State v Liliura [2014] PGNC 151; N5785 (23 August 2014)

N5785

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR NO 1170 0F 2009

THE STATE

V

SIMON LILIURA

Kimbe: Cannings J
2014: 6, 18, 23 August

CRIMINAL LAW – sentences – unlawful detention – armed robbery – Criminal Code, Sections 355(a), 386(1), (2)(a), (b) – guilty plea – offender, a gang member, held bank manager and family captive and robbed a bank.

A man pleaded guilty to unlawful detention of a bank manager and her family and committing armed robbery of a bank. This is the judgment on sentence.

Held:

(1) The maximum sentence for unlawful detention is three years imprisonment and for armed robbery is life imprisonment.

(2) Mitigating factors are: 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.

(3) Aggravating factors are: a large amount of money stolen; the robbery was committed in a public place, recklessly putting many people at risk of injury or death; the offender acted in a gang; the victims were inevitably traumatised by the incident.

(4) A sentence of two years was imposed for unlawful detention and a sentence of 13 years was imposed for armed robbery. The sentences are to be served cumulatively, without reduction under the totality principle. The pre-sentence period in custody was deducted and no part of the total sentence was suspended.

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
Public Prosecutor v Kerua [1985] PNGLR 85
Saperus Yalibakut v The State (2006) SC890
Tau Jim Anis v The State (2000) SC642
The State v A Juvenile, "TAA" (2006) N3017
The State v Aaron Lahu (2005) N2798
The State v Alphonse Polpolio and Jeffery Baru (2006) N4514
The State v David Bandi CR No 729/2003, 20.04.05
The State v Dickson Kauboi CR No 495/2001, 07.06.06
The State v Francis Vau Kamo CR663-664/1998, 06.04.06
The State v Jacky Vutnamur & Kaki Kialo (No 3) (2005) N2919
The State v Justin Komboli (2005) N2891
The State v Kia Tala Moksy CR785/2005, 12.08.05
The State v Lucas Soroken Sembengo, Bob Alois Wafu & Raphael Lawrence Mandal (2006) N2801
The State v William Nanua Kapris + Ors (2011) N4305

SENTENCE

This was a judgment on sentence for unlawful detention and armed robbery.

Counsel

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

23rd August, 2014

1. CANNINGS J: This is the sentence for Simon Liliura who pleaded guilty to one count of unlawful detention and one count of armed robbery and has been convicted of those offences under Sections 355(a) and 386(1) and (2)(a) and (b) of the Criminal Code. These offences were committed in connection with the robbery of the Bialla branch of Bank South Pacific (BSP) on Monday 1 December 2008.

2. The day before he was at Bialla in company with five other persons. They were armed with offensive weapons: one shotgun, two factory made pistols, one homemade shotgun and bushknives. They went to the residence of the BSP Bialla manager and held up her and her family, and held them captive at their house until the following morning.

3. The next morning the offender and his accomplices dressed themselves in BSP uniforms and took the manager to the bank. They gained entry to the bank and stole K500,000.00 cash.

4. The police were alerted and surrounded the bank and when the offender and his gang exited the bank there was a shootout. Two of his accomplices were shot dead, and the offender was apprehended at the scene.

ANTECEDENTS

5. The offender has no prior convictions.

ALLOCUTUS

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

I am lucky to be alive, given what the police did to me. I was shot after surrendering. I was attending UPNG at the time, studying law. I apologise to the bank workers and manager and her family for what I put them through. This is the last time I appear in court.

OTHER MATTERS OF FACT

7. 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 was unnecessarily shot and beaten by the Police, after surrendering straight after the shootout;
• he made admissions to Police when interviewed on 2 April 2009;
• he was not the instigator of the robbery; and
• the stolen money was recovered.
  

PRE-SENTENCE REPORT

8. The court was presented with a report prepared by the Kimbe office of the Community Based Corrections Service.

Personal details of Simon Liliura

Age : 30
Origin : Kololo, Hoskins, West New Britain Province
Upbringing : Wewak, East Sepik Province
Marital status : single
Family : both parents alive, 8 siblings
Education : was studying law at UPNG at the time of offences
Employment : no formal employment
Occupation : student when he committed the offences
Health : currently undergoing TB treatment
Religion : Seventh Day Adventist

Other aspects of the offender's life

His family, especially the mother, is confident she can assist him rehabilitate. The offender wants to return to university to study.

SUBMISSIONS BY DEFENCE COUNSEL

9. Mr Kari 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. He submitted that the sentences should be served concurrently. A partial suspension is warranted.

SUBMISSIONS BY THE STATE

10. 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 of at least 15 years imprisonment is required.

DECISION MAKING PROCESS

11. To determine the appropriate penalty, and bearing in mind that the offender has been convicted of two offences, I will adopt the following decision making process:

• step 1: what is the maximum penalty for each offence?
• 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 for each offence?
• step 5: should the sentences be served concurrently or cumulatively?
• step 6: what is the effect of the totality principle?
• step 7: should the pre-sentence period in custody be deducted?
• step 8: should all or part of the sentence be suspended?
  

STEP 1: WHAT IS THE MAXIMUM PENALTY FOR EACH OFFENCE?

12. For unlawful detention, the maximum penalty is three years imprisonment. For armed robbery, the maximum 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?

13. 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 bank robbery. The starting point is nine years.

