State v Fimino [2012] PGNC 360; N4763 (26 July 2012)

N4763

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR. NO. 514 OF 2012

STATE

V

BENSON FIMINO

Prisoner

Kainantu: Ipang AJ
2012: 19, 25 & 26 July

CRIMINAL LAW–Robbery of church mission office – prisoner played passive role of a watchman – prisoner provides vital information – led to successful execution of the robbery.

CRIMINAL LAW – Sentence – Arm Robbery – Criminal Code Act – s. 386 (1) (2) (a) & (b) – Prisoner provided inside information leading towards success of the robbery – robbery committed by a group of men armed with 2 pistols and bush knives and stole sum of K13, 500.00 in cash.

CRIMINAL LAW – Sentence – Criminal Justice (Sentences) Act, 1986 – s. 3 (2) – Pre Sentence Period of 3 months, 3 weeks and 1 day deducted from the Head sentence.

CRIMINAL LAW – Sentence – Criminal Law (Compensation) Act, 1991 – prisoner repaid the amount of K1000.00 and gave some food stuffs to the victim and there was reconciliation between the prisoner and the victim.

Cases Cited

State –v- Kevin (2007) N3191
State –v- Lahui N27928
Gimble v the State [1988-89] PNGLR 271
Public Prosecutor v Don Hale (1998) SC 564
Tau Jim Anis –v- The State (2000) SC 642
State –v- Justine Vincent Nyama Unnumbered Judgment (1991) (23 April, 1991)

Legislations

Criminal Code Act, Chapter No. 262
Criminal Justice (Sentences) Act, 1986
Criminal Law (Compensation) Act, 1991

Counsel

Mr. A. Bray, for the State

Mr. M. Mumure, for the Prisoner

DECISION ON SENTENCE

26th July, 2012

1. IPANG, AJ: On the 19th of July, 2012, the prisoner Benson Fimino pleaded guilty to one count of arm robbery pursuant to section 386 (1) & (2) of the Criminal Code Act. After perusal of the committal file tendered by the State, I confirmed his guilty plea, convicted him and adjourned the matter to 25th July, 2012 as his counsel requested for a Pre Sentence Report and I have ordered for the Pre Sentence Report. On the 25th July, 2012 submissions were made on his sentence. I adjourned to today for decision on his sentence. Thus, this is the decision on his sentence.

BRIEF FACTS

2. On arraignment, the following facts were put to the prisoner; On Friday the 9th of October, 2009 between 9.00am and 10.00am the prisoner and four others were at Evangelical Brotherhood Church (EBC) Training Centre at Kassam. The prisoner and his accomplices entered the Mission Station and his accomplices continued on and entered the main office of the Training Centre. His accomplices held up the Station Manager and other employees. They tied up the Station Manager and the employees and escaped with a sum of K13, 750.00 belong to EBC. At that time, they were armed with 2 pistols and a bush knife.

3. The prisoner was waiting outside the EBC Main Office when his accomplices existed the main office. He then led them towards the river at the back of the EBC Mission Station. For the role, the prisoner played, he received his share of K1000.00. State invoked sections 7 & 8 of the Criminal Code Act when indicting him under s. 386 (1) (2) (a) & (b) for the offence of Arm Robbery under the Criminal Code Act.

ALLOCUTUS

4. In administering his allocutus, the prisoner has this to say;

"Thank you, Your Honour for allowing me to talk. I say sorry to God, Judge, Public Prosecutor, and Public Solicitor. I am married with 2 children and I am a village. I have 2 coffee gardens. My wife and the 2 children can't look after the coffee gardens. I am the only bread winner for my family. This is my first time in court and I ask for court's mercy."

PRE-SENTENCE REPORT

5. The Pre Sentence Report (PSR) provides this relevant information on the prisoner;

Marital Status

Prisoner is married to two wives and has one child each from them. The first wife is from Kompri and the second wife is from Kassam.

Work History

Prisoner did not have a permanent job but does once in a while assist Evangelical Brotherhood Church with casual jobs around the mission grounds. Prisoner is a Pastor with New Born Mission. He joined the New Born Mission and has been working as a Pastor at Kassam and Yonki area until the time of his arrest for this offence.

Future Plans

Prisoner plans to re-unite with his family and reconcile with those affected one way or another by his wrong doing. He plans to reconcile with his brother Pastors of his church and rejoin them once again in proclaiming the Christian faith to others.

