State v John (No 2) [2007] PGNC 84; N3197 (2 April 2007)

N3197

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR NO. 1001 OF 2002

THE STATE

V

ANDREW NANE JOHN (NO.2)

Kokopo: Lenalia, J.
2007: 15 & 23 March
2 April

CRIMINAL LAW – Armed robbery – Sentence – Relevant Principles. Criminal Code, s.386 (2) (a) (b) Ch. No.262.

Cases cited

The State v Paul Kundi Rape [1996] PNGLR 96
John Beng v The State [1977] PNGLR 115
The State v Roka Pep (N0.2) [1983] PNGLR 287
Biwa Geta v The State [1988-89] PNGLR 153
Gimble v The State [1988-89] PNGLR 271
Public Prosecutor v Don Hale (1998) SC564
John Peter Arua v The State (2000) SC638
The State v Edward Toude & Ors. (N0.2) (2001) N2299
Richard Sebastian v The State (2003) SCR 43 of 2002
The State v Paul Maima & Or. (2004) N2583
Phillip Kasman v The State (2004) SC759
Dadly Henry Gorop v The State (2005) SC732
Richard Liri v The State (2007) SCRA 09 of 2006

Counsel:

L. Rangan, for State
N. Manliaki, for Accused

2 April, 2007

1. LENALIA, J: The accused was indicted with one count of aggravated armed robbery contrary to Section 386 (1) (2) (a) (b) of the Criminal Code, Ch 262. This serious crime took place at Tropicana supper market in Rabaul town on 23 July 2001. After he was arraigned, the accused pleaded not guilty. A trial was conducted and at the end of the prosecution case, Ms. Maliaki of counsel for the accused made a submission of no case to answer.

2. The court made a ruling on the 15th day of last month, after considering the principles of law in The State v Paul Kundi Rape [1976] PNGLR 96 and the line of cases after the above case such as John Beng v The State [1977] PNGLR 115, The State v Roka Pep (N0.2) [1983] PNGLR 287 and Biwa Geta v The State [1988-89] PNGLR 153 that there was a case to answer. After making the above ruling, the court called upon the defence to call their evidence. Only the accused gave evidence after which the court found him guilty as charged.

Finding of Facts.

3. For purposes of sentence, the following findings of facts appeared from the evidence adduced on trial. On the date earlier mentioned, the prisoner and another man went to the Tropicana Supper Market in town and staged an armed robbery. The prisoner had a bush-knife in his possession while his co-accused Steven Palita had a gun.

4. The accused used the bush-knife to cut the till while his co-accused fired a gun scaring the staff and customers at the time of the robbery. A cash amount of K1, 118.00 was stolen from the till at the counter. This fact is clear from the evidence of Roselyn Minal.

5. Witness Regina Kapet testified that, when she was doing her shopping in the above shop, she heard a gun fired by somebody. When she looked back, she recognized two persons. She named them as Steven Palita and Joanes Nane. In my ruling both in the submission of "no case to answer" and the decision on the verdict, I said the court is entitled to infer in terms of The State v Tom Morris [1981] PNGLR 493 or Barca v The Queen [1975] HCA 42; (1975) 133 C.L.R. 82 that, the name "Joanes" given by witness Regina could be used interchangeably as some people at their village may refer to the prisoner that way while others may know him by his names on the indictment.

Issues on Trial

6. The issue on trial was one of identification. In the ruling on the verdict, I said that, the accused was the one who was seen by witness Regina. When asked in chief and cross-examination as to how well she knew the accused before the incident, she replied that, they both come from Iawakaka village and although, the prisoner is now residing on a block at Keravat, she knows him well as he comes around into the village every now and then.

The defence evidence was one of total denial. The accused said in evidence that on the date of this offence, he was down at Iawakaka beach fishing with his brother and an uncle of theirs. The prisoner did not however call any of those two persons he name in his evidence as Cosmos Tali and Blasius Milat. In fact the prisoner was raising the defence of alibi and for such defence to be of any value, those two persons were essential witnesses for the defence case. After all, no such notice was ever served on the State.

7. From the above evidence, the court was convinced beyond reasonable that the person whom Regina Kapet saw at the counter holding a bush-knife was the accused. Having warned myself of the dangers of convicting an accused person on the identification evidence in terms of John Beng v The State [1977] PNGLR 115, The State v Roka Pep (N0.2) [1983] PNGLR 28 and Biwa Geta v The State [1988-89] PNGLR 153, the court proceeded to convict the prisoner on the charge of aggravated robbery.

Allocutus.

