State v Tamagi [2008] PGNC 42; N3310 (12 March 2008)

N3310

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR NO. 247 and 248 of 2008

THE STATE

-V-

ALUS TAMAGI AND PAIJA TEKE

Tabubil: Kandakasi, J.
2008: 10 & 12 March

DECISION ON SENTENCE

CRIMINAL LAW- Sentence – Armed robbery of a supermarket – Guilty plea – First time offenders – Substantial amounts of cash K190,000 stolen – Save for K400 most of the cash recovered – No physical harm or injury to any person - Prevalence of offence – Deterrent sentence required – Sentence of 15 years imposed.

Cases Cited:
The State v. Peter Lucas
The State v. Kairi Morgan & George Mike (No.2) CR NO. 739 & 740 of 2006 (Unreported and yet to be numbered judgment delivered on 16/08/07)
Gimble v. The State [1988-89] PNGLR 27
The State v. Moses Tingin & Kennedy Kara CR 1483 and 1484 of 2005 (judgment delivered on 26th September 2005)
Hawai John v. The State (unreported judgment delivered on 02/04/98) SCR 09 of 1995
Dadly Henry Gorop v. The State (unreported judgment delivered on 03/10/03) SC732
The State v. Paul Maima Yogol and Dama Teiye (21/05/04) N2583
The State v. Warip Mondol & Ors (19/08/04) N2707
The State v Gilbert Monai (09/06/04) N2617
Bosco Bedy v. The State SCR 45 of 2004, delivered on 30th August 2006
Public Prosecutor v. Don Hale (27/08/98) SC564
Nelson N Ngasele v. The State (03/10/03) SC731

Counsels:

J. Kesan, for the State.
P. Kapi, for the Prisoner.

12 March, 2008

1. KANDAKASI J: On Monday, you pleaded guilty to a charge of armed robbery contrary to s. 386 (1) (a) of the Criminal Code. Having satisfied myself that there was basis for the charge and your guilty plea, I received yours and your lawyer’s as well as that of the State’s address on sentence.

Relevant Issues

2. The main issue for the Court to decide is the appropriate sentence for you. As I have been saying in the decisions I have handed down today, the issue raised here can be determined by reference to the relevant facts, the offence you have committed, the relevant sentence trend and tariffs, your personal and family background and the factors both in your favour and those against you.
   
3. Hence, I firstly turn to a consideration of the relevant facts. On 18 February 2007, you armed yourself with a factory made sig pistol and a knife and went to the Andersons Food Land Supermarket here in Tabubil. You entered the supermarket and went straight to the cash office. There, you held up two female employees who were counting the days taking for the supermarket. You ordered the victims to put the money all in notes only into two bags. Once all the money were loaded into the bags, you took them totalling K190,000.00 and fled from the scene of the crime and fled from the township of Tabubil on foot. Before leaving Tabubil however, you bought some cigarettes and biscuits and other items. All in all you used K400.00 out of the K190,000.00.
   
4. Eventually police were alerted and they tried to track you down with the money. They eventually did track you down at a village called Kanap as you were on your way to your home province of Southern Highlands. Upon your apprehension, you gave all of the unused money, namely K189,600.00 to the policemen who caught up with you and arrested you.
   

The Offence and Sentencing Trend

5. Bearing the above facts in mind, I now turn to a consideration of the offence and its sentencing trend and tariffs. Here, I repeat what I said in decision I just handed down in the matter of The State v. Peter Lucas. There, I noted that s. 386 creates and prescribes the penalties for the offence of robbery in the following terms:
   

"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; or

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

(c) at, immediately before or immediately after, the time of the robbery, wounds or uses any other personal violence to any person,

he is liable subject to Section 19, to imprisonment for life."

6. I then noted that, in The State v. Kairi Morgan & George Mike (No.2) CR NO. 739 & 740 of 2006 (Unreported and yet to be numbered judgment delivered on 16/08/07), I expressed the view that the way in which Parliament has prescribed the offence must be given its proper meaning and effect. Accordingly I held there that, robbery simplicity should attract sentences up to 14 years, whilst an aggravated robbery such as armed robbery should attract sentences beyond 14 years. I suggested that sentence for aggravated armed robbery should start at 15 years and adjusted upwards depending on the degree of aggravation present in each case.
   
7. Before going any further, I reminded myself that, the maximum prescribed penalty for armed robbery is life imprisonment. Nevertheless, in the often cited case of Gimble v. The State,[1] which both your lawyer and the State’s drew to the Court’s attention, the Supreme Court, set sentencing guidelines and tariffs lower than that in the exercise of the sentencing discretion vested in the courts by s.19 of the Criminal Code. According to the guidelines provided by that case, higher up on the sentences, it recommends is 7 years for robbery of a dwelling house and at the lower end are robberies of a person on the street at 3 years.
   
