State v Benedict [2014] PGNC 106; N5645 (26 June 2014)

N5645

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR NO 1490 OF 2010

THE STATE

V

ABRAHAM BENEDICT

Madang: Cannings J
2014: 13 May, 25, 26 June

CRIMINAL LAW – sentencing – armed robbery, Criminal Code, Section 386 – guilty plea – robbery on street – threatened use of violence – firearms involved

The offender pleaded guilty to one count of armed robbery. It was an armed gang robbery that occurred in a public place next to a bank as a company employee was carrying a money bag to the bank. Cash and cheques to a total value of K35,436.16 were stolen.

Held:

(1) The starting point for sentencing for this sort of robbery is 6 years imprisonment.

(2) Mitigating factors: pleaded guilty, no prior convictions, was mistreated (beaten and shot) by Police upon arrest, though violence was threatened, no actual physical violence was inflicted.

(3) Aggravating factors: large amount of money stolen, which has not been recovered, robbery committed in public place, recklessly putting many people at risk of injury or death, broke bail and had to be arrested, resulting in long delay in resolving case.

(4) A sentence of 5 years imprisonment was imposed. The pre-sentence period in custody was deducted but there was no suspension of any part of the sentence.

Cases cited

The following cases are cited in the judgment:

Gimble v The State [1988-1989] PNGLR 271
Phillip Kassman v The State (2004) SC759
Public Prosecutor v Don Hale (1998) SC564
Saperus Yalibakut v The State (2006) SC890
Tau Jim Anis v The State (2000) SC642
The State v Manu Tuangi CR No 726 of 2011, 05.10.11
The State v Namson Lamaning CR No 21 of 2011, 22.03.12
The State v Nigel Kopper Kingsley (2011) N4465
The State v Owen Gabriel Koud CR No 312/2010, 20.05.10

SENTENCE

This was a judgment on sentence for armed robbery.

Counsel

F Popeu & M Pil, for the State
A Meten, for the offender

26th June, 2014

1. CANNINGS J: This is the sentence for Abraham Benedict who pleaded guilty to one count of armed robbery and has been convicted of that offence under Sections 386(1), (2)(a) and (b) of the Criminal Code. The robbery was committed on the morning of Friday 9 May 2009 on the street near Bank South Pacific in Madang town.

2. Two employees of Islands Petroleum Ltd were doing a bank run. They arrived in a company vehicle. One stayed in the vehicle. The other walked towards the bank and on the way was held up by three men armed with a knife and a pistol who stole from him a money bag containing K35,436.16 in cash and cheques. The robbers escaped the scene by running across the road and along a lane that runs next to the ANZ Bank to the harbour-side, where they climbed aboard a waiting dinghy that took them out on to the harbour. A group of police officers on a routine patrol gave chase across the harbour. Later that morning the police apprehended the offender in the sea off Kranket Island.

ANTECEDENTS

3. The offender has no prior convictions.

ALLOCUTUS

4. The offender was given the opportunity to address the court. He said:

I have pleaded guilty to the charge of armed robbery. I express remorse and ask this Honourable Court for mercy and for leniency. I ask the Court to take into account the unwarranted conduct of the Police who subjected me to inhuman and cruel treatment. The penalty of the court should reflect the penalty the Police have already imposed on me and my co-accused, Peter Mande, of Sepik parentage, who the Police shot at point blank range, whose body was dumped in the sea, never to be seen again. I was shot in the leg and badly beaten by Police at the time of my apprehension at sea. The injuries I sustained were very bad and I am still suffering from the gunshot wounds. I am still under medication from the doctors for my injured leg.

I am a first-time offender and do not have a criminal record and I have been residing here in Madang since my childhood until now.

I apologise to the victims I have robbed. I pass on my sincere sympathy to the family of the late Peter Mande, and I apologise sincerely to the Honourable Court for its time on my case. I again ask for a lenient sentence because of the injuries I sustained at the hands of the Police and because of the shooting of my co-accused Peter Mande, who had the right to life under Section 35 of the Constitution. I was spared but inhuman treatment was done to me.

OTHER MATTERS OF FACT

5. As the offender has pleaded guilty he will be given the benefit of reasonable doubt on mitigating matters raised in the depositions, the allocutus or in submissions that are not contested by the prosecution (Saperus Yalibakut v The State (2006) SC890). His claim that he was beaten and shot by the Police during the course of his apprehension is accepted at face value, for sentencing purposes. The claim is not contested by the State. I note that the offender has a pending human rights application in regard to this allegation. He will still have to prove that claim, in those separate proceedings, and the Police and the State will have the right to refute the allegation.

PRE-SENTENCE REPORT

6. Abraham Benedict is 32 years old and has two wives and five children. He is of mixed Sepik and Chimbu parentage. He has lived all his life in Madang and lives at DCA settlement. He is the second born in a family of five children. He lives with his father who is strongly supportive of his son. He has a grade 8 education. His health is generally sound, subject to the foot injury arising from being shot, which requires regular treatment. He has no formal employment record. His financial position is not strong, but he has managed to survive through receipt of informal sector income. He wants to be granted probation so that he can look after his wives and children. He claims that his having two wives presents no serious problem, however the 'first' wife was interviewed and explained the problems that have been created by the offender acquiring his second wife. This situation is far from ideal.

