State v Asarombo [2010] PGNC 132; N4121 (24 August 2010)

N4121

PAPUA NEW GUINEA
IN THE NATIONAL COURT OF JUSTICE

CR NO 151 & 1439 OF 2009

THE STATE

V

ALPHONSE ASAROMBO & TIMOTHY LOKORA

Madang: Cannings J
2010: 26 May, 19, 24 August

CRIMINAL LAW – sentencing – armed robbery, Criminal Code, Section 386 – sentence after trial – store robbery, threatened use of firearms – sentences of 9 years.

The offenders were convicted after trial of the armed gang robbery of a store, in which K43,491.74 was stolen.

Held:

(1) The starting point for sentencing for this sort of robbery is 8 years imprisonment.

(2) The only mitigating factors were that each offender was assaulted and/or shot by the police after being apprehended and had no prior convictions.

(3) A sentence of 9 years imprisonment was imposed on each offender. The pre-sentence period in custody was deducted but there was no suspension of any part of the sentence.

Cases cited

The following cases are cited in the judgment:

Gimble v The State [1988-1989] PNGLR 271
Phillip Kassman v The State (2004) SC759
Public Prosecutor v Don Hale (1998) SC56
Tau Jim Anis v The State (2000) SC642
The State v Asarombo and Lokora (2010) N4035
The State v Max Guari CR No 1436/2009, 22.07.10
The State v Michael Manowi CR No 1386/1999, 17.02.09
The State v Owen Gabriel Koud CR No 312/2010, 20.05.10

SENTENCE

This was a judgment on sentence for armed robbery.

Counsel

N Goodenough, for the State
D Joseph, for the offender

24 August, 2010

1. CANNINGS J: This is a decision on sentence for two young men, Alphonse Asarombo and Timothy Lokora, convicted after trial of armed robbery. The robbery took place on the morning of Monday 8 September 2008 at the front of the BNBM Hardware store in Madang town. Two of the store's employees were held up at gunpoint when they were in a vehicle preparing to go to the bank. A money bag containing K43,491.74 (K17,280.60 cash + K26,211.14 cheques) was stolen. The employees were not physically wounded. The members of the gang left the scene on foot, heading in the direction of the harbour. A short time later the police apprehended the two offenders and a few others, in a dinghy on the harbour. Inside the dinghy were the money bag stolen in the robbery and weapons and other items used in the robbery. The offenders were convicted on circumstantial evidence. Alphonse Asarombo's sworn evidence that he had been taken hostage and forced on to the dinghy against his will was rejected. Timothy Lokora did not give evidence. Further details of the robbery are set out in the judgment on verdict, The State v Asarombo and Lokora (2010) N4035.

ANTECEDENTS

2. Neither offender has any prior convictions.

ALLOCUTUS

3. The offenders were each given the opportunity to address the court.

Alphonse: I ask the Court to look into this case further. I am an innocent person but the court has found me guilty. I ask for the mercy of the court as I am innocent.

Timothy: I say sorry to the court and to my lawyers. This is my first time in court and I ask the court to consider me for probation.

PRE-SENTENCE REPORTS

4. I received pre-sentence reports from the Community Corrections and Rehabilitation Service.

5. Alphonse is 27 years old, married with one child. He is from the Drekkikir area of East Sepik Province but has been living at his wife's village, Klinwara, in the Transgogol area of Madang Province. His parents are deceased but he says that he maintains strong connections with his four brothers and sisters. He has a grade 3 education. He worked as a security guard for one year. He regards himself as a subsistence farmer. His health is OK.

6. Timothy is 20 years old and single. He is from the Malalaua area of Gulf Province but has been living with his uncle at Yabob village, on the edge of Madang town. He has a grade 8 education and wishes to continue his education. He has no formal employment record. He is dependent on his uncle for financial support. His health is OK.

SUBMISSIONS BY DEFENCE COUNSEL

7. Mr Joseph submitted that the case fell within the last (least serious) category of the sentencing guidelines for armed robbery given by the Supreme Court and therefore the starting point should be six years imprisonment. No one was physically injured and each offender had a minimal involvement in the robbery, so the sentences should be three to six years imprisonment each, with a partial suspension.

