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National Court of Papua New Guinea |
PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]
CR NO. 446 OF 2010
THE STATE
v
DESMOND GOBE
Goroka: Yagi J
2011: 11th & 14th July
CRIMINAL LAW – sentence - particular offence – armed robbery on a street – youthful first offender – aged 17½ years – juvenile offender – exercise of power under Juvenile Courts Act – dangerous weapons used -prevalence of offence – protection and rehabilitation of offender –interest of the offender paramount consideration – sentence of 4 years imprisonment imposed – sentence wholly suspended and placed on probation with strict conditions.
Cases Cited
State v Waiyape Kuromu & 3 Ors (2009) N3743
State v David Henry CR. No. 495 of 2008, unreported and unnumbered National Court Judgment of Yagi J at Goroka dated 15th February 2010.
Gimble v The State [1988-89] PNGLR 271
Public Prosecutor v Don Hale (1998) SC564
Tau Jim Anis v The State (2000) SC642
Counsel:
V. Mauta, for the State
V. Agusave, for the Offender
14th July, 2011
SENTENCE
1. YAGI J: Desmond Gobe is a juvenile aged about 17½ years. He came before the Court and pleaded guilty to one count of aggravated armed robbery. He is now before the Court to be sentenced. He is charged under s. 386(1) and (2)(a) of the Criminal Code Act.
2. The penalty for aggravated armed robbery under s. 386(2) of the Code is a term of imprisonment up to a maximum of life imprisonment. The power of the Court to impose the penalty is discretionary. It is also subject to various sentencing discretions or options provided under s. 19 of the Code.
3. When the Court administered allocutus, Desmond Gobe did not say much. He spoke quietly and expressed remorse by saying sorry to the Court, his parents and the community for what he did. He also said sorry to the victims. I accept his remorse as genuine.
4. A pre-sentence report (PSR) and means assessment report (MAR) were provided pursuant to s. 29 of the Juvenile Courts Act. These reports portray a positive picture and promising outlook about Desmond Gobe. It showed that Desmond is a humble young person. The local church pastor spoke highly of him as a committed and faithful Christian who attends church services regularly. The pastor expressed surprise when he learnt that Desmond was involved in the trouble. Desmond's natural parents are also committed Christians of Lutheran Church and they ensured that their children including Desmond are brought up under strict Christian principles and discipline. They also expressed disapproval of Desmond's conduct and have been embarrassed by it. Desmond accepts full responsibility for his actions and has expressed regrets. He says that he was forced into doing it by his friends. He expressed apology to the victims and promised not to break the law again. He appears to acknowledge and accept the fact that what he had done was wrong and against the law. He is presently living with his uncle at Minogere Police Barracks in Goroka. His uncle is a member of the Police establishment based in Goroka, Eastern Highlands Province. Desmond has expressed a strong desire to return to school.
5. The pre-sentence report recommends, amongst others, that Desmond be placed under the probation supervision with work orders.
6. The facts are that at about 8.00 pm on 9th August 2009 Desmond and three of his friends were standing at the junction of the Minogere Police Barracks and Piswara settlement in Goroka. It appears that these other boys are older than Desmond. All of them were armed with dangerous weapons. Desmond had a small bayonet type knife whilst his other friends had a pistol and two bush knives.
7. As they stood there, they saw a PMV bus drop off two young females. One of the females was carrying a baby. It was raining during that time. The two females disembarked and were heading for their house at Minogere Police Barracks when Desmond and his gang held them up. They stole from these woman K300.00 cash, 2 Nokia mobile phones and a bag containing personal properties. They then fled into the darkness and escaped towards Piswara settlement. Two days later Desmond's mother returned to the victims 2 Nokia mobile phones and the bag containing the properties. K300.00 cash was later refunded to the victims; it appears by Desmond's uncle, his current guardian at law. Desmond was apprehended on 19th September 2009. I note that his 3 accomplices are still at large.
8. The offender's personal antecedent and background is as follows. The offender is under the age of 18 years and comes from Mawane village, Finchaffen, Morobe Province. At the time of the offence he would be under the age of 16 years, about 4 months short. He was living with his parents at Piswara settlement when he committed the offence. His father works for a private company as a carpenter and his mother works as a cleaner for the University of Goroka. The family has been living at Piswara settlement for many years, probably about 12 years. According to the PSR, he has 4 brothers and 3 sisters and he is the second last born in the family.
