State v Simon [2006] PGNC 221; N3077 (22 May 2006)

N3077

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR NO. 167 OF 2001

THE STATE

V

PETER SIMON

Alotau: Jalina J
2006: 8 & 22 May

CRIMINAL LAW- armed robbery whilst in company of others -sentence- robbery of family in dwelling house – actual physical violence employed in the course of the robbery - plea of guilty- young first offender- acted as watchman- expressed remorse- prevalence of crime of robbery –custodial sentence necessary as deterrent. Criminal Code Act, s.386 (1) & (2) (a), (b) &(c).

CRIMINAL LAW - armed robbery whilst in company of others-robbery of family in dwelling house-actual physical violence employed in the course of robbery-offender acting as watchman-sentence-co-offenders sentenced by different courts to different terms- some on plea of guilty and one after trial-principles of parity of sentence.

Cases Cited:

Gimble v The State [1988-89] PNGLR271

Public Prosecutor v Don Hale (1998), SC 564

Tau Jim Anis v The State (2000), SC 642

Secretary for Law v Witrasep Binengim [1975] PNGLR 172

Counsel:

Mr. A. Kupmain, for the State

Mr. J. Mesa, for the Offender

22 May, 2006

1. JALINAJ. You have pleaded guilty to a charge of armed robbery of a family in a dwelling house whilst in company of others and with actual physical violence against them (victims) contrary to s. 386 (1) & (2) (a), (b) & (c) of the Criminal Code Act.

2. A summary of the allegations by the State and evidence through the depositions reveal that between 7 and 8 am on Wednesday 31 March, 1999 you went with 4 others to Ganawe Plantation on Normanby Island. You and your colleagues were armed with two shot guns, both dangerous weapons.

3. The Statement of Mr. Graham Wood and his daughter Miss Anna Wood show that there was extreme physical violence employed against them as well as Mrs. Wood. Not only were the three of them tied up but Mr. Wood was hit with the butt of a gun in his face from which he bled and kicked in the ribs thus resulting in him falling to the ground unconscious. That was before he was ordered to the house where his wife and daughter were. Not only that, but your group also shot the dog when you entered the premises and broke the louvers at the house.

4. After terrorizing the family and stealing various household items you then took Mr. Wood down to the beach to help you escape in his motorized dinghy. When you finally left the plantation with the goods that you had stolen from the Woods'' residence after unsuccessfully trying to start the outboard motor, Mr. Wood was still tied up and left in the bushes near the beach. He freed himself after struggling for some time.

5. The maximum penalty for robbery with actual violence and in company whilst armed with dangerous weapons is life imprisonment pursuant to s. 386 (1) & (2) (a), (b) & (c) of the Code; subject to the discretionary power of the Court under s.19 (0f the Code). 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. They are that:

1. on a plea of not guilty by young first offenders carrying weapons and threatening violence:-

(a) robbery of a house – a starting point of seven years;

(b) robbery of a bank – a starting point of six years;

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

(d) robbery of a person on the street – a starting point of three years.

2. A plea of guilty may justify a lower sentence.

3. Features of aggravation such as actual violence, large amount stolen or where the robber is in a position of trust towards the victim, may justify a sentence higher than those suggested above.

6. 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.

7. Even the Supreme Court has had differing views subsequently 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. 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 Don Hale was concerned with robbery of a dwelling house but did not expressly disagree that violent crimes involving use of fire arms and other dangerous weapons were prevalent and higher sentences need to be imposed as deterrence. That is the view I have of Don Hale and Tau Jim Anis, with respect.

8. Since the present case involves the robbery of a dwelling house, the starting point would be 7 years under Category 1(a) of the Gimble guidelines. As it is also wrought with the aggravating factor of actual physical violence against three individuals as if violence against Mr. Wood was not enough, it would attract in my view, a sentence with a starting point in excess of 10 years under the Gimble guidelines as modified by Public Prosecutor v Don Hale.

