State v Roy [2007] PGNC 262; N5041 (17 August 2007)

N5041

PAPUA NEW GUINEA
IN THE NATIONAL COURT OF JUSTICE

CR NOS 508 & 509 0F 2007

THE STATE

V

ELVIS SONGOME ROY & DAVID POKARUP

Kimbe: Cannings J
2007: 9 July, 7, 17 August

CRIMINAL LAW – sentence – armed robbery – guilty plea – hold-up of store –use of firearms and bushknives to threaten innocent people – K31,405.00 stolen – gang robbery – equal level of involvement – sentence of 8 years each.

Two young men pleaded guilty to armed robbery. They held up a store manager and his wife as they were leaving their business premises with the weekend's takings to go to the bank. They had a gun and bushknife and were in the company of others. This is the judgment on sentence.

Held:

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

(2) Each offender had an equal level of involvement in the crime and the manner in which they have conducted themselves since committing the crime and their personal circumstances are similar. Therefore they are treated the same for sentencing purposes.

(3) Mitigating factors are: no actual physical violence; co-operated with police; pleaded guilty; expressed remorse; first offenders; youthful offenders.

(4) Aggravating factors are: victims threatened; real danger of people being killed; vulnerable victims threatened; large amount of money stolen; did not play minor role; did not surrender; no compensation or apology.

(5) Each offender was given a head sentence of eight years imprisonment. The pre-sentence period in custody was deducted from the time to serve. No part of the sentences was suspended.

Cases cited

The following cases are cited in the judgment:

Gimble v The State [1988-1989] PNGLR 271
Phillip Kassman v The State (2004) SC759
Public Prosecutor v Don Hale (1998) SC56
Saperus Yalibakut v The State (2006) SC890
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 Alphonse Polpolio and Jeffery Baru CR No 865 + 701/2006, 14.07.06
The State v Dickson Kauboi CR No 495/2001, 07.06.06
The State v Jacky Vutnamur & Kaki Kialo (No 3) (2005) N2919
The State v Jethro Paul Matu CR No 314/2007, 13.07.07
The State v Justin Komboli (2005) N2891
The State v Kia Tala Moksy CR 785/2005, 12.08.05
The State v Lesley Cletus Malo CR No 379/2005, 19.12.06

PLEAS

Two accused pleaded guilty to armed robbery and the following reasons for sentence were given.

Counsel

F Popeu, for the State
B Tanewan, for the first offender
R Beli, for the second offender
17th August, 2007

1. CANNINGS J: This is a decision on sentence for two young men, Elvis Songome Roy and David Pokarup, who pleaded guilty to a charge of armed robbery arising from the following facts. On the morning of Monday 19 February 2007 they were in the vicinity of the Dae Ju service station, at the E-Mart complex, in Kimbe. They were armed with a homemade gun and bushknives, in the company of two others and waiting for the owners of the E-Mart business to come outside. About 10.00 am the manager of the service station, Ki Sung Kim, and his wife, Cathy Kim, came out with the weekend takings, intending to get into their vehicle and go to the bank. The offenders approached Mr and Mrs Kim, pointed the gun at them and demanded the money, which was handed over to them. The offenders stole K31,405.00 in cash and cheques and took off. They were caught by the police the next day.

ANTECEDENTS

2. Neither has any prior conviction.

ALLOCUTUS

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

Elvis Songome Roy: I apologise for what I have done, especially to the owner of the company. I was a student last year at Kimbe Secondary School. I had outstanding school fees of K250.00 and that is why I thought it would be a good idea to go with the others involved. Both my parents are unemployed. The police caught me the day after the robbery and got K6,000.00 back from me.

David Pokarup: I also had school fee problems when I was a student at Moramora and I got expelled. I was approached by two boys on the Monday morning who told about their plan to get money at E-Mart. I thought it was a good opportunity to sort out my school fee problem. They gave me the gun to hold and told me to hold up the manager. I did not point it at him. He just saw the gun, got scared and gave me the money. We ran off and shared the proceeds. The next day I was going to school to pay my fees but I got caught on the road by the police who took me to the cells and assaulted me badly. I say sorry to everyone involved and to the people we held up.

OTHER MATTERS OF FACT

4. As the offenders have pleaded guilty, they are entitled to the benefit of the doubt on mitigating factors that are apparent from the depositions, the allocutus or matters raised by defence counsel that are not contested by the prosecutor (Saperus Yalibakut v The State (2006) SC890). This 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. It is apparent that neither of them planned the robbery. It was the two people they each mentioned in allocutus who were the ringleaders. Neither of them physically injured anyone. They co-operated with the police and made early admissions. Elvis was unarmed during the robbery. David was assaulted by the police after being arrested.

