State v Keduke [2014] PGNC 150; N5784 (23 August 2014)

N5784

PAPUA NEW GUINEA
IN THE NATIONAL COURT OF JUSTICE

CR NO 927 OF 2005

THE STATE

V

BERNARD PETER KEDUKE

Kimbe: Cannings J
2014: 12, 22, 23 August

CRIMINAL LAW – sentence – armed robbery – Criminal Code, Sections 386(1), (2)(a) and (b – guilty plea – street robbery – cash and property worth K369.00 stolen.

The offender was convicted after trial of the armed robbery of a man on the street. The total value of the stolen property was K369.00. This is the judgment on sentence.

Held:

(1) The maximum sentence for armed robbery is life imprisonment. It was a street robbery and the starting point is six years.

(2) Mitigating factors are: the offender pleaded guilty; he has no prior convictions; though violence was threatened, no actual physical violence was inflicted; expression of remorse.

(3) Aggravating factors are: victim inevitably traumatised by the incident; the offender broke bail and had to be arrested, resulting in long delay in resolving case.

(4) A sentence of four years was imposed, the pre-sentence period in custody was deducted and two years of the sentence was suspended subject to conditions.

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 Nigel Kopper Kingsley (2011) N4465
The State v Owen Gabriel Koud CR No 312 of 2010, 20.05.10

SENTENCE

This was a judgment on sentence for armed robbery.

Counsel

F K Popeu, for the State
D Kari, for the offender

23rd August, 2014

1. CANNINGS J: Bernard Peter Keduke pleaded guilty to one count of armed robbery and has been convicted of that offence under Sections 386(1) and (2)(a) and (b) of the Criminal Code. The robbery was committed at 7 pm on 14 April 2005 on the street at Gigo 1 in Kimbe. The offender saw the victim, Botiff Enga, approached him, with one accomplice armed with a bushknife, held him up and stole K250.00 cash and other properties worth K119.00, the total value of the stolen property being K369.00.

ANTECEDENTS

2. The offender has no prior convictions.

ALLOCUTUS

3. 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.

OTHER MATTERS OF FACT

4. 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). I take into account that he made admissions to Police when interviewed on 19 April 2005 and said that he had a grievance with the victim as he was having an affair with his (the offender's) sister.

PRE-SENTENCE REPORT

5. The court was presented with a report prepared by the Kimbe office of the Community Based Corrections Service, showing that the offender is married with one child. The victim, who knows the offender, would like to receive some compensation for what happened.

SUBMISSIONS BY DEFENCE COUNSEL

6. Mr Kari put forward a number of mitigating factors: the guilty plea, the lack of prior conviction, the expression of remorse. He submitted that a sentence of no more than five years imprisonment is warranted, which should be suspended because of the strong mitigating factors.

SUBMISSIONS BY THE STATE

7. Mr Popeu agreed with the head sentence proposed by the defence but maintained that a fully suspended sentence would be inappropriate.

DECISION MAKING PROCESS

8. 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?

9. 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?

10. 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: ten years; robbery of a bank: nine years; robbery of a store, hotel, club, vehicle on the road: eight years; robbery of a person on the street: six years. This was a street robbery. The starting point is six years.

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

11. 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 five 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.

STEP 4: WHAT IS THE HEAD SENTENCE?

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

Mitigating factors:

• the offender pleaded guilty;
• he has no prior convictions;
• though violence was threatened, no actual physical violence was inflicted;
• expression of remorse.
  

Aggravating factors:

• victim inevitably traumatised by the incident;
• the offender broke bail and had to be arrested, resulting in long delay in resolving case.
  

13. The aggravating and mitigating factors are fairly evenly matched. This was a serious street 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 I impose a sentence of four years imprisonment.

STEP 5: SHOULD THE PRE-SENTENCE PERIOD IN CUSTODY BE DEDUCTED?

14. 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 nine months.

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

15. A partial suspension is warranted as the victim, who knows the offender, is willing to accept compensation. Two years must be served in custody. Two years will be suspended on the following conditions:

1. must appear before National Court and obtain order for release, prior to release from custody;
   
2. must report to Probation Office within 72 hours after release from custody;
   
3. must within six months after date of sentence pay at least K250.00 cash compensation + one pig to the victim of the offence, and participate in a reconciliation ceremony, to be arranged through and supervised by the Probation Office;
   
4. must reside at Siki and nowhere else except with the written approval of the National Court;
   
5. must not leave West New Britain without the written approval of the National Court;
   
6. must perform at least three hours unpaid community work each week, to be arranged through the Probation Office;
   
7. must attend his Church every weekend for service and worship and assist the church in its community activities;
   
8. must report to the Probation Office at Kimbe on the first Monday of each month;
   
9. must not consume alcohol or drugs;
   
10. must keep the peace and be of good behaviour;
    
11. must have a satisfactory probation report submitted to the National Court Registry at Kimbe and appear before the Court for probation review every six months after the date of release from custody;
    
12. if the offender breaches any one or more of the above conditions, he shall be brought before the National Court to show cause why he should not be detained in custody to serve the rest of the sentence.
    

SENTENCE

16. Bernard Peter Keduke, 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 he was armed with a dangerous and offensive weapon and in company with another person, is sentenced as follows:

Length of sentence imposed	4 years
Pre-sentence period to be deducted	9 months
Resultant length of sentence to be served	3 years, 3 months
Amount of sentence suspended	2 years
Time to be served in custody	1 year, 3 months
Place of custody	Lakiemata Correctional Institution

Sentenced accordingly.
__________________________________________________________
Public Prosecutor: Lawyer for the State
Public Solicitor: Lawyer for the offender