SUBMISSIONS BY THE STATE

8. Mr Goodenough submitted that this was not a street robbery but a store robbery and that the starting point should therefore be eight years. No remorse has been expressed by either offender, so the sentence should remain at the starting point of eight years, with no suspension.
DECISION MAKING PROCESS

9. To determine the appropriate penalty I will adopt the following decision making process:

• 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 head sentence?
• step 5: should the pre-sentence period in custody be deducted?
• step 6: should all or part of the sentence be suspended?
  

STEP 1: WHAT IS THE MAXIMUM PENALTY?

10. 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?

11. 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.

12. 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.
  

13. I reject Mr Joseph's submission that this case was a street robbery. It was the robbery of a store. It took place in the store car park. Store employees were held up. The money stolen belonged to the store. The case falls within the third category. The starting point is 8 years.

STEP 3: WHAT OTHER SENTENCES HAVE BEEN IMPOSED FOR EQUIVALENT OFFENCES?

14. I refer to three cases that provide useful points of reference. In a Kimbe case, The State v Michael Manowi CR No 1386/1999, 17.02.09, I imposed a sentence of ten years after a trial. The offender joined with two others in holding up two store employees at gunpoint, stealing K51,000.00. In a Madang case, The State v Max Guari CR No 1436/2009, 22.07.10, I imposed a sentence of seven years on an offender who pleaded guilty to joining with several others in holding up a PMV on the road, at gunpoint, stealing K11,000.00. In The State v Owen Gabriel Koud CR No 312/2010, 20.05.10, the offender was sentenced for the same armed robbery for which Alphonse Asarombo and Timothy Lokora are now being sentenced. He received a sentence of five years, the strong mitigating factors being that he pleaded guilty, expressed remorse and there was evidence that he was shot and beaten badly by the police in the course of being apprehended and now has a permanent leg injury due to the shotgun wounds.

STEP 4: WHAT IS THE HEAD SENTENCE?

15. There is no reason to differentiate the sentences for the two offenders. I regard their age and personal circumstances and their level of involvement in the crime as similar, so they will each get the same sentence.

16. The mitigating factors are:

• no one was physically harmed;
• the offenders have no prior convictions;
• the offenders were assaulted by the police after being apprehended.
  

17. Aggravating factors are:

• victims threatened;
• use of firearms;
• gang involved;
• planned robbery.
  

18. After weighing all these factors and comparing this case with the other armed robbery sentences I have imposed, the head sentence should be slightly below that imposed in the Manowi case, but well above that imposed on their co-offender, Owen Gabriel Koud. They should also receive a higher sentence than Max Guari as he pleaded guilty. The sentence of three to six years suggested by Mr Joseph is unrealistic. I am not bound by Mr Goodenough's submission for eight years. The sentence I impose is nine years each.

STEP 5: SHOULD THE PRE-SENTENCE PERIOD IN CUSTODY BE DEDUCTED FROM THE TERM OF IMPRISONMENT?

19. Yes. 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, 11 months, two weeks, two days.

STEP 6: SHOULD ALL OR PART OF THE SENTENCE BE SUSPENDED?

20. Armed robbery is a serious crime and the People of Papua New Guinea are fed up with it. Whether it happens in Port Moresby or Kimbe or Madang, an armed robbery is a traumatic event for the whole community and for every person who is a victim. The community expects raskols who are convicted of armed robbery to be sent to prison. A prison term is necessary. I do not find in either pre-sentence report a good case for suspension. Neither offender has expressed genuine remorse, so there will be no suspension.

SENTENCES

21. Alphonse Asarombo and Timothy Lokora, having each been convicted of one count of robbery contrary to Section 386(1) of the Criminal Code in circumstances of aggravation under Sections 386(2)(a) and (b), namely that each was armed and in company with other persons, are each sentenced as follows:

Length of sentence imposed	9 years
Pre-sentence period to be deducted	1 year, 11 months, 2 weeks, 2 days
Resultant length of sentence to be served	7 years, 1 week, 5 days
Amount of sentence suspended	Nil
Time to be served in custody	7 years, 1 week, 5 days
Place of custody	Beon Correctional Institution

Sentenced accordingly.

_________________________

Public Prosecutor: Lawyer for the State
Paul Paraka Lawyers: Lawyers for the offender