State v Doa [2013] PGNC 278; N5203 (11 April 2013)

N5203

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR NO. 291 OF 2013

STATE

V

MICHAEL DOA
Prisoner

Goroka: Ipang AJ
2013: April 08, 09 & 11

CRIMINAL LAW – Sentence – Robbery on a public street – Items stolen not of substantial value – Plea of guilty – Nil prior convictions – suspended and community work order sentence.

Cases Cited:

Public Prosecutor v Don Hale (1998) SC 564
State v Sul Kora (2001) N2092
Tau Jim Anis v State (2000) SC 642
Gimble v State [1998-89] PNGLR 271
State v Romney Naptalai Simonopa (2004) N2251
State v Richard Dusal Bix (2003) N2415
State v Iori Veraga (2005) N2921

Counsel:

Mr. K. Umpake, for the State
Ms. A. Hombunaka, for the Prisoner

DECISION ON SENTENCE

11th April, 2013

1. IPANG, AJ: On the 18th of April, 2013 the prisoner pleaded guilty to an indictment, charging him on one count of robbery pursuant to section 386 (1) (2) (a) of the Criminal Code Act Chapter 262. Defence Counsel Ms. A. Hombunaka requested for a Pre Sentence Report and a Means Assessment Report and I have ordered for both reports. Both reports have been compiled and filed. This is the decision on sentence for the prisoner.
   

Brief Relevant Facts:

2. The brief facts are that on the 08th of December, 2012 at around 1pm to 4pm the victim Inkiso Yanka and his daughter were dropped off by PMV at Aiyura Station. Both then tried to go to their village. While both were walking along Gadsup Road, the prisoner came out of the bush armed with a bush knife and attacked the victim Inkiso Yanka. Prisoner grabbed the victim's bag and ran off. The string bag contained K27.00 cash money. The victim called out for help and a person by the name of Bisep pursued the prisoner and caught up with the prisoner. The prisoner was brought to the Aiyura Police Station where he was arrested and charged. State said the prisoner stole with actual violence.
   

Antecedent Report:

3. The Antecedent Report submitted by the State Prosecutor revealed no prior conviction for the prisoner.
   

Allocutus:

4. When the Allocutus was administered, this was what the prisoner said: "I am sorry for what I did. This is my first time to stand in court. I will not do this again. I ask for court's mercy. That's all."
   

Pre Sentence Report & Means Assessment Report:

5. Both reports compiled by Probation Offcer Mr. Bennett Amuino is not balanced in that the views of the victim was not taken except that of the offender. The offender comes from Tompena village where his family is well known in the community. The offence he committed brought shame and humiliated him and his family. There is willingness from the offender's brother and his two (2) elder sisters to assist the offender pay compensation to the victim. The Means Assessment Report also recommended for compensation to be paid. The Pre Sentence Report recommended the offender to be a suitable candidate for Probation Supervision.
   

The Applicable Law:

6. The prisoner has been charged pursuant to section 386 (1) (2) (a) of the Criminal Code Act, Chapter 262. This provision reads:
   

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;
  

he is liable subject to section 19, to imprisonment for life.

7. The maximum penalty provided for the offence of robbery on the street is 6 years. However, it is the sentencing practice that maximum sentence is usually reserved for worst types of cases. See State v Romney Naptalai Simonopa (2004) N2251; State v Richard Dusal Bix (2003) N2415 and State v Iori Veraga (2005) N2921. It is also a sentencing practice that each case has to be determined on its peculiar circumstances.
   

Mitigating Factors:

8. I find the following to be the mitigating factors for the offender;
   
   • First time offender
   • Youthful offender
   • Pleaded guilty which is consistent with the Record of Interview
   • Expressed remorse
   • Single assault by one person and not a group attack
   • Amount of K27.00 was return to the victim
   • Handed over to the police
   • It was single wound
   • No intention to cause the wound.
     

Aggravating Factors:

9. The following are the aggravating factors;
   
   • Use of offensive weapon, a bush knife
   • Prevalence of the offence
     

Submission by Defence:

10. Ms. A. Hombunaka of counsel for the prisoner submitted the following personal particulars for the prisoner;
    
    • (a) He is 20 years old from Tobema village, Obura Wonenara District.
    • (b) Single young man
    • (c) Educated up to grade 2
    • (d) Subsistence farmer and owns 5 blocks of coffee trees
    • (e) Member of Seventh Day Adventist Church
      
11. Ms Hombunaka submitted that the penalty provided subject to s. 19 of the Code is 6 years for robbery on the street. She submitted that this court consider a sentence less than 6 years minus the pre trial custody.
    

Submission by State:

12. Mr. K. Umpake of counsel for the state that this is the case of robbery on the street with use of violence. He said though no substantial value of property was stolen there was use of violence. Also he submitted that the victim sustained deep cut to her hand.
    
13. Umpake submitted that the mitigating factors should not outweigh the aggravating factors. He concedes with the Defence counsel that 6 years been the maximum penalty for robbery on the street as in Public Prosecutor v Don Hale (1998) SC 564. Umpake submitted that depending on circumstances the sentence will increase or decrease. He submitted for a sentence between 7 to 8 years. he referred to State v Sul Kora (2001) N2092 in which the prisoner held the victim on the Toilet and got away with a packet of Cambridge. Prisoner was sentenced to 4 years imprisonment.
    

Court's Analysis

14. As correctly pointed out by both counsels the minimum sentencing guidelines for robbery cases in Gimble v State [1988- 1989] PNGLR 271 are considered inappropriate. See Public Prosecutor v Don Hale (supra) and the approach taken in Tau Jim Anis v State (2000) SC 642.
    
15. In state v Sul Kora N2092 (supra) Kandakasi, J sentenced a prisoner who held up the victim on the toilet and robbed the victim of a packet of Cambridge. Prisoner was sentenced to 4 years imprisonment. From the 4 years, 2 years custodial sentence was imposed and the offender was placed on non custodial sentence with conditions.
    
16. In this instant case I will sentence the prisoner to 4 years imprisonment. I minus 4 months, 3 days being for the Pre Sentence Period. That will live the balance of 3 years, 7 months, 3 weeks and 4 days to serve. I will wholly suspend 3 years, 7 months, 3 weeks, 4 days and placed the prisoner on 2 years Probation Supervision with the following conditions;-
    
    1. Under supervision of Community Base Correction (CBC)
    2. To do 100 hours of Community Service to be identified and supervised by CBC Officer.
    3. Not to commit any offence
    4. To pay K1000.00 compensation to the victim, 4 months into his probation
    5. Not to leave his usual place of residence
    6. Not to do drugs like marijuana
    7. Not to take alcohol

_________________________________________________________________
Public Prosecutor: Lawyer for the State
Public Solicitor: Lawyer for the Prisoner