State v Kaso [2012] PGNC 381; N4660 (27 April 2012)

N4660

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR 668 of 2009

THE STATE

V

MATHEW KASO aka DAVID K. OKU

Lae: Batari J
2011: 10 October
2012: 27 April

CRIMINAL LAW– Sentence – Robbery – Robbery from vehicle – Group of armed youths held up vehicle and stole from occupant assorted personal effects – Seriousness of offence – Mitigation - Plea – Effect of – Youthful offender with unstable family background - Sentencing principles applied - Sentence of 6 years suspended on probation appropriate.

Cases Cited

Gimble v The State [1988-89] PNGLR, 271
Public Prosecutor v Don Hale (1998) SC564
Tau Jim Anis & Ors v The State (2000) SC642
Phillip Kassman v The State (2004) SC759
Bobolan Mebu Peter v The State (2007) SC894
Alex Pori v The State (2007) SC912
The State v Win Picinon Thomas (unnumbered National Court Judgment) Cr No. 837 of 1994
The State v Bluey Hanua (1997) N1625
See, Public Prosecutor v Tom Ake [1978] PNGLR 469
Kalabus v The State [1988] PNGLR 193

Counsel

Mr J. Done, for the State
Ms N. David, for the Accused

SENTENCE

27 April, 2012

1. BATARI J: The accused Mathew Kaso, aged 16 years then, was in a group of armed youths who blocked a vehicle on the road and robbed the occupants. He pleaded guilty to aggravated robbery. This is his sentence.

Background Facts

2. The brief facts are that, on the morning of 4 February 2009 Mathew together with five other youths set out deliberately to steal from those using Maiba Corner section of Boundary road, Lae. When the victim, Raka Sinaka of Freddy's Stores drove by and slowed down to negotiate pot holes, Mathew and his friends held him up with a homemade pistol, bush-knives and stones. They threatened Raka and his co-workers and stole from them, K115.00 in cash, 2 mobile phones, bilums and bags.

The Offence of Armed Robbery

3. The offence of armed robbery is set out in s.386 (1) of the Criminal Code. It carries 14 years maximum sentence. Where the robbery is committed in circumstances of aggravation under Sub-section (2) namely:

1. use of a dangerous or offensive weapon or instrument; or
   
2. in company with one or more other persons; or
   

100. wounds or uses any other personal violence to any person;
     

the prescribed maximum sentence is life imprisonment.

4. Mathew is charged under this provision. So, the penal servitude of life sentence comes into consideration.

Sentencing Principles and Guidelines

5. In general, there has been too much of robbery incidences being committed on the roads, streets, against homes, business houses and individuals in the cities, towns as well as the rural villages. Stealing from motor vehicles is particularly common these days. Such prevalent criminal activity continues unabated and hardly a day goes by without a report of such crimes in the print as well as the electronic media.

6. This shameful reality tarnishes the image of our country through unfavourable publicity. Its frequency also has adverse implications against freedom of movement, right to enjoyment of life and right to property. People should feel safe when and wherever they are going about their lawful duties or at their leisure time. They should be able to move around freely and should not have to live in fear as many do, of armed robbers prowling the cities, towns and rural areas to steal from the unwary on the road or streets, business houses, clubs, vehicles on the road, factories, banks and homes.

7. These matters make it necessary to take tough measures against the crime of robbery but within the permissible limits of the Court's sentencing discretion under s.19 of the Criminal Code.

8. It is now settled that robbery cases fall into four main categories of escalating seriousness. These categories as enunciated by the Supreme Court in Gimble v The State [1988-89] PNGLR, 271 are:

(i) robbery of a house – a starting point of seven years;

(ii) robbery of a bank – a starting point of six years;

(iii) Robbery of a store, hotel, club, vehicle on the road or the like – a starting point of five years; and

(iv) Robbery of a person on the street – a starting point of three years.

9. The recommended starting points are relevant where young first offenders carrying weapons and threatening violence are convicted following a trial. If actual violence was used or other aggravating factors like loss of substantial money or where the robbery was committed in breach of trust, a higher sentence will be justified. Conversely, a lower sentence will be justified in a plea of guilty with mitigating factors.

10. While the sentencing guideline in Gimble's case remains useful, the Supreme Court has since reviewed the suggested starting points for the different categories. See Public Prosecutor v Don Hale (1998) SC564, (Amet CJ, Woods J, Kirriwom J); Tau Jim Anis & Ors v The State (2000) SC642, (Sheehan J, Jalina J, Kirriwom J); and Phillip Kassman v The State (2004) SC759, (Jalina J, Sawong J, Batari J).

