State v Bira [2009] PGNC 274; N3633 (26 May 2009)

N3633

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR NO 405 0F 2000

THE STATE

V

PHILIP BIRA

Kimbe: Cannings J
2009: 14 April,
7, 26 May

SENTENCE

CRIMINAL LAW – sentence – armed robbery – Criminal Code, Section 386(1), (2)(a)(b) – guilty plea – co-offender already sentenced for same offence – principle of parity in sentencing.

A man pleaded guilty to armed robbery. He did not commit the actual robbery but aided those who did as he provided a vehicle and acted as a watchman and then, after the robbery, attempted to fool the police by making a false complaint that the vehicle had been stolen. A co-offender – the owner of the vehicle – was sentenced by another Judge five years ago. The offender argued that he should receive the same sentence as his co-offender. The State argued that the earlier sentence was lenient and that the court was not obliged to set the same sentence.

Held:

(1) The practical effect of the principle of parity in sentencing is that if a Judge is sentencing an offender and a co-offender has been sentenced by another Judge, it will be useful for the sentencing Judge to first indicate a notional sentence without having regard to the earlier sentence.

(2) The notional sentence is then compared with the earlier sentence.

(3) If the notional sentence is the same as the earlier sentence: fix that as the sentence.

(4) If there is a difference between the notional sentence and the earlier sentence, the sentencing Judge should consider whether the difference can be explained by different sentencing considerations peculiar to the offender being sentenced (eg different degree of involvement, different antecedents, different age or state of health).

(5) If different sentencing considerations are apparent, the sentencing Judge should proceed to fix the notional sentence or whatever sentence is considered appropriate, provided that when doing so (i) the Judge avoids giving rise to a justifiable sense of dissatisfaction or sense of injustice on the part of co-offenders and (ii) the Judge carefully explains why a disparate sentence is being imposed.
(6) If different sentencing considerations are not apparent, the sentencing Judge should impose the same sentence as the earlier sentence (whether it is higher or lower than the notional sentence).

(7) Here, the notional sentence was six years, compared to the earlier sentence of five years, but there were no significantly different sentencing considerations. Therefore the sentence was fixed at five years.

(8) The parity principle should also be applied to the questions whether any pre-sentence period in custody should be deducted from the head sentence and whether any part of the sentence should be suspended.

(9) Accordingly, the offender was sentenced to five years imprisonment, all of the pre-sentence period in custody (one year, one month) was deducted and the rest of the sentence (three years, 11 months) was suspended, on strict conditions.

Cases cited

The following cases are cited in the judgment:

Andrew Uramani v The State [1996] PNGLR 287
Gimble v The State [1988-1989] PNGLR 271
Ian Napoleon Setep v State (2001) SC666
Pemu Muro v The State (2006) SC842
Phillip Kassman v The State (2004) SC759
Public Prosecutor v Don Hale (1998) SC56
Saperus Yalibakut v The State (2006) SC890
Secretary for Law v Witrasep Binengim [1975] PNGLR 172
Tau Jim Anis v The State (2000) SC642
The State v A Juvenile "ET" CR No 1012/ 2003, 09.04.05
The State v A Juvenile, "TAA" (2006) N3017
The State v Alphonse Polpolio and Jeffery Baru CR No 865 + 701/2006, 14.07.06
The State v Danny Pakai (2001) N2174
The State v Dickson Kauboi CR No 495/2001, 07.06.06
The State v Frank Suwari (2001) N2173
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 Justin Komboli (2005) N2891
The State v Kia Tala Moksy CR 785/2005, 12.08.05
The State v Lesley Cletus Malo CR No 379/2005, 19.12.06
The State v Michael Manowi CR No 1386/1999, 17.02.09
The State v Tony Pandau Hahuahoru (No 2) (2002) N2186
Tom Longman Yaul v The State (2005) SC803
Winugini Urugitaru v The Queen [1974] PNGLR 283

SENTENCE

This was a judgment on sentence for armed robbery.

Counsel

F Popeu & A Kupmain, for the State
D Kari & S Maliaki, for the offender

26 May, 2009

1. CANNINGS J: This is a decision on sentence for an offender, Philip Bira, who has been convicted, after pleading guilty, of one count of armed robbery. The robbery happened more than eight years ago and in the meantime another person involved in it has been convicted and sentenced. The offender maintains that he should get the same sentence as his co-offender, which was five years imprisonment, suspended. The State says that that sentence was lenient and that a higher sentence, of eight years, is warranted. The case requires a consideration of the principle of parity in sentencing.

