State v Saku [2011] PGNC 78; N4355 (11 August 2011)

	Home \| Databases \| WorldLII \| Search \| Feedback National Court of Papua New Guinea

CRIMINAL LAW – sentencing – armed robbery, Criminal Code, Section 386 – guilty pleas – house robbery, threatened use of firearms, actual violence – offenders did not directly participate in robbery but assisted those who did –sentences of 6 to 8 years.

Four men pleaded guilty to their involvement in an armed robbery of a home office at a plantation in a rural area in which K75,751.00 cash and other items were stolen. They did not directly commit the robbery but assisted those who did.

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 Charlie Kevin, Worex John & Demas Dano (2007) N3191
The State v Eddie Maso CR 864/2006, 27.03.07
The State v Jacky Vutnamur & Kaki Kialo (No 3) (2005) N2919
The State v James Negol (2005) N2801
The State v Lucas Soroken, Bob Alois & Raphael Lawrence (2006) N2801
The State v Mogi Konda CR 1316/2005, 19.04.05

1. CANNINGS J: This is a decision on sentence for four young men who pleaded guilty to their involvement in an armed robbery that took place at 8.00 am on Monday 12 October 2009 at Nom Plantation in the Saidor area of Rai Coast District, Madang Province. They did not directly participate in the robbery but assisted those who did.

2. The robbery was committed by a group of five men ('the robbers'), believed to be from Lae. They were armed with guns and bushknives which they used to threaten and commit actual violence against a plantation employee. They pointed a loaded firearm at his head, held him down and cut his ear with a bushknife, which happened on two separate occasions, in order to extract information from him. K75,751.00 cash, two mobile phones and a pair of binoculars were stolen. The four offenders now being sentenced played various roles in the robbery.

3. Philip Saku helped Ginom Kiliwa on 11 October paddle to Bonga to get fuel for Kiliwa's dinghy, which was used to transport the robbers to Nom on the morning of the robbery. On 12 October he was in the dinghy that took the robbers to Nom. He knew that the men for whom Kiliwa was providing transport planned to rob Nom Plantation.

4. James Sanguru was in the dinghy that was used to take the robbers to Nom on the morning of 12 October. He did not know about the robbery until they got to Nom but once he found out about it he helped the robbers by acting as a lookout while they held up the victim and went inside the manager's residence from where they stole the cash and other property.

5. Makuku Rimba provided accommodation for the robbers at his village, Yara, from 7 October to 11 October. On 11 October he helped Ginom Kiliwa paddle to Bonga to get fuel and on 12 October he was in the dinghy that was used to take the robbers to Nom. He knew that the men he and Kiliwa were assisting planned to rob Nom Plantation.

6. Ginom Kiliwa was the skipper of the dinghy that was used on 5 October to bring the group to Rimba's village where they stayed before the robbery; on 11 October he took the group in his dinghy to Bonga to get fuel; and on 12 October he took them to Nom, waited for them while they committed the robbery, then took them to Wasu. At all times he knew that the men for whom he was providing transport planned to rob Nom Plantation.

7. Each of the offenders had originally pleaded not guilty to armed robbery. However, after the trial had proceeded for six days and the court handed down an unfavourable ruling after a voir dire hearing concerning admissibility of various confessional statements and records of interview containing admissions of involvement they each applied for leave to vacate their original pleas. Leave was granted, they were re-arraigned and they pleaded guilty.

Philip Saku: I am only 18 years old. I am sorry for what I did. I apologise for taking up the court's time and the lawyers' time on my case. I apologise to the victim. I am a first time offender. I am an only child and my father is deceased and my mother relies on me to support her. I have cash crops to look after. I ask for mercy and a non-custodial sentence.

James Sanguru: I am 32 years old. I apologise to the victim. I did not know that the troublemakers were planning to commit this robbery. I apologise to the lawyers for taking up their time on my case. I have never been in trouble with the law before. I am a villager. I am married with four children to care for. I am very concerned about their welfare, particularly my first born son who has been taken out of school for non-payment of school fees. This is my first and last time in court. I will never do such a thing again and I ask the court to consider me for probation so I can stay in the village and look after my family and my crops.

