State v Malo [2006] PGNC 231; N4520 (19 December 2006)

N4520

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR NO 379 0F 2005

THE STATE

V

LESLEY WARIM CLETUS MALO

Kimbe: Cannings J

2006: 18 October
13, 19 December

SENTENCE

CRIMINAL LAW – sentence – armed robbery and unlawful use of motor vehicle – guilty plea – physical violence used – gang robbery – use of firearms and bushknives to threaten innocent people – robbery of store – K165,924.17 stolen – motor vehicle stolen also – most of money recovered – offender captured by police soon after robbery and slashed with knife – sentence of 8 years.

A young man pleaded guilty to armed robbery and unlawful use of a motor vehicle committed at Kimbe, West New Britain Province. A gang of which he was a member held up employees of a wholesale liquor outlet as they were leaving the company premises on a bank run. This is the judgment on sentence.

Held:

(1) The starting point for sentencing for armed robbery of a store is eight years imprisonment.

(2) Mitigating factors are: the offender co-operated with police; pleaded guilty; first offender; changed his life; assaulted by police and protracted delay in dealing with the case.

(3) Aggravating factors are: actual violence committed; victims threatened; real danger of people being killed; no regard for vulnerable victims; large amount of money stolen; offender did not play minor role; no compensation or apology; no remorse expressed.

(4) The offender was given a head sentence of eight years imprisonment for the armed robbery charge and three years for the unlawful use of the motor vehicle; to be served concurrently. The total sentence of eight years was not reduced by application of the totality principle.

(5) The pre-sentence period in custody was deducted from the head sentence and he must serve a minimum term in custody of three years.

Cases cited

The following cases are cited in the judgment:

Gimble v The State [1988-89] PNGLR 271
Phillip Kassman v The State (2004) SC759
Public Prosecutor v Don Hale (1998) SC564
Saperus Yalibakut v The State SCRA No 52 of 2005, 27.04.06
Tau Jim Anis v The State (2000) SC642
The State v A Juvenile "ET" CR No 1012/ 2003, 09.04.05
The State v A Juvenile, "TAA" (2006) N3017
The State v Aaron Lahu (2005) N2798
The State v Alphonse Polpolio and Jeffery Baru CR No 865 + 701/2006, 14.07.06
The State v David Bandi CR No 729/2003, 20.04.05
The State v Dickson Kauboi CR No 495/2001, 07.06.06
The State v Francis Vau Kamo CR 663-664/1998, 06.04.06
The State v Jacky Vutnamur and Kaki Kialo (No 3) (2005) N2919
The State v James Negol (2005) N2801
The State v Justin Komboli (2005) N2891
The State v Kia Tala Moksy CR 785/2005, 12.08.05
The State v Lucas Soroken Sembengo, Bob Alois Wafu & Raphael Lawrence Mandal (2006) N2801
The State v Mogi Konda CR No 1316/2005, 19.04.05
The State v Two Juveniles, "MK" & "PSA" CR No 372/2005, 25.08.05

PLEA

An accused pleaded guilty to armed robbery and unlawful use of a motor vehicle and the following reasons for sentence were given.

Counsel

F Popeu, for the State
O Oiveka, for the accused

19th December, 2006

1. CANNINGS J: INTRODUCTION: This is a decision on the sentence for a man who pleaded guilty to armed robbery and unlawful use of a motor vehicle committed at Kimbe, West New Britain Province, in October 2000. The case has taken a long time to be heard as it was struck out in the District Court several years ago but reactivated last year. The offender was re-arrested, re-charged and committed for trial. He has taken no issue with the procedure used to bring him before the National Court. He faced the following indictment:

Count 1:

Lesley Warim Cletus Malo of Suwambukum, Maprik, East Sepik Province, stands charged that he on the 24th day of October 2000 at Kimbe ... stole from Lito Tobias with actual violence K165,924.17 in cash and cheques the property of Spirit of West New Britain, Kimbe; and at that time [he] was armed with one home-made gun and bushknives, being dangerous and offensive weapons and was in company with five other persons and used personal violence on Lito Tobias.

Count 2

Lesley Warim Cletus Malo of Suwambukum, Maprik, East Sepik Province, stands charged that he on the 24th day of October 2000 at Kimbe ... unlawfully used a motor vehicle, a Toyota double-cab 4WD Hilux, white in colour, the property of Spirit of West New Britain, Kimbe, without the consent of Lito Tobias, the person in lawful possession of the vehicle

2. Count 1 is based on Section 386(1) and (2)(a), (b) and (c) of the Criminal Code (the offence of robbery). Count 2 is based on Section 383(1)(a) (unlawfully using motor vehicles etc) of the Criminal Code.

