State v Nimai [2008] PGNC 72; N3355 (21 April 2008)

N3355

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR NO 272 OF 2008

THE STATE

v

JACKSON NIMAI

Kundiawa: Makail AJ
2008: 3 April
: 21 April

CRIMINAL LAW - highway armed robbery - sentence - young offender - prevalence of offence by youthful offenders - 19 years old - mitigating factors - first offender - early guilty plea - cooperation with police - passive role in armed robbery - watchman - Criminal Code Ch 262 - section 7 - principal offender - aggravating factors present - threat of violence - armed with two shotguns and two bush knives - cash stolen - highway unsafe and risky for public to travel.

CRIMINAL LAW - aggravated robbery - Criminal Code Ch 262 - section 386(1)&(2) - maximum penalty - life imprisonment - suspension of custodial sentence - not an automatic right - discretionary matter - Criminal Code Ch 262 - section 19 - pre sentence report and means assessment report - offender with no financial means to make restitution to victims - no order for compensation - Criminal Law (Compensation) Act 1991 - section 2 and 4 - tougher penalties to be imposed - need for personal and public deterrence - custodial sentence appropriate - eight years imprisonment in hard labour - suspension of two years on condition - less six months and sixteen days for time in pre trial custody.

Cases cited:

Gimble -v- The State [1988-89] PNGLR, 271
The State -v- Robert Bandi (1990) N802
Public Prosecutor -v- Don Hale (1998) SC564
The State -v- Thomas Waim [1998] PNGLR 360
The State -v- Lasi Mauwe & Maki Onopika (1999) N1886
Gibson Lulip -v- The State (2000) SC636
John Arua Peter -v- The State (2000) SC638
Tau Jim Anis -v- The State (2000) SC642
The State -v- Kennedy Arus (2001) N2081
The State -v- Max Undaba: CR No 562 of 2001 (Unnumbered & Unreported Judgment of 22 October 2002)
The State -v- Fabian Kenny (2002) N2237
The State -v- Graham Chris, Kevin Wani, Norman Wani, Robin Doriga and Bob Gabriel (2003) N2575
The State -v- Chris Banban & Nare Steri Banban (2004) N2645
The State -v- Warip Mondol, Luwi Nehie, Kupim Pepilo, Paul Embril and Dain Sonk (2004) N2707
The State -v- Honenu Kinzong (2005) N2942

Legislations Cited:

Criminal Code Ch 262
Criminal Law (Compensation) Act 1991

Counsel:

Mr M. Ruari, for the State.
Mr P.Kumo, for the Prisoner.

21 April, 2008

SENTENCE

1. MAKAIL AJ: On 3 April 2008, I convicted you on one count of armed robbery under section 386(1) & (2) of the Criminal Code Ch 262 after you pleaded guilty to the offence and also after having satisfied myself from the deposition presented by the State against you.

2. I reserved my Judgment on sentence until today to also consider a Pre Sentence Report from the Probation Officer, Mr William Yambo based here in Kundiawa at the request of your counsel, Mr Kumo. This Report has been provided and I thank the Probation Officer for providing it. I note it also included a Means Assessment Report.

BRIEF FACTS

3. On arraignment, the following facts were put to you; on the morning of 5 October 2007 at about 8 o’clock at Waratampa along the Okuk Highway, you and four other persons held up an Isuzu Ute Registration No LAO-718 and robbed the driver and the passengers off money and belongings. A cash sum of K120.00 was taken from one of the passengers by the name of Apa Moroma.

4. You acted as a spy man for the group and were stationed a few distance away along the Highway from where your other friends were to spy on any oncoming vehicles and people. At that time, you and your friends were armed with two shotguns and two bush knives.

5. You acted as a watchman or a spy for them whilst your friends attacked the driver and the passengers of the vehicle and robbed them of their money and personal items using the shot guns and bush knives. Your interview with the Police in the Record of Interview confirmed the armed robbery, although you said that you did not actually hold up the occupants of the vehicle with your friends. You merely acted as a watchman or spy for them.

6. You were apprehended by the people from the nearby village where the victims of the armed robbery sought help whilst your four friends escaped.

