State v Kevin [2007] PGNC 78; N3191 (21 March 2007)

N3191

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR NOS 1627-1629 0F 2006

THE STATE

V

CHARLIE KEVIN, WOREX WORIU JOHN &
DEMAS DANO

Bialla: Cannings J
2007: 13, 20, 21 March

CRIMINAL LAW – sentence – armed robbery – hold-up of a house next to a store in rural area – guilty plea – no physical violence – gang robbery – use of firearms and bushknives to threaten innocent people – K600.00 cash stolen, plus factory-made shotgun and camera – different levels of involvement in robbery – sentence of 6 years for principal offender; 4 years each for two others.

Three young men pleaded guilty to armed robbery. They joined up with a gang that held up a store manager’s house in a rural area. One of them went into the house with a weapon. The other two stood watch outside. This is the judgment on sentence.

Held:

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

(2) One of the offenders, aged 28, had a greater degree of involvement in the crime than the other two, aged 18 and 19. Therefore he gets a heavier sentence.

(3) Mitigating factors are: no physical violence; minor involvement (offender Nos 2 and 3 only); co-operated with police; pleaded guilty; expressed remorse; first offenders; young age (offender Nos 2 and 3 only).

(4) Aggravating factors are: victims threatened; real danger of people being killed; vulnerable victims; high value of things stolen; did not play minor role (offender No 1 only); did not surrender; no compensation or apology; mature age offender (offender No 1 only).

(5) The principal offender was given a head sentence of 6 years imprisonment. The two others were given sentences of 4 years each. The pre-sentence periods in custody were deducted from the time to serve; and no part of the sentences were suspended.

Cases cited

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

PLEAS

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

Counsel

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

21 March, 2007

SENTENCE

1. CANNINGS J: This is a decision on sentence for three men who pleaded guilty to armed robbery committed at Mamota, in the Silanga area of West New Britain.

CONVICTION

2. The three accused pleaded guilty to the following facts:

• On 24 September 2006 they joined up with a number of other persons, armed with home-made guns and bushknives and entered the premises of Hamamas Trading at Mamota.
  
• They went to the manager’s house, held up the manager and some employees who were inside the house and threatened them with violence.
  
• They stole a factory-made shotgun, a Premier digital camera and K600.00 cash.
  
• They demanded the manager’s keys so they could get more cash. But they were not given the keys and they left.
  

3. I entered provisional pleas of guilty and then, after reading the District Court depositions, confirmed the pleas and convicted each of them on one count of armed robbery under Section 386(1), (2)(a), (b) and (c) of the Criminal Code, as charged.

ANTECEDENTS

4. None has any prior conviction.

ALLOCUTUS

5. 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.

Charlie Kevin

I am a first-time offender. I admit I committed this offence but it only happened because Joseph Bani and his boys came and asked us to help. I used to be employed in that store but they terminated me for no good reason. I was living on the block and never had any intention of doing what I did. I am a person of good character and have never done anything like this before. There are others who planned the robbery who are not here before the court. I am married with three children and life for them will be very hard without me. Conditions are very bad in the jail and I am worried about the outbreak of disease. I apologise for what I have done. Please put me on a good behaviour bond. I promise to faithfully follow all the conditions the court imposes on me.

Worex Woriu John

This is my first time to commit an offence. I did not do it because I wanted to do it. I only got involved because Joseph Bani and his boys told us to do it. When I realised I was wrong I surrendered to the police. I fell into temptation but I am a good person, not a troublemaker. My father is deceased and I live on a block with my uncle who relies on me. I am concerned about my health and if I am imprisoned at Lakiemata conditions are not good. I say sorry to the employees, to the owner of the company and the National Court. Please put me on a good behaviour bond. I promise to faithfully follow all the conditions the court imposes on me.

Demas Dano

It is true we all committed this offence but we were not supposed to do it. It was Joseph Bani and his boys who got us involved. We surrendered to the police. I apologise to the owner of the company and his employees for what we did to them. I am not the sort of person who does this sort of thing. I was brought up in a Christian family. I have a block of oil palm and cocoa and if I am sent to jail no one will look after the block. There are many diseases at Lakiemata and I am concerned about my health. I apologise before this court and to God. I promise I will not do this kind of thing again. I promise to follow all conditions if given probation.