THE FACTS

2. Philip Bira did not commit the actual robbery but he aided others who did. Therefore he is deemed under Section 7 of the Criminal Code to have also committed the robbery.

3. The robbery was of what was then called "Kimbe Supermarket' (now a Papindo store) in Kimbe. It took place on 24 January 2000. The offender knew of a plan to rob the supermarket and he helped put the plan in place in this way:

• He was the offsider in a vehicle (a Toyota single-cab ute) owned and driven by his friend, Camillus Leo, who was also in on the plan.
  
• They travelled in the vehicle from Gaongo to Kimbe and near the town market picked up the man who allegedly was the mastermind of the robbery, Joseph Wittick.
  
• From the market, they went to the suburb of Section 15 in Kimbe, picked up four other men who were members of Wittick's gang and headed back into town.
  
• Bira and Leo got off the vehicle near the Kimbe Bay Hotel and walked back into town, leaving Wittick and his gang, who were armed with two factory made shotguns, to drive in.
  
• Bira and Leo took up their position as watchmen near the supermarket, standing under a mango tree opposite the Westpac Bank.
  
• Wittick and his gang drove to a point outside the supermarket. When the supermarket employees came out with the day's takings they held them up and stole K37,000.00 in cash and K26,499.82 in cheques (a total of K63,499.82), then escaped.
  
• Bira and Leo walked to the police station and reported that their vehicle had been stolen at Gaongo.
  

4. The police, however, were not fooled and took Bira and Leo to Gaongo, found nothing there to support their story and then arrested and charged them with the robbery. Wittick was also arrested and charged but not his gang members. They appear to have vanished.

5. Bira, Leo and Wittick were granted bail after some time in custody. Wittick (who is still at large and on the WNB Bench Warrant List) and Bira jumped bail, leaving Leo as the only member of the trio to, until recently, face court.

6. Leo pleaded guilty and was sentenced by Justice Sakora in August 2004 to five years imprisonment. His pre-sentence period in custody (the remand period) of one year, nine months was deducted from the head sentence and the rest of the sentence (three years, three months) was suspended and he was placed on a good behaviour bond for two years.

7. Bira turned himself in during the 2008 Bench Warrant Exercise in Kimbe. His previous bail was forfeited and he was placed on fresh bail of K100.00 and since then he has been complying with his bail conditions. He pleaded guilty to armed robbery under Section 386(1) and (2)(a) and (b) (the offence of robbery) of the Criminal Code.

ANTECEDENTS

8. Philip Bira has no prior convictions.

ALLOCUTUS

9. 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:

I do not want to go to jail. I know I have broken the law but I do not need to go to jai. I want the same sentence as Camillus Leo. I am now employed and I do not want to be imprisoned.

OTHER MATTERS OF FACT

10. 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 (2006) SC890).

11. Significant mitigating factors amongst that material are that he cooperated with the police early during the investigation in 2000 and made full admissions.

PRE-SENTENCE REPORT

12. Philip Bira is 33 years old. His parents are from Suambukum in the Maprik district of East Sepik Province. He was raised in West New Britain. His mother is alive but his father is deceased. His mother is supportive of her son and does not want to see him go back to jail. He presently lives at Kapore in employer-provided accommodation.

13. He married a Sepik woman some time ago and they have four children but his wife and the children are now living in Sepik. He has since entered a de facto relationship with another woman. He was educated to grade 10 at Hoskins Secondary School in 1990. He has had a number of jobs over the years and is presently a security supervisor at Paradise Supermarket in Kimbe. His health is OK. He has been brought up as a member of the SDA Church but has not been committed. He now belongs to the United Church but appears not to be a committed member of that church also. His community record is sound. He has not caused any trouble in the Kapore community where he has been living since the robbery.

14. The report concludes that Philip Bira is suitable for probation.

SUBMISSIONS BY THE DEFENCE

15. Ms Maliaki highlighted the guilty plea and that the offender has no prior convictions. He was in custody for a long time. He did not play an active role in the robbery and under the principle of parity in sentencing he should get the same sentence as his co-accused, Camillus Leo: a five year suspended sentence.

