State v Dominic [2014] PGNC 286; N5823 (21 November 2014)

N5823

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR. 1100 of 2010

THE STATE

V

CLEMENT DOMINIC

Lorengau: Geita J
2014: 18, 20, 21 November

CRIMINAL LAW – Guilty Plea -Sentencing—Armed Robbery- Sentencing guidelines —Prevalence of offence or its opposite relevant factor—Criminal Code s.386 (1)(2) (a), (b) (, c).

CRIMINAL LAW—Guilty Plea - Sentence—K45,000.00 estimated value of money and items stolen – most recovered—First time offender—Cooperated with authorities—Robbery with actual violence and in company — One year suspended for police brutality – Pre trial custody of 4 years deduced – Two years wholly suspended sentence on Probation with terms - Probation Act (Chapter 381) consolidated to No 19 of 1990] ss. 17 & 18..

Cases Cited
Public Prosecutor v. Don Hale (1998) SC 564.
The State v Samuel Anton (1990) N866
Tau Jim v The State (2000) SC 642.
The State v Smith James Ondari (1990) N867;
The State v Samuel Anton (1990) N866
William Ukukul Gimble v The State [1988 – 89] PNGLR 271

Counsel:
Mr. Francis Popeu, for the State
Mr. Tom Kaleh, for the prisoner

JUDGMENT ON SENTENCE

21 November 2014

1. GEITA J: You pleaded guilty to one count of stealing with violence from Yuyi Trading in Lorengau town on 14 February 2010. Cash and store goods valued at more than K45, 000.00 was stolen. The offence comes under Section 386 of the Criminal Code and attracts a maximum penalty of life imprisonment.

2. The Court entered a provisional plea of guilty and then, after reading and having satisfied myself that the evidence as agreed by the prosecution and defence on the District Court depositions for the plea of guilty does support the charge I found you guilty and entered a conviction.

The Facts

3. The brief facts from the material in the deposition as put to you during your arraignment are these. Around 8 pm on the night of 14 February 2010, you and five other boys entered the shop, forced the Manager He Zeng and his workers to lie down and robbed the shop. At the time you were armed with 2 home made guns and bolt cutter. After the robbery you escaped by dinghy out to open sea. Three days later you were all arrested and charged.

The Law. Section 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; or

(b) is in company with one or more other persons; or

(c) at, immediately before or immediately after, the time of the robbery, wounds or uses any other personal violence to any person,

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

Antecedents

5. The prisoner has no prior convictions

Allocutus

6. When the allocutus was administered under Section 593 of the Criminal Code or when you were asked if you had anything to say about the punishment that should be considered you said these in brief: You said you were sorry to the court, the victim and other members of the public in Manus for what you did. You asked for leniency from court and said your time in prison awaiting this time has helped you to learn your lesson and undertook not to commit the same crime or similar crimes again in future.

Mitigating factors

7. The factors in your mitigation are:

1. Expressed remorse during allocutus

2. Guilty plea, saved mounting of trial to determine his guilt

3. No life was lost or any permanent injuries caused to victims

4. First time offender

5. Weapons recovered and surrendered to police.

6. Held in pre trial custody for 4 years

Aggravating factors

8. The aggravating factors are:

1. He was in company of five other persons

2. Dangerous weapons used, 2 home made guns and bolt cutter.

3. Store manager was assaulted.

4. Invasion of privacy of property and employment

Submissions by Defence

9. Mr Kaleh highlighted your early guilty plea, which obviously saved the court, the police, CIS and all other Law & Justice Agencies money, time and resources in running a full blown trial. He conceded that the offence of arm robbery was prevalent and needed to be curbed however this, he said was not the worst type of robbery with violence to which I agree. Mr Kaleh referred me to the case of William Ukukul Gimble v The State [1988 – 89] PNGLR 271 in which some guidelines were set in not guilty arm robbery cases. The court made distinctions between sentencing in crimes committed at dwelling houses, banks, store or hotel or vehicle on the road and persons on the street ranging from 3 years to 7 years. Mr Kale however admitted that the Gimble case has since dated with increased sentences. (The Public Prosecutor v Don Hale (1989) SC 564 and Tau Jim v The State (2000) SC 642. With reliance had on the principles and application on the above stated cases Mr Kale submitted that an appropriate head sentence of between 5 - 10 years be considered with options for suspension and probation orders under Section 19 Criminal Code. He urged court to take into account the prisoners loss and suffering in his wife deserting him during his pre trial custody.

