State v Dimasi [2008] PGNC 193; N3551 (10 September 2008)

N3551

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR 491 OF 2006
(NO. 2)

THE STATE

V

TOIPO DIMASI
Of
AHIOMA, ALOTAU, MILNE BAY PROVINCE
Prisoner

Alotau: Davani .J
2008: 9th, 10th September

SENTENCE – hold up on beach – theft of outboard motor and accessories - stolen goods worth K8,144.00

SENTENCE – Armed robbery - use of firearms - trial - circumstantial evidence - 12 years imprisonment.

Facts

After a trial, the prisoner was found guilty of one (1) count of aggravated armed robbery, charge laid pursuant to s.386(1)(2) of the Criminal Code Act. The prisoner and others held up an outboard motor operator, and at gun point, made him put to sea. Whilst out at sea, he and others forced two of the victims to jump overboard, at the risk of drowning or being attacked by predators of the sea.

Goods stolen, including a dinghy and outboard motor, were to the value of K8,144.00.

Issue

What is an appropriate sentence for an offence of his nature?

Held

The prisoner is sentenced to 12 years in hard labour.

Cases cited

Gimble v The State [1988-89] PNGLR 271
Public Prosecutor v Don Hale (1998) SC 564
The State v Lasi Mauwe (1999) N 1886
Tau Jim Anis v The State (2000) SC 642
Allan Peter Utieng v The State (2000) SCR 15 of 2000
McKenzie Bonny v The State (2003) SCRA 78 of 2002
Dadly Henry Gorop v The State (2003) SC 732
The State v Chris Banban (2004) N 2645
Phillip Kassman v the State (2004) SC 579
Bosco Bedy v The State SCR 45 of 2004
The State v Andrew Naime John (No.2) N 3197
The State v Kairi Morgan & George Mike (No. 2) CR No. 739 & 740 of 2006 dated 16.8.07
The State v Raphael Kimba Aki (No. 2) N 2082

Counsel:

P. Kaluwin, for the State
R. Yayabu, for the Accused

SENTENCE

10 September, 2008

1. DAVANI .J: On 5th September, 2008, I found the prisoner, Toipo Dimasi (the ‘prisoner’) guilty of one count of aggravated armed robbery.
   

Evidence

2. At trial, I heard evidence and found that on 18th December, 2003, in the early hours of the morning, the prisoner, in the company of three or four others, and whilst armed with shot guns, held up 2 men, who were asleep on the beach at East Cape. These 2 men were dinghy operators and had with them a 23 foot dinghy and a 40 horsepower mariner motor. Also in the dinghy were goods, including jerry cans of fuel, all to the value of K8, 144.00.
   
3. The prisoner and others pointed the shot guns at the heads of the victims, then made them affix the motor to the dinghy, start the motor, then whilst under threat of the guns still pointed at them, take off towards Normanby Island. About 2 to 3 miles off shore, the prisoner and others made the victims, one Lance Thomas and Scott, jump into the sea and swim at the risk of drowning or being attacked by predators of the sea. The sea was rough and the victims found it very difficult under those circumstances. They swam for about 3 or 4 hours, and fortunately, guided by light on Normanby Island, made it to dry land. There they were rescued by villagers.
   

The law

4. The sentencing guidelines in armed robbery cases are established in Gimble v The State [1988-89] PNGLR 271 but the tariffs have increased generally (see Public Prosecutor v Don Hale (1998) SC 564 and Tau Jim Anis v The State (2000) SC 642). These subsequent decisions essentially increase the tariff by three years. In The State v Lasi Mauwe (1999) N 1886, for instance, Kirriwom. J imposed a sentence of 8 years in an armed robbery of a vehicle upon Bena Bridge in Goroka, at night.
   
5. Other sentences handed down by other judges are;
   
   1. The State v Chris Banban (2004) N 2645 dated 31.8.04. Manuhu. AJ (as he then was), sentenced the accused to a term of 7 years on a guilty plea for robbing the occupants of a vehicle at night whilst armed with a grass knife and two home made guns.
      
   2. The State v Andrew Naime John (No.2) N 3197 dated 2nd April, 2007, Lenalia. J, sentenced the accused to a term of 12 years where the prisoner was found guilty after a trial, where he, together with one other whilst armed with a bush knife and a gun held up shop assistants in a shop in Rabaul Town and stole a sum of K1,118.00 from the cash register.
      
   3. Phillip Kassman v the State (2004) SC 579, the appellant, a gang member, together with others robbed staff of the ANZ Bank, Waigani where an unspecified amount of money was stolen. On appeal against a sentence of 10 years as being too excessive, the Supreme Court held that it would not disturb the sentence as the bank was a public place and a lot of people would have been injured if their plan had gone wrong.
      
