State v Kawage [2009] PGNC 37; N3626 (5 May 2009)

N3626

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR NO 244 OF 2009

THE STATE

V

JOHN PAIS KAWAGE

Mendi: Makail, J
2009: 24th March
: 5th May

CRIMINAL LAW - Sentence - Armed robbery - Maximum penalty of life imprisonment - Aggravating factors - Habitual criminal - 3 prior convictions - Use of bush knife - Mob attack - Robbing of law enforcement officer - Firearm stolen - Robbery at prison precincts - Victim seriously injured - Armed robbery committed in furtherance of another offence - Escaping from lawful custody - Recaptured whilst committing another offence of armed robbery - Prevalence of offence - Mitigating factors - Early guilty plea - Remorseful - New category of armed robbery case - Head sentence of 12 years imprisonment - Aggravating factors far outweigh mitigating factors - Sentence of 15 years imprisonment imposed - Personal and public deterrence - Criminal Code - Sections 19 & 386(1)&(2)(a),(b)&(c).

Cases cited:
Gimble -v- The State [1988-89] PNGLR 271
Public Prosecutor -v- Don Hale (1998) SC564
Tau Jim Anis -v- The State (2000) SC642
The State -v- Jackson Nimai (2008) N3355
The State -v- Joe Foe Leslie Leslie (1995) N1496
Joe Foe Leslie Leslie -v- The State: CR No 82 of 1996 (Unnumbered & Unreported Judgment of 7th August 1998)
The State -v- Thomas Waim, Tala Gena and Alois Wanpis (1998) N1750
The State -v- Irox Winston (2003) N2347
Hawai John -v- The State: SCR No 9 of 1995 (Unnumbered and Unreported Judgment of the Supreme Court)
Dudley Henry Gorap -v- The State (2003) (Unreported Supreme Court Judgment)

Counsel:
Mr. J Waine, for the State
Mr. F Kirriwom, for the Offender

SENTENCE

5 May, 2009

1. MAKAIL J: This case is a peculiar one as the alleged offence of armed robbery for which the offender pleaded guilty to occurred right in the prison precincts at Buihebi Corrective Institution Services in the Southern Highlands Province contrary to section 386(1)&(2)(a),(b)&(c) of the Criminal Code.

RELEVANT ALLEGATIONS OF FACT

2. The relevant allegations of fact on which the offender pleaded guilty are as follows; the offender is from Dembi village, in Kerowagi of the Chimbu Province and a remandee at Buihebi Corrective Institution Services prison. On 31st January 2005, between 10:30 am and 11:00 am, a convicted prisoner named Dominic Willie and a cook for the inmates approached a CIS Officer Sergeant Boli Tep, who was the officer on duty at the relevant time and positioned at the main gate of the remand compound. Dominic Willie on approaching Sergeant Boli Tep told Sergeant Boli Tep that he was sent by another CIS Officer by the name of Corporal Philip Tokopa to fetch water for him. This was a lie as it was planned by Dominic Willie, the offender and the rest of the inmates to attack and disarm Corporal Philip Tokopa and escape from prison that morning.

3. Corporal Philip Tokopa was armed with an AR 15 A2 rifle, the property of the State and was positioned outside the parameters of the rear tower arm post and the fence. Dominic Willie approached Corporal Philip Tokopa after he was allowed by Sergeant Boli Tep outside the main gate and took out a bush knife concealed under his shirt and attacked Corporal Philip Tokopa. There was a scuffle between them and whilst this was happening, the offender jumped over the fence and came to the aid of Dominic Willie. The offender took the bush knife from Dominic Willie and also attacked Corporal Philip Tokopa by chopping Corporal Philip Tokopa. Corporal Philip Tokopa received bush knife wounds to his left forearm and other parts of his body.

4. He then disarmed Corporal Philip Tokopa of the AR 15 A2 rifle and threatened to shoot other CIS officers who had come to rescue Corporal Philip Tokopa by pointing it at them. In fear of their lives, the CIS Officers fled the scene leaving behind Corporal Philip Tokopa who had fallen into a drain and lying unconscious, covered in blood. 30 inmates including the offender and Dominic Willie took the opportunity to scale the high security fence of the prison compound and dashed for freedom.

The offender was later recaptured whilst involved in the commission of another crime of armed robbery in the town of Mendi. There are 29 inmates still at large. The AR 15 A2 rifle was not recovered until sometimes later when some other persons returned it to the CIS officers at Buihebi.

5. The State alleges that the offender is a principal offender by virtue of section 7(1)(a)&(b) of the Criminal Code for committing the offence of armed robbery when he aided and abated Dominic Willie contrary to section 386(1)&(2)(a),(b)&(c) of the Criminal Code.