CONVICTION

3. The offender pleaded guilty to the following facts:

• At 2.00 pm on 24 October 2000 he and five others were standing near the main gate of a wholesale liquor company in Kimbe called Spirit of West New Britain.
  
• Two employees were driving out of the premises in a white Toyota Hilux dual-cab 4WD utility. They were on their way to the bank, with K165,924.17 in cash and cheques belonging to the company in their possession.
  
• The offender and his accomplices held up the employees as they were coming out of the gate. They threatened them with a factory-made shotgun, a homemade gun and several bushknives.
  
• The offender and his accomplices smashed the driver's side window and forced the driver and his off-sider out of the vehicle. They removed the driver forcefully as he had his seat belt on. There was a scuffle and the driver was assaulted.
  
• The offender and his accomplices got into the vehicle and drove it towards Section 21, Kimbe. On the outskirts of the Section 21 settlement, they abandoned the vehicle, got the money and ran away into the bush.
  
• The police, having been notified of the robbery, gave chase and apprehended two suspects, one of whom was the offender.
  
• The police recovered K128,655.32. The balance of K37,268.85 has never been recovered.
  

ANTECEDENTS

4. The offender has no prior convictions.

ALLOCUTUS

5. I administered the allocutus, ie the offender was given the opportunity to say what matters the court should take into account when deciding on punishment. A paraphrased summary of his response follows.

When the police caught up with us, we surrendered. However, the police shot dead one of the others and they cut me on my leg. I appeared for mention seven times in the District Court and the matter was eventually struck out. I went back to my block and I was surprised when a new investigating officer charged me again, for the same offence. I am the only male child in the family. I look after the whole family. I am a changed person. I am now married. If I go to jail, there will be no one to look after my wife and child

OTHER MATTERS OF FACT

6. As the offender has pleaded guilty, he is entitled to the benefit of the doubt on mitigating factors that are apparent from the depositions, the allocutus (or plea) or matters raised by his defence counsel that are not contested by the prosecutor (Saperus Yalibakut v The State SCRA No 52 of 2005, 27.04.06, Supreme Court, Jalina J, Mogish J, Cannings J). The rationale is that giving the benefit of the doubt provides an incentive for accused persons to plead guilty and is a benefit accorded to them for saving the State extra resources that would have been committed to the case if a trial were necessary.

Depositions

• The offender made a confessional statement to the police on 25 October 2000, the day after the robbery and co-operated in the police investigation.
  
• He claimed in his statement to the police that he had surrendered when the police apprehended and slashed him with a knife.
  
• One of accomplices, Joseph Sangri Porikura, a 23-year old man from East Sepik Province, was shot in the leg, had his leg amputated at the hospital but died a few days later.
  
• A recent medical report confirms that the offender was admitted to Kimbe General Hospital on the day of the robbery, having been chopped on the right medial part of his knee. He suffers from a medial ligament injury and is not medically fit to do hard labour.
  

Allocutus (including plea)

• Was injured during the course of being apprehended.
  
• Was led to believe by the manner in which the case was struck out and the delay before it was re-activated, that the matter had been resolved.
  

PRE-SENTENCE REPORT

7. To help me make a decision on the appropriate sentence and determine whether any of it should be suspended I requested and received a pre-sentence report under Section 13(2) of the Probation Act for the offender. The report, prepared by the Kimbe office of the Community Corrections and Rehabilitation Service, is summarised below.

Leslie Warim Cletus Malo: 25-year-old male.

Background: from Maprik District, East Sepik Province – now living at Mandopa oil palm settlement, Kapore, near Kimbe, WNBP, on a six-hectare block in a bush material house. Fourth born in a family of six children. Parents alive, and old. He looks after them.

Marital status: Married, with one child – stable marriage – his wife does not want him to go to jail and she and their child and other family members depend on him working the block, for their livelihood.

Education: no formal education.

Work: never formally employed.

Health: OK.

Financial status: self-supporting, from sale of oil palm and other small cash crops sold at the market.

Plans: wants to remain on the block and look after his wife and child and his parents.

Family attitude to crime: the offender's father was interviewed. He does not want to see his son go to jail as he (the father) is not physically fit and depends on the offender to work the block. The offender is a hard working and caring son. Those sentiments shared by the offender's sister, Pauline Cletus.

