State v Basil [2008] PGNC 228; N3671 (5 September 2008)

N3671

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR 1895 of 2005

BETWEEN

THE STATE

V

BANI BASIL

Kokopo: Lay J.

2008: 3rd and 5th September

CRIMINAL LAW - Criminal Code s386 - aggravated armed robbery - dangerous weapons - in the company of others - amounts stolen approximately K23,000 and a motor vehicle - vehicle recovered, money not recovered - repeat offender - second offence occurring shortly after release from imprisonment for first offence - additional time to censure repeat offender - deduction for breach of constitutional rights.

Facts

Bani Basil was found guilty after a trial that in the company of others and armed with dangerous weapons stole the sum of K23, 000, mostly in cash but with some cheques, and a motor vehicle. The vehicle was recovered, only 500 of the cash was recovered. Bani had previously been convicted in 2002 of armed robbery. He complained on the allocutus, and the State did not contest, that he was held without charge and without being given his constitutional right to see a person of his choice, for one week.

Held

1. the appropriate head sentence is 11 years;
   
2. additional time should be added to censure the fact that he was a repeat offender;
   
3. adding additional time for the repeat offence and making a deduction for the breach of his constitutional rights, the total sentence should be 13 years in hard labour.
   

PNG Cases Cited

Gimble v The State [1988-89] PNGLR 27
Public Prosecutor v Don Hale (1998) SC564
Tower Jim Anis and 2 ors v The State (2000) SC642
John Arua Peter v The State (2000) SC638
The State v Gore Yogal (2001) N2080
The State v Sam Pap CR 252 2006 25 April 2007 Kokopo,
State v Terence Ago (2003) N2673
Bobolan Mebu Peter v The State (2008) SC894, [2008] PGSC 28
The State v Urika Iari (2006) N3238
SCRA No. 43 of 2006 Tom Kuki Itagau v The State,Waigani 29th February 2008

References

Criminal Code

Counsel

J. Sebby, for the State
M. Kedai, for the Offender

5 September, 2008

DECISION ON SENTENCE

1. LAY J.: Bani Basil and friends went to the Bob Darragh Service Station on the 18th of July 2005 to rob it. There was preplanning and a lookout must have been kept, as they arrived just as the weekends takings were being loaded into a vehicle to take to the Bank.
   
2. The vehicle was inside the fenced premises behind the service station. The driver of the vehicle and two female staff got into the vehicle with the money, about K23, 000, mostly in cash, but some cheques.
   
3. The vehicle was about to drive out when Bani and his friend descended on the vehicle and its occupants. Bani, and another man, who were not masked, walked straight up to the vehicle. Bani was armed with a bush knife and the other man with a sling shot. Another man who was masked and armed with a gun took control of the entrance gate to the premises. The gun was not discharged nor used to directly threaten the occupants of the vehicle.
   
4. Bani swung his bush knife at the driver's side window of the vehicle and hit the metal surround of the window. On both sides of the vehicle the occupants were being told to get out by Bani and his friend. They did get out. All three of them ran into the office.
   
5. Bani and his friends jumped into the vehicle and drove off. They made a rendezvous with another vehicle at Queen Emma Park. Bani got into the second vehicle and both vehicles drove up Namanula hill. At the Japanese War Memorial Bani's friends transferred to the second vehicle he was in and the vehicle stolen at the robbery was abandoned.
   
6. The driver of the second vehicle was instructed to drive to Baisu High-School. At the school the driver was paid off with K500 in cash and Bani and his friends ran away.
   
7. At the close of the State case Bani's co-accused was acquitted. At the end of the trial Bani was convicted of one count of armed robbery of cash and cheques of approximately K23,000 and of a Mazda double cab Blue in colour. While it was alleged in the indictment that the vehicle was worth K70, 000, its value was not proven. He was also convicted of one count of unlawful use of a motor vehicle.
   
8. This is Bani's second conviction for armed robbery. He was sentenced to a term of six years in hard labour on a conviction for armed robbery on the 25 July 2002.
   
9. On his allocutus Bani complained that he had not been treated properly by the police. He said he was not arrested or charged for the offence. He raised the matter with the District Court and he wrote a letter to the Ombudsman. His counsel clarified that his allegation is that he was kept in the cells without charge and without the opportunity to see a person of his choice for one week. He also complained about the lack of assistance received from the Public Solicitor's Office. As an afterthought he said that he was sorry for what he did.
   
10. Bani comes from Tufi in the Northern Province. However he has apparently lived in East New Britain since childhood as he completed his high-school at Vuvu high-school in 1988. I was not informed of what level he completed. He is now 43 years old, married with three children. His wife has left him since he was arrested for these offences. One child resides with his wife who has remarried and the other two with persons who are not relatives.
    
11. Counsel for the offender referred me to the cases of Gimble v The State [1988-89] PNGLR 27, Public Prosecutor v Don Hale (1998) SC564, Tower Jim Anis and 2 ors v The State (2000) SC642; John Arua Peter v The State (2000) SC638; The State v Gore Yogal (2001) N2080 and The State v Sam Pap CR 252 2006 25 April 2007 Kokopo, Lay J. and submitted that a term of five years would be appropriate.
    