ANTECEDENT REPORT

6. The offender has 3 prior convictions;

* Armed robbery and sentenced to 9 years imprisonment by Lae National Court in 2000;

* Carrying of offensive weapon and sentenced to 2 months imprisonment by Mendi District Court on 08th December 2003; and

* Escaping from lawful custody and sentenced to 3 months imprisonment by Mendi District Court on 15th January 2004.

ALLOCUTUS

7. On allocutus, the offender did not say much. He says sorry to the Court and the public for committing this offence and promises not to get into trouble again. He asks for leniency and be given probation.

OFFENDER’S SUBMISSIONS

8. Mr. Kirriwom of counsel for the offender also did not have much to submit in mitigation. He simply draws the Court’s attention to the following mitigating factors:

* The offender pleaded guilty to the offence, thus saving the Court’s time and money to conduct a trial to determine his guilt;

* The offender expressed remorse; and

* The AR 15 A2 rifle has been recovered although through third parties.

9. He also points out that there are aggravating factors present in the offender’s case in the following:

* The offender is not a first offender. He has 3 prior convictions;

* The offender used a weapon, namely a bush knife to attack Corporal Philip Tokopa; and

* Corporal Philip Tokopa sustained serious body injuries;

* The AR 15 A2 rifle was of substantial value; and

* The offender was caught in another arm robbery incident.

10. He refers to the much-celebrated case of Gimble -v- The State [1988-89] PNGLR 271, where the Supreme Court enunciated the relevant sentencing guidelines for armed robbery cases on a plea of not guilty by a young first offender carrying weapons and threatening violence, the starting sentence for the robbery of a:

(a) dwelling house, 7 years;

(b) bank, 6 years;

(c) store, hotel, club, vehicle on the road or the like, 5 years; and

(d) person on the street, 3 years.

11. But he concedes that the sentencing tariffs in Gimble’s case (supra) are outdated as they have been increased by the Court given the prevalence of the offence. Nonetheless, he maintains that each case of arm robbery must be determine on its peculiar circumstances, and if the sentence of the Court is based on that principle, he submits an appropriate sentence for the offender should be between 8 and 10 years imprisonment.

STATE’S SUBMISSIONS

12. The State through Mr. Waine of counsel agrees with the submission of Mr. Kirriwom in respect of the mitigating and aggravating factors in the offender’s case but he adds the following aggravating factors by drawing them to the Court’s attention:

* The offender is the main actor. He came up with the plan to escape and sent Dominic Willie to distract and attack Corporal Philip Tokopa who was at that time armed with AR15 A2 rifle. He then came in to assist Dominic Willie to attack Corporal Philip Tokopa;

* The offender threatened the other CIS officers who came to rescue Corporal Philip Tokopa with the AR15 A2 after he removed it from Corporal Philip Tokopa;

* In addition to Corporal Philip Tokopa sustaining serious body injuries, he suffered pain and stress;

* 29 other inmates escaped and are still at large as a result of his actions;

* The offender has prior convictions. These prior convictions are an indication that he is a habitual criminal, has a bad habit of committing crimes, and that the punishment imposed by the National and District Courts have made no impact on him in terms of reformation and rehabilitation; and

* The offender was caught in another arm robbery incident.

13. He submits that the armed robbery took place in a dwelling house, namely a prison. It is a worst case of armed robbery and higher sentence of between 10 and 15 years imprisonment should be imposed. A higher sentence or longer prison sentence would not only act as a personal deterrence but also keep him away from further trouble for a long time. Further, he submits that an increase in sentence would be consistent and in line with the current trend by the Courts to increase the sentence for armed robbery cases where the starting point in Gimble’s case (supra) was increased by 3 years in Public Prosecutor -v- Don Hale (1998) SC564 which was subsequently reaffirmed by Tau Jim Anis -v- The State (2000) SC642.

THE APPLICABLE LAW

14. The offence of armed robbery is provided under section 386(1)&(2) of the Criminal Code Ch 262 and carries a maximum of life imprisonment. 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".

REASONS FOR DECISION

15. The offence of arm robbery is an act of invasion of one’s right of privacy and enjoyment of life and property. No person should be deprived of his or her right to enjoy life, and property and any acts or omissions in breach of that right should be visited by a stern penalty.

16. It is also said that robbery in law is felonies taking of property from a person against his will by threatening or committing force or violence. The injury or threat maybe directed against the person robbed, his property or the person or property of his relative or of anyone in his presence at the time of robbery. There is no robbery unless force or fear is used to overcome resistance. It is also said that in armed robbery cases where there are features of aggravation such as actual violence, the amount stolen or its value is large, or where the robber is in a position of trust towards the victim, the presence of one or more of these features may justify a higher sentence. Of course, a plea of guilty may justify a lower sentence.

