State v NBM [2008] PGNC 325; N3934 (27 October 2008)

N3934

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR NO 589 0F 2008

THE STATE

V

A JUVENILE, "NBM"

Madang: Cannings J
2008: 9 September, 24, 27 October

SENTENCE

CRIMINAL LAW – sentence – armed robbery of a truck on a highway – guilty plea – cargo stolen – young offender, in gang – sentence of 3 years

The offender conspired with a number of others to hold up a company truck that was doing a cargo run. The gang felled a coconut tree and blocked the highway with it. The truck crashed into it and cargo was stolen. The driver and others on board were threatened with bushknives.

Held:

(1) The starting point for armed robbery on a public road is eight years imprisonment.

(2) The offender's actions could have easily caused a fatal road accident, which is a major aggravating factor.

(3) The offender has been saved from a heavy sentence by his juvenile status and his guilty plea.

(4) The court imposed a sentence of three years. The pre-sentence period in custody of 13 months deducted and the balance of the sentence 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 SCRA No 52 of 2005, 27.04.06
Tau Jim Anis v The State (2000) SC642
The State v A Juvenile "ET" CR 1012/ 2003, 09.04.05
The State v A Juvenile, "TAA" (2006) N3017
The State v Alphonse Polpolio and Jeffery Baru CR 865 + 701/2006, 14.07.06
The State v Dickson Kauboi CR 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 John Carl Endekra, Wilson Isaiah & Albert Martin Klembasa CR 70-72/2007, 14.07.06
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 379/2005, 19.12.06

SENTENCE

This is a judgment on sentence for armed robbery.

Counsel

J Wala, N Goodenough & M Ruarri, for the State
J Kolkia, for the offender

27 October, 2008

1. CANNINGS J: This is a decision on sentence for a 15-year-old boy, "NBM", who pleaded guilty to one count of armed robbery.

2. In August 2007 he and a number of other youths felled a coconut tree at Maiwara, near the Bagawa Bridge, on the North Coast Road of Madang Province. At 1.30 am they lay the tree across the road, and lay in waiting for an RD Tuna Cannery truck to come along. The truck, loaded with fish, was coming from the Vidar fish plant, heading to the cannery, when it crashed into the log. The driver attempted to drive over the log but in doing so the drive shaft was broken. He and two other company employees were not injured in the accident but were held up at knifepoint by NBM's gang who stole 505 kilograms of fish valued at K1,111.00.

NBM got four of the stolen fish. He sold three at the market for K3.00 each and had the other one for dinner.

ANTECEDENTS

3. The offender has no prior convictions.

ALLOCUTUS

4. I administered the allocutus, ie the offender was given the opportunity to say what matters the court should take into account when deciding on punishment. He said:

It is true that I did these things. I was a worker on a plantation managed by RD Tuna Cannery. I am a farm boy, poorly paid, and I had been working for the company for 18 months. I wanted a pay rise but the company continued to do nothing about it so me and my work mates got angered by that. I came up with the idea of holding up a company truck. Then we did what we did.

OTHER MATTERS OF FACT

5. As the offender has pleaded guilty he will be given the benefit of the doubt on mitigating matters raised in the depositions, the allocutus or in submissions that are not contested by the prosecution (Saperus Yalibakut v The State SCRA No 52 of 2005, 27.04.06).

6. It is significant that the offender surrendered to the police in the month following the robbery and has been very co-operative with the police.

PERSONAL PARTICULARS

7. Theodore Munonski is 28 years old and married with two children. He has one brother, Frankie, who is presently in remand at Beon Jail in connection with the same robbery.

SUBMISSIONS BY DEFENCE COUNSEL

8. Mr Kolkia submitted that the court should put considerable weight on the fact that the offender surrendered and pleaded guilty. Also there was no actual physical violence committed.

SUBMISSIONS BY THE STATE

Mr Ruarri submitted that the court should impose a sentence of around eight years.

DECISION MAKING PROCESS

9. 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 period in custody be deducted?
• step 6: should all or part of the sentence be suspended?
  

STEP 1: WHAT IS THE MAXIMUM PENALTY?

10. For armed robbery (Criminal Code, Sections 386(1), (2), (a) and (b)) – the maximum penalty is life imprisonment. However I have discretion to impose less than the maximum term and suspend part or all of the sentence under Section 19 of the Criminal Code.

STEP 2: WHAT IS A PROPER STARTING POINT?

11. 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.

12. 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.
  

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

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

14. There are plenty of cases involving armed robbery of stores and vehicles on the road, which are summarised in the table below.

TABLE 1: SENTENCES FOR STORE AND ROAD ROBBERIES,
CANNINGS J, 2005-2007

No	Case	Details	Sentence
1	The State v A Juvenile "ET" CR 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 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 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 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 John Carl Endekra, Wilson Isaiah & Albert Martin Klembasa CR 70-72/2007, 14.07.06	Guilty pleas – held up a truck carrying cargo on a public road – had guns and bushknives and were in the company of two convicted criminals – K600.00 cargo stolen – occupants of vehicle wounded with bushknives.	5 years, 5 years; 5 years
10	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 IS THE HEAD SENTENCE?

15. Mitigating factors are:

• no physical violence;
• surrendered to and co-operated with police;
• pleaded guilty;
• first-time offender.
  

16. Aggravating factors are:

• victims threatened;
• real danger of people being killed.
  

17. After weighing all these factors and comparing this case with the other armed robbery sentences I have recently imposed, the head sentence should be below the starting point of eight years. I give substantial credit to the offender for his surrender to and co-operation with the police and early guilty plea. I fix a head sentence of four years imprisonment.

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

18. Yes. I decide under Section 3(2) of the Criminal Justice (Sentences) Act that there will be deducted from the term of imprisonment the whole of the pre-sentence period in custody, which is five months, one week.

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

19. NBM has received a favourable pre-sentence report. He is not considered a threat to the community and is recommended for probation. He has already been in custody for 13 months, which should have taught him to stay out of this sort of trouble in the future. I will suspend the balance of the sentence on these conditions:

(a) must report to the Probation Office within three days after release from custody and settle on a community work program, which must be ratified by the National Court;

(b) must perform at least six hours unpaid community work each week at a place notified to the Probation Office under the supervision of his Ward Councillor;

(c) must reside with his parents and nowhere else except with the written approval of the National Court;

(d) must not leave Madang Province without the written approval of the National Court;

(e) must attend his local Church every weekend for service and worship and submit to counselling;

(f) must report to the Probation Office on the first Monday of each month between 9.00 am and 3.00 pm;

(g) must not consume alcohol or drugs;

(h) must keep the peace and be of good behaviour;

(i) must have a satisfactory probation report submitted to the National Court Registry every three months after the date of sentence;

(j) if the offender breaches any one or more of the above conditions, he shall be brought before the National Court to show cause why he should not be detained in custody to serve the rest of the sentence.

SENTENCE

20. The juvenile, "NBM", having been convicted of one count of armed robbery, is sentenced as follows:

Length of sentence imposed	3 years
Pre-sentence period to be deducted	1 year, 1 month
Resultant length of sentence to be served	1 year, 11 months
Amount of sentence suspended	1 year, 11 months
Time to be served in custody	Nil, subject to conditions of suspended sentence

Sentenced accordingly.

__________________________
Public Prosecutor: Lawyer for the State
Paul Paraka Lawyers: Lawyers for the offender