8. I then referred to my decision in The State v. Moses Tingin & Kennedy Kara[2] where I reviewed the Supreme Court’s and the National Court’s approach to sentence since the decision in the Gimble case. I started that process with the decision of the Supreme Court delivered on 2 April 1998, in Hawai John v. The State,[3] to the Supreme Court decision in Dadly Henry Gorop v. The State[4] and the National Court decisions in The State v. Paul Maima Yogol and Dama Teiye,[5] The State v. Warip Mondol & Ors.,[6] and The State v Gilbert Monai.[7]
   
9. I observed that, due to the prevalence of the offence of armed robbery, the courts have now come to accept that the past sentences have failed to deter offenders like you from committing this offence. I also noted that, having regard to that fact, and the relevant sentencing trend and or tariffs, the Supreme Court in Dadly Henry Gorop v. The State (supra), in the context of a sentence of 20 years said:
   

"Given these, the sentence of 20 years in your case would appear not to be manifestly excessive going by the guidance of the judgment 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."

10. The prisoner in that case 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, a Canadian couple touring the country at the time were seriously assaulted by a hockey stick. That resulted in fractured head injuries to both victims. The prisoner also knocked them down unconscious with one of them almost dying but for swift medical intervention.
    
11. After noting the above decision of the Supreme Court and others, I concluded in the Moses Tingin & Kennedy Kara case:
    

"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 ... 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 is now 10 years. This sentence may be increased or decreased depending on the factors in aggravation as well as those in mitigation. However, if this is reconsidered in the light of the judgment in Hawai John v. The State,... the sentence could well start at 13 to 15 years. Indeed two recent judgments of the Supreme Court in Norbert Maing v. The State ... and Nelson Ngasale v. The State,... endorsed a number of judgments increasing sentences, most of them mine by indicating a preparedness to increase sentences from 10 years to 13 years for armed robberies on a street on a plea of guilty."

12. I also noted that the judgment of the National Court in The State v. Paul Maima Yogol and Dama Teiye, (supra) The State v. Warip Mondol & Ors.(supra) and The State v Gilbert Monai (supra) were examples of the courts imposing sentences beyond the 10 years mark for robbery on a street.

12. In the first of these cases, I imposed a sentence of 12 years on guilty plea. The prisoners were part of an armed gang that held up a motor vehicle and stole from its driver and others cash and goods valued at about K1, 300.00. That was on a guilty plea by two first time young offenders.
    
13. In the second case, the National Court per Lenalia J., imposed on a guilty plea a sentence of 12 years for armed gang robbery on a street. That was for robbery of a vehicle on a highway, with the use of bush knives and actual violence where a victim was cut by a bush knife.
    
14. In the final case, the National Court imposed a sentence of 12 years and 15 years respectively. That was for two separate counts of armed gang robbery with serious aggravating factors that included the unlawful detention of the victims of the first of the two counts and physical injuries to the victims of the second count.
    
15. In 2004, the Supreme Court in Bosco Bedy v. The State,[8] endorsed the sentiments expressed by the Supreme Court in Dadly Henry Gorop v. The State (supra). Then in the case before it, the Supreme Court expressed the view that a sentence of 8 years for armed robbery with threats and actual violence at a dwelling house, and robbing from it a generator set, a chain saw frame, a TV screen, 3 radios, a bag of clothes, K400.00 cash and other personal effects, all valued at K11, 429.05, was too low. It held that the starting sentence should have been 10 years following its earlier decision in Public Prosecutor v. Don Hale.[9]
    
16. The State’s lawyer drew the Court’s attention to the decision of the Supreme Court in Nelson N Ngasele v. The State (03/10/03) SC731. There, the appellant was part of an armed gang, which conducted two robberies in the night. Actual violence with damages and injury to persons and property were occasioned to secure the robbery. Cash and goods of substantial value were stolen of which, only a part was recovered. The appellant was a first time offender and pleaded guilty to a charge of armed robbery. A sentence of 5 years in hard labour was imposed against him. He appealed against his sentence claiming that the sentence was excessive. The Supreme Court dismissed the appeal and expressed the view that the particular circumstances of the case called for a sentence in excess of 10 years.
    
17. Obviously, these authorities show that, sentences for armed robbery cases have gone past the 10 years mark due to the prevalence of the offence. Despite that, your lawyer argued for a sentence of up to 8 years. On the other hand the State argued for a sentence between 15 and 16 years.
    

Sentence In Your Case

18. Bearing the above sentencing trend and tariffs in mind, I now proceed to give consideration to the question of what is an appropriate sentence for you? I first turn to your personal background. I note that, both of you are mature man aged 31 and 38 years respectively. Alus Tamagi, you are married to two wives and two children one a son aged 1 year 6 months old and the other a daughter aged 2 years old while Paija Teke, you are single. Both of you are Christians with Alus Tamagi, you following the Catholic faith while Paija Teke, you follow the Seventh Day Adventist faith. Alus Tamagi, you have been up to grade 5 primary education, while Paija, you have no formal education. It seems both of you have no formal and fixed employment.
    