ALLOCUTUS

7. On your allocutus, you told the Court that at that time of the commission of the offence, you had earlier gone to a funeral. Whilst you were at the funeral, your four friends came and asked you to go with them to do armed robbery. He told them to go ahead and you followed them sometimes later. When you arrived at the highway, your friends had already held up a vehicle and robbed the people in it. They escaped and the village people apprehended you after the victims of the armed robbery sought help from the people in the village.

8. You said that the people thought that you were part of the armed gang as their watchman or spy. The people assaulted you and handed you over to the police were you were interviewed, arrested and charged.

PARTIES’ SUBMISSIONS

9. Mr Kumo on your behalf first submitted that you are 19 years old and come from Monogano Village in the Kamtai District in Sinasina in the Chimbu Province. You are educated as far as Grade 4. Secondly, you are the fourth child in your family.

10. Thirdly, you are a first offender. You have already spent seven months in pre trial custody and have freely cooperated with the police by admitting to the commission of the offence. Fourthly, you played a passive role in the commission of the offence, in that you merely acted as a watchman or spy whilst your other four friends held up the vehicle.

11. Your counsel also submitted you are naïve and it was a new experience for you to be involved in an armed robbery. You were not defensive and this is a sign of you having accepted criminal responsibility of the offence.

12. He submitted further that whilst there is evidence to show that you and your four friends had in possession dangerous weapons, namely shotguns and bush knives, the victims were not assaulted or injured, let alone killed in the hold up.

13. Finally he submitted that the amount of money stolen in the armed robbery was only K120.00. It was not a substantial sum of money. It appears that you have not profited from the proceeds of this crime. He asked for a partly suspended custodial sentence and you be put under the care and supervision of the Probation Officer.

14. Mr Ruari of counsel for the State submitted that the offence of armed robbery is prevalent in the country and a tough penalty is called for in this case. In response to the question of suspended sentence, he submitted that almost all the offences of armed robbery are committed by youths. It is prevalent and suspension of the sentence is not warranted.

15. First, he referred to the Supreme Court Judgment of Gibson Lulip -v- The State (2000) SC636, where the Supreme Court dismissed the Appeal of the prisoner on both conviction and sentence of attempted robbery, armed robbery, unlawful use of motor vehicle and discharged of a fire arm where a person was killed. The prisoner pleaded guilty to a charge of attempted robbery pursuant to section 387(1) and (3), a charge of robbery pursuant to section 386 and a charge of unlawful use of a motor vehicle pursuant to section 383 of the Criminal Code Ch. 262 respectively and the National Court on each charge sentenced him to 25 years, 8 years and 2 years imprisonment on each charge respectively. The Supreme Court confirmed the sentences imposed by the National Court.

16. The next Supreme Court case that he referred to is John Arua Peter -v- The State (2000) SC638 where the Supreme Court also dismissed an Appeal on sentence from the National Court in a case of an armed robbery and unlawful use of a motor vehicle. He was indicted and pleaded guilty to one count of aggravated robbery and one count of illegal use of a motor vehicle. He was sentenced to ten (10) years imprisonment for robbery and two years for unlawful use of a motor vehicle to be served concurrently.

17. Bearing in mind the Judgments of these Supreme Court in confirming the sentences imposed by the National Court in cases of armed robbery, he submitted that a custodial sentence of around eight years would be appropriate in the circumstances of this case.

THE APPLICABLE LAW

18. The offence of armed robbery is provided under section 386(1)&(2) of the Criminal Code Ch 262. It states as follows:

"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 no 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 of the robbery, wounds or uses any other personal violence to any person, he is liable subject to Section 19, to imprisonment for life".

19. This offence carries a maximum of life imprisonment.

YOUR CASE

20. I take into account the factors in your favour and those against you. I note you are 19 years old and first time offender. You are the fourth child in you family. I note from Pre Sentence Report that your father died long time ago and you live with your elder brother, Barime Muro. Your mother has remarried and has gone away. You help your brother and his wife to make gardens and you have a small coffee garden to generate some money for you, although the money is not enough. These factors I find support your request for some leniency.

21. I also note your counsel’s acknowledgment that whilst you played a passive role in the commission of the offence that is, you merely acted as a watchman you are caught by section 7 of the Criminal Code Act which makes you also a principal offender and so it means that you are equally at fault as all your other friends.