Submissions by The State

10. In his brief oral submissions Mr. Popeu conceded with mitigation factors outlined by Mr Kaleh however differed greatly on the aggravating factors which he submitted were serious: the crime was committed with 5 other co-accused person, now serving sentence; dangerous weapons were used; the owner of the shop was assaulted; the prisoner was the leader of the pack and the crime appears to have been pre planned by him. Furthermore he submitted that although the victims' store was said to have been robbed the same property was also used as his home or abode. This would mean that the crime would easily fall under the category of a dwelling house with sentences up to 8 years (The Public Prosecutor v Don Hale (1989) SC 564).

11. The State Prosecutor submitted that the Prisoner was amongst 5 other persons who have since been committed and sentenced upon their guilty pleas to sentences ranging from 5 years up to 7 years with the prisoner labelled the gang leader sentenced to 7 years. To his credit Mr Popeu reminded the court that the principle of parity was applicable in this case and urged court to be guided by it to which I am grateful and agree. He also admitted that the prisoner was assaulted upon arrest and could be entitled to the benefit of doubt. (The State v Smith James Ondari (1990) N867); (The State v Samuel Anton (1990) N866). Mr. Popeu submitted that the court consider a sentence ranging within 5 – 7 years to be appropriate under the circumstances.

Community attitude

12. Your pre sentence report appears to be silent on this point. I would have liked to be assisted with the views of the general public as they would be gravely concerned that this crime was carried out right in the middle of Lorengau town. Admittedly it's been four years since the crime was committed and the community has forgotten that it happened and moved on with life. Nonetheless this information is also important.

Pre Sentence Reports

13. Your pre sentence report appears to favour you with a recommendation for probation and related orders. Your remorse and genuineness to reintegrate back into your community, more so to be with your 5 year old daughter appears sincere. Although your father claims to be a disciplinarian with his children, your actions tell a different story. You remain unemployed and left school with really no formal education. You are aged 33 years now and your wife has deserted you and your child. The reports of you being assaulted by police are also noted however you have yourself to blame. The sufferings of your family is also noted, again you have yourself to blame for putting them in this mess. A notable concern as I understood from your pre sentence is that you were the victim of your unstable family life brought about by your parents. All in all I again must thank the Probation Officer Mr Wep Ninau for this report which was prepared in quick time.

Sentence in your case

14. I must thank both Lawyers for assisting court with their submissions and cases referred to me. I have found them to be most helpful. For the purposes of determining an appropriate sentence for you, I note and take into account your respective personal and family backgrounds. I then note in particular that you are a first time offender. The pre-sentence report shows that you have a pleasant personality but you got yourself into this crime due to peer pressure. You have co-operated with the police and have freely admitted to committing this offence. This has saved the State and the court substantial trial time and costs. Further, I note that some amount of monies have been recovered and presumably returned to the owners I hope. Therefore, you did not benefit from it, although I note this cannot be a reason to excuse you from your criminal liability.

15. The above are factors in your mitigation. There are however, some other factors, which are against you. Firstly, I note that you one of the leaders in this crime. Save for the four years you spent in pre trial custody in mitigation, the aggravating factors appear to far outweigh your other mitigating factors. Considering all of the above, including both the factors for and against you and the sentences in the cases cited above, I consider a head sentence of 7 years for purposes of consistency and parity with those sentences received by your co-accused earlier. From the above head sentence I will deduct 1 year for police brutality and a further 4 years for the periods you have already spent in custody awaiting your trial. Might I add here that the decision to suspend wholly or a part of a sentence is not an exercise in leniency but a form of punishment aimed at achieving one of the objectives of criminal sentencing, namely to rehabilitate offenders. For the remaining 2 years I will suspend and place you on Probation for the same number of years with the following conditions:

1. You immediately undertake to be of good behaviour bond and agree to faithfully, comply with the terms that follow straight after this term;

2. You render free 300 hours of community work between the hours of 8:00am and 4:00pm from Monday to Fridays in Lorengau town. You will report to Probation Officers here in Lorengau town who will assign and supervise community related works.

3. You will allow for and permit Probation Officers to visit your home on a regular basis to monitor your compliance of these terms and to report with such recommendations as he/she might consider appropriate either for a variation or an implementation of these terms;

4. The Probation Service shall furnish a half yearly report to this Court with the first due on 25th May 2015;

5. If for whatever reason you breach any of these terms, you will serve the balance of the term of the suspended sentence as at the time of the breach;

6. You will be at liberty to apply for a review and or variation of any of these terms including a lifting of terms and conditions herein stated provided there has been a substantial compliance.

Sentence accordingly.
______________________________________________________________
Public Prosecutor: Lawyer for the State
Public Solicitor: Lawyer for the Prisoner