Makuku Rimba: I apologise to the Court, to God, to the lawyers who have worked on this case and to the victim, for what I did. I have never appeared in court before this. I am the first-born in my family and the only son. My parents are old and are unable to do heavy work so they rely on me to sustain the family. I grow cash crops and the money I make is used to pay my small sisters' school fees. I want to be back with my family and look after them. I promise not to involve myself in this sort of trouble ever again.

Ginom Kiliwa: I am 25 years old. I apologise for what I did. I apologise to the victim for what happened to him. I am a first time offender. I am married with three children. My parents are old and have health problems. I am the skipper of my father's speedboat and the money we get from the business is how the family survives. I promise to the court and in the eyes of God that I will not do such a thing again.

10. I received pre-sentence reports from the Community Corrections and Rehabilitation Service in relation to each offender.

11. Philip Saku is 18 years old and single. He is from Yara village. His father is deceased. His mother depends on him. He has a grade 8 education. The family grows and sells copra, cocoa and betel nut. He is highly regarded in the local community. He wants to go back home and resume his life as a villager. His health is sound.

12. James Sanguru is the oldest member of the group, at 32. He is married with four children and is from Bonga village. He has a grade 6 education and is well supported by his family. He has no formal employment record. The family grows and sells copra, cocoa and betel nut. His health is sound.

13. Makuku Rimba is 22 years old and single. He is from Yara village. Both parents are alive and he has five sisters. He has a grade 8 education. The family grows and sells copra, cocoa and betel nut. He is highly regarded in the local community and has a strong family support network. He wants to go back home and resume his life as a villager. His health is sound.

14. Ginom Kiliwa is 25 years old and comes from Sio village in the Wasu area of Morobe Province. He is married with three children. He has a grade 10 education and is well supported by his family. He and his father operate a transport business with their dinghy which is used to carry passengers between Madang town and coastal villages along the Rai Coast. The family grows and sells copra, cocoa and betel nut. He is highly regarded in the local community. His health, other than an intermittent knee problem, is sound.

15. Mr Mesa stressed that though the guilty pleas were entered after a trial had been initiated the offenders should nevertheless receive substantial credit for pleading guilty. Their roles in the robbery were minor. They have each received a favourable pre-sentence report. They are suitable for probation and rehabilitation so in all the circumstances a lengthy sentence for any of them is unwarranted.

16. Mr Collins submitted that the court must not lose sight of the fact that this was a major, violent robbery and it was a significant event in the history of this part of the province. The plantation is a significant employer and a large amount of money was stolen. If those who actually committed the robbery were to be convicted the appropriate sentence for them would be in the range of 15 to 20 years imprisonment, so for these offenders, having regard to the lesser roles they played, sentences of five to ten years would be appropriate.

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

18. 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.

19. 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. Nowadays the starting points are:

20. The place from which the property was stolen was an office within a home, so this was a house robbery, the most serious form of robbery. The starting point is 10 years.

21. There are a number of cases involving home invasions that I have dealt with, which are summarised in the table below.

No	Case	Details	Sentence
1	The State v James Negol (2005) N2801	Guilty plea – home invasion, Section 15, Kimbe – young offender – gang robbery – firearms used – K5,300.00 stolen.	7 years
2	The State v Mogi Konda CR 1316/2005, 19.04.05	Guilty plea – home invasion, Kapore, near Kimbe – in company with one other person – mature aged man – K22.00 stolen.	5 years
3	The State v Jacky Vutnamur & Kaki Kialo (No 3) (2005) N2919	Guilty pleas – in company with others – mature aged offenders – firearms used –robbery of family home, Salelebu (police weapons and uniforms stolen).	12 years, 12 years
4	The State v Lucas Soroken, Bob Alois & Raphael Lawrence (2006) N2801	Trial – home invasion, Barema – young offenders – gang robbery – firearms used – woman raped – K460.00 stolen.	12 years
5	The State v Charlie Kevin, Worex John & Demas Dano (2007) N3191	Guilty pleas – three young men joined a gang that held up a store manager's house in a rural area – one went into the house with a firearm – the other two stood watch outside – small amount of cash and camera stolen.	6 years, 4 years, 4 years
6	The State v Eddie Maso CR 864/2006, 27.03.07	Guilty plea – armed offender joined with three others in holding up security guard who was looking after a house – household goods stolen.	6 years