9. Desmond is currently residing with his maternal uncle, Senior Sergeant Kuyong Aze, and his family at Minogere Police Barracks, Goroka pursuant to a court order as part of bail conditions. He is looked after and supported by his uncle as a member of the household and receives a token per diem regularly.
10. Desmond has some basic education. He completed grade 8 education at Gama Lutheran Primary School in 2008. He was unable to continue further with his education due to poor academic results.
11. Mr. Agusave, for the defence, referred me to a recent decision on sentence in Goroka by his Honour Kirriwom J in State v Waiyape Kuromu & 3 Ors (2009) N3743 involving juvenile offenders convicted of aggravated armed robbery. Counsel urged me to follow the approach in that case. In that case, 4 young boys attending a local primary school in Lufa, armed themselves with 3 home-made guns and bush knives, held up a PMV truck load of passengers along the highway, and stole a wrist watch valued at K12.00, one mobile phone and K120.00 cash. The young robbers were apprehended shortly after the incident with the help of the local people and all the properties were returned to their rightful owners. Compensation was also paid to the truck operator by the local community as a sign of apology and reconciliation for the wrong committed by these local teenage gangsters. These offenders were sentenced to 4 years. After allowance was made for the pre-trial custody period, the balance of the sentence was wholly suspended on conditions. In considering the sentence, the trial Judge took account of the following factors in favour of the offenders:
12. The serious aggravating factors that were noted by the Court in that case were that dangerous weapons were used; the offence is prevalent and is serious in view of the maximum penalty prescribed by law.
13. Mrs. Mauta, for the State, concedes that the facts and circumstances of this case are very similar to Kuromu case (supra) that invites a similar approach and result. However, counsel submits sentence should reflect the prevalence of the offence and restorative aspect of punishment.
14. This case is just an example of many unfortunate school drop-outs who have found themselves idle with nothing useful to do that they often resort to illegal activities to keep themselves occupied. Some of these young rejects from the education system become distraught and disoriented.
15. The facts show that Desmond has strong desire and interest in continuing with his education. However, he is now a reject by our education system. The education system has no place for him. His future education and dream has been shattered. His dream and aspiration to better himself in education and life, to find a job, earn a living in this highly capitalistic society was taken away from him right below his nose by the education system. He therefore became confused, lost and vulnerable.
16. He lives within a settlement environment. It is common knowledge that such places is where many disadvantage people live. It is also common knowledge that such places are a breeding ground for criminal elements and misfits in society. It is against this backdrop that I think one could understand and better appreciate the proper context in which the prisoner has come to find himself in conflict with the law. I say this in the light of the fact that he has a strong and disciplined Christian upbringing by his parents. Desmond himself has impressed his local church pastor as a committed Christian and regular church goer. Both his parents and the local pastor found themselves perplexed in coming to terms with the reality. Such is the challenges of a modern contemporary PNG society today. A rather unbalanced society in many respects but generally in a much broader socio- economic and political context.
17. After reading the PSR and MAR I am persuaded that the prisoner is neither a habitual nor hard core criminal. He just happens to mix with the wrong group of young boys. It seems that he was subjected to undue peer pressure. He was left alone, unsupervised and vulnerable at his house in the settlement. His parents are away working hard to bring food to the table and to support the family with little wage income. He unfortunately succumbed to the pressure of his peer group and was led astray. This is quite evident from the record of interview where he told the police that he was forced by his friends to do it.
18. The offence of aggravated armed robbery is indeed a very serious offence because it carries a maximum penalty of life imprisonment.
19. Committing robbery with the use of violence and dangerous weapons puts people's lives and safety at risk. In this case, dangerous weapons were used. A pistol and bush knives were used. A pistol is a lethal weapon. Although, there is no evidence that the weapon was loaded, nevertheless, the potential is there. Pointing a gun at someone could easily cause people to suffer shock that may lead to heart attack and even death. That is how serious this can become. Fortunately, no bullet was fired in this case nor did it cause the victims to suffer any physical harm or injury. It could have been a worse outcome for these two young women and their innocent baby, had they decided to resist or struggle physically.
