State v Pap [2007] PGNC 10; CR 252 of 2006 (25 April 2007)

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR 252 OF 2006

STATE

v

SAM PAP

Kokopo: Lay J
2007: 18 and 25 April

CRIMINAL LAW – Criminal Code s 386 - sentence - robbery of a shop, store or club - knives used to threaten - K16, 250 stolen - 2 persons tied up with tape - no injury - guilt after a trial- offender aged 41 years at offence - unemployed, from another province, partially dependent 20 - year-old student daughter - 9 years in hard labour.

Facts
The offender, aged 41 at time of the offence, was convicted after a trial of entering a club where gaming machine proceeds were being counted and with another and assistance of knives held up the manager and his assistant, tied them up with tape and escaped on foot with K16,250 cash. The offender was caught nearby shortly after the offence was committed.

Held
The facts falls into the third category in Gimble v the State, recent cases suggested a range of 9 to 12 years. Having regard to the mitigating and aggravating circumstances a sentence of 9 years is appropriate.

Cases Cited
Public Prosecutor v. Don Hale (1998) SC564
Tau Jim Anis v. The State (2000) SC642
The State v Moses Tingin (2005) N2956
The State v Robin Richard Ingia (2004) N2615
Gimble v The State [1988-89] PNGLR 271

Counsel
F. Popue, for the State
P. Kaluwin, for the Accused

DECISION

25 April, 2007

1. LAY J.: The Offender was convicted after a trial of one count of armed robbery in company of another and with dangerous weapons contrary to the Criminal Code, s 386(1) & (2) (a) & (b). The offender in the company of one other person entered the office of Kokopo Entertainment Centre armed with two knives and held up the manager and an employee who were counting the days taking. They tied them up with tape, stole K16, 275 in cash and ran away. The offender was caught in nearby church premises.
   
2. On his allocutus the offender said:
   

"I am sorry for telling lies to the court. Now that the court has found me guilty I accept whatever decision the court will impose on me. I ask for mercy. I am not from this province. I have a small daughter, she is doing her grade 12 at Lae. I am now thinking back of my family, they do not know what has happened to me. Some of my story I have given to my lawyer."

3. The offender is from Apo village, Bukawa in the Morobe province. He was 41 years of age at the time of the offence and is now 43 having spent over one year on remand. He is a member of the Lutheran faith. He was educated to grade 6 then learned some carpentry at a vocational school. He was employed by Steamships Trading from 1986 to 1989. At the time of the offence he was unemployed. He is separated from his wife. He has a 20-year-old daughter doing grade 12 in Lae. She lives with her maternal grandparents but the offender has been supporting her financially when he can. He was arrested on 24 October 2005 and has been in custody since, a total of one year five months and 25 days.
   
4. Counsel for the offender submits the following mitigating factors should be taken into account:
   
   1. he is a first-time offender;
   2. he did not benefit from the proceeds because he was arrested at the time of the robbery;
   3. there was no breach of trust;
   4. no one was injured;
   5. the offender was assaulted and humiliated by the crowd;
   6. he has accepted the verdict;
   7. he showed some remorse on his allocutus.
      
5. It was also submitted for the offender that the case falls into the third category in Gimble v The State [1988-89] PNGLR 47, robbery of a hotel, store or club. Counsel for the offender suggested a starting point of five years, and that the court should consider suspension of part of the sentence.
   
6. Counsel for the State agreed that the case falls into the third category in Gimble v State. He submitted that taking into account the observations of the Supreme Court in the Case of Tau Jim Anis v the State (2000) SC642 there should be a starting point of eight years. He submitted that guilt was found after a trial, not a plea, a substantial amount of money was stolen, and weapons were used to threaten. Although the offender was assaulted so were his victims. Further he submitted it was a prevalent crime and a deterrent sentence was required. Ten (10) to twelve (12) years was suggested and that no aspect of the case warranted suspension of any part of the sentence.
   
7. The Supreme Court in Public Prosecutor v. Don Hale (1998) SC 564 held that the various ranges of sentence for the categories of robbery listed in Gimble v. State [1988-89] PNGLR 271 may no longer be appropriate although the categories and their relationship to each other are still good law.
   
8. In Tau Jim Anis v. The State (2000) SC642, the Supreme Court applied the 3 year increase of the tariff applied in Don Hale to the tariff for robbery of a factory, to set a new starting point of 8 years where there was actual violence (a man kicked) and a sum stolen of just over K20,000 but mitigating factors of young first offenders and a plea of guilty. Recent cases suggest that current sentences in these circumstances are in the range of 9 to 12 years.
   
9. Judges of the court have expressed the view that armed robbery requires an immediate custodial sentence and that there should be exceptional circumstances before consideration is given to suspension of part of the sentence. See for example In the State v Moses Tingin (2005) N 2956 (Kandakasi J.) and The State v Robin Richard Ingia (2004) N 2615 (Sevua J.). I agree with those sentiments.
   
10. In this case no guns were used, no one suffered injury to anything other than their dignity although obviously the victims would have been frightened, the offender is a first offender, he was under the stresses that naturally occur from being unemployed in a foreign province with the additional pressures of a daughter to support as she finished her schooling. He suffered some rough handling at the hands of a crowd but I do not consider that counts for much in terms of mitigation. On the other hand guilt was found after a trial not a plea, a substantial amount of money was stolen, which was the result of the crime which the offender perpetrated even though he did not benefit from the proceeds. The knives he and his accomplice carried were used to threaten three people and two were assaulted by being tied up and deprived of their liberty.
    
11. Overall the case is far from being one of the worst, it was rather an amateur job. The offender was captured during his escape on foot from the scene of the crime. Nevertheless it is the role of the law to deter amateurs as well as professionals. I cannot find any justification for sentencing in the range suggested by counsel for the offender. Nor can I find any justification for considering a suspended sentence having regard to the principles mentioned in Gimble v the State [1988-89] PNGLR 271. Taking into account all of the matters which counsel has mentioned and guided by the Supreme Court cases I have cited above I consider that the appropriate sentence in this case is 9 years imprisonment. The offender is sentenced to 9 years imprisonment less time spent in pre-trial custody leaving a sentence to serve of 7 years 6 months.
    

_____________________________

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