22. To determine the head sentence for each offender I will focus on the starting point of 10 years and assess the mitigating and aggravating factors. The more mitigating factors there are, the more likely the head sentence will be below the starting point. The more aggravating factors present, the more likely the head sentence will be above the starting point. It is not, however, only the number of mitigating and aggravating factors that determines the head sentence. The strength or weight to be attached to each of those factors is more important. The circumstances of the present case will also be compared to those in the cases referred to in the table.

23. Each offender must be sentenced in a way that reflects their degree of involvement in the crime and their personal circumstances but before looking at them individually there are some mitigating and aggravating factors that are common to each of them, which need to be noted.

26. After weighing all these factors and comparing this case with the precedent cases, I have decided that sentences in the range of six to eight years imprisonment are warranted.

27. Philip Saku, the youngest member of the group, was a juvenile at the time of the offence. He appears to have been led astray by his older friends. His involvement in the robbery was relatively minor. He is sentenced to six years imprisonment.

28. James Sanguru is the oldest member of the group, and should have known much better than to get involved in this criminal enterprise. He did not know about the plan until later than the others but got himself involved by agreeing to be a watchman for the gang that went inside the house. He is sentenced to seven years imprisonment.

29. Makuku Rimba provided accommodation for the gang over several days and then assisted with transport arrangements. He is also sentenced to seven years imprisonment.

30. Ginom Kiliwa played the major role amongst this group of offenders. Without him doing what he did, it is likely that this robbery would not have occurred. He is sentenced to eight years imprisonment.

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

31. Yes. I decide under Section 3(2) of the Criminal Justice (Sentences) Act that there will be deducted from the terms of imprisonment the whole of the pre-sentence periods in custody. The period for each offender varies according to their dates of arrest, which were: Saku 17.02.10, Sanguru 11.02.10, Rimba 14.10.09 and Kiliwa 20.02.10. This is reflected in the sentences pronounced at the end of this judgment.

32. As I have said previously armed robbery is a serious crime and the People of Papua New Guinea are fed up with it. This type of crime is far too prevalent in Madang Province. Though the court has been presented with a case of four young offenders who have acted out of character and got themselves involved in criminal activity and have played a relatively minor role in the robbery, they must be sentenced for the crime in a way that reflects the seriousness of the crime. To give them suspended sentences would not send the right message to the community. They deserve to serve the whole of their sentences in prison, so there will be no suspension.

33. Philip Saku, James Sanguru, Makuku Rimba and Ginom Kiliwa, 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), are sentenced as follows:

No	Name	Total head sentence	Pre-sentence period deducted	Resultant length of sentence to be served	Amount of sentence suspended	Time to be served in custody	Place of custody (CI)
1	Philip Saku	6 years	1 year, 5 months, 3 weeks	4 years, 6 months, 1 week	Nil	4 years, 6 months, 1 week	Beon
2	James Sanguru	7 years	1 year, 6 months	5 years, 6 months	Nil	5 years, 6 months	Beon
3	Makuku Rimba	7 years	1 year, 10 months	5 years, 2 months	Nil	5 years, 2 months	Beon
4	Ginom Kiliwa	8 years	1 year, 5 months, 3 weeks	6 years, 6 months, 1 week	Nil	6 years, 6 months, 1 week	Beon

_________________________
Public Prosecutor: Lawyer for the State
Public Solicitor: Lawyer for the offenders

National Court of Papua New Guinea

State v Saku [2011] PGNC 78; N4355 (11 August 2011)