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

14. As for the armed robbery conviction, I refer to my discussion of this issue in The State v William Nanua Kapris + Ors (2011) N4305 where I outlined a number of recent cases in which I had sentenced offenders for armed robbery, as shown in the following table:

RECENT NATIONAL COURT SENTENCES FOR ARMED ROBBERY

No	Case	Details	Sentence
2	The State v Aaron Lahu (2005) N2798	Guilty plea – Hoskins Mart store – large gang – gun and bushknives – offender got involved by accident – had minimal involvement.	3 years
5	The State v David Bandi CR No 729/2003, 20.04.05	Trial – PMV robbery, Kumbango, near Kimbe – mature aged offender – in company with one other – firearm used – K300.00 stolen.	6 years
6	The State v Kia Tala Moksy CR785/2005, 12.08.05	Guilty plea – Kimbe Mega Mart store – sole offender – firearm discharged – K1,120.00 stolen.	10 years
8	The State v Justin Komboli (2005) N2891	Trial conducted and sentence passed in absence of offender, who had escaped from custody – trade store robbery, Kavui, near Hoskins – armed with beer bottles, sticks and stones – store goods stolen – sole offender.	4 years
9	The State v Jacky Vutnamur & Kaki Kialo (No 3) (2005) N2919	Guilty pleas – two offences – in company with others – mature aged offenders – firearms used – first robbery of family home, Salelebu (police weapons and uniforms stolen) – second robbery of Kapiura Trading Supermarket (K40,000.00 stolen).	12 years; 12 years
10	The State v Lucas Soroken Sembengo, Bob Alois Wafu & Raphael Lawrence Mandal (2006) N2801	Trial – home invasion, Barema – young offenders – gang robbery – firearms used – K460.00 stolen.	12 years
11	The State v A Juvenile, "TAA" (2006) N3017	Guilty plea – juvenile – Shopper's Choice store robbery, Kimbe – offender had minimal involvement.	4 years
12	The State v Francis Vau Kamo CR663-664/1998, 06.04.06	Trial – robbery of bank cash shipment, Hoskins Airport – young offender – in company with three others – firearms – K380,000.00 stolen.	13 years
13	The State v Dickson Kauboi CR No 495/2001, 07.06.06	Trial – Commodore Bay Company payroll robbery, Kimbe – in company with three other persons – mature aged man – K3,000.00 stolen.	8 years
14	The State v Alphonse Polpolio and Jeffery Baru (2006) N4514	Guilty pleas – two store robberies, Kandrian – in company with one other person K2,807.00 stolen in first robbery – K21,530.00 stolen in second robbery.	5 years; 9 years

15. Most of those cases are significantly less serious than the present case. The one that is closest is Francis Vau Kamo, in which a bank cash shipment was stolen at Hoskins Airport. A police officer was stabbed (not fatally) during the course of the robbery and the offender was convicted after trial. The sentence was 13 years imprisonment. This case is similar to the BSP Madang robbery case in which William Kapris was sentenced to a total of 30 years imprisonment.

STEP 4: WHAT IS THE HEAD SENTENCE FOR EACH OFFENCE?

Unlawful detention

16. This is an extremely serious case and the offender can consider himself fortunate that he was only charged with one count. Taking into account the guilty plea, I impose a sentence of two years imprisonment.

Armed robbery

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

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.
  

Aggravating factors:

• a large amount of money stolen;
• the robbery was committed in public place, recklessly putting many people at risk of injury or death;
• the offender acted in a gang;
• the victims were inevitably traumatised by the incident.
  

18. This was a very serious robbery and it has taken a long time for the offender to own up to his involvement. I uphold the position of the State and impose a sentence of 13 years imprisonment.

The total potential sentence the offender is facing is:

2 years + 13 years = 15 years.

STEP 5: CONCURRENT OR CUMULATIVE SENTENCES?

19. The question is whether the sentences should be served concurrently (at the same time) or cumulatively (the sentences are added together). This is an easy decision as there were two separate offences and different sets of victims. The sentences must be served cumulatively Public Prosecutor v Kerua [1985] PNGLR 85).

STEP 6: WHAT IS THE EFFECT OF THE TOTALITY PRINCIPLE?

20. I now look at the total sentence the offender is facing, to see if it is appropriate having regard to the totality of the criminal behaviour involved. The court needs to guard against imposing a crushing sentence. These were very serious offences and 15 years is not out of proportion to the gravity of the crimes or the length of sentences that have been imposed in other cases. There will no reduction.

STEP 7: SHOULD THE PRE-SENTENCE PERIOD IN CUSTODY BE DEDUCTED FROM THE TERM OF IMPRISONMENT?

21. 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, six months.

STEP 8: SHOULD ALL OR PART OF THE HEAD SENTENCE BE SUSPENDED?

22. No. The offences are too serious and the pre-sentence report does not warrant suspension.

SENTENCE

23. Simon Liliura, having been convicted of one count of unlawful detention contrary to Section 355(a) of the Criminal Code and one count of robbery contrary to Section 386(1) of the Criminal Code in circumstances of aggravation under Sections 386(2)(a) and (b) of the Criminal Code, namely he was armed with a dangerous and offensive weapon and in company with other persons, is sentenced as follows:

Length of sentence imposed	15 years
Pre-sentence period to be deducted	1 year, 6 months
Resultant length of sentence to be served	13 years, 6 months
Amount of sentence suspended	Nil
Time to be served in custody	13 years, 6 months
Place of custody	Lakiemata Correctional Institution

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