State v Renof [2009] PGNC 216; N4027 (23 April 2009)

N4027

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR NO. 318 OF 2009
(KEREMA MATTER)

THE STATE

V

MILA RENOF

Waigani: Injia, CJ
2009: 23rd April

CRIMINAL LAW – particular offence –one count of aggravated robbery –mitigating factors and extenuating circumstances considered against aggravating factors – robbery as a serious and prevalent crime taken into account - 10 years imprisonment IHL minus time spent in pre-trial custody - Criminal Code s 386.

Cases Cited:

Dadly Henry Gorop v The State (2003) SC732
Don Hale v The State (1998) SC564
Gimble v The State [1988-89] PNGLR 271
Tau Jim Anis v The State (2000) SC642

Counsel:

N Miviri, for the State
D Sopane, for the Accused

23rd April, 2009

1. INJIA, CJ: The accused was committed to stand trial by the District Court at Kerema on 19th September 2008. On 30th March 2009, he pleaded guilty to an indictment containing one count of aggravated robbery under s 386 of the Criminal Code.

2. The short facts are that on the afternoon of 7th June, 2006 at Kerema Town, the accused in the company of other men armed themselves with a bushknife and home made gun went to the store of ANDQ Trade Store. They threatened the owner of the store, one Peter Chen who was running the store and seized assorted trade store goods valued in total at K2,128.25. On their way out, security guard one Daniel Weti intervened and tried to stop them and hit one of the burglars with a baton. This accused retaliated by cutting him twice with a bushknife, the first one on his head and the second one on his left upper arm. They then escaped with the stolen goods.

3. Mr Weti was rushed to the Kerema General Hospital where he received medical attention. The medical report confirms that Mr Weti sustained a deep laceration to the left frontal scalp with no bony involvement of the skull; and an abrasion over the left upper arm. The report also says the injury rendered Mr Weti unable to perform his normal duties.

4. The accused is a mature person aged 37 at the time of the offence and married with three children aged 11 years, 7 years and 3 months respectively. He has a prior conviction which is stated in the antecedent report – on 6 April 2000, the Kerema District Court convicted him and sentenced him to six months imprisonment. He is not a first offender and going by this definition, he is also not a man of prior good character.

5. He is educated up to Grade 6 at Mei-Waripi Primary School in the Gulf Province. He was previously employed as a security guard and a member of the local council committee.

6. In his favour I take into account his family background, his education, employment and religious background. I also take into account in his favour guilty plea which saved this Court’s time and his expression of remorse in Court and said he has learnt his lesson well and promised not to reoffend in future.

7. In relation to extenuating circumstances of the offence, I cannot think of one except that no shots were fired and no one was seriously injured or killed by gunshot wounds.

8. These factors must be balanced against aggravating factors and circumstances. The offence was committed in broad daylight in a terrifying manner by a group of men using dangerous weapons. An innocent security guard who used reasonable force to prevent the robbery in the course of performing his duty was viciously attacked by the accused and injured. The company sustained loss of its property and the goods have not been recovered.

9. The accused is a mature man with a family of a wife and three children whose welfare he paid no regard to when he decided to commit this offence. Robberies are committed by young people in the age group between 16– 25 and usually single. There is no reason for a mature person with a family to go out and rob people. He has a prior conviction for an offence involving disrespect for the law. It is clear that his criminal mentality that he exhibited in 2000 still remained and he had not learnt his lesson from his previous jail sentence. This kind of strong criminal mentality warrants a strong punitive and deterrent sentence to correct it.

10. Robbery is a serious and prevalent crime in this country. The maximum punishment for aggravated robbery is life imprisonment. The sentencing trend nowadays since the sentencing tariff suggested in the celebrated case of Gimble v The State [1988 -89] PNGLR 271 is that sentences have increased progressively as exemplified by cases such as Don Hale v The State (1998) SC 564 and Tau Jim Anis v The State (2000) SC 642). Since Tau Jim Anis, in a number of National Court judgments and even Supreme Court judgments, the sentences have marked significant increases which may run contrary to the principle of progressive increases and not big jumps or by leaps and bounds. For instance, in a street robbery case such as the present one, sentences in the vicinity of 10 year or more have been imposed for a guilty plea by a first offender where no one is injured and a small amount of money is stolen. Such sentences appear to be a flow on effect of a number of Supreme Court decisions on robbery since Tau Jim Anis: see Dadly Henry Gorop v The State (2003) SC 732.

11. In the present case, counsel for the prisoners referred me to the same cases and a number of National Court judgments where lenient sentences have been imposed and submitted a sentence of 8 years would be appropriate in this case. When I balance the mitigating factors and extenuating circumstances against the aggravating factors, I consider that aggravating factors out-weight the mitigating factors. In the circumstances, I consider a sentence of 10 years to be appropriate and impose the same.

12. The accuseds counsel has however asked me to consider suspending a part or the whole of the sentence. The guiding principle on suspension of sentences in robbery cases is found in the Supreme Court decision in Gimble’s case where the Court said at p. 275:

"In suggesting sentencing tariffs in the above four categories of robbery, we have been considering young first offenders, 18 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."

13. In the present case, I am not persuaded by the accused and his counsel that special circumstances exist which justify a suspension of a part or the whole of the sentence.

14. For these reasons, I sentence the accused to 10 years imprisonment IHL from which I deduct the period of 1 year 25 days for pre-trial custody. He will serve the balance of 8 years 11 months and 5 days.

_________________________________________
Jim Wala Tamate, Acting Public Prosecutor: Lawyer for the State
Paul Paraka Lawyers: Lawyer for the Accused