SUBMISSIONS BY DEFENCE COUNSEL

7. Mrs Meten put forward a number of mitigating factors: the guilty plea, the lack of prior conviction, the mistreatment at the hands of the Police, the expression of remorse. She submitted that a sentence of no more than four years imprisonment is warranted, which should be suspended because of the strong mitigating factors.

SUBMISSIONS BY THE STATE

8. Mr Popeu countered by submitting that it was a major robbery, a serious offence that was committed in a public place, with many innocent people (including the direct victims) in the vicinity. A deterrent sentence was required. However, as the offender pleaded guilty a sentence of five years imprisonment would be sufficient.

DECISION MAKING PROCESS

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

• step 1: what is the maximum penalty?
• step 2: what is a proper starting point?
• step 3: what sentences have been imposed for equivalent offences?
• step 4: what is the head sentence?
• step 5: should the pre-sentence period in custody be deducted?
• step 6: should all or part of the sentence be suspended?
  

STEP 1: WHAT IS THE MAXIMUM PENALTY?

10. 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.

STEP 2: WHAT IS A PROPER STARTING POINT?

11. 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) SC564; Tau Jim Anis v The State (2000) SC642; and Phillip Kassman v The State (2004) SC759. Nowadays the starting points are:

• robbery of a house – 10 years;
• robbery of a bank – 9 years;
• robbery of a store, hotel, club, vehicle on the road etc – 8 years;
• robbery of a person on the street – 6 years.
  

This was a street robbery. The starting point is 6 years.

STEP 3: WHAT OTHER SENTENCES HAVE BEEN IMPOSED FOR EQUIVALENT OFFENCES?

12. Two recent Madang street robbery cases provide a useful point of comparison. In The State v Manu Tuangi CR No 726 of 2011, 05.10.11 the offender joined with two others and held up a man at knifepoint in the Botanic Gardens Madang. The victim was stabbed and received superficial injuries and the offender had stolen from him a bilum containing K50.00 cash and two cell batteries. The offender made full admissions to the police and made an early guilty plea and the stolen property was returned to the victim. The sentence was 5 years imprisonment, none of which was suspended. In The State v Nigel Kopper Kingsley (2011) N4465 the offender pleaded guilty to joining with one other person in holding up the victim on the street, threatening him with a hammer deliberately disguised as a home-made gun, and stealing his bilum containing two mobile phones and other personal items. No actual physical violence was done to victim, the stolen property was recovered soon afterwards, the offender co-operated with police and made early admissions. The sentence was three years imprisonment, none of which was suspended.

13. There is another Madang case referred to by Mrs Meten that warrants attention, The State v Owen Gabriel Koud CR No 312 of 2010, 20.05.10. The offender pleaded guilty. He joined with four others in making a plan to rob BNBM Hardware. The offender's role was to arrange a dinghy for the others to escape from the crime scene. The robbery was committed and a large amount of money was stolen. The offender was caught by the Police soon after and shot in the leg, sustaining a serious injury. He was given a sentence of five years imprisonment, two years of which was suspended.

14. I also must take into account The State v Namson Lamaning CR No 21 of 2011, 22.03.12. The offender was sentenced for his involvement in the armed robbery that is at the centre of the present case. He was the boat driver. He was convicted after a trial and was given a sentence of eight years imprisonment.

STEP 4: WHAT IS THE HEAD SENTENCE?

15. The head sentence will reflect the following mitigating and aggravating factors.

16. Mitigating factors:

• the offender pleaded guilty,
• he has no prior convictions,
• he was mistreated (beaten and shot) by Police upon arrest,
• though violence was threatened, no actual physical violence was inflicted.
  

17. Aggravating factors:

• a large amount of money stolen, which has not been recovered,
• the robbery was committed in public place, recklessly putting many people at risk of injury or death,
• the offender acted in a gang,
• victim inevitably traumatised by the incident,
• the offender broke bail and had to be arrested, resulting in long delay in resolving case.
  

18. The aggravating and mitigating factors are fairly evenly matched. This was a very serious robbery and it has taken a long time for the offender to own up to his involvement. Comparing this case with the precedents referred to and applying the principle of parity of sentencing (in relation to Lamaning), I uphold the position of the State and impose a sentence of five years imprisonment.

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

19. Yes. I decide under Section 3(2) of the Criminal Justice (Sentences) Act that there will be deducted from the term of imprisonment the whole of the pre-sentence period in custody, which is one year, five months.

STEP 6: SHOULD ALL OR PART OF THE SENTENCE BE SUSPENDED?

20. This offender has a reasonable pre-sentence report but ultimately the seriousness of this major armed robbery, committed in the middle of town in broad daylight, means that a suspended sentence is not justified. If the offender had pleaded guilty a long time ago and not been the subject of an arrest warrant, things may well have turned out differently. There is no suspension.

SENTENCE

21. Abraham Benedict, having been convicted of one count of robbery contrary to Section 386(1) of the Criminal Code in circumstances of aggravation under Section 386(2)(a) and (b), namely that it was an armed robbery and he was in company with other persons, is sentenced as follows:

Length of sentence imposed	5 years
Pre-sentence period to be deducted	1 year, 5 months
Resultant length of sentence to be served	3 years, 7 months
Amount of sentence suspended	Nil
Time to be served in custody	3 years, 7 months
Place of custody	Beon Correctional Institution

_______________________________________________________
Public Prosecutor: Lawyer for the State
Public Solicitor: Lawyer for the offender