22. The general rule is that all active participants in the crime should be sentenced on the same basis. The court does not normally stop to consider whether a particular prisoner actually held up the victim, or held the gun, or the iron bar, or was a watchman outside, or was the driver of the get away vehicle. All are equally guilty because without each playing his full part the crime could not be perpetrated. See The State -v- Robert Bandi (1990) N 802, per Mr Justice Hinchliffe. Thus, your passive role does not make any difference in my assessment of the sentence.

23. Finally, your counsel also stressed upon me to treat this crime as the same as the one in the case of The State -v- Max Undaba: CR No 562 of 2001 (Unnumbered & Unreported Judgment of 22 October 2002) by Her Honour Madam Justice Davani wherein Her Honour sentenced the prisoner to five years imprisonment for armed robbery where the victim was attacked with a can of spray and cash of K904.00 was stolen from the victim. In your case, the amount stolen from the victim was only K120.00.

24. He submitted that if I impose a custodial sentence of five years, I should suspend part of it and order you to be placed under the supervision of Probation Officer. The Probation Officer should have no problems in supervising you as your village is about 15 to 20 km from Kundiawa and accessible by a good road.

25. I pause here to make some observations of the seriousness of the offence of armed robbery and its effect on the lives of the people and progress of this country. Highway armed robbery is prevalent along the public roads and highways in Papua New Guinea, thus making it unsafe and risky for the public to travel freely on them. There is no doubt in my mind that the entire population in this country depends on the road system for personal travelling, business activities and economic development.

26. In your case, you committed the armed robbery along the Highlands Highway. In case you have not realized the impact of your actions, I must tell you now that you have sent a wrong signal to the other three million or so people living further up the road from where you live and the world that the Highlands Highway is not a safe and peaceful highway to travel on.

27. It is very sad to know that apart from its historical significance, this being that it is the largest and the longest national highway in this country, the Highlands Highway is also well known for armed robberies, looting of distressed trucks transporting food and cash crops up and down the highway and even killings. When will all these bad things that portray a bad image of our largest and longest national highway as an unsafe and dangerous highway stop? When will the travelling public be rest assured that Highlands Highway is a safe and peaceful highway to travel on, be it in the middle of the night, mid day, rainy day or sunny day?

28. It is this kind of behaviour by people like you that has hindered the development or progress of this country. Foreign investors are reluctant to invest their money and time in our country because of the increase in law and order problems. Police resources and manpower is stretched to the limit that it is difficult to patrol the highway on a daily basis to prevent this kind of offence from happening. Our country seems to be regressing instead of progressing.

29. The Highlands region of Papua New Guinea in my view is one of the unique places in the world filled with majestic mountains, steep winding gorges and valleys, fast flowing rivers, beautiful scenery and home of beautiful birds and animals and flora, blessed with abundance of fresh garden food and animals and it makes me feel so proud to be a Papua New Guinean. Yet I am sad and so ashamed to say that we see very little tourism activities in this part of the country.

30. I am aware of the National Government’s commitment and efforts through the hard work of Mr Peter Vincent, Chief Executive Officer of Tourism Promotion Authority and his staff in trying their very best to put Papua New Guinea on the world map as one of the best tourism location in the world for tourists and other visitors to visit. All these hard work will be in vain if these kinds of criminal activities continue. No tourists or visitors in their right frame of mind would want to visit this country let alone this province.

31. In the beginning of his address on sentence, your counsel told me that you are from Monogano village in the Kamtai District of Sinasina in the Chimbu Province. Your village is about 15 to 20 km east from Kundiawa town and is situated along the Highlands Highway. I suppose we can best describe your village as a gateway to the famous and highest mountain in Papua New Guinea, Mount Wilhelm. I am sure tourists or visitors to our country grave to visit Mount Wilhelm, but cannot do so because of threats or fear of their lives and personal items because of criminal activities in this part of the region. Those who do, I am sure have gathered all the courage in the world to do so notwithstanding the threats to their lives and personal items.