PRE-SENTENCE REPORTS

5. I received pre-sentence reports from the Community Corrections and Rehabilitation Service, which are summarised below.

ELVIS SONGOME ROY: 18-year-old male.

Residence: lives at Section 10 settlement, Kimbe, with his parents.
Family background: mixed WNBP (Bali)/Manus parentage – born and raised in WNBP – regularly travels to his mother's place in Manus – parents alive – father employed by Hamamas Trading – both parents are supportive of their son – want him to be able to continue his education – do not want him sent to prison.
Marital status: single.
Education: grade 10, Kimbe Secondary School, 2006 – but no certificate obtained due to school fee problem – planned to re-enrol in 2007 but was arrested soon after committing the offence.
Employment: never formally employed.
Health: OK.
Financial status: relies on his parents.
Plans: continue his education – wants to do carpentry at Moramora Technical School.
Victims' attitude: Mr Kim was interviewed and said that it was the biggest robbery his company has endured – large amount of money stolen – it was a traumatic event, particularly for Mrs Kim, who is still suffering from the trauma – she was flown to Korea straight after the robbery and is still under medication – no apology has been forthcoming.
Attitude of community: regarded as a law-abiding member of the community prior to the robbery.
Religion: member of Kimbe SDA Church.
Assessment: not considered a threat to the community.
Recommendation: in view of seriousness of the crime, the type of penalty is at the discretion of the court.

DAVID POKARUP: 19-year-old male.

Residence: lives at Siki OPS with his mother – prior to that he was living at Section 10, Kimbe, with his adopted family from Manus.
Family background: WNBP (Bali) parentage – adopted early into a Manus family living in Kimbe – his adoptive parents will continue to encourage and counsel him but cannot offer much more financial support.
Marital status: single.
Education: grade 10, Moramora Technical School, 2005 – school fee problem encountered in 2006.
Employment: never formally employed.
Health: OK.
Financial status: relies on his mother.
Plans: continue his education – wants to do welding at Moramora Technical School.
Victims' attitude: as per the first offender's report.
Attitude of community: regarded as a law-abiding member of the community prior to the robbery.
Religion: member of Kimbe SDA Church.
Assessment: not considered a threat to the community.
Recommendation: in view of seriousness of the crime, the type of penalty is at the discretion of the court.

SUBMISSIONS BY DEFENCE COUNSEL

6. Mr Tanewan submitted on behalf of Elvis that the court should take account of the school fee problems he was encountering. Elvis was not holding the gun so he deserves a lighter sentence in the range of five years. Mr Beli submitted on behalf of David that though he was holding a gun, it was given to him by others and, as he said in allocutus, he did not point it at anyone.

SUBMISSIONS BY THE STATE

7. Mr Popeu submitted that it was a significant robbery and a terrifying experience for the victims, so a head sentence in the range of six to eight years is warranted.

DECISION MAKING PROCESS

8. 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 sentences have been imposed for equivalent offences?
• step 4: what is the head sentence?
• step 5: should the pre-sentence periods in custody be deducted?
• step 6: should all or part of the sentences be suspended?
  

STEP 1: WHAT IS THE MAXIMUM PENALTY?

9. Armed robbery, with circumstances of aggravation, has a maximum sentence of life imprisonment. 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?

10. The Supreme Court has given sentencing guidelines in a number of leading cases: Gimble v The State [1988-1989] PNGLR 271; Public Prosecutor v Don Hale (1998) SC56; Tau Jim Anis v The State (2000) SC642; and Phillip Kassman v The State (2004) SC759. 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.
  

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

STEP 3: WHAT OTHER SENTENCES HAVE BEEN IMPOSED RECENTLY FOR EQUIVALENT OFFENCES?

12. Other sentences are shown in the following table.

SENTENCES FOR STORE ROBBERIES, 2005-2007

No	Case	Details	Sentence
1	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
2	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
3	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
4	The State v Jacky Vutnamur & Kaki Kialo (No 3) (2005) N2919	Guilty pleas – two offences – in company with others – mature aged offenders – firearms used – robbery of Kapiura Trading Supermarket (K40,000.00 stolen).	12 years, 12 years
5	The State v A Juvenile, "TAA" (2006) N3017	Guilty plea – juvenile – Shopper's Choice store robbery, Kimbe – offender had minimal involvement.	4 years
6	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
7	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, 5 years; 9 years, 9 years
8	The State v Lesley Cletus Malo CR No 379/2005, 19.12.06	Guilty plea – Spirit of WNB robbery, Kimbe – in company with other persons – innocent person stabbed – approx K165,000.00 stolen.	8 years
9	The State v Jethro Paul Matu CR No 314/2007, 13.07.07	Guilty plea – E-Mart robbery, Kimbe – sole offender – robbed service station attendant of K177.40 at knifepoint – no physical injury to victim – apology made and money repaid.	4 years

STEP 4: WHAT ARE THE RELEVANT CONSIDERATIONS AND WHAT IS THE HEAD SENTENCE?