SUBMISSIONS BY THE STATE

16. Mr Kupmain submitted that there were two major aggravating factors: it was a serious and violent armed robbery in which people's lives were threatened and firearms were involved; and the offender lied to the police, so he actively assisted the perpetrators of the robbery. The court was obliged to give a similar sentence to that given to Camillus Leo, but not the same sentence. The reasons for Leo being leniently sentenced are not apparent, so the court should fix this sentence at the starting point of eight years imprisonment.

THE PARITY PRINCIPLE

17. The principle of parity in sentencing means that offenders who commit the same crime should receive the same sentence. Raine DCJ illustrated the general rule in Secretary for Law v Witrasep Binengim [1975] PNGLR 172:

The situation often arises where Mr. Justice A deals with one of a group of co-offenders one month, and Mr. Justice B deals with the remainder subsequently. The second judge might feel that the first judge was lenient, but the principle is, so I believe, that the second judge, albeit rather unwillingly, ought to award much the same sentence as awarded earlier.

18. It is not, however, a hard-and-fast rule. It accommodates the fact when a judge imposes a sentence many factors peculiar to the individual offender being sentenced will be taken into account, eg the degree of involvement in the crime, whether he or she has prior convictions and their age and state of health. The pre-independence Supreme Court in Winugini Urugitaru v The Queen [1974] PNGLR 283 explained:

It is, of course, accepted that the court is justified in differentiating in the treatment of persons for the same crime if, in considering the public interest, it has regard to the differences in the characters and antecedents of the [offenders], and discriminates between them because of these differences. ....The court may also have regard to factors connected with the actual commission of the crime.

19. In more recent times the Supreme Court has applied the parity principle in Andrew Uramani v The State [1996] PNGLR 287, Ian Napoleon Setep v State (2001) SC666 and Pemu Muro v The State (2006) SC842. In Uramani it was suggested that a Judge should avoid imposing different sentences that would give rise to a justifiable feeling of dissatisfaction or a sense of injustice on the part of any offender. Kandakasi J has eloquently explained the rationale and application of the parity principle in a series of decisions including The State v Frank Suwari (2001) N2173, The State v Danny Pakai (2001) N2174 and The State v Tony Pandau Hahuahoru (No 2) (2002) N2186.

20. I consider that the practical effect of the parity principle is as follows:

• If a Judge is sentencing an offender and a co-offender has been sentenced by another Judge, it will be useful for the sentencing Judge to first indicate a notional sentence without having regard to the earlier sentence.
  
• The notional sentence is then compared with the earlier sentence.
  
• If the notional sentence is the same as the earlier sentence: fix that as the sentence.
  
• If there is a difference between the notional sentence and the earlier sentence, the sentencing Judge should consider whether the difference can be explained by different sentencing considerations peculiar to the offender being sentenced (eg different degree of involvement, different antecedents, different age or state of health).
  
• If different sentencing considerations are apparent, the sentencing Judge should proceed to fix the notional sentence or whatever sentence is considered appropriate, provided that when doing so (i) the Judge avoids giving rise to a justifiable sense of dissatisfaction or sense of injustice on the part of any of the co-offenders and (ii) the Judge carefully explains why a disparate sentence is being imposed.
  
• If different sentencing considerations are not apparent, the sentencing Judge should impose the same sentence as the earlier sentence (whether it is higher or lower than the notional sentence).
  

DECISION MAKING PROCESS

21. I will now apply the following decision making process, which incorporates the parity principle:

• 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 notional head sentence?
• step 5: what is the result of applying the parity principle?
• step 6: should the pre-sentence period in custody be deducted?
• step 7: should all or part of the sentence be suspended?
  

STEP 1: WHAT IS THE MAXIMUM PENALTY?

22. 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 the entire sentence under Section 19 of the Criminal Code.

STEP 2: WHAT IS A PROPER STARTING POINT?

23. 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.

24. 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.
  

25. 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?

26. Recent sentences are shown in the following table.

TABLE 1: SENTENCES FOR STORE OR ROAD ROBBERIES,
WEST NEW BRITAIN, CANNINGS J, 2005-2009

No	Case	Details	Sentence
1	The State v A Juvenile "ET" CR No 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 – trade store robbery, Kavui – 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 plea – 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 No 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 No 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 CR No 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 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, money repaid.	4 years
10	The State v Michael Manowi CR No 1386/1999, 17.02.09	Trial – offender joined with one other and robbed two supermarket employees at gunpoint – approx K51,000.00 stolen.	10 years

STEP 4: WHAT IS THE NOTIONAL HEAD SENTENCE?