Victims' views

The Head of EBC Mission has indicated that the prisoner be considered for a suspended sentence so that the community can realize the true meaning of forgiveness and reconciliation. EBC have accepted apology from the prisoner in person plus compensation and said they have no further demands. Equally EBC said they do not want to create enemy with the surrounding communities but build trust so that there is better understanding between them.

Assessment

The Pre Sentence Report (PSR) recommended that the prisoner is not a danger or a threat to anybody. He has accepted responsibility for his actions and he is to reconcile.

SUBMISSION BY DEFENSE COUNSEL.

6. Mr. Mumure of counsel for the prisoner submitted that the prisoner completed his grade 10 in 1999 at Brahman High School, in Madang. He did matriculation courses but did not complete this course. He was casually employed with Telikom (PNG) Ltd at Ramu. At the time of his arrest, he is a Church Leader and Lay Pastor with New Born Mission Church and Director of Music in that church.

7. In mitigation, the following were submitted for the prisoner; he pleaded guilty, he is a first time offender and has no prior convictions, he was not involved in planning of the offence and did not play active role, he benefited from K1000.00 and has repaid K1000.00 plus some food stuffs, he has reconciled with the victim, EBC.

8. Defence counsel referred to the case of State v Kevin (2007) N3191. In this case the three young offenders pleaded guilty to arm robbery in which a factory firearm was used and K600.00 cash money and a camera were stolen. The prisoner Kevin did not take active part in the commission of the offence. The court sentenced active or principal offenders to 6 years imprisonment and 4 years imprisonment for inactive participants. Also referred was the case of State v Lahui (2005) N27928. In this case the prisoner was sitting on the beach. A group of men travelling on a speed boat (Dinghy) approached him and asked him to get on the Dinghy. He got on and as they took off, the Esky was opened and guns were seen. The prisoner and the group held the Store Manager and stole K3, 500.00 in cash and K1, 500.00 worth of store goods. At that time the prisoner and the group were armed with 3 homemade guns and other offensive weapons. The court considered the Pre Sentence Report and sentenced the prisoner to 3 years imprisonment. Of the 3 years imprisonment, 2 years were suspended and the prisoner was to serve only one (1) year prison term.

9. Mr. Mumure submitted that this court should follow the sentence in Lahui's case that is the Head sentence of 3 years, and then deduct the pre-sentence period of 3 months, 3 weeks and 1 day. Then, the court should suspend the balance of the sentence. Mr. Mumure said the court should consider this as there is restitution of K1000.00 and reconciliation has been made.

SUBMISSION BY STATE

10. Mr. A. Bray referred to the sentencing trend and tariffs for arm robbery cases. The sentencing guidelines in Gimble v State [1988-89] PNGLR 271 which are considered to be inappropriate in the present circumstances to the case of Public Prosecutor v Don Hale (1998) SC 564 and the case of Tau Jim Anis v The State (2000) SC 642. The Tau Jim Anis case plays the role as a 'safety valve' on increase sentencing tariffs.

11. Mr. A. Bray conceded with the mitigating factors submitted by Mr. Mumure that the prisoner made a very early plea, he is a first time offender and that he has repaid K1000.00 with some food stuffs and has reconciled with the victim. Counsel, however submitted that the court should not over look the fact that there were firearms and offensive weapons used in the commission of the offence, there were a group of men involved and large amount of money K13, 500.00 was stolen, the prisoner who previously worked for EBC and has breached the trust. Counsel said the prisoner with his inside knowledge, made the robbery a successful one. But the state counsel agreed that the prisoner is a suitable candidate for probation. Counsel submitted 5 to 6 years to be an appropriate term of sentence for the prisoner.

THE APPLICABLE LAW ON ROBBERY

12. The penalty for the offence of robbery is spelt out under s. 386 (1) & (2) of the Criminal Code Act, Chapter 262. 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 not 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 robbery, wounds or uses any other personal violence to any person, he is liable subject to section 19, imprisonment for life."
  

SENTENCING TREND IN ROBBERY CASES

13. With gradual increase, upsurge and prevalent commission of arm robberies, robberies and related offences, sentencing trend in robbery cases took a new twist in that sentencing tariffs have increased. The sentencing guidelines in Gimble were considered inappropriate to the present circumstances. The court in Public Prosecutor v Don Hale (supra) mooted for the increase in sentencing tariffs. With the upward sentencing trend for arm robbery cases, another Supreme Court in Tau Jim Anis v The State (2000) SC 642 cautioned that the approach in Don Hale's case be exercised with care so that there is no big jump or quantum leap in sentences but there should be gradual increases.