31. As I said earlier, it is people like you who without realizing have contributed to the slow progress of our country in terms of economic development. Our country is held to ransom by a minority of our people. This country cannot progress at the fast rate if these kinds of criminal activities continue. I have alluded to one example of economic development, which is the tourism industry because in my view, if properly realized by all sectors of the community, it is another "gold mine" for Papua New Guinea. Its potential is immerse.

33. The point I am stressing in all that I have said above is that, if you and I want to see development in your community, your Kundiawa town, your province and Papua New Guinea, criminal activities like in your case, armed robbery must stop. My learned brother Mr Justice Kirriwom expressed the same concerns I am raising here a bit differently in the case of The State -v- Honenu Kinzong (2005) N2942, also a case of armed robbery on the highway road between Finschhafen and Pindiu where he said:

"Hold-ups along the highway are hindering progress and development, apart from denying people in the remote districts to supplies and services that are badly needed. Supply of medicines to rural aid posts, school materials and food supplies to local trade stores are severely hampered when incidences of robbery remain high and nobody but the grass roots people suffer the most. These are the fundamental considerations by the Court when imposing punishment on the offenders because the Courts have constitutional duty to restore public confidence in the institutions of the State in maintaining a secure, safe and just society for all".

34. His Honour sentenced the prisoner to seven years imprisonment in hard labour but deducted five months and six days for pre-trial custody and for the prisoner to serve the balance of six years, six months and fourteen days in prison.

35. I consider armed robbery a very serious crime because it is a crime committed against another fellow human being. For any victim of the crime of armed robbery, it is a terrifying experience, both physical and emotional and even death. In a case of highway armed robbery, it is even more a terrifying experience because the victims are held up in an unfamiliar and isolated location where it is difficult to seek help quickly.

36. Again, my learned brother Mr Justice Kirriwom warned the two offenders in The State -v- Lasi Mauwe & Maki Onopika’s case (1999) N1886:

"However, I must tell you that robbery on a public highway in the middle of the night when help is no where near is not an exciting or joyful experience for anyone on the receiving end. In this case it is fortunate that no-one was harmed. Gimble’s case set the starting mark of highway robbery at five years imprisonment. Both the Supreme Court and this Court have time and again said that Gimble is out of date. The prevalence of this crime now require tougher sentences. Young men like you must learn to respect the law and stay within the Law. You achieve nothing good for yourself or your family by misbehaving. You bring trouble upon yourselves. In your case a strong deterrent sentence is necessary to bring you into line and to send out warning to other like minded people".

37. In the case of The State -v- Kennedy Arus (2001) N2081, His Honour Mr Justice Kandakasi sentenced the prisoner to eight years imprisonment in hard labour. His Honour said that it is about time the National Court impose tougher sentences in armed robbery cases. His Honour considered the sentencing guidelines set by the Supreme Court in the case of Gimble -v- The State [1988-89] PNGLR 271 at pages 274 to 275 as being outdated. These guidelines for sentencing in armed robbery cases fell into four categories of robbery as follows:

1. Robbery of a dwelling house with a starting point of seven years imprisonment;

2. Robbery of a bank with a starting point of six years imprisonment;

3. Robbery of a store, hotel, club, vehicle on the road or the like with a starting point of five years imprisonment; and

4. Robbery of a person on the street with a starting point of three years imprisonment.

38. His Honour said that:

"Those guidelines were set more than ten years ago. They were for uncontested or guilty plea cases. The Court left open the discretion to impose sentences both below and above those guidelines in appropriate cases. In its own words the Supreme Court said at page 275;

In suggesting sentencing tariffs in the above four categories of robbery, we have been considering young first offenders, eighteen years and above, and in those cases we do not consider that a suspension of any part of those sentences is appropriate. If however, the offender is very young or there are special circumstances, a suspended sentence may be considered. If the offender has a prior conviction, then the suggested tariffs may be exceeded and suspension of any part would rarely be appropriate.

In the case before it, the Supreme Court found that, the case fell into the third category where the victim was knocked unconscious and the case was contested. There was no evidence of the victims suffering any permanent injuries. In the circumstances, the Court was of the view that, seven years imprisonment was appropriate. Accordingly, it reduced a sentence of nine years imprisonment by the National Court to seven years.