   4. McKenzie Bonny v The State (2003) SCRA 78 of 2002, the appellant appealed against a sentence of 8 years as being excessive because he submitted he was only the watchman. The Supreme Court dismissed the appeal as having no merits.
      

Analysis of evidence and the law

6. First, the aggravating factors must be balanced against the mitigating factors. In this case, the only factor in the prisoner’s favour is that he cooperated with police in apprehending his other counterparts and in locating the stolen items, including recovery of the weapons used in the armed robbery. The factors most aggravating are these;
   
   • because of his not guilty plea, the Court had to conduct a trial, then spend hours sifting through the evidence to determine his guilt;
     
   • the victims were held up at gun point after they were rudely awakened by the accused and his counterparts, threatened and sworn at then forced to lead their dinghy, at the risk of being shot and injured or worse still, killed;
     
   • that when they were in mid ocean, the accused his counterparts forced the victims to jump overboard despite the fact that the sea was rough and the chances of the victims drowning and being attacked by the predators of the sea, were very real;
     
   • on learning of the police man hunt for him, the accused fled and was on the run resulting in the police expanding time and the very limited resources including money, it had, in searching for him;
     
   • the prisoner has 2 prior convictions, in 1996 when he pleaded guilty to armed robbery and was sentenced to 3 years.
     
7. Section 386 prescribes the penalties for this offence, i.e it is either a term not exceeding 14 years or if committed under aggravating circumstances, then a term of life imprisonment, subject to the Courts sentencing discretion under s.19 of the CCA. Some judges have suggested and held that robbery simpliciter should attract sentences 14 years and below and for aggravated robbery, 15 years upwards, because of the way Parliament has prescribed the offence. (see The State v Kairi Morgan & George Mike (No. 2) CR No. 739 & 740 of 2006 dated 16.8.07). The Supreme Court in Bosco Bedy v The State, SCR 45 of 2004 dated 30.8.06 endorsed the sentiments expressed by the Supreme Court in Dadly Henry Gorop v The State, (2003) SC 732 dated 3.10.03 that a sentence of 8 years for armed robbery with threats and actual violence on the occupants and with personal effects valued at K11,429.05, was too low and that sentence should have been at 10 years following its earlier decision in Public Prosecutor v Don Hale (supra).
   
8. This robbery is more a kin to that of a robbery on the street or of a car. Defence counsel submits that a term between 9 to 12 years is appropriate. The State submits that sentence should be for a period of more than 9 years and to be made concurrent to the 4 years imposed by the District Court when the accused pleaded guilty to being in possession of firearms. First, is the totality principle relevant here? I think not because the prisoner I believe has already served his term, as submitted by Ms Yayabu. She submitted that of the 4 year term imposed by the District Court, the prisoner only served a year, from 4th August, 2004 to 11th August, 2005. He has been in custody, on remand, for this offence, ever since.
   
9. Therefore, the totality principle is not relevant and that the prisoner will serve a term as imposed by this Court.
   
10. I should also state here that prisoners’ counsel asked for the production of a Means Assessment Report for the prisoner to pay compensation. I informed counsel that I would not make such an order because a compensation order is only relevant for mitigation but not as a means to reduce sentence. Counsel raised this because the accused had said on allocatus that his family was willing to compensate the victim for the stolen goods. Another reason I decided not to order the production of a means assessment report is that since his arrest on 4th August, 2004, the prisoner had not done anything about compensating the victims. I find that he is not genuine in his request for a compensation order.
    
11. The prisoner has asked that I consider also that his family needs him, being his widowed mother, and 2 children. The Supreme Court has held that an offender must consider his background first before committing any offence. That it is a little too late for an offender to talk about his personal background including the needs of his family once he is found guilty. His background and concerns have little or no weight against the need to impose a sentence or punishment that befits an offence (see Allan Peter Utieng v The State (2000) SCR 15 of 2000 dated 23.11.00; The State v Raphael Kimba Aki (No. 2) N2082).
    
12. Therefore, on consideration of all factors, I find that the aggravating factors far outweigh the mitigating factors in this case. I find, considering the background of his matter, that a sentence of 12 years is appropriate under the circumstances.
    
13. The prisoner has been on remand for a period of 3 years, 1 month and 2 days. This will be applied towards reduction of sentence. The prisoner shall now serve the reduced term of 8 years, 10 months, 3 weeks and 5 days in hard labour.
    

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