it was a public place and more injuries could have been caused if the plan went wrong.

58. As stated earlier, the legislative intent of prescribing the maximum penalty of 14 years for ordinary armed robbery and life imprisonment for those cases aggravated by the use of violence or threatened violence by those who act in concert carrying dangerous offensive weapons must meet the consequences of high penalties to reflect the community’s view on how serious the crime of armed robbery is.

59. The robbery in the current case took place in town outside the parking area of the company office. I must say, the three accused exhibited a bold approach to committing this serious crime with no fear for the law and the business community or even ordinary people cannot be treated in the way you three treated the two company staff.

60. There is no respect for people who earn their money lawfully by operation of the law and in the hard way. The business community cannot suffer nor can ordinary citizens suffer from the hands of ruthless minority who have no respect for the law.

61. I have taken into account the mitigating factors submitted in favour of the first accused. Out of other mitigations, the only mitigating circumstance that the court can consider is that he pleaded guilty, saving time and expenses. On the other two accused, the court has taken into account what you each said in allocutus together with what your lawyer submitted in your favour.

62. Aggravating factors include in case of all the three accused is the fact that, they committed the offence with threat of violence. They used guns to threaten the victims and they were in company of each other. The amount stolen has not been recovered and it was a large sum of money. The first accused had appeared in court in 2002 as he was charged with break enter and stealing. No conviction was recorded.

63. The second accused has appeared in court five times. He has got three prior convictions for armed robbery, two for escaping from lawful custody. Those offences were committed in 1990, 1991 and 1996. In 1999 he was convicted for escaping custody. On a second charge of similar nature, no conviction was recorded in 2003. Earlier in 1988, he was charged for arson but his case was dismissed due to insufficient evidence.

64. The third accused has three previous convictions. The first conviction was recorded in 1997 for drink/drive for which he was fined K200.00. In 2002 he was convicted for offences of having in possession of firearm and jungle juice for which he was sentenced to six (6) months each.

65. Having considered all the above mitigations and aggravations, I would differentiate this case from the case of The State v Anton Gilom (11.12.06) CR.142 of 2004 because that case involved two separate robberies and one of causing grievous bodily harm. However the amount involved was very much smaller in value than what the three accused in this case stole. In that case Anton Gilom was sentenced to 17 years consecutive and concurrent sentences. Four (4) years were suspended with conditions and he is serving 13 years imprisonment.

66. On sentence in the instant case, the three accused cannot be sentenced in the same manner as the first accused pleaded guilty and secondly he has no previous convictions. Credit will be given to the first accused for those factors.

67. For the second and third accused, they each have a number of convictions recorded against them. The three accused are sentenced in the following manner. The first accused is sentenced to a term of 9 years less the time spent in custody. The second and third accused are sentenced to a term of 11½ years each less the time they have spent in custody.

___________________

The Public Prosecutor: Lawyer for the State
Paul Paraka Lawyers: Lawyer for First Accused
Public Solicitor: Lawyer for second and third Accused