OTHER MATTERS OF FACT

6. 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 SCRA No 52 of 2005, 27.04.06, Supreme Court, Jalina J, Mogish J, Cannings J). 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.

7. It is evident that Worex John and Demas Dano had a lesser degree of involvement in the robbery than Charlie Kevin and the others. They did not go into the manager’s house and took off when some people started throwing stones on the roof of the house. I will regard that as a mitigating factor for them.

8. The main mitigating factor applying to all three is that they made admissions to the police and co-operated fully with the police investigation.

PRE-SENTENCE REPORTS

9. To help me make a decision on the appropriate sentences I requested and received pre-sentence reports in relation to the offenders. The reports were prepared by the Kimbe office of the Community Corrections and Rehabilitation Service. A summary of the reports follows.

10. Charlie Kevin is aged 28 and married with three children. He is of mixed ENB and Gulf parentage. He was educated to grade 10 at St Xavier’s High School, Kairuru Island, East Sepik Province. He lives at Galai 2 oil palm settlement. He worked at Hamamas Trading, Mamota, for 15 months before being terminated in 2006. He says he was wrongly accused of stealing a pair of shoes. His family and the local community do not want to see him go to jail.

11. Worex John is aged 19 and single. He is from Kairuru Island, ESP. He is the youngest in a family of nine. His father died when he was very young and his uncle adopted him and brought him to WNB. He was educated to grade 8 at Buvussi Primary School. He lives at Galai 2 oil palm settlement. He has never been formally employed. His family and the local community, including the AOG pastor, expressed surprise at his involvement in criminal activity and do not want to see him go to jail.

12. Demas Dano is aged 18 and single. He is from Kabwum, Morobe Province. He is the oldest in a family of six. He was educated to grade 8 at Buvussi Primary School, then graduated from Moramora Technical School with an auto electrical certificate. He lives at Galai 2 oil palm settlement. He has never been formally employed. His family and the local community, including the AOG pastor, expressed surprise at his involvement in criminal activity and do not want to see him go to jail.

SUBMISSIONS BY DEFENCE COUNSEL

13. Mr Oiveka asked the court to take into account that none of the three offenders now before the court was a planner or ringleader of the robbery. Those primarily responsible for the robbery are at large. The offenders the court is now dealing with are not experienced criminals. They tagged along with the others and should not be made scapegoats for the far more serious actions of others. They made admissions to the police and have co-operated fully and made things easy for everyone by pleading guilty.

SUBMISSIONS BY THE STATE

14. Mr Popeu submitted that the robbery that occurred was of a house, putting it in the most serious category of armed robbery recognised by the law. A sentence of 10 to 12 years imprisonment should be imposed.

DECISION MAKING PROCESS

15. 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 are the considerations that should be taken into account in determining the head sentence, in terms of years; and what is the head sentence?
  
• step 5: should the pre-sentence periods in custody be deducted from the term of imprisonment?
  
• step 6: should all or part of the sentences be suspended?
  

STEP 1: WHAT IS THE MAXIMUM PENALTY?

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

17. 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?

18. 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) SC564; Tau Jim Anis v The State (2000) SC642; and Phillip Kassman v The State (2004) SC759.

19. 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.
  

19. The present case falls within the first category. The starting point is therefore ten years.

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 recently 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
15	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

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

21. 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.

22. However, sentencing is not an exact science. It is a discretionary process. When a factor is marked as mitigating or aggravating it does not mean necessarily that it is given the same weight as another mitigating or aggravating factor. Some mitigating factors may be ‘strongly mitigating’. Others may be ‘mildly mitigating’. The same goes for aggravating factors.

23. 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? Charlie: no, he went into house and was armed. Worex and Demas: yes, they stayed watch outside and ran away when bystanders intervened.
   
