State v Abai [2010] PGNC 137; N4132 (21 September 2010)

N4132

PAPUA NEW GUINEA
IN THE NATIONAL COURT OF JUSTICE

CR NO 1422 OF 2009

THE STATE

V

PETRUS ABAI

Minj: Makail, J
2010: 15th & 21st September

CRIMINAL LAW - Plea - Sentence - Highway armed robbery - Gang or mob armed robbery - Prescribed maximum penalty of life imprisonment - Aggravating factors and mitigating factors considered - Presence of special mitigating factor - Prisoner wounded by victims following apprehension - Serious permanent bodily injuries - Custodial sentence appropriate - 6 years imprisonment imposed less time spent in pre-sentence custody - Criminal Code, Ch 262 - Sections 19 & 386(1)&(2).

Cases cited:

The State -v- Jackson Nimai (2008) N3355
Gimble -v- The State [1988-89] PNGLR 271
Tau Jim Anis -v- The State (2000) SC642
The State -v- Smith James Ondari (1990) N867

Counsel:

Mr M Ruari, for the State
Mr F Kirriwom, for Prisoner

SENTENCE

21st September, 2010

1. MAKAIL, J: You pleaded guilty to a charge of armed robbery. I accepted your plea and convicted you after satisfying myself from the depositions handed up by the State that the charge had been made out against you. Armed robbery is an offence under section 386(1)&(2) of the Criminal Code, Ch 262 and carries a prescribed maximum penalty of life imprisonment. The prescribed maximum penalty of life imprisonment is of course subject to section 19 of the Criminal Code, Ch 262 which gives the Court power to impose a lesser penalty than life imprisonment. What is left for me to decide is an appropriate punishment for you.

2. The brief facts giving rise to the charge are these: about 9 o'clock in the morning of Tuesday 28th July 2009, you and 12 accomplices set up a road block on the road between the border of Jimi and Waghi and held up three motor vehicles. At that time, you and your accomplices were armed with offensive weapons, namely, 2 M16 rifles, 1 SLR sub-machine gun, 4 homemade guns and 4 bush knives. You and your accomplices set up the road block with rocks and when the motor vehicles arrived, you and your accomplices came out of your hiding place and attacked the drivers and passengers with your weapons. You and your accomplices beat them up and ordered them to get off the motor vehicles and lay down on the ground.

3. You and your accomplices took from them money and properties worth K28,958.00. Following that, you all escaped. The victims of the armed robbery re-grouped and pursued you and your accomplices. You were caught. You had in your possession cash of K650.00, a hand bag and a mobile phone.

4. Your lawyer, Mr Kirriwom submitted on your behalf that your case is not a worst case of armed robbery. Hence, you should not be sentenced to the prescribed maximum penalty of life imprisonment. He gave a number of reasons for that proposition. First, there are a number of mitigating factors present in your case which make your case less serious. Secondly, there is presence of a special mitigating factor which further reduced the gravity of the offence. He highlighted them thus:-

1 Mitigation factors:

- Plea of guilty, thus saving time and money to conduct a trial;

- First offender with no prior convictions;

- Apology and remorseful to God, the Court and the victims; and

- Recovery of stolen cash and properties.

2. Special mitigating factor:

- Assaulted by victims of the armed robbery when apprehended and sustained permanent injuries.

5. You are 55 years old, married with 2 wives and 12 children. You have no formal education and are a villager, reliant on subsistence farming. Further, your wives and children rely on you for support and daily up keep. Finally, you have been in custody since 28th July 2009. This is about 1 year and 2 months.

6. The aggravating factors present in your case as submitted by Mr Ruari for the State are:

- Prevalence of the offence;

- Gang or mob armed robbery;

- Offensive weapons were used, namely high powered firearms and bush knives;

- Three motor vehicles were held up;

- Multiple victims;

- Victims were injured; and

- Victims were subjected to threats and assaulted and deprived of their freedom of movement.

7. It is trite law that the maximum prescribed penalty is reserved for the worst case. In your case, I can say that it is not a worst one. Hence, to impose the prescribed maximum penalty of life imprisonment on you would be inappropriate and disproportionate. I find your case very similar to the case of The State -v- Jackson Nimai (2008) N3355 which was one of those first lot of cases I dealt with when I was appointed acting Judge of this Court. That was a case which was decided on my first Court circuit to Kundiawa on 21st April 2008. It was an armed robbery on the highlands highway between Waratampa and Kundiawa by a gang. The prisoner was their watchman. They were armed with shotguns and bush knives and held up a motor vehicle with its occupants travelling up the highway. They stole K120.00 from one of the passengers. The other gang members escaped but the prisoner was not so fortunate.