8. After the prisoner had been found guilty, the court administered allocutus to him. He said though he is happy about the findings of this court and the decision which will soon be pronounced, he feels he is innocent of this charge.

Addresses on Sentence.

9. The prisoner is now age 23. When he committed this offence, he was only 16 years old. According to the State Prosecutor the prisoner has no previous convictions. Ms. Maliaki of counsel for the prisoner submitted that the accused had been in custody for a period of over 4 years. He once escaped from Correctional Services custody but he was recaptured. The defence counsel submitted on the relevant law on the sentencing principles by referring to the sentencing guidelines set by the Supreme Court in Gimble v The State [1988-89] PNGLR 271 and the comments on the prevalence of the crime of armed robbery made by the above Court in Public Prosecutor v Don Hale (1998) SC564. Counsel requested for a Pre-Sentence Report (PSR) and the court adjourned for that reason until today. The PSR was filed yesterday morning when the court was ready to go into court.

10. The court has read the pre-sentence report. Apart from the accused’s mother’s opinion and that of Counsellor Mr. Wesley To Vue, two other members of the community contacted Ms. Lawrence Eremas and Elison Taruve, say that the accused has been known to be involved in criminal activities. In case of Lawrence Eremas, she said the accused is a "rapist" around the Kereba block and many mothers and young women fear the accused and those with whom he associates with. According to Ms. Eremas, when the accused was on the run after escaping from custody, he and his gang mobilized and commenced terrorizing the community.

11. Elison Tarue is an uncle of the accused. According to Elison, before the offence was committed, the accused used to live with him in Malaguna No.1 village. Elison throws the blame on the mother of the prisoner for neglecting the accused because she is married to another man now. His observation includes the accused being associated with other young criminals who are involved in criminal activities around the area.

12. This court cannot ignore the pleas by those concern citizens. This is the reason why the courts must have the community input from village elders, councillors, committees, church leaders and all concerned members of our community. It is clear from the PSR that, the accused is a potential danger to the community. If the whole community join our hands together, and try to have some co-coordinated efforts in dealing with the crime problem in our community then I believe, Papua New Guinea can become a true paradise. At the moment, there is no coordination between the community, the Police Force and other government agencies. This is obvious from the report in this case that, there are many young people out there who are terrorizing fellow citizens by committing armed robbery or even sexual related offences such as rape and the like offences.

13. For the State, Mr. Rangan submitted that, the court should be mindful of the prevalence of the crime of robbery and due to the serious nature with which this offence was committed, the court should impose a sentence that should have the effect of deterrence not only on the accused but on the public as a whole.

Law

14. The prisoner is charged under s.386 (2) (a) and (b) of the Criminal Code for an armed robbery committed with aggravations. The prescribed maximum penalty for Subsection (1) is 14 years imprisonment.

15. Where an offence is committed with aggravations under Subsection (2) (a) (b) or (c) it is very serious and the law stated in the above proviso says that, an offender can be sentenced to life imprisonment. This is a reflection of the Parliament’s intention to punish offenders appropriately according to the merits of each case. The Court has discretion to sentence a person to a term of years by applying the sentencing discretion given it by s.19 of the Code.

16. The prisoner’s case falls into Subsection (2) of the Section charged. I quote the whole Section so the public is made aware of the serious nature of the crime of armed robbery and the penalties that can be imposed by this court on those who offend. The above Section states:

"386. The offence of robbery.

(1) A person who commits robbery is guilty of a crime.

Penalty: Subject to Subsection (2), imprisonment for a term not exceeding 14 years.

(2) If a person charged with an offence against Subsection (1) –

(a) is armed with a dangerous or offensive weapon or instrument;

(b) is in company with one or more other persons; or

(c) at, immediately before or immediately after, the time the robbery, wounds or uses any other personal violence to any person, he is liable subject to Section 19, to imprisonment for life."

17. The sentencing guidelines set by the Supreme Court in Gimble v The State [1988-89] PNGLR 271 has been said to be "outdated" meaning to say that those guidelines are no longer applicable to offences committed in our time and the fact that the crime of armed robbery is very prevalent in our time today: Public Prosecutor v Don Hale (1998) SC564.

18. In Gimble v The State (supra), the Supreme Court set out four (4) sentencing guidelines and tariffs for the offence of aggravated robbery. The Court said in that case that in a plea of not guilty by young offenders carrying weapons and threaten to use violence for an armed robbery committed in the following places with the suggested starting points or number of years:

(a) robbery in a house, a starting point of seven year

(b) robbery in the bank, starting point of six years,

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

(d) robbery on the street, starting point of three years.