In the Don Hale case, the Court was concerned with a robbery of a dwelling house, which was on the top of the categories, or worse type of robbery cases. The National Court imposed a five years suspended sentence on the condition that the offender pays a fine of K1, 000.00 and return to his home area at Tari in the Southern Highlands Province. The Public Prosecutor appealed against that decision and the Supreme Court upheld the appeal and found amongst others that the learned trial judge erred in not starting with a term of seven years in line with the guidelines set in the Gimble case. The Court also found that no pre-sentencing report was asked for and considered before imposing the sentence it imposed. Further, the Supreme Court acknowledge that, the guidelines set by the Gimble case was outdated and that it was not serving its intended purpose of deterring would be offenders from committing armed robberies. It therefore, considered it was time to increase the tariffs set by Gimble. It then expressed the view that, armed robberies of dwelling houses should be increased from seven years to ten years".

Subsequently, in the Tau Jim Anis & Two Ors case, the Supreme Court increase the tariffs for armed robberies in the third category per Gimble's case to eight years. In that case, the offenders were first time young offenders and they pleaded guilty to robbery of a factory. The offence involved actual violence and money and just over K20, 000.00. The Supreme Court reduced a sentence of ten years to seven years and six years respectively for each of the appellants".

39. On the facts, this particular robbery falls under the category of robbery of a vehicle on the road which attracts a starting point of five years in a plea of not guilty: Gimble’s case (supra). However, the starting point in Gimble’s case (supra) was increased by three years in Public Prosecutor -v- Don Hale (1998) SC 564 which was subsequently reaffirmed by Tau Jim Anis -v- The State (2000) SC 642. This means that the starting point for a robbery of a vehicle on the road is eight years which may vary by one or two years depending on the facts of each case.

40. In Lasi Mauwe & Maki Onopika’s case (supra), His Honour Mr Justice Kirriwom sentenced the prisoners to eight years imprisonment in hard labour after His Honour found them guilty of aggravated armed robbery on the Highway at Bena Bridge on the night of 22 May 1998. They were armed with one home made shot gum and other offensive weapons and held up a Toyota Hi Ace bus and robbed the driver and the off side crew of money and a stockman shoe. His Honour deducted one year and one and a half months for time spent in pre trial custody and to serve six years and ten months and two weeks in prison.

41. In another case of The State -v- Fabian Kenny (2002) N2237, His Honour Mr Justice Kandakasi sentenced the prisoner to nine years imprisonment in hard labour less one year and three months for time spent in pre trial custody leaving a balance of seven years and nine months to serve after the prisoner pleaded guilty to one count of armed robbery of a PMV motor vehicle along the Sepik Highway.

In considering aggravating and mitigating factors in that case, this is what His Honour said:

"There are other more serious factors operating against you. First, you were in the company of two others. Next you were all armed with a shotgun and two bush knives. Thirdly, the weapons you carried were used against the victims to commit the offence. No doubt, great fear and anxiety must have been created amongst the victims. When you held up the driver of the moving PMV you put lives of the drive and his passengers at great risk. Indeed the driver says he was in a state of shock and brought the vehicle to stop for his and his passengers’ safety. Fortunately it did not result in any accident and therefore injuries.

Further, there is no evidence of the items you stole from the driver and the passengers being returned. The total amount of all the cash and goods you stole was K579.00. Although this amount could be regarded small compared to other robbery cashes in which large sums of money have been stolen, I nevertheless consider this was significant to the victims. In the absence of any evidence to the contrary, I take it that the driver and the passengers were ordinary people just trying to live as best as they could in this difficult times. What you stole from them may have been all that they had at that time. To them therefore they lost a great deal apart from the fear and anguish you put them through by holding them up with dangerous weapons.

PMV’s are the only best means of transport most people in Papua New Guinea have today. The roads a very bad and it costs the PMV operators a great deal of money to allow such essential services to be still on the road. When robbers like you steal from them, you are not only ruining them but are also seriously affecting may be the only means of transport for a good number of people and or community of peoples.