13. There are a number of considerations to take into account in deciding on the head sentence. I have listed them below as a series of questions. An affirmative (yes) answer is regarded as a mitigating factor. A negative (no) answer is an aggravating factor. A neutral answer will be a neutral factor. The more mitigating factors there are, the more likely the head sentence will be below the starting point. The more aggravating factors present, the more likely the head sentence will be above or at the starting point. Three sorts of considerations are listed. Numbers 1 to 6 focus on the circumstances of the robbery. Numbers 7 to 11 focus on what the offender has done since the robbery and how he has conducted himself. Numbers 12 to 14 look at the personal circumstances of the offender and take account of other factors not previously considered.

1. Did the offenders and other members of their gang not commit actual violence during the course of the robbery? Yes.
   
2. Did the offenders and other members of their gang not threaten the victims of the robbery with violence? No.
   
3. Did the offenders and other members of their gang not put the victims or innocent bystanders in real danger of being injured or killed? No.
   
4. Did the offenders and other members of their gang ensure that especially vulnerable victims such as children, women or older people were not threatened or treated badly? No.
   
5. Did the offenders and other members of their gang steal money or property of a relatively small value? No.
   
6. Did the offenders play a relatively minor role in the robbery? No.
   
7. Did the offenders give themselves up after the robbery? No.
   
8. Did the offenders cooperate with the police in their investigations? Yes.
   
9. Have the offenders done anything tangible towards repairing their wrongs, eg offering compensation to the victims, repaying what they have stolen, personally or publicly apologising for what they did? No.
   
10. Have they pleaded guilty? Yes.
    
11. Have they genuinely expressed remorse? Yes.
    
12. Is this the first offence for each offender? Yes.
    
13. Can any of the offenders be regarded as youthful or are their personal circumstances such that they should mitigate the sentence? Yes, they are youthful offenders.
    
14. Are there any other circumstances of the robbery or the offenders that warrant mitigation of the head sentence? Neutral. I reject their contention that their school fee problems can be taken into account as a mitigating factor. I accept that Elvis had a lesser role in the robbery than David as Elvis was unarmed. I accept that David was assaulted by the police. These factors balance each other out, which means that they should both get the same sentence.
    

14. There are seven aggravating factors compared to six mitigating factors. This was a serious armed robbery and although the offenders have received generally favourable pre-sentence reports, the sentences must reflect the seriousness of the crime. I fix a head sentence of eight years imprisonment for each offender.

STEP 5: SHOULD THE PRE-SENTENCE PERIODS IN CUSTODY BE DEDUCTED FROM THE TERMS OF IMPRISONMENT?

15. I decide under Section 3(2) of the Criminal Justice (Sentences) Act that there will be deducted from the terms of imprisonment the whole of the pre-sentence periods in custody, which is, for Elvis 2 months, 2 weeks and for David 3 months, 1 week.

STEP 6: SHOULD ALL OR PART OF THE HEAD SENTENCE BE SUSPENDED?

16. No. I will not suspend any part of the sentences. Armed robbery is a serious crime and the People of Papua New Guinea are fed up with it. Whether it happens in Port Moresby or in Kimbe, an armed robbery is a traumatic event for the community and for every person who is a victim or an innocent bystander. In this case two innocent people were going about their legitimate business when they were held up by a group of gun-wielding and knife-wielding thugs. Innocent people in this position do not know how much longer their lives will last. The terror and emotional scar of such an event can last forever. I reject Mr Tanewan's submission that the court should have had a medical report of her condition. That is unnecessary. The community expects raskols who are convicted of armed robbery to be sent to prison. Suspended sentences for armed robbery should be reserved for only special or exceptional cases. This is not such a case.

SENTENCES

17. Elvis Songome Roy, having been convicted of the crime of armed robbery, is sentenced as follows:

Length of sentence imposed	8 years
Pre-sentence period to be deducted	2 months, 2 weeks
Resultant length of sentence to be served	7 years, 9 months, 2 weeks
Amount of sentence suspended	Nil
Time to be served in custody	7 years, 9 months, 2 weeks

18. David Pokarup, having been convicted of the crime of armed robbery, is sentenced as follows:

Length of sentence imposed	8 years
Pre-sentence period to be deducted	3 months, 1 week
Resultant length of sentence to be served	7 years, 8 months, 3 weeks
Amount of sentence suspended	Nil
Time to be served in custody	7 years, 8 months, 3 weeks

Sentenced accordingly.
________________________________________________
Public Prosecutor: Lawyer for the State
Paul Paraka Lawyers: Lawyers for the first offender
Public Solicitor: Lawyer for the second offender