19. Comments made by the Court in the above case are that where an offence of armed robbery is committed with features of aggravations such as actual violence or where a robbery involves a large amount of money may justify a higher sentence. A plea of guilty should justify a lower sentence. Your case went by trial as well as it was aggravated by the use of a bush-knife and a gun. Serious still was the fact that, the gun was fired.

20. I will quote a number of authorities which the Supreme Court has either up-held or dismissed appeals for reasons reflected in Don Hale’s case. In John Arua Peter v The State (2000) SC 638, the appellant was sentenced to a term of ten (10) years. Another two years were imposed to be served concurrently for an offence of unlawful use of a motor vehicle. The offence was aggravated by forcefully breaking the windscreen and thereafter, the robbers used a bottle of beer to assault the victim’s head. The appellant appealed on the grounds of severity.

21. The Supreme Court dismissed the appeal and said the sentence imposed was appropriate due to the serious nature of the offence.

22. In McKenzie Bonny v The State (2003) SCRA 78 of 2002 an aggravated case of armed robbery in Madang, the appellant was sentenced to 8 years imprisonment. His grounds of appeal were that the trial judge did not consider the fact that, the appellant was a student at the University Centre in Madang and that during the robbery; he was merely a watchman for those who committed the actual robbery. His appeal was dismissed as the Court found the appeal had no merits.

23. I note comments made in the case of Public Prosecutor v Don Hale (1998) (supra) where the Supreme Court said, sentences imposed for armed robbery cases are not having any effect on offenders who commit the crime of robbery. What is clear is that now and then, the offence of armed robbery is freely and frequently committed invariably by young people. Young people are committing this serious crime on innocent people who carry on their businesses lawfully, be they corporate entities or individuals even lowly and simple villagers are affected.

24. This court sentenced Richard Liri an ex-policeman to a term of 8 years imprisonment for an offence of aggravated armed robbery. Three years of that sentence were suspended with conditions. He appealed to Supreme Court on the grounds of severity and the credibility of the State’s evidence: Richard Liri v The State SCRA 09 of 2006. The Supreme Court dismissed the appeal and increased the sentence to 15 years.

25. In The State v Paul Maima Yogol and Dama Teiye (21.5.04) N2583, Kandakasi, J imposed a sentence of 12 years on the two prisoners who were part of the armed gang that held up a motor vehicle and stole from the driver and others cash and goods to the value of K1, 300.00. In that case the two prisoners pleaded guilty. There are many cases of gang robbery where sentences have been substantially increased due to the prevalence of this crime even where accused or prisoners have pleaded guilty.

26. The prevalence in the offence of armed gang and other forms of robbery has caused the Supreme Court to take the position in the Don Hale’s case as the past sentences appeared not to deter offenders and other would be offenders from committing armed robberies. In doing so, the Supreme Court acknowledged that there have been increases in the sentences imposed by the National Court.

27. In Dadly Gorop v The State (2005) SC732 the Supreme Court, had regard to the increase in sentences for armed robbery and reduced a sentence of 20 years to 18 years. In that case, the prisoner pleaded guilty to one charge of armed robbery. The amount of property stolen was not substantial, but the injuries to the victims were very serious. The victims were a Canadian couple, touring the country at the time. The prisoner seriously assaulted the victims with a hockey stick. This resulted in fractured head injuries to both victims. The prisoner also knocked them down unconscious, with one of them almost dying but was rushed to Cairns in Australia for medications.

28. In arriving at that decision, the Supreme Court said:

"Given these, the sentence of 20 years in your case would appear not to be manifestly excessive going by the guidance of the judgement in Hawai John’s ... case. At the same time however, given the kind of sentence the offenders have received in cases like that of The State v. Vincent Malara ... following a guilty plea in the particular circumstances in those cases with a sentence after a trial as in The State v. Edward Toude, & Ors (No 2), ... reaching 20 years, we are of the view that you would have a justified feeling of the sentence being excessive. We are therefore of the view that your sentence should be reduced to 18 years."

29. What is clear from all of this is the fact that, sentences in armed robbery cases have increased since the guidelines in Gimble v. The State (supra). The prevalence of the offence is the main contributing factor for the increase in the sentences. The lowest starting point for a simple robbery of a dwelling house according to Public Prosecutor v Don Hale (supra) is now 10 years. This sentence may be increased or decreased depending on the factors in aggravation as well as those in mitigation.

30. In recent years the National Court has been imposing sentences of up to 15 years. A case on point is the judgment of Kandakasi, J. in The State v Vincent Malara (2002) N 2185 where His Honour sentenced the accused to 15 years for a gang armed robbery and it was a guilty plea.