11. In Don Hale v The State, the Court suggested a term of 10 years for robbery of a home in the night by first young offenders armed with firearm. That increase of 3 years was only for the first category of robbery cases in Gimble v The State. The starting points for other categories of robbery were not reviewed, then.

12. The 3 year increase in Don Hale was adopted and applied in Tau Jim Anis v The State in a case involving a factory, the third category of robbery in Gimble's case. The Court suggested 8 years for robbery of a factory and reduced a sentence of 10 years to 7 and 6 years respectively for each of the appellants, but held that a sentence of 10 years is not outside the judge's discretion.

13. The case of Phillip Kassman involved robbery of a Bank customer of more than K120,000.00 cash within the bank vicinity. The Court approved and applied the three year increase denominator to a case the facts of which fall between street robbery and robbery of a bank. The term of 10 years was outside the starting points of 8 years and 9 years but the Court held it was appropriate in all the circumstances of the case.

14. It is apparent from these case authorities; the starting point is subject to the judge's discretion to increase or decrease from the term depending on the facts of each case. See, Bobolan Peter v The State (2007) SC894 (Mogish, Manuhu & Hartshorn, JJ); Alex Pori v The State (2007) SC912 (Davani, Mogish & David, JJ).

Present Case – Facts and considerations

15. This case of armed robbery falls into the last category namely, street robbery. The staring point is now 6 years. The case is however not a typical robbery of person on the street. A vehicle was stopped and its occupants robbed. So, it is the most serious form of street robbery. It falls into the third category with the starting point of 8 years. There are no aggravating features beside that which is alleged under s 386(2) (a) (b) of the Criminal Code namely, the accused was armed with a dangerous weapon and he was in the company of others.

16. Ms David of Counsel has impressed upon the court, from instructions as well as the presentence reports, a number of factors from Mathew's personal circumstances in support of his plea of guilty.

17. I agree that, the benefit of pleading guilty should be apparent in the final outcome of the sentence imposed. The effect of that is an incentive in itself to plead guilty. The plea must however result from a genuine free choice to confess as Los J stated in The State v Win Picinon Thomas (un-numbered National Court Judgment) CR No. 837 of 1994;

"... an honest plea of guilty must be taken into account in an apparent fashion so that the prisoner must know that his guilty plea has been well appreciated and taken into account by the Courts. This would also encourage other people who genuinely want to plead guilty must do so knowing that it will help them in their punishment."

18. In The State v Bluey Hanua, N1625, it was observed that, with the increasing length, complexity and costly criminal trials at public expenses, guilty persons when charged with offences be encouraged to enter honest pleas of guilty at the earliest possible time. The incentive must of course come from what is apparent on the final sentence of the Court.

19. The value of pleading guilty will depend on a number of factors namely, but not exhaustive to:

• seriousness of the offence;
• circumstances of aggravation;
• special or exceptional factors in mitigation;
• young age or advanced age of offender;
• health of the offender;
• how soon the plea is taken after committal.
  

20. Conversely, a plea of guilty standing alone will have little or no effect in mitigating such serious crimes of violence with circumstances of aggravation like murder, gang armed robbery, rape or sexual penetration.

21. It has also been long recognised that a guilty plea may demonstrate and support remorse and contrition: Public Prosecutor v Tom Ake [1978] PNGLR, 469; Kalabus v The State [1988] PNGLR 193. In my view, a plea taken at the earliest opportunity has more value where it is consistent with mitigating conduct since the commission of the offence.

22. In this case, the timing of the prisoner's plea is crucial. Police arrested him on 6 February 2009. He was in custody for some 4 months when he escaped on 21 June 2009. Whilst on the run, he committed a similar robbery on 10 December, 2009. Police arrested and detained him on the same day under his alias, David K. Oku.

23. That second incident came before the Court as a plea on 17 September 2010. He however, escaped the second time two days later and re-arrested on 21 April 2011. That case is again proceeding as a plea matter before another Court.

24. Mathew's pre-sentence report, of 18th October, 2011 does not recommend probation supervision. The reasons given are that Mathew:

1. has no permanent resident (unstable home);
2. escaped while a PSR for his CR No. 218 of 2010 case was pending;

100. has uncooperative attitude to his father and the community leaders;

4. will likely re-offend due to high crime rate in his place of abode and;
5. a threat to himself and others in the community.
   

