State v Willie [2014] PGNC 231; N5786 (23 August 2014)

N5786

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR NO 833 OF 2011

BETWEEN;

THE STATE

V

MEKKA TAU WILLIE
Defendant

Kimbe: Cannings J
2014: 19, 22, 23 August

CRIMINAL LAW – sentence – armed robbery – Criminal Code, Sections 386(1), (2)(a) and (b) – conviction after trial – street robbery – cash and property worth K530.00 stolen.

The offender was convicted after trial of the armed robbery of a man and woman who were walking along a road. The total value of the stolen property was K530.00. This is the judgment on sentence.

Held:

(1) The maximum sentence for armed robbery (Criminal Code, Sections 386(1), (2), (a) and (b)) – is life imprisonment.

(2) Mitigating factors are: he has no prior convictions; though violence was threatened, no actual physical violence was inflicted.

(3) Aggravating factors are: a large amount of money stolen – for the victims; the offender acted in a gang; victims inevitably traumatised by the incident; breach of trust to a neighbour.

(4) A sentence of five years was imposed, the pre-sentence period in custody was deducted and three 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
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

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: Mekka Tau Willie was convicted after trial of one count of armed robbery, under Sections 386(1) and (2)(a) and (b) of the Criminal Code. The robbery was committed at Tamba, near Kimbe, on 18 February 2011. The offender and two other men held up the victim Augustine Orim and his wife at knifepoint, as they were walking along the road. He stole a boom box worth K180.00, a bilum and Save-Card and K300.00 cash. The total value of the stolen property was K530.00.

Antecedents

2. The offender has no prior convictions.

Allocutus

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

"I say sorry for what I have done. I am involved in many community activities in Tamba and at Section 21. I ask for a non-custodial sentence."

Personal Particulars

4. The offender is aged 39 years. He has been raised in West New Britain. He has been involved in many community activities. The offence appears to have been committed out of character. He is married with eight children.

Submissions by Defence Counsel

5. Mr Kari put forward a number of mitigating factors: the lack of prior conviction, no one was actually hurt, the boom box was recovered, the offender is willing to pay compensation. A fully suspended sentence of five years is appropriate.

Submissions by the State

6. Mr Popeu for the State argued that five years is sufficient but full suspension is not appropriate.

Decision Making Process

7. 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?

8. 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?

9. 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?

10. 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?

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

• he has no prior convictions;
• though violence was threatened, no actual physical violence was inflicted.
  

13. Aggravating factors:

• a large amount of money stolen – for the victims;
• the offender acted in a gang;
• victims inevitably traumatised by the incident;
• breach of trust to a neighbour.
  

14. The aggravating and mitigating factors are fairly evenly matched. 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?

15. 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 month, two weeks, two days.

Step 6: Should All Or Part Of The Sentence Be Suspended?

16. A partial suspension is warranted as the victims, who are the offender's neighbours, are willing to accept compensation. Two years must be served in custody. Three 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 K500.00 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

17. Mekka Tau Willie, 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	5 years
Pre-sentence period to be deducted	1 month, 2 weeks, 2 days
Resultant length of sentence to be served	4 years, 10 months, 1 week, 5 days
Amount of sentence suspended	3 years, subject to conditions
Time to be served in custody	1 year, 10 months, 1 week, 5 days
Place of custody	Lakiemata Correctional Institution

Sentenced accordingly,
____________________________________________________________
Public Prosecutor: Lawyer for the State
Public Solicitor: Lawyer for the offender