Community history: he is a committed and reliable member of the Kapore United Church – an interview with Pastor ToBata revealed that the offender has changed his ways and has a lot of potential – also the local peace officer, Joshua Midal, gives the offender a good assessment – a committee member of Mandopa VOP, Martin Tomaben, says the offender is a hardworking person with no current behavioural problems – the OIC of Kapore police station, Sergeant Lucas Hakoi has made a written statement attesting to the offender's good recent record in the community.

Victims' attitude: the driver who was assaulted during the robbery was interviewed – he described it as a very bad experience – almost lost his life – does not want to talk about it – the current owner/manager of the business was interviewed: does not favour a lenient sentence.

Recommendation: is a suitable candidate for probation supervision.

8. This is a glowing pre-sentence report, which portrays the offender as a model citizen and makes me wonder how someone who is now so virtuous could have done such a terrible thing as to involve himself in this sort of criminal activity.

SUBMISSIONS BY DEFENCE COUNSEL

9. Mr Oiveka highlighted that a substantial part of the stolen money was recovered, the offender pleaded guilty and the pre-sentence report is a very favourable one.

SUBMISSIONS BY THE STATE

10. Mr Popeu submitted that though a lot of the money was recovered, this was still a major armed robbery, in which a person was physically injured. A head sentence of between 10 and 13 years imprisonment is warranted.

DECISION MAKING PROCESS

11. To determine the appropriate penalty I will adopt the following decision making process:

• step 1: what is the maximum penalty?
  
• step 2: what is a proper starting point?
  
• step 3: what other sentences have been imposed recently in West New Britain for equivalent offences?
  
• step 4: what is the head sentence for each offence?
  
• step 5: should the sentences be served concurrently or cumulatively?
  
• step 6: what is the effect of the totality principle?
  
• step 7: should the pre-sentence period in custody be deducted from the term of imprisonment?
  
• step 8: should all or part of the sentence be suspended?
  

STEP 1: WHAT IS THE MAXIMUM PENALTY?

12. Count 1 – armed robbery, with circumstances of aggravation – has a maximum sentence of life imprisonment.

13. Count 2 – unlawful use of a motor vehicle – has a maximum sentence of five years imprisonment.

14. The court has a considerable discretion whether to impose the maximum penalty by virtue of Section 19 of the Criminal Code.

STEP 2: WHAT IS A PROPER STARTING POINT?

Armed robbery

15. The Supreme Court has given sentencing guidelines in a number of leading cases:

• Gimble v The State [1988-1989] PNGLR 271, Bredmeyer J, Los J, Hinchliffe J;
  
• Public Prosecutor v Don Hale (1998) SC564, Amet CJ, Woods J, Kirriwom J;
  
• Tau Jim Anis v The State (2000) SC642, Sheehan J, Jalina J, Kirriwom J; and
  
• Phillip Kassman v The State (2004) SC759.
  

16. Nowadays the starting points are:

• robbery of a house – ten years;
  
• robbery of a bank – nine years;
  
• robbery of a store, hotel, club, vehicle on the road etc – eight years;
  
• robbery of a person on the street – six years.
  

17. The present case falls within the third category. The starting point is therefore eight years.

Unlawful use of motor vehicle

18. The sentencing range is quite small, zero to five years, so I will use the mid-point as the starting point: two years, six months.

19. As the offender has been convicted of two offences, I will be arriving at two head sentences before deciding whether the sentences will be cumulative or concurrent and how the totality principle should be applied.

STEP 3: WHAT OTHER SENTENCES HAVE BEEN IMPOSED RECENTLY IN WEST NEW BRITAIN FOR EQUIVALENT OFFENCES?

20. Before I fix a sentence, I will consider other armed robbery sentences I have imposed in 2005 and 2006 in West New Britain. These cases are shown in the following table.