27. Mitigating factors are:

• not directly involved in the robbery;
• co-operated with police and made early admissions;
• pleaded guilty;
• first time offender.
  

28. Aggravating factors are:

• victims threatened;
• armed gang involved;
• proceeds of robbery not recovered;
• twin-role in robbery: acted as watchman and attempted to fool police.
  

29. After weighing all these factors and comparing this case with the other armed robbery sentences that have been imposed in recent times, the head sentence should be below the starting point of eight years. I reject the prosecutor's submission that a sentence of eight years is warranted. I fix a notional head sentence of six years imprisonment.

STEP 5: WHAT IS THE RESULT OF APPLYING THE PARITY PRINCIPLE?

30. A comparison of the notional sentence of six years with the sentence for the co-offender Camillus Leo of five years results in a difference of one year. The question then to be asked is whether this difference can be explained by different sentencing considerations peculiar to Philip Bira.

31. The answer is no. Bira had a similar degree of involvement as Leo, they are of similar ages and backgrounds and Leo – like Bira – was a first-time offender. This means that I am obliged under the parity principle to give Bira the same sentence as Leo even though I think, with respect, that Leo was given a lenient sentence.

32. I therefore fix for Philip Bira a head sentence of five years imprisonment.

STEP 6: SHOULD THE PRE-SENTENCE PERIOD IN CUSTODY BE DEDUCTED FROM THE TERM OF IMPRISONMENT?

33. The parity principle also applies at this stage of the decision-making process. Camillus Leo had all his pre-sentence period in custody deducted from the head sentence, and I can see no reason not to give Bira the same treatment. So 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 one year, one month.

STEP 7: SHOULD ALL OR PART OF THE SENTENCE BE SUSPENDED?

34. I will also apply the parity principle here. Leo had the balance of his sentence suspended, so I will also suspend the balance of Bira's sentence, particularly as he had a reasonably favourable pre-sentence report. However, the conditions imposed on Bira will be stricter than those to which Leo was subject. So there will ultimately be some disparity in their sentences. This is justified as the conditions imposed on Bira are similar to those that I routinely attach to other suspended sentences in West New Britain. If I did not impose them on Bira than the numerous offenders in this province who are complying with such conditions will have a justifiable sense of dissatisfaction or a sense of injustice if they see Bira being given lenient treatment.

35. The conditions are:

(a) must reside at the family home at Kapore and nowhere else except with the written approval of the National Court;
(b) must not leave West New Britain without the written approval of the National Court;
(c) must perform at least six hours unpaid community work each week at Kapore under the supervision of the United Church's Senior Pastor;
(d) must attend the United Church, Kapore, every weekend for service and worship and submit to counselling;
(e) must report to the Probation Office at Kimbe on the first Monday of every month between 9.00 am and 3.00 pm, commencing June 2009;
(f) must not consume alcohol or drugs;
(g) must keep the peace and be of good behaviour;
(h) must have a satisfactory probation report submitted to the National Court Registry at Kimbe every three months after the date of sentence;
(i) must report to the National Court in Kimbe for consideration of his progressive probation report as and when required and the first such appearance shall be in September 2009;
(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.

36. The last condition is very important. If any of these conditions is breached, any person may report the matter to the police or to any person nominated to supervise the offender or to the Probation Office, any of whom may bring the matter to the attention of the National Court. The Court may then issue a warrant for arrest of the offender and he can be brought before the Court to show cause why he should not be sent to jail to serve the rest of his sentence. (Tom Longman Yaul v The State (2005) SC803).

SENTENCE

37. Philip Bira, having been convicted of one count of armed robbery under Sections 386(1) and (2)(a) and (b) of the Criminal Code, is sentenced as follows:

Length of sentence imposed	5 years
Pre-sentence period to be deducted	1 year, 1 month
Resultant length of sentence to be served	3 years, 11 months
Amount of sentence suspended	3 years, 11 months, subject to conditions
Time to be served in custody	Nil, subject to compliance with conditions of suspended sentence

Sentenced accordingly.
__________________________
Public Prosecutor: Lawyer for the State
Public Solicitor: Lawyer for the offender