7. Did the offenders give themselves up after the robbery? No, they were arrested.
   
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 the offenders be regarded as youthful offenders or are their personal circumstances such that they should mitigate the sentence? Charlie: no, he is aged 28 and should have known better. Worex and Demas: yes, they are aged only 19 and 18 respectively.
    
14. Are there any other circumstances of the robbery or the offenders that warrant mitigation of the head sentence? Not the instigators/ringleaders – led astray by others.
    

24. To recap, mitigating factors are:

• No 1 – no physical violence;
• No 6 (Worex and Demas only) – minor involvement;
• No 8 – co-operated with police;
• No 10 – pleaded guilty;
• No 11 – expressed remorse;
• No 12 – first offenders;
• No 13 (Worex and Demas only) – young age.
  

25. Aggravating factors are:

• No 2 – victims threatened;
• No 3 – real danger of people being killed;
• No 4 – vulnerable victims;
• No 5 – high value of things stolen: cash, camera, firearm;
• No 6 (Charlie only) - did not play minor role;
• No 7 – did not surrender;
• No 9 – no compensation or apology;
• No 13 (Charlie only) – mature age offender.
  

26. There are more aggravating factors than mitigating factors so it could be argued that a sentence above the starting point of ten years is warranted. This was a serious armed robbery that disturbed the peace of a rural area. Were it not for the early admissions, co-operation with the police and the guilty plea, a sentence of 10 to 12 years imprisonment each would be warranted. However, I will give substantial credit to the offenders for coming clean.

27. I fix a head sentence for Charlie Kevin of six years imprisonment. As for Worex John and Demas Dano I will impose a lesser sentence due to their relatively minor role in the robbery and their youthful age: four years imprisonment each.

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

28. The offenders have spent time in custody in connexion with this offence and it is proper that those periods be deducted from the total sentence. 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, as shown in the following tables.

TABLE 2: CALCULATION OF FINAL SENTENCE
CHARLIE KEVIN

Length of sentence imposed	6 years
Pre-sentence period to be deducted	5 months, 2 weeks, 2 days
Resultant length of sentence to be served	5 years, 6 months, 1 week, 5 days

TABLE 3: CALCULATION OF FINAL SENTENCE
WOREX WORIU JOHN

Length of sentence imposed	4 years
Pre-sentence period to be deducted	5 months, 2 weeks, 2 days
Resultant length of sentence to be served	3 years, 6 months, 1 week, 5 days

TABLE 4: CALCULATION OF FINAL SENTENCE
DEMAS DANO

Length of sentence imposed	4 years
Pre-sentence period to be deducted	5 months, 2 weeks, 2 days
Resultant length of sentence to be served	3 years, 6 months, 1 week, 5 days

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

29. 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 Kimbe or Mamota, an armed robbery is a traumatic event for the whole community and for every person who is a victim or an innocent bystander. In this case the manager of a store was in his home with other employees minding their own business when their peace and privacy were violently disturbed 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.

30. 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

31. Charlie Kevin, having been convicted of the crime of armed robbery, is sentenced as follows:

Length of sentence imposed	6 years
Pre-sentence period to be deducted	5 months, 2 weeks, 2 days
Resultant length of sentence to be served	5 years, 6 months, 1 week, 5 days
Amount of sentence suspended	Nil
Time to be served in custody	5 years, 6 months, 1 week, 5 days

32. Worex Woriu John, having been convicted of the crime of armed robbery, is sentenced as follows:

Length of sentence imposed	4 years
Pre-sentence period to be deducted	5 months, 2 weeks, 2 days
Resultant length of sentence to be served	3 years, 6 months, 1 week, 5 days
Amount of sentence suspended	Nil
Time to be served in custody	3 years, 6 months, 1 week, 5 days

33. Demas Dano, having been convicted of the crime of armed robbery, is sentenced as follows:

Length of sentence imposed	4 years
Pre-sentence period to be deducted	5 months, 2 weeks, 2 days
Resultant length of sentence to be served	3 years, 6 months, 1 week, 5 days
Amount of sentence suspended	Nil
Time to be served in custody	3 years, 6 months, 1 week, 5 days

Sentenced accordingly.
_________________________

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