The crime of armed hold up and robbery of PMVs is now a common occurrence almost every day. It is happening not only here in the East Sepik Province but through out the country. In some cases there are even deaths both in successful and unsuccessful robberies. Just last circuit, I had the unfortunate occasion to sentence a men to life imprisonment for killing another person out of a failed robbery of a PMV. That was in the case of The State -v- Tony Pandua Huahahori (N0.2) (21/02/02) N2186. This can be demonstrative of one fact. The past sentences as low as 4 and as high as 8 both before and after the Supreme Court set the guidelines in the Gimble case (supra) and subsequently varied by the judgement in the Tau Jim Anis case (supra) are not having any effect on offenders and would be offenders. Therefore the sentences have to be drastically increased to counter the drastic increase in the crime".

42. In the other case of The State -v- Graham Chris, Kevin Wani, Norman Wani, Robin Doriga and Bob Gabriel (2003) N2575 the prisoners pleaded guilty to one count of armed gang robbery of a PMV on a highway where firearms and other weapons were used. There were threats and actual violence used and cash and goods were stolen totalling K1,105.00. Some prisoners were with no prior conviction and because a village Councillor was prepared to supervise any community based correction for the prisoners, His Honour sentenced all of them to twelve years imprisonment but suspended part of the sentence less time spent in custody awaiting trial.

43. The next case is The State -v- Chris Banban & Nare Steri Banban (2004) N2645, a decision by His Honour Mr Acting Justice Manuhu (as he than was) where he sentenced the two prisoners to seven years imprisonment in hard labour, but deducted seven months, one week for time awaiting trial and to serve six years, four months, and three weeks in hard labour.

44. In that case, I note the armed robbery was committed in the night at about 7 o’clock when the driver of Derim Health Centre and others were travelling from Kabwum Station to Derim. The vehicle they were in was a Toyota Land cruiser, 10 Seater, white, Registration number BAB 014. As the vehicle approached Yangola Creek, the prisoner and his three friends sprang out of their hiding places armed with a grass knife and two homemade guns. They pointed the homemade gun at the driver and ordered him to stop. When the driver stopped the vehicle, the prisoner assaulted the driver and other passengers and stole from them personal items and the money bag containing K2,445.00 Other items include a wrist watch, a driving licence, and a POSF card. They belonged to the driver. The prisoner ordered everyone out of the vehicle and ordered the driver to drive them to Indajen where the prisoner tied the driver up and escaped.

45. A serious case of armed robbery towards the end of the Highlands Highway was in Mendi. This was in the case of The State v Warip Mondol, Luwi Nehie, Kupim Pepilo, Paul Embril and Dain Sonk (2004) N2707 where His Honour Mr Justice Lenalia sentenced the five prisoners to twelve years imprisonment for armed robbery of a vehicle on public highway after the five prisoners pleaded guilty to committing the offence. There was actual violence as the victim, the driver was cut with bush knives and threatened to be shot with guns. The passengers were harassed and striped naked in search of valuables and substantial cash amount and properties worth thousands of kina stolen.

46. I have laboured to refer to at least fourteen past National and Supreme Court cases on armed robbery to show the frequency of the offence of highway armed robbery and also better appreciate the various types of armed robbery and the significance of the sentencing tariffs of the National and Supreme Courts. One thing that is very obvious from all these cases is that, they all have acknowledged that the offence of armed robbery is prevalent in this country and so, as part of the law enforcing agency, the Courts must be tough with their decisions when it comes to sentencing offenders in armed robbery cases. These cases have imposed sentences between seven and twelve years even in early guilty plea cases. Sentences of twelve years imprisonment have been imposed in cases of very serious armed robbery cases like when there is present actual violence and injury to victims.

47. Taking all these matters into account, the sentence I will impose on you must not only be a personal deterrence and act as a corrective measure but also act as a public deterrence. It must reflect the wishes of the silent majority of the law abiding citizens of this country that we do not want armed robbers in our community, our province and our country.

48. Your counsel has asked me to suspend any custodial sentence I may impose on you. I have given anxious consideration to the appropriateness of a non custodial sentence for you. In The State -v- Thomas Waim [1998] PNGLR 360, His Honour Mr Justice Injia (as he than was) said:

"On the question of suspension of the whole or part of the minimum sentence, this power is conferred by section 19(1)(d). The power to suspend a sentence must be exercised on some proper basis: Public Prosecutor -v- Thomas Vola [1981] PNGLR 412. Relevant factors include first time young offenders, 18 years or below: Gimble -v- The State (1988-89) PNGLR 271 at 275; Good character and good family background: The State -v- Frank Kagai [1987] PNGLR 320; State -v- Justin Nyama [1991] PNGLR at 127; or on medical grounds: Public Prosecutor -v- William Bruce Tardrew [1986] PNGLR 91."