20. The offence is prevalent in this country. There is never a shortage of robbery cases before the Courts rather the Courts have been inundated with many cases including robbery. Almost every day we read or hear stories and news about all kinds of robberies taking place in our society. It happens in villages, towns and cities. It has happened to peace-loving and law abiding people who come from different backgrounds and walks of life even to people who so unselfishly give their life to help others such as church workers, social workers and volunteers. The offence of robbery has also seriously affected commerce and trade systems. The business community many times find themselves in the receiving end of this unlawful activity. In the Highlands generally and also other parts of the country it is not uncommon to find that simple robbery incidents often lead to wider law and order problems. It has the potential to cause a compounding and crippling effect. This is not good for the development and prosperity of our country in general. The Courts must therefore play its part by imposing severe penalties on offenders who commit such an offence.
21. Over twenty years ago the Supreme Court in Gimble v The State [1988-89] PNGLR 271 provided some sentencing guideline in armed robbery cases. The Supreme Court categorized different types of cases into four categories. One of the categories is robbery carried out on a public street or road or generally referred to as the street robbery. In this category of cases the Supreme Court suggested that the sentence should start at 3 years. About ten years later, the Supreme Court adjusted the starting point upwards by 3 years. Public Prosecutor v Don Hale (1988) SC 564 and Tau Jim Anis & Ors v The State (2000) SC 642. One of the principal reasons for the increase was that the offence was increasing and thus prevalent. Therefore the trial Courts have since been applying this guideline as a yardstick for determining sentences in arm robbery cases, that it, the starting point for street armed robbery cases is 6 years. We are now ten years on and there appears to be no indication of a downward slide in respect to this offence. I would therefore suggest that starting point should be further adjusted upwards.
23. As I alluded to there can be no doubt that Desmond is a juvenile according to law. The Juvenile Courts Act, s. 2 defines a "juvenile" as a person not less than 7 years and under the age of 18 years.
24. The question is; what is the appropriate sentence for this juvenile offender.
25. The Juvenile Courts Act provides guidance as to how a juvenile should be dealt with by the Courts. It is clear under that Act, this Court must exercise the powers of a Juvenile Court. I will therefore do exactly that with the offender in this case.
26. In State v David Henry CR. No. 495 of 2008, unreported and unnumbered Judgment by myself in Goroka dated 15th February 2010, I said this:
"The Juvenile Courts Act defines a juvenile as a person apparently not less than 7 years and under the age of 18 years. This means that a person between the age of 7 to 18 years is considered a juvenile for the purposes of the Act. The Act was enacted to replace certain provisions of the Child Welfare Act and the Village Courts Act, which deals with children that come into conflict with the law and in particular the powers and functions of the Children's Court in dealing with children who have committed offences.
The scheme of the Juvenile Courts Act is essentially to protect, promote and foster the welfare and interest of children who violate the criminal law. One of the objects of this legislation is to provide a regulatory guideline and procedure in sentencing of juvenile offenders.
The key consideration under the Act that is of paramount importance when a Court is dealing with juvenile offenders is the "interests of the juvenile". This is stipulated very clearly by the Juvenile Courts Act at the very outset. Section 4 of the Act states:
"4. INTERESTS OF JUVENILE PARAMOUNT.
In proceedings and actions under this Act, the interests of a juvenile shall be the paramount consideration."
The powers of the Court in sentencing a juvenile is vested in ss. 30 and 32 of the Act. These provisions provide a range of sentencing options such as discharge without conviction, conviction and discharge, fine, order to pay compensation, probation, placing a juvenile in a ward of Director of Child Welfare and detention is a juvenile section of a corrective institution.