31. In The State v Edward Toude & Ors (No.2) (2001) N2299 the same judge imposed a term of 20 years. That was the case of an armed robbery on a ship where the Court there equated it to the same category as a robbery in a dwelling house and there were some elements of breach of trust. These cases were not tested by the Supreme Court as that of Dadly Henry Gorop, so not much reliance should be placed on such cases.

32. In my assessment, the above cases would have been extreme cases. Most other National Court cases sentences would seem to this Court to be in the range of 8 – 9 years or even 12 years.

33. In Richard Sebastian v The State (2003) CR. No. 43 of 2002, the appellant appealed against a 9- year sentence for a well planned armed robbery of a passing public motor vehicle between Pagwi and Maprik District in the East Sepik Province. He entered a guilty plea and was sentenced accordingly. His appeal was dismissed as the Supreme Court found that although no violence was used, passengers were harassed and robbed of cash and properties worth K579.00.

34. The Court must pause and say here that despite what both the National and Supreme Courts have tried to say and express concern over the violence being experienced right throughout the country, the legislative intent in relation to s. 386 (1)(2)(a)(b) and (c) is very obvious.

35. An accused who offends against Subsection (2) of s.386 must expect to receive higher sentences. I believe the above Subsection speaks for itself. Whatever, judges of the National and Supreme Courts can say, the Parliament has expressed its intention that people who commit armed robberies be they by gangs or individuals, must face the full brunt of the law. This court will be failing its duties if it were to be too merciful with offenders who like the prisoner in the instant case commit offences under the cloak of youthfulness.

36. Your case must be regarded and considered to be very serious. Robberies in shops in our towns are becoming very prevalent. The only way to stop this heinous crime is to impose punitive deterrent sentences. As the Supreme Court said in Don Hale’s case, sentences imposed for offences of robbery not only robberies in homes but even in shops, on vehicles, hotels, clubs or on the street must be met by deterrent sentences depending on the circumstances of each case.

37. This was daylight robbery. You showed no signs of fear for the law, and no sympathy to the shop owners. Aggravating factors in your case involved you being accompanied with one other person and secondly, the two of your threatened the employees of the Tropicana supper market. Then you armed yourself with the bush-knife and a gun being offensive weapons. This country cannot be run by hooligans who go around robbing others of their hard earned money and the businesses they set up

38. People must carry out their business in the type of environment that is based on the concept of developing ones ability in the development and the exercise of a person’s free will in personal creativity and enterprise in pursuit of fulfilment that is consistent with the common good and the respect for other people’s property pursuant to the protection from unjust deprivation of property envisaged by Sections 44 and 53 of the Constitution.

39. The youth of today, must learn to respect property and our business community. It is through the business community that, the government gets its money through taxes from which money it is extended to all forms of development including infrastructure. The money involved in this robbery was a little over one thousand kina. However considering the aggravations such as threatening the supper market staff by firing a gun and the use of the bush-knife to cut the till machine are very serious indeed. It was lucky not a lot of money was stolen and no one was hurt or even killed.

40. The facts and evidence of the instant case are a little similar to that of Phillip Kasman v The State (2004) SC759 where the appellant was a member of a gang which robbed the staff on the door step into the ANZ Bank in Waigani where they stole an unspecified sum of money. The trial judge imposed a sentence of ten (10) years. He appealed on the basis that the sentence he received was too excessive but the Supreme Court did not want to disturb the sentence as it was a public place and more injuries could have been caused if the plan went wrong.

41. In your case, anything could have gone wrong. It was lucky that nobody was hurt. The use of the bush-knife and the gun must not be treated lightly by this court as lives were put at risk and to threaten someone and steal from him or her is morally wrong and inappropriate and in all case this evil that eats the fabrics of our society must be eradicated. There is no respect for the law and the community is already fed up with this crime and this court must do its part to make sure offenders are appropriately punished.

42. As stated earlier, the legislative intent of prescribing the maximum penalty of 14 years for ordinary armed robbery and life imprisonment for those cases aggravated by the use of violence or threatened violence by those who act in concert carrying dangerous offensive weapons must meet the consequences of high penalties to reflect the community’s view on how serious is the crime of armed robbery.

43. I have had the benefit of reading the PSR. The report says that the accused may not be a suitable candidate to be given a period of probation. After considering all submissions by lawyers, the pre-sentence report and the accused statement in allocutus, the law must take its course and I am of the view that, the prisoner must be sent to goal for a term of years. He is sentenced to a term of 12 years imprisonment in hard labour. He has spent 4 years 7 months in custody awaiting trial. Such period shall be deducted from the head sentence. He shall serve the balance.

___________________________________________

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