TABLE 1: NATIONAL COURT SENTENCES FOR ARMED ROBBERY, WEST NEW BRITAIN, CANNINGS J, 2005-2006

No	Case	Details	Sentence
1	The State v James Negol (2005) N2801	Guilty plea – home invasion, Section 15, Kimbe – young offender – gang robbery – firearms used – K5,300.00 stolen.	7 years
2	The State v Aaron Lahu (2005) N2798	Guilty plea – Hoskins Mart store – large gang – gun and bushknives – offender got involved by accident – had minimal involvement.	3 years
3	The State v A Juvenile "ET" CR No 1012/ 2003, 09.04.05	Guilty plea – kai bar in Kimbe – juvenile – in company with two others – firearms – K400.00 stolen.	4 years
4	The State v Mogi Konda CR No 1316/2005, 19.04.05	Guilty plea – home invasion, Kapore, near Kimbe – in company with one other person – mature aged man – K22.00 stolen.	5 years
5	The State v David Bandi CR No 729/2003, 20.04.05	Trial – PMV robbery, Kumbango, near Kimbe – mature aged offender – in company with one other – firearm used – K300.00 stolen.	6 years
6	The State v Kia Tala Moksy CR 785/2005, 12.08.05	Guilty plea – Kimbe Mega Mart store – sole offender – firearm discharged – K1,120.00 stolen.	10 years
7	The State v Two Juveniles, "MK" & "PSA" CR No 372/2005, 25.08.05	Guilty pleas – robbery on street, Section 10, Kimbe – juveniles – in company with others – firearms – K30.00 stolen.	3 years
8	The State v Justin Komboli (2005) N2891	Trial conducted and sentence passed in absence of offender, who had escaped from custody – trade store robbery, Kavui, near Hoskins – armed with beer bottles, sticks and stones – store goods stolen – sole offender.	4 years
9	The State v Jacky Vutnamur & Kaki Kialo (No 3) (2005) N2919	Guilty pleas – two offences – in company with others – mature aged offenders – firearms used – first robbery of family home, Salelebu (police weapons and uniforms stolen) – second robbery of Kapiura Trading Supermarket (K40,000.00 stolen).	12 years; 12 years
10	The State v Lucas Soroken Sembengo, Bob Alois Wafu & Raphael Lawrence Mandal (2006) N2801	Trial – home invasion, Barema – young offenders – gang robbery – firearms used – K460.00 stolen.	12 years
11	The State v A Juvenile, "TAA" (2006) N3017	Guilty plea – juvenile – Shopper's Choice store robbery, Kimbe – offender had minimal involvement.	4 years
12	The State v Francis Vau Kamo CR 663-664/1998, 06.04.06	Trial – robbery of bank cash shipment, Hoskins Airport – young offender – in company with three others – firearms – K380,000.00 stolen.	13 years
13	The State v Dickson Kauboi CR No 495/2001, 07.06.06	Trial – Commodore Bay Company payroll robbery, Kimbe – in company with three other persons – mature aged man – K3,000.00 stolen	8 years
14	The State v Alphonse Polpolio and Jeffery Baru CR No 865 + 701/2006, 14.07.06	Guilty pleas – two store robberies, Kandrian – in company with one other person – mature aged man – K2,807.00 stolen in first robbery – K21,530.00 stolen in second robbery.	5 years; 9 years

STEP 4: WHAT IS THE HEAD SENTENCE FOR EACH OFFENCE?

21. Count 1 – armed robbery – is the most serious offence, so I will consider the sentence for it in detail and indicate a head sentence for that offence. Then I will indicate a head sentence for count 2.

Armed robbery

22. I have taken the following considerations into account in deciding whether the sentence should be above or below the starting point.

23. Numbers 1 to 6 focus on the circumstances of the robbery.

24. Numbers 7 to 11 focus on what the offender has done since the robbery and how he has conducted himself.

25. Numbers 12 to 14 look at the personal circumstances of the offender and take account of other factors not previously considered.

1. Did the offender and other members of his gang not commit actual violence during the course of the robbery? No.
   
2. Did the offender and other members of his gang not threaten the victims of the robbery with violence? No.
   
3. Did the offender and other members of his gang not put the victims or innocent bystanders in real danger of being injured or killed? No.
   
4. Did the offender and other members of his gang ensure that especially vulnerable victims such as children, women or older people were not threatened or treated badly? No.
   
5. Did the offender and other members of his gang steal money or property of a relatively small value? No.
   
6. Did the offender play a relatively minor role in the robbery? No.
   
7. Did the offender give himself up after the robbery? Neutral. He says he had surrendered but he was actually still on the run.
   
8. Did the offender cooperate with the police in their investigations? Yes.
   
9. Has the offender done anything tangible towards repairing his wrong, eg offering compensation to the victims, repaying what he has stolen, personally or publicly apologising for what he did? No
   
10. Has the offender pleaded guilty? Yes
    
11. Has the offender genuinely expressed remorse? No.
    
12. Is this his first offence? Yes.
    
13. Can the offender be regarded as a youthful offender or are his personal circumstances such that they should mitigate the sentence? Yes – he has changed his life, as indicated in the very favourable pre-sentence report.
    
14. Are there any other circumstances of the robbery or the offender that warrant mitigation of the head sentence? Yes. His leg was slashed by the police when he was apprehended. Also, he was given to understand that the matter had been dropped and it took a long time for the case to be brought to the National Court.
    