However, whilst the Court has a wide discretion in sentencing, the Court must take into account a number of important factors in its deliberation. These are what I would call "mandatory factors". These factors are enumerated under s. 31 of the Act. They are:
"(a) the seriousness of the offence and the circumstances in which it was committed;
(b) the age, maturity, education, health, character and attitude of the juvenile;
(c) the juvenile's parental and family background as well as the social and community environment in which he lives and to which he is likely to return;
(d) the juvenile's previous history in respect of offences and his responses to previous orders in relation to those offences;
(e) the community services and facilities that are available to assist the juvenile and his willingness to use those services or facilities;
(f) any proposals that the juvenile or his parents may put forward for the future improvement of the juvenile;
(g)any views of a Juvenile Court Officer in relation to the juvenile;
(h) any views of any person who is involved in the education or custody of the juvenile;
(i) any other factor that the Court may consider relevant."
27. Having regard to the legislative intent and imperative of the Juvenile Courts Act, I must as a matter of law give paramount consideration to interest of the prisoner when determining an appropriate sentence in this case.
28. In considering sentence I take into account the mitigating factors in favour of the prisoner; he is a first-time offender with good stable background, he pleaded guilty, he cooperated with the police in admitting the offence at the outset, all the properties including cash money were returned to the victims, no harm or injury was caused to the victims, there is good community support with a favourable report, he apologized to the victims and more significantly he is a juvenile.
29. No doubt the offence is quite serious in view of a number of aggravating factors that are present such as the use of dangerous weapons, he was in company with others and it was in the night. I take those factors into account too and in the end have to balance the competing interest of dispensing justice as demanded by the society against offenders and the interest of the juvenile as an offender that the punishment must not be crushing and must fit the crime.
30. Weighing all these factors for and against, it appears that mitigating factors outweigh the aggravating factors. Furthermore, I am of the view that the overriding consideration that must always remain paramount is the interest of the prisoner as a juvenile as envisaged by the Juvenile Courts Act.
31. I accept the submission by the defence and the State that Kuromu case (supra) is a good guide in considering sentence. I also agree with the State that adequate emphasis should be given to reflect restorative aspect in sentencing. I would however, go further to say that in the circumstances of this case reformative and rehabilitative forms of punishment should also be given sufficient, if not equal, consideration.
32. In the particular circumstances of this case, I consider that the prisoner should be given every opportunity and a chance to prove himself in the community despite his stupidity in relation to this isolated but serious incident. To incarcerate him in jail amongst the hardened criminals will be a disaster and will destroy the future of this young boy. This will certainly not be in the best interest of the prisoner. I am convinced that he has learnt his lesson.
33. I sentence the prisoner to 4 years imprisonment in hard labour. I order that the sentence be suspended and the prisoner shall serve the prison term on probation pursuant to s. 30(2)(c)(iii) of the Juvenile Courts Act on the following conditions:
1. The prisoner shall immediately enter into a bond with cash surety of K500.00 to be of good behaviour for the whole duration of the suspended sentence and agree to faithfully comply with the terms. I order that the cash bail of K500.00 be converted as cash surety.
2. The prisoner shall attend at least 5 sessions and receive counseling at Family Voice Center in Goroka and shall comply with any instructions, advice or counsel given to him.
3. The prisoner shall reside with Senior Sergeant Kuyong Aze at Minogere Police Barracks in Goroka, Eastern Highlands Province or any other place of residence where the said Senior Sergeant Aze is residing and the prisoner shall be home bound between the hours of 5:30 pm and 7:00 am for the whole of the suspended period.
4. The prisoner must not associate with any of his accomplices involved in this offence or be in the company of any known youth with bad influences, bad record or criminal character for the whole of the suspended sentence.
5. The prisoner shall not consume any alcoholic drink or illegal or illicit substances of whatever make including any home brew and marijuana.
6. The prisoner shall allow for Community Based Correction Service in Goroka to do home visits and do six monthly reports to this Court; the first of such reports shall be due by 14th January 2012.
7. Any breach of these terms will automatically result in the lifting of the suspended sentence and the prisoner shall be required to serve the balance of the suspended sentence at a recognized and approved juvenile facility commencing from the date of the first default.
34. Finally I order that the guarantors' fees of K100.00 be forthwith refunded to Senior Sergeant Kuyong Aze of Goroka Police Station and Reverend Anthony Elemi of St. Mathews Lutheran Church, Goroka respectively.
Sentenced accordingly.
_____________________________________________________________
Acting Public Prosecutor: Lawyer for the State
Public Solicitor: Lawyer for the Prisoner
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