YOUR APPROPRIATE SENTENCE

14. I must tell you that formulating or arriving at an appropriate sentence for you is never an easy task as every case is different. First, I took into consideration the mitigating factors that were in your favour and of course, the aggravating factors that were against you. I took account of the fact that you did not actually held up the Station Manager but played a passive role as a "watchman" but with more inside information as you were once employed as a casual employee by the EBC. The role you played has seen the offence carried out successfully.

15. The role you played as a "watchman" does not mean that you can be excused from the offence committed as by virtue of s. 7 of the Criminal Code Act, you're a principal offender and that means that you are just as guilty like your other friends.

16. Worse still, you're a Lay Pastor and Director of Music in your New Born Mission Church which covers the areas of Kassam and Yonki. I just can't imagine a person holding such a high profile position in his church getting involved in arm robbery by holding up another church organization, the Evangelical Brotherhood Church (EBC). You have done nothing but tarnished your integrity, reputation and trust bestowed on you, as a Lay Pastor. Mind you, it will take sometime before your church congregation will settle with you.

17. I noted that you are married with two wives and has one child each from your wives. I also learnt from the Pre Sentence Report that you do not have a reliable source of income and that your family is living below poverty level. I don't think this should be an excuse for the part you played in the commission of this offence.

18. From the Antecedent Report, you are 24 years old young man. I know the great danger if I send you to jail. You will never make it back to your position as a Lay Pastor in your church but obviously and I am for certain that you might come out of jail been a hard-core criminal. In this regard I am reminded of what Late Hinscliffe, J said in State v Justin Vincent Nyama unnumbered Judgment (1991) (23 April, 1991) and I quote;

"Clearly you are a person who is easily led and I say to myself, what place in the world can a young person be more easily led then in a prison. If you are sent to Bomana Corrective Institution for four or five years then I have no doubt whatsoever that you are going to leave the prison a hardened, well instructed, dangerous criminal. The public will have a real problem on it's hands. In fact it will have a monster to contend with. I am of the view that punishment should have the end result of rehabilitating the offender and thus making it safe for the community when the offender re-enters it's rank. The court has a duty to consider the end result and to make decisions on sentencing that will go towards creating peace within the community". (emphasis added)

19. The Pre Sentence Report recommended that your case is a genuine case for a suspended sentence and for probation. During submission on sentence, your counsel tendered two letters from the victim, EBC, one dated Friday 30th March, 2012 and the other dated 10th May, 2012. Both letters confirmed that reconciliation has taken place between the prisoner and your Moandafa Community and leaders of EBC on the 2nd of November, 2011. The EBC leaders say they have accepted your apology with sum of K1000.00, garden food, one pig, some chickens and some firewood.

20. Given the matters that were addressed in mitigation and aggravation, your personal particulars, your degree of participation in the commission of this offence, I consider a sentence of seven (7) years would be appropriate for you. This sentence will be your specific deterrent sentence for you and also for others who would like to be involved in committing such offence in future. From the seven (7) years, I will deduct pursuant to s. 3 (2) of the Criminal Justice (sentence) Act, 1986 your Pre Sentence Period spent in custody which is 3 months, 3 weeks and one (1) day. This will live the balance sentence of 5 years, 8 months, 1 week and 1 day.

21. In consideration of your previous good behavior and good character and standing in the community, I will suspend 2 years, 8 months, 1 week and 1 day. This will live you with 3 years custodial sentence to serve. However, I now suspend this custodial sentence of 3 years and will now place you on 3 years probation supervision with the following conditions;

1. You will be under the control and supervision of CBC Officers especially Mr. Peter Worovi.
   
2. In terms of supervision on your community work, you will be supervised by Mr. Andrew Bago, the Volunteer Probation Officer based at Agamore market.
   
3. You shall do 180 hours of community service at EBC Mission at Kassam.
   
4. During the period of your 3 years suspended sentence, you are not to associate yourself in any way with any known criminal elements.
   
5. You shall not change location during the term of your suspended sentence unless with the leave of the National Court.
   
6. You shall report once every two (2) weeks to the Juvenile Police Officer Agatha Agia at Yonki Police Station for the purpose of counseling.
   
7. The CBC Officer shall attend on you each quarter to do a comprehensive review and report to this court on your compliance of this order during the term of your suspended sentence.
   
8. Should you breach any terms of this Probation Order, your suspended sentence will be instantly revoke and you will be ordered to serve the balance of your suspended sentence in Bundaira Corrective Institute.
   

Sentence Accordingly
________________________________________________________________
Public Prosecutor: Lawyer for the State
Public Solicitor: Lawyer for the Prisoner