17. I accept both counsel’s submission that the guidelines especially the tariffs are considered well out dated in armed robbery cases on a guilty plea starting with the Gimble’s case (supra) and ended up with the Supreme Court decision in Tau Jim Anis’s case (supra) where the Supreme Court increased the guidelines set by the Gimble (supra) case for armed robbery cases falling in the third category to 8 years on an appeal against a sentence of 10 years by the National Court. That was a case of planned robbery of a factory with actual violence involving just over K20,000.00. There were mitigating factors like young first offenders and a guilty plea. The sentencing guidelines set by the Supreme Court in the case of Gimble (supra) are as set out by Mr. Kirriwom in his submission above which I do not wish to repeat here. However, the starting point in Gimble’s case (supra) was increased by 3 years in Don Hale’s case (supra) which was subsequently reaffirmed by Tau Jim Anis’s case (supra). This means that the starting point for a robbery of a dwelling house is 10 years which may vary by one or two years depending on the facts of each case, likewise for robbery of a bank and so forth.

18. I find that there are so many decided cases of house robbery, highway armed robbery, bank robbery, store, hotel, club, and vehicle robbery by the Court in the past, but as I said at the beginning of the judgment, this is a case of an armed robbery in a prison precinct. For highway robbery cases, I have referred to about 14 of them in my judgment of The State -v- Jackson Nimai (2008) N3355 to show the frequency of highway armed robberies and also better appreciate the various types of armed robbery cases 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 7 and 12 years even in early guilty plea cases. Sentences of 12 years imprisonment have been imposed in cases of very serious armed robbery cases like when there is present actual violence and injury to victims.

19. In the present case, I think it is the first of its kind ever reported or brought to the attention of the Court. This is because during my research, I have been unable to find cases of arm robbery inside a prison in Papua New Guinea. Separate from this, the arm robbery by the offender and his accomplice, Dominic Willie led to the mass escape of inmates at one time. So the first issue is, under what category of arm robbery cases does this case fall under and secondly, what is an appropriate sentence to impose on the offender for an offence of arm robbery in a prison precinct?

20. To answer the first question, I must admit that I was and am still baffled that an armed robbery had taken place in a prison. That is to say, here is a case where an armed security officer was attacked and robbed off his firearm, namely an AR15 A2 rifle and of all places, in a prison! And to make matters worse, the perpetrators of the armed robbery were inmates. This is unbelievable! A prison is supposed to be the last place on earth for an armed robbery to take place or better still, should not have occurred at all. A prison is supposed to be a place where wrong doers are kept away from the rest of the "good" people to serve time for their wrongs. It is a place where respect for the rule of law is of essence so that wrong doers like the offender in this case undergo reformation and rehabilitation and become good citizens of this beautiful country of ours at the end of their prison term. Conversely, a prison is not place established for offenders like the offender in this case to get into more trouble with the law.

21. With the purpose of having a prison in mind, I am of the view that, the present case does not fall into any of the categories of cases of armed robbery that the cases of Gimble (supra), Don Hale (supra) and Tau Jim Anis (supra) talk about. To my mind, the present case falls into a new category of armed robbery cases. It is distinct and different from all of the other types of armed robbery cases. This is because it is a case of armed robbery committed in a prison and against a law enforcement agency of the State. Thus, it should be treated differently from the other cases of armed robbery which the cases of Gimble (supra), Don Hale (supra) and Tau Jim Anis (supra) categorizes. As noted, Gimble’s case (supra) gives four categories of armed robbery cases and I will now add armed robbery in a prison as a fifth category of armed robbery cases.

22. Proceeding on this premise, to answer the second question of an appropriate sentence in this type of armed robbery cases, I consider that a comparison be made with cases of attack on law enforcement officers like police officers, CIS officers, Judges and Magistrates to see how the Court had dealt with such cases in the past so that an appropriate sentence can be formulated also for this category of armed robbery cases. For example in The State -v- Joe Foe Leslie Leslie (1995) N1496, His Honour Sevua J, sentenced the offender to life imprisonment for attempted murder of a police officer who was on duty and involved in a police operation to capture the offender at Siraka settlement near Gerehu Stage 6 on 13th November 1994 after the offender had previously escaped from Bomana prison. It was a guilty plea case and this is His Honour’s reasoning for imposing life imprisonment against the offender in that case:

"There are two Supreme Court cases I wish to refer to as I consider them pertinent in this case, because they relate to sentence on attempted murder of policemen. In Peter Naibiri and Kutoi Soti Apia, SC 137, 25th October, 1978, the prisoners were sentenced to life imprisonment following the stabbing of a policeman on his chest and back twice. They pleaded guilty. The facts are different, but I consider it important to refer to what the Court said at p2.