Recap

26. To recap, mitigating factors are:

• No 8 – co-operated with police;
• No 10 – pleaded guilty;
• No 12 – first offender;
• No 13 – changed his life;
• No 15 – assaulted by police and protracted delay in dealing with the case.
  

27. Aggravating factors are:

• No 1 – actual violence committed;
• No 2 – victims threatened;
• No 3 – real danger of people being killed;
• No 4 – no regard for vulnerable victims;
• No 5 – large amount of money stolen;
• No 6 – offender did not play minor role;
• No 9 – no compensation or apology;
• No 10 – no remorse expressed.
  

28. After weighing all these factors and comparing this case with the other armed robbery sentences I have recently imposed in West New Britain, the head sentence should remain at the starting point of eight years.

Unlawful use of motor vehicle

29. For this offence, I impose a sentence of three years imprisonment.

STEP 6: SHOULD THE SENTENCES BE SERVED CONCURRENTLY OR CUMULATIVELY?

30. As each offender is facing more than one sentence, I now have to decide whether the head sentences should be served concurrently (the sentences are served at the same time) or cumulatively (the sentences are added together).

31. I summarised the principles to apply in this situation in three of the armed robbery cases referred to in table 1: The State v Jacky Vutnamur and Kaki Kialo (No 3) (2005) N2919; The State v Lucas Soroken Sembengo, Bob Alois Wafu & Raphael Lawrence Mandal (2006) N2801; and The State v A Juvenile, "TAA" (2006) N3017.

32. That is:

• First, apply the "one transaction rule". Where two or more offences are committed in the course of a single transaction, all sentences in respect of the offences should be concurrent.
  
• Secondly, where the offences are so different in character, or in relation to different victims, cumulative sentences are normally applicable, eg burglary and violence to the householder, or assault plus escaping from custody, or sexual assaults on different victims.
  
• Thirdly, apply the "totality principle". When the court has arrived at appropriate head sentences and decided whether they should be concurrent or cumulative, it must look at the total sentence and see if it is just and appropriate. If it is not, one or more of the sentences should be varied to get a just total.
  

33. The one transaction rule applies in this case. The two sentences can therefore be served concurrently, subject to application of the totality principle. That is:

8 years (armed robbery) + 3 years (UUMV) = 11 years – 3 years = 8 years.

STEP 6: WHAT IS THE EFFECT OF THE TOTALITY PRINCIPLE?

34. I now look at the total sentence that the offender is potentially facing, to see if it is just and appropriate having regard to the totality of the criminal behaviour involved. The court needs to guard against imposing a crushing sentence, ie one that is 'over the top' or manifestly excessive.

35. Eight years for this sort of crime is not excessive.

STEP 7: SHOULD THE PRE-SENTENCE PERIOD IN CUSTODY BE DEDUCTED FROM THE TERM OF IMPRISONMENT?

36. The offender has spent time in custody in connection with this offence. I decide under Section 3(2) of the Criminal Justice (Sentences) Act that there will be deducted from the term of imprisonment the whole of the pre-sentence period in custody, as shown in table 2.

TABLE 2: CALCULATION OF FINAL SENTENCE

Length of sentence imposed	8 years
Pre-sentence period to be deducted	1 year, 2 months
Resultant length of sentence to be served	6 years, 10 months

STEP 8: SHOULD ALL OR PART OF THE HEAD SENTENCE BE SUSPENDED?

37. Mr Oiveka has argued strongly for a non-custodial sentence, given the background of the matter: the robbery happened six years ago, the case was not prosecuted properly and in the long intervening period, the offender has become a changed person. He has given up his life of crime. He is a committed and highly regarded family man, church member and community worker.

38. Against that, he was involved in a major and serious crime.

39. I will set a minimum term in custody of three years.

40. Early release will be dependent on his record of behaviour while in prison and any compensation that is paid to the victims and any tangible reconciliation with the owners of the businesses that were held up and the employees whose lives were threatened, and particularly the driver of the vehicle, who was traumatised by the incident.

SENTENCE

41. Lesley Warim Cletus Malo, having been convicted of the crimes of armed robbery and unlawful use of a motor vehicle, is sentenced as follows:

Length of sentence imposed	8 years
Pre-sentence period to be deducted	1 year, 2 months
Resultant length of sentence to be served	6 years, 10 months
Amount of sentence suspended	Nil
Time to be served in custody	6 years, 10 months; subject to right to apply for order for early release after serving 3 years in custody

Sentenced accordingly.
____________________________________________________________

Public Prosecutor: Lawyer for the State
Public Solicitor: Lawyer for the accused