49. I have taken into account those factors stated in Thomas Waim’s case (supra) and note with some reservation your request for a suspended sentence. Whilst I accept that you are a first offender and this is the first time for you to have committed an offence, I have a doubt in my mind and that is, will you be able to pay any compensation to make restitution to the victims of the armed robbery?

50. This is where I consider the Pre Sentence Report and Means Assessment Report relevant. The Probation Officer has reported that you will be unable to pay compensation to the victims as you do not have the financial means to pay and your brother is also unable to assist you but you have learnt your mistake and will abide by any probation order that the Court imposes. The Probation Officer has also reported that outside your domestic situation you appear to live a useful life and are well liked and a man of good character. The Probation Officer obtained the above information from your elder brother, three of your village elders and your Church Pastor.

51. This particular robbery falls under the category of robbery of a vehicle on the road which automatically attracts a starting point of five years in a plea of not guilty applying the guidelines in Gimble’s case (supra). However, as this is a plea of guilty, no doubt the sentence ought to be lower.

52. But as I have noted earlier, the sentencing tariffs in Gimble’s case (supra) is now outdated. The National Court has started off with seven years and upwards for armed robbery even in cases of early guilty plea.

53. In considering a suspended sentence for you, I am reminded by the warning of His Honour Mr Justice Kirriwom in Honenu Kinzong’s case (supra) where he said:

"Those who commit serious crimes like robbery where dangerous weapons are used must not expect non-custodial punishment. Even before embarking on idea of committing robbery, it must not be forgotten that there is no such thing as good behaviour bond or non-custodial punishment in robbery offences".

54. And so, I must warn you that suspension of any custodial sentence I may impose on you is not an automatic right available to you. It is at the discretion of the Court. I note that you have been in custody awaiting your trial since you were apprehended and detained on 5 October 2007.

55. In your favour, I take into account your early plea of guilty and you are 19 years old, barely a man, when apprehended by the villagers and handed over to the Police, you co-operated fully with them. Both your plea of guilty and your co-operation with the police is a clear expression of your remorse. I also note that the victims were not assaulted or injured in the armed robbery and fortunately no one died.

56. In the light of all these matters and what your counsel has addressed in mitigation and in all the circumstances of the case I consider that a sentence of eight years imprisonment is called for in the interest of assuring the community that the Courts will protect the community against violent behaviour. Because you are a man of "straw", I will not order any restitution for the victims under sections 2 and 4 of the Criminal Law (Compensation) Act 1991.

57. However in view of your previous good behaviour and good character I will suspend two years of the sentence and also deduct six months and sixteen days spent in pre trial custody on the following terms:

1. You are to enter into good behaviour bond and keep the peace at all times during the period of your suspended sentence.

2. You shall remain indoors between the hours of 6.00 pm and 6.00 am each day for the period of your suspended sentence.

3. You are not to associate in any way whatsoever with any known criminals during the period of your suspended sentence.

4. During the period of your suspended sentence, you are to perform community work under the supervision of the Probation Officer or his representative in Kamtai by doing manual labour work around the District Office premises at Kamtai every Mondays, Wednesdays and Fridays of each week between the hours of 8:00 am and 4:00 pm.

5. The Probation Officer shall attend on you each quarter to do a comprehensive review and report to this Court of your compliance of these terms during the period of your suspended sentence.

6. If you breach any of the conditions of suspension, the suspended sentence will be revoked forthwith and you will serve out the remaining balance of the suspended sentence in prison.

58. In the end you will serve five years, five months and fourteen days in hard labour at Barawagi Corrective Institution. A warrant of commitment for your imprisonment will be issued in due course.

Sentence accordingly.

________________________________________

Public Prosecutor: Lawyers for the State
Public Solicitor: Lawyers for the Prisoner