"Outbreaks of violence on police .......... appear to be on the increase .......... . The Courts must therefore do their duty to try to assist the preservation of orderly life and to convince police that they will be assisted and protected in carrying out their duties by the sanction that will be involved against anyone who attack them."

The second case is that of Ure Hane -v- The State [1984] PNGLR 105. That was a wilful murder case, however Bredmeyer, J was discussing the most serious kinds of wilful murder and referred to the above case I have adverted to. His Honour said at pp108 and 109:

"The Courts must protect the police, as they carry out their duties, by stern punishments on anyone who attacks them."

"A policeman carrying out his duty deserves the full protection of the law. If he is trying to arrest an escapee, for example, he should be able to do so by virtue of the authority which attaches to his position without fear of attack. He should be able to arrest an escapee, although outnumbered by the escapee’s wantoks."

I adopt these statements in the present case and I want to reiterate my own belief that, where a policeman is attacked in the course of his lawful duty, the attacker must be severely punished. It is my view that an attack on a law enforcement agency, be it a police officer, Judge, Magistrate or CIS officer, is a very serious matter. I consider that an attack on any of the law enforcement agency is tantamount to an attack on the fundamental democratic institutions we have under our Constitution. The attack on the police officer in the present case, in my view, is tantamount to an attack on the function of the Police Force under s.197 of the Constitution. Neither the Courts nor the community at large should condone or tolerate violence against police officers who are going about their lawful and constitutional duties".

23. His Honour’s decision on sentence was appealed to the Supreme Court and not surprisingly, the Supreme Court dismissed the appeal as it found that His Honour had correctly referred to the principles and did not find any error in the application of these principles to the facts of the case. The Supreme Court then reaffirmed the statements referred to by His Honour as the proper principles applicable to sentencing of violent offenders against law enforcement agencies such as the police. In the head notes of the judgment of the Supreme Court, it held inter alia that the, "Courts must protect the police, as they carry out their duties, by stern punishment on anyone who attacks them". See Joe Foe Leslie Leslie -v- The State: CR No 82 of 1996 (Unnumbered & Unreported Judgment of 07th August 1998).

24. It is clear from His Honour’s judgment and also of the Supreme Court in the Joe Foe Leslie Leslie’s cases (supra) that any violent act against law enforcement officers from discharging their lawful duties, be it a police officer, CIS officer, Judge or Magistrate, should be visited with a severe punishment. Offenders involved in such offences should be severely punished so that the punishment should act as a personal and also public deterrence. I agree with this line of thinking by His Honour Sevua J, and also the Supreme Court as that is the only way to get people who have no regard or no respect for the law to respect the law and law enforcement agencies. In my view, people who have no regard or no respect for the law and the law enforcement agencies should be locked away for a long time or better still, for good.

25. The Courts have also taken the same position in respect of cases of escaping from lawful custody and if I may respectfully borrow from the words of His Honour Injia J, (as he then was), in the case of The State -v- Thomas Waim, Tala Gena and Alois Wanpis (1998) N1750, a case of escaping from lawful custody which were also quoted by His Honour Kandakasi J, in The State -v- Irox Winston (2003) N2347, also a case of escaping from lawful custody that, armed robbery in a prison, "................. is an affront to the judicial system and law enforcement and it must be met with an equally stern punishment." In my view, the statement truly sums up the position of the Court in respect of determining an appropriate sentence for such violent crimes committed against officers of the law enforcement agencies.

26. Thus, I am prepared and will do so in this case, by treating this type of armed robbery cases as a serious crime against the judicial system and law enforcement of our country and must be met with an equally stern punishment. That being the case, that means that the sentence I am about to impose on the offender in this case will not fall into the sentencing range of 6 and 10 years imprisonment but will be over 10 years. Of course I note that there are some cases of street robbery like Hawai John -v- The State: SCR No 9 of 1995 (Unnumbered and Unreported Judgment of the Supreme Court), where the Courts have imposed sentences over and above 10 years imprisonment. These armed robbery cases are considered very serious because they involve violence and serious injuries to the victims.