12. Counsel for the offender also submitted that the offender showed co-operation with the police in their investigation, no actual bodily injuries were caused to victims in the course of the offence, there were no threats of violence by the prisoner or his relatives after his arrest and he showed remorse by saying sorry to the court.
    
13. Counsel for the State, in addition to the cases mentioned by counsel for the offender, referred me to State v Terence Ago CR 1649 of 2003 N2673. He submitted that the expression of remorse was not genuine.
    
14. Most of the cases to which counsel for the offender referred me, although providing important foundations for principles to be considered in sentencing, were rather old in terms of their relevance to current actual sentencing trends. John Arua Peter v The State (2000) SC638 was a matter in which six men acted together used a gun to steal a vehicle from the driver. They smashed the windscreen with a stone, assaulted the victim and smashed an empty bottle on his head which broke and cut him. A sentence of 10 years was imposed. In The State v Gore Yogal (2001) N2080 employees of a company were just about to leave work on a company vehicle when the offender and another person armed with a gun appeared, threatened them and stole just under K1000 in cash and just over K4000 in cheques; a sentence of seven years was imposed. In the State v Sam Pap the offender and another threatened employees in a club with knives, tied them up with tape and escaped with K15,250. A sentence of nine years was imposed after a trial.
    
15. In The State v Terence Ago (2003) N2673 the accused and five others held up three victims and a motor vehicle while armed with two home-made pistols and a rifle. They stole K9400, removed the victims from the vehicle and threw them to the ground and drove away in the vehicle. A sentence of 13 years was imposed.
    
16. Armed robbery is an offence under s386 of the Criminal Code. Where the offence is committed in the company of others or with the assistance of dangerous weapons, the maximum penalty, subject to s19, is life imprisonment. Both factors were alleged in the indictment.
    
17. The Supreme Court recently affirmed that the tariff for armed robbery on the street for a first offender on a plea of guilty is 8 to 10 years: Bobolan Mebu Peter v The State (2008) SC894, [2008] PGSC 28. Also recently in the case of SCRA No. 43 of 2006 Tom Kuki Itagau v The State,Waigani 29th February 2008,the Supreme Court did not disturb a sentence of 16 years for armed robbery on a plea of guilty where there was the particular aggravating factor of a firearm being discharged in a crowded commercial area and where the offender had previously been convicted for the same offence. This case then lies somewhere between the two.
    
18. In respect of the submissions of mitigation I accept that no physical injury was caused to the victims but there were certainly shock and fear inflicted on them. As to co-operation with police, I accept the State’s submission that Bani exercised his constitutional right to remain silent at the record of interview, he did not assist the police with their inquiry. If there were threats of violence by the prisoner or his relatives that may be an aggravating factor, their absence is not to my mind a mitigating factor.
    
19. While it is often said that an expression of remorse at the trial is not worth much if there have been no attempts at reconciliation or restitution, those principles cannot be applied when the offender has no family network in the area in which the offence was committed and when he has been incarcerated since the commission of the offence. It would not be right to discount an expression of remorse because there was no reconciliation or restitution when there was no real opportunity to do so. On the other hand, as I have said, the "sorry" was very much an afterthought on the allocutus. Bani made no apology to the victims. He was much more concerned with the breach of his own rights than his breach of other person's rights to live without the fear of threats and robbery.
    
20. The aggravating circumstances are that this was a robbery in the company of others and weapons were used. Therefore Bani is exposed to the maximum penalty of life imprisonment. The aggravating factors are that the weapons held by Bani and his friend were used to intimidate and frighten the occupants of the vehicle. The bush knife was swung at the vehicle clearly to demonstrate that they "meant business". It was a pre planned robbery, not a spur of the moment matter. I deduce from the facts that the vehicle stolen was recovered, but that apart from the K500 handed to police by the driver of the second vehicle, that none of the cash was recovered.
    
21. The fact that Bani was convicted after a trial is not an aggravating matter but it does mean that he is not entitled to the discount he might have received on a plea.
    
22. Although counsel for Bani submitted that his previous offence was almost 10 years ago and therefore he is not a serial robber, the fact is the first conviction was six years ago and the offence now under consideration must have taken place very soon after his release from prison for the first conviction. With remission he would not have been due for release until 2006, so he must have obtained early release. It demonstrates that he learnt nothing from his first conviction. To come straight out of jail and repeat the offence is to my mind a significant aggravating factor. As Kandakasi J. said in The State v Urika Iari (2006) N3238, a break enter and steal case, "a repeat offender may be given a far sterner sentence".
    
23. Taking into account everything that the offender and his counsel have said, I consider that a head sentence of 11 years is appropriate in this case but that some additional time should be added to reflect society's censure of the offenders conduct in repeating the same offence virtually immediately after release from prison. Factoring in this consideration and allowing some discount for the breach of his human rights, which the State did not contest, I impose a sentence of 13 years in hard labour less time already spent in pre-trial custody of three years one month and six days, leaving a balance to serve of nine years 10 months 24 days.
    
24. For the conviction for unlawful use of a motor vehicle I impose a sentence of three years, to be served concurrently with the conviction for armed robbery.
    

______________________________________
Public Prosecutor: Lawyer for the State
Paraka Lawyers: Lawyer for the Offender