19. I now proceed to consider the factors for and against you, starting firstly with those in your favour. The first thing I note is the fact that both of you pleaded guilty to a serious charge. This is consistent with your early admission to committing the offence when the police initially arrested and charged you. You maintained that position through the committal process up to this Court. That saved the State much time and costs that could have been spent in running a trial to establish your guilt. It also prevented the victims from coming into Court and relive their painful memories of the trouble you put them through. A guilty plea usually enables a court to consider and in appropriate case impose a lenient sentence.
    
20. Secondly, I note that your ready admission of the commission of the offence and ultimately pleading guilty to the charge is testimony of your expression of remorse being genuine. I also accept that your promise not to commit the same offence or any other offence is genuine.
    
21. Thirdly, I note your claim that, this is your first ever offence especially in terms of committing an armed robbery. That means, neither of you have been on the wrong side of the law. Instead, you have led a law abiding life all your life until the commission of the offence for which you are now before this Court. Usually, the law allows for lenient treatment of first time offenders.
    
22. Fourthly, I note that you caused no physical injury to any of your victims or the police who chased you and eventually arrested you. That is not the same to say that, your victims suffered no form of injury. I am sure they suffered much shock and trauma when you held up the two female employees of Andersons Food Land Supermarket in the way you did, using the sig pistol and the knife.
    
23. Finally, I note that of the substantial amount of K190,000.00 you robbed, you used only K400.00. The rest of it, K189, 600.00 were handed over to the police. I would therefore take it that, that amount of money has been recovered to the owner, Andersons Food Land Supermarket.
    
24. Turning now to the factors against you, I note firstly that, you committed an offence that is prevalent. It is so prevalent that it is being committed on a daily bases sometimes more than one each day. As I said in decision I handed down yesterday in the case of The State v. Peter Lucas CR No. 1274 of 2007, this means, the kind of sentences that have been imposed to date are not serving their intended purpose of deterring other would be offenders from committing the offence. This is inevitable when some judges are imposing wholly suspended sentence of say 7 or lesser years without the support of any pre-sentence report and more so without any good compelling reason to impose a sentence well below the tariffs. What this means in your case is that, a sentence that has the potential to help deter yourself and other like minded persons from committing the offence of armed robbery.
    
25. Secondly, you committed a serious offence with the use of a dangerous weapon, a factory made sig pistol and a knife. The courts have repeatedly warned and have in fact imposed tougher penalties against offenders who use dangerous weapons such as guns and knives to secure the commission of an offence. This is because of the dangers they cause or bring upon human life. Hence, a case in which no such weapons are used, usually get a lesser sentence or penalty.
    
26. Finally, I note that you stole a substantial amount of money. Fortunately however, you returned most of the money. This reduces though not totally, the severity of the offence committed. I contrast your case with cases in substantial amount of cash or property have been stolen and not recovered at all or only a little of the stolen property gets recovered.
    
27. Considering the factors for and against you, I find that the factors against you outweigh those in your favour. Carefully considering the particular circumstances in which you committed the offence, the extent of your benefit from the proceeds of the offence and your whole attitude following your arrest and eventual committal and appearance before this Court, I consider a sentence beyond 8 years and below 16 years the highest the State argues for is appropriate. The most appropriate in the particular circumstances of your case is 12 years and I impose that sentence against you.
    
28. I have considered the possibility of suspension of either the whole or part of the sentence and have decided against that. The reason for this is simple. First, you have not asked for a suspended sentence either in part or in whole. Secondly, there is no pre-sentence report to provide the basis for me to give consideration to either of these aspects. Thirdly, you are both adult offenders well past the age of 20 years, where suspension is not necessarily a readily available option except in exceptional circumstances. You have not demonstrated an exceptional case for suspension of either the whole or part of it of your sentence.
    
29. In the end, therefore, you are left with the sentence of 15 years. I order a deduction of 1 year 7 days being the pre-trial custody period. That will leave you with a balance of years 13 years, 11 months and 3 weeks. I order that you serve that part of your sentence in hard labour at the Ningerum Correction Service.
    

Public Prosecutor: Lawyers for the State
Public Solicitor: Lawyer for the Prisoners

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^[1] [1988-89] PNGLR 27.
^[2] CR 1483 and 1484 of 2005 (judgment delivered on 26th September 2005).
^[3] (unreported judgment delivered on 02/04/98) SCR 09 of 1995.
^[4] (unreported judgment delivered on 03/10/03) SC732.
^[5] (21/05/04) N2583, per Kandakasi J.
^[6] (19/08/04) N2707, per Lenalia J.
^[7] (09/06/04) N2617, per Sevua J.
^[8] SCR 45 of 2004, per Sevua, Kandakasi and Gabi JJ.) delivered on 30th August 2006.
^[9] (27/08/98) SC564.