25. This view is in contrast to an earlier pre-sentence report filed on 17th September, 2010 where he was favourably assessed as a youthful offender who was not a threat to anyone or the community at large. He was recommended for probation supervision. It was strongly felt then that, imprisonment will only make matters worse for him.

26. It has not been explained why the two reports are contradictory. Both are consistent on the main parts but differed on the recommendation for probation orders. However, it is apparent that the second report is based on subsequent discovery of a pending matter (now before this court), his escapes from lawful custody and his re-offending whilst on the run.

27. Both reports agreed on Mathew's unstable upbringing. He was brought up by his father following the death of his mother when he was still young. His father remarried and spent less time with him. The lack of parental love, guidance, support and isolation from his father worsened and affected his schooling, forcing him out of grade 7/8 at Salamaua High School. This also left him vulnerable to peer-group pressure and hence, his tendency towards crime.

What is the Sentence to be imposed?

28. I am dealing with a youthful offender with propensity towards criminal activities. His admissions in the Record of Interview would support an honest plea and demonstrate remorse. However, he denied himself that benefit when he did the unthinkable. He broke out and escaped from a juvenile detention centre. Whilst on the run, he re-offended.

29. It is obvious Mathew's conduct following the commission of the first robbery has not been impressive. He does not seem to understand and care about the evil nature and grave consequences of his conduct. His conduct exhibits serious delinquency which ought to be corrected by imprisonment. This view is supported by the probation report.

30. On the other hand, I bear in mind that, rehabilitation and reformation may not have a real chance for him in imprisonment as this may do him more harm than good. I think a sentence that should influence his future conduct should be attempted. The sentence must reflect the circumstances of his offence and his youth. He was a 16 year-old who, according to the pre-sentence reports, was forced into criminal activity by prevailing personal circumstances.

31. It is common sense that one does punish a youthful offender for his unstable upbringing. Young offenders who find themselves on the wrong side of the law because of their unfortunate background needed corrective measures that are helpful and useful and not destructive. The big challenge in sentencing a young offender has always been the risk of making him come out of prison worst off than when he first went in.

32. An unstable upbringing is a factor that the Court can use to justify an individualised measure in sentencing a youthful offender with and to submit him to proper rehabilitation option. It is a factor the Court can use to impose a sentence that will serve to influence a young offender's future behaviour than destroy it. He can be usefully punished by containment orders that include community work orders.

33. Strictly speaking Mathew has no prior conviction in relation to both charges. So, a good background is inferred. However and in particular for his second offence to which he has also pleaded guilty, his conduct following his first arrest does not assist him much.

34. Balancing all the facts for and against the offender, a term of 6 years imprisonment is in my view called for. I propose to order suspension of this term to give him the opportunity for rehabilitation outside imprisonment on the basis that;

(i) The term served in pre-trial and post-trial is sufficient to have impressed upon him that crime does not pay. He would have learned hard lessons that life with severe restrictions on freedom and choices is best avoided for the better;

(ii) As a youthful offender Mathew can be usefully punished with greater opportunity for rehabilitation;

(iii) The need to correct Mathew's propensity towards criminal activities and the opportunity for him to redeem his past and enhance reform can be effectively achieved by containment orders and community work orders.

(iv) Punishment is not all about imprisonment where rehabilitation and reformation of the prisoner has a real change of success outside prison.

35. Mathew is sentenced as follows:

(i) 6 years imprisonment IHL.

(ii) The pre-custody period of 1 year 4 months is deducted. The balance is suspended to be served on the usual probation orders for 4 years and in addition, the probationer shall:

1. Within 48 hours, report to the Probation Officer after release from custody;
   
2. Reside at a place approved by the National Court;
   

100. Shall not leave Lae or Morobe Province without prior leave of the National Court;
     

4. Shall perform 600 hours of unpaid community work at a worksite approved by the National Court;
   
5. Shall join a Church Youth Fellowship group of his local church and take active part in the group activities;
   
6. Attend church every weekend for service and worship and submit to counselling;
   
7. Not consume any form of liquor, alcohol or drug;
   
8. Keep the peace and be of good behaviour;
   
9. Have a satisfactory probation report submitted to the National Court Registry as required;
   
10. Appear before the National Court as and when required.
    

(iii) The Probation Office shall file six-monthly reports with the first of such report due on 27 October 2012 on the probationer's responses and progress on probation until discharged.

(iv) If the probationer breaches any of these conditions, he shall be brought before the National Court to show cause why he should not be imprisoned to serve the remaining term of his sentence.

____________________________________________________________
Public Prosecutor: Lawyer for the State
Public Solicitor: Lawyer for the Accused