27. In Hawai John’s case (supra), it involved a planned robbery to intercept monies on transit in a company vehicle where the offender and his accomplices followed the victim and shot into the windscreen of the vehicle on the driver’s side. The driver was rendered totally blind from the injury to his eyes. On his guilty plea, the offender was sentenced to life imprisonment while his co offender was sentenced to 8 years imprisonment. In considering the sentence of 8 years imprisonment as being far too lenient for robbery of the most serious type, the Supreme Court nevertheless commuted the life sentence to 15 years imprisonment on the basis of the huge disparity in the sentence between the offender and his co offender.

28. Another example of a street robbery is the case of Dudley Henry Gorap -v- The State (2003) (Unreported Supreme Court Judgment), where the offender escorted a tourist Canadian couple as their guide to Namanula Hill overlooking the remains of Rabaul town but then turned suddenly violent against them. He beat the couple into unconsciousness with a hockey stick, rendering the husband to the point of death, before stealing from them. The offender was sentenced to 20 years imprisonment but on appeal to the Supreme Court, the sentence was reduced to 18 years imprisonment on the basis that the sentence of 20 years was too excessive although, the Supreme Court considered that the case was a worst type of street robbery which warranted a higher sentence.

29. Given the above examples, it would not be wrong to suggest as I have suggested above that for armed robbery in a prison, a sentence of above 10 years imprisonment should be the starting point or the head sentence and should be increased or decreased, depending on the aggravating and mitigating factors present in each case.

30. The other reason for me to hold the view that the sentence should be more than 10 years imprisonment is that, the aggravating factors present in this case far outweigh the mitigating factors, which means that apart from the peculiarity of the case itself, that is, the offence being committed in a prison precinct, the presence of aggravating factors calls for a sentence over and above the head sentence. To recap, I recite them with some additional briefly below:

* The offender is the main actor. He came up with the plan to escape and sent Dominic Willie to distract and attack Corporal Philip Tokopa who was at that time armed with AR15 A2 rifle. He then came in to assist Dominic Willie to attack Corporal Philip Tokopa;

* The offender used a bush knife to cut Corporal Philip Tokopa;

* As a result, Corporal Philip Tokopa not only sustained serious body injuries, but also suffered pain and stress. The Medical Report by Dr Nolpi Tawang of Mendi General Hospital dated 08th February 2005 confirms the injuries of Corporal Philip Tokopa which interalia required 3-5 stitches for each of the multiple cuts from the bush knife;

* The offender removed the AR15 A2 rifle from Corporal Philip Tokopa and threatened to shoot the other CIS officers who came to rescue Corporal Philip Tokopa;

* The offender stole the AR15 A5 rifle and did not return to for quite sometimes until third parties returned it to the CIS officers at Buihebi CIS;

* The AR15 A2 rifle is the property of the State and of substantial value;

* 30 inmates including the offender and Dominic Willie escaped and 29 of them are still at large as a result of his actions. To my mind, the armed robbery was committed in furtherance of another offence, that is escaping from lawful custody;

* The offender has 3 prior convictions. These prior convictions are an indication that he is a habitual criminal, has a bad habit of committing crimes, and that the punishment imposed by the National and District Courts have made no impact on him; that is to reform him and make him a better person; and

* The offender was caught in another arm robbery incident.

31. When I hold the offender’s early guilty plea and expression of remorse against the aggravating factors which I have outlined above, the mitigating factors are rendered insignificant. In other words, in reality, I am dealing with someone who is not willing to change his way of thinking and behaving. I am dealing with a habitual criminal; a person who has a bad habit of committing crimes despite being sent to prison twice before this case. The long string of past offences is a testament of the offender’s bad character and personality. Then, after he escaped, he was caught again, in another armed robbery incident in Mendi. The bad record of the offender makes me have grave doubts whether he was sincere or genuine when he asked for probation and promised not to get into trouble again during his allocutus.

32. To my mind, this person is a suitable candidate for a long custodial sentence. I am sure the silent majority of the people of our beautiful country would agree with me that offenders like the offender in this case must be locked away for a long time so that the silent majority may enjoy a crime free community for a while. That means that, the sentence I am going to impose on the offender must not only be a personal deterrent 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 communities, our provinces and our country.

33. As I said above, given that the head sentence for armed robbery of a dwelling house is 10 years whilst for a street robbery is 6 years nowadays, I consider that an appropriate head sentence for an armed robbery in a prison precinct is 12 years, like the one I am dealing with today. But given the presence of aggravating factors which far outweigh the mitigating factors in this case, I will increase the sentence to 15 years to reflect the gravity of this case.

ORDERS

In the end, the offender is sentenced to 15 years imprisonment in hard labour at Buihebi Corrective Institute. A warrant of commitment will be issued shortly.

Sentence accordingly.

Acting Public Prosecutor: Lawyers for the State
Public Solicitor: Lawyers for the Offender