9. It has however, been brought to my notice by counsel in the course of submissions that your co- offenders namely, Dickson Sandy, Steven Sebuloni Talawani, Tuksy Kuku and Vanua Vanua were dealt with some years ago by two different judges. The matter of The State v Dickson Sandy was heard by Kapi DCJ (as he then was) in December, 2001 when the offender was sentenced to 20 years imprisonment after he pleaded guilty to robbery. The matter of The State v Steven Sebuloni Talawani & The State v Tuksy Kuku were heard by Los J in 2002. The accused Steven Sebuloni Talawani was sentenced to 10 years after conviction following a trial for robbery and Tuksy Kuku was sentenced to 7 years after he pleaded guilty to committing the same offence. The other co -accused, Vanua Vanua, was also dealt with by Los J and sentenced to 2 years and 6 months after he pleaded guilty to receiving stolen property. Apart from Vanua Vanua, the sentences of your co- offenders have been confirmed by production of their respective warrants of commitment by officers from Gili Gili Correctional Service. However, the judgments in the above cases are not immediately available for me to ascertain the reasons for their Honours'' imposition of different terms of imprisonment. Your case has been delayed until now due to you having escaped and being at large until recently when you were remanded back into custody. I have not been told if you have been charged, convicted and sentenced for escaping from lawful custody so I propose to deal with you as someone awaiting trial for the charge of robbery only.

10. Your co- offenders having been sentenced to various terms of imprisonment, I have to consider the parity/ disparity of sentence principle when deciding the appropriate sentence I should actually impose on you. In my view, it is a principle founded on common sense which, in ordinary layman''s language, means that like offenders should receive like punishment unless there is good reason to impose different sentences on co- offenders. 11. This principle is best explained in Secretary for Law v Witrasep Binengim [1975] PNGLR 172 at 175:

""The situation often arises where Mr Justice A deals with one of a group of co- offenders one month and Mr Justice B deals with the remainder subsequently. The second judge might feel that the first judge was lenient, but the principle is that the second judge, albeit rather unwillingly (and absent distinguishing factors of aggravation), ought to award much the same sentence as awarded earlier.""

12. In the present case, apart from apologizing and generally expressing remorse to the victims and others including this court, you said that you only acted as a watchman. In view of your plea of guilty, your lawyer Mr. Mesa has submitted that I impose the same sentence of 7 years that was imposed on Tuksy Kuku your co- offender who pleaded guilty before Los J to armed robbery. Mr. Kupmain for the prosecution has submitted on the other hand that I apply the current sentencing trend as this is a very bad robbery and impose 20 years as your co- offender Dickson Sandy who pleaded guilty before Kapi DCJ to committing the same offence.

13. Before I proceed to determine the length of sentence, let me say something about the role of watchmen in robbery cases. Watch men to my mind play an important role. It is the watchman executing his part of the plan that instils a sense of safety and security in his colleagues who actually confront the victims. Without the watchman executing his part of the plan as I have just said, the robbers cannot achieve what they set out to achieve so your role only as a watchman is of no real benefit to you.

14. As I have said earlier in this judgment, this is a very bad robbery which is wrought with actual physical violence against the Wood family when there was no real need to because there is no evidence of any one of the victims let alone Mr. wood as the father and head of the family resisting your colleagues who confronted them inside the premises. This is also a robbery of a home as I have said so it should have been respected. To demonstrate the importance of the family home, I repeat what the Supreme Court said in Gimble''s case at p.274 which I referred to just a while ago in The State v Dick John Moi:

""We consider that the robbery of the occupant of a house is more serious than the robbery of a store or business because it is an invasion of privacy and family life. One of the basic rights enshrined in the Constitution is ""protection for the privacy of their homes"". A man''s home, whether it is a mansion or a shack, is his castle and we think the punishment for robbery of a home should reflect those community values"".

15. Applying the principle of parity of sentence to your case, the most appropriate sentence in my opinion is a period imposed on your co- offender Dickson Sandy which is 20 years in hard labour. As a deterrent to yourself as well as to anyone who may consider ganging up with others in future and terrorizing innocent people, I also impose 20 years on you in hard labour. I deduct from that sentence the 3 months you have spent after you returned to custody. That leaves 19 years and 9 months in hard labour.

_____________________________________
Public Prosecutor: Lawyer for the State
Public Solicitor: Lawyer for the Offender