8. He pleaded guilty to one count of armed robbery and was sentenced to 8 years imprisonment with 2 years suspended with conditions. In arriving at that sentence, I took the occasion to review 14 past cases of armed robbery to identify the sentencing trend of the National Court and the Supreme Court in armed robbery cases since the decision of Gimble -v- The State [1988-89] PNGLR 271. The Gimble's case (supra) set out the sentencing guidelines for different categories of armed robbery. It listed four categories of armed robbery and the starting point or head sentence in each category.

9. Your case falls into the third category of armed robbery cases. It is an armed robbery of a motor vehicle on a road and according to the Gimble's case (supra), your case would attract 5 years imprisonment as the starting point or head sentence. However, subsequent to Gimble's case (supra), the Supreme Court in Tau Jim Anis -v- The State (2000) SC642 increased the sentencing guidelines set for armed robbery in the third category to 8 years imprisonment by adding 3 years. That followed the Supreme Court acknowledging that the offence was becoming prevalent and the guidelines set by Gimble's case (supra) were outdated and no longer appropriate.

10. That means, I will use 8 years imprisonment as the starting point and will either increase or decrease it depending on the mitigating and aggravating factors present in your case. I accept that you are a first offender with no prior convictions and you pleaded guilty to the charge, thus saving time and money to conduct a trial to determine your guilt. I also accept that you are remorseful for what you did and accept your apology. Further, I accept that cash of K650.00, a hand bag and a mobile phone that you had stolen were recovered by the victims when you were apprehended. Furthermore, I accept that you are a family man with a very big family, noting that you have 2 wives and 12 children to look after.

11. But I must remind you that the offence you have committed is very serious and prevalent in our country. It happens almost everyday. You were in the company of 12 men. It was a gang or mob armed robbery. You were armed with offensive weapons and used them to hold up the motor vehicles and their occupants. These offensive weapons were high powered firearms and bush knives. I can image the great amount of fear and shock your victims went through as a result of you and your accomplices' actions. You and your accomplices have shown no respect for other fellow human beings. In Jackson Nimai's case (supra), I observed at p 13:

"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 terrifying experience because the victims are held up in an unfamiliar and isolated location where it is difficult to seek help."

12. Then, I take into account that you and your gang held up not one motor vehicle but three. There were multiple victims and were injured when you and your gang assaulted them and forced them to hand over cash and properties in their possession. Although there are no medical reports before me to establish the extent of the victims' injuries, I am nonetheless satisfied that they were assaulted and suffered pain and discomfort. They were also deprived of their freedom of movement.

13. These factors make your case serious enough to warrant a sentence higher than 8 years imprisonment. But on your allocutus you said that you were assaulted by the victims of the armed robbery following your apprehension on the afternoon of the same day at Mombola village. As a result, you sustained serious injuries to your body which have resulted in permanent disabilities. I accept your word on this because from my observation of you in the dock during your allocutus, it was visibly clear that you had a disfigurement on your left wrist and two of your left hand fingers were severed. To my mind, these are permanent injuries. Based on this observation, I accept your lawyer's submission that you sustained permanent injuries as a result of being assaulted by the victims of the offence when you were apprehended following the armed robbery. You also said, your numerous requests to the police and CIS officers for medical treatment were declined or ignored. I also accept your word.

14. In The State -v- Smith James Ondari (1990) N867, the Court held that where an offender who commits a robbery with threats of actual violence receives a broken arm after villagers who had witnessed the robbery chased him and hit him with an axe, it was appropriate to reduce a 4 years sentence to 3 years to account for the punishment received by the offender when the villagers took the law into their own hands and administered "jungle justice". I accept that it is a special mitigating factor which militates against the seriousness of the offence. That means that I will decrease the head sentence of 8 years imprisonment.

15. But I reject your lawyer's submission that you should not be used as a "scape goat" for the sins of other members of your gang who have not been apprehended and charged for the same offence to date. While I accept that you may not have been the one who held up the victims, you should not forget that you were in the company of the other accomplices and took some of the stolen cash and properties from the victims. These matters place you on equal footing as those who did the hold up. In the end, I have decided that you should be sentenced to 6 years imprisonment in hard labour.

16. Your lawyer did not ask for a suspended sentence either in part or wholly and I think he was correct in not asking for that because in my view, apart from there being no pre- sentence report to support a case for suspended sentence, I consider a suspended sentence in your case would be inappropriate because of the number of aggravating features present in your case. There were multiple victims who were subjected to assaults and threats. Substantial amount of money and properties were stolen. You took K650.00, a hand bag and a mobile phone. You and your accomplices used offensive weapons to carry out the robbery. In my view, 6 years imprisonment is appropriate and based on 6 years imprisonment, I shall deduct the time spent in pre-sentence custody which is 1 year and 2 months, leaving a balance of 4 years and 10 months for you to serve at Baisu CIS.

17. A warrant of commitment in those terms will be issued shortly.

Sentence accordingly.
____________________________________
Acting Public Prosecutor: Lawyers for the State
Public Solicitor: Lawyers for Prisoner