State v Luka [2014] PGNC 360; N6526 (10 November 2014)

N6526

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR 375 of 2010

THE STATE

V

PAUL ROSFAIL LUKA

Kandrian: Batari J
2014: October 20; November 10

CRIMINAL LAW – sentence – robbery – group of men armed with guns, bush-knives broke into logging company camp sleeping quarters at night and stole various items of goods and K34, 009.16 in cash – robbery of residence at night - seriousness of - need for deterrent punishment – mitigation - sentence of 10 years appropriate.

Cases Cited
Acting Public Prosecutor v Don Hale (1998) SC564,
Alex Pori v The State (2007) SC912
Bobolan Peter v The State (2007) SC894
Gimble v The State [1988-89] PNGLR, 271
Phillip Kassman v The State (2004) SC759.
Tau Jim Anis v The State (2000) SC642,

Counsel:
D. Mark, for the State
D. Kari, for the Accused

SENTENCE

10^th November, 2014

1. BATARI, J: Paul Rosfail Luka, this is your sentence following your conviction on the charge of armed robbery following a short trial. The facts are set out in the published judgment.
   
2. Together with the assistance of others, you entered the premises of Feflo (PNG) Limited, a Malaysian logging company based at Alimbit outside Kandrian, West New Britain Province, armed with firearms and bush-knives, around 4.00am. You broke into the logging camp compound and assaulted a security guard. You then forced him to show you where the company accountant slept. Nasheruddin Bin Abdulah and his wife were asleep when you broke open their cubicle room door with a rock and stole from them, some cash and items of clothing. You then broke into the adjoining cubicles and stole from three Malaysians with threats of violence, a brief case containing K34, 009.16 in cash.
   
3. This offence carried a maximum sentence of life imprisonment in 2010. That penal servitude has changed under a recent amendment. Armed robbery now has the ultimate death penalty where the offence is committed with circumstances of aggravation.
   
4. The drastic step taken by Parliament to review the penalty regime is no doubt prompted by the ever escalating incidences of robbery cases sometimes committed in awful and violent circumstances. It is an unfortunate reality that hardly a day goes by without a report of such crimes in the print and electronic media. Consequently our people and the image of our country suffer through adverse publicity. Armed robberies damage our people, the image and the economy of this country.
   
5. People should feel safe throughout Papua New Guinea when and wherever they are going about their lawful duties or at their leisure time. They should be able to move around freely and should not have to live in fear as many do, of armed robbers stalking the cities, towns and rural areas to steal from the unwary on the road or streets, business houses, clubs, vehicles on the road, factories, banks and homes.
   
6. Your actions are most serious. Business houses create employment for ordinary Papua New Guineans and what you did is an act of violence against the very basis of people’s right to employment. Your actions threaten the lawful transaction of commerce and workers are put at risk of losing employment, the source of their livelihood when business houses closed doors due to such criminal activities as seen in your actions.
   
7. The trauma and fear the victims suffered was no doubt beyond measure. The probable consequence such close encounter which a robber brings with him is great. In this case, no personal injury was caused to those in the sleeping quarters. But this does little to assist you on sentence. You injured a security guard and threatened to use homemade guns and bush-knives. Those weapons have high potential for cause of casualty. This must have been most distressing for the victims.
   
8. Robbery cases are now dealt with under four main categories. The accepted practice has been to maintain those separate categories in the imposition of appropriate sentence and that the maximum sentence is reserved for the worst type of robbery. See, in Gimble v The State [1988-89] PNGLR, 271 where the Supreme Court said :
   
   1. robbery of a house – a starting point of seven years;
   2. robbery of a bank – a starting point of six years;
   100. robbery of a store, hotel, club, vehicle on the road or the like – a starting point of five years; and
   4. street robbery of a person – a starting point of three years.
      
9. The starting points are relevant where young first offenders carrying weapons and threatening violence are convicted following a trial. Where actual violence was used or other features of aggravation like a loss of substantial amount of money was present or where the robbery was committed in breach of trust, a higher sentence may be justified. Conversely, a plea of guilty with special mitigating factors may justify a lower sentence.
   
10. Gimble’s sentencing guideline remains useful, subject to the plus 3 year increase sanctioned by the Supreme Court in, The Acting Public Prosecutor -v- Don Hale (1998) SC564, for category 1 robbery of a home; Tau Jim Anis v The State (2000) SC642, for category 3 robbery of store etc.; and Phillip Kassman v The State (2004) SC759, for a robbery that falls within category 2 and 3.
    
11. This means for instance, in relation to category 3 robberies, the Court may start at eight years subject to the judge’s discretion to impose a higher or lower term as the facts of each case determines. See, Tau Jim Anis v The State and Phillip Kassman v The State. See also, Bobolan Peter v The State (2007) SC894; Alex Pori v The State (2007) SC912.
    
12. The recent elevation of armed robbery to a death penalty crime will surely mean substantial increases to the current sentencing pattern. It is most likely that the 3 year increase factor in Don Hale’s case and the cases that followed may double to reflect Parliament’s intention and there have been sufficient warnings for the increase on the sentencing tariff.
    
13. The alarming feature of your case is that you raided the rooms where occupants were asleep. Dwelling houses are places one should feel most safe. Robbery of a dwelling house at night and terrorising the occupants therein with guns is categorised in Gimble’s case as the most serious type of armed robbery offence there is. Hence, in Hale’s case, the tariff was raised to 10 years.
    
14. The facts of this banditry is not only a threat to the individual law abiding business houses, they are also a threat to the economy of Kandrian, West New Britain Province and Papua New Guinea. They are a threat to investor confidence and also sadly bring unwarranted discredit, on our people and our country.
    
15. I have considered all that you have stated in your statement on sentence. I have also considered what your lawyer has submitted on your behalf. There is not much else, apparent or latent from the circumstances of the crime and your personal circumstances, which support your contentions for a lower sentence. You have asked that I imposed a sentence that takes into account, the plight of your 7 children, in particular a 5 year old daughter who is still in school. Mr Kari submitted that your case calls for a term other than life imprisonment.
    
16. Your case is a category 1 robbery of a house. It has aggravating features besides that which is alleged under s.386 (2)(a)(b) of the Criminal Code namely, that you were armed with dangerous weapons, you were in the company of others and that the robbery involved actual violence. The circumstances of this case warrant a sentence of at least 10 years and 20 years at the highest, in my view.
    
17. I am not impressed with your plea for leniency for the sake of your wife and children. You did not consider the welfare of your family when you set out on your evil enterprise. And there is nothing special about your family that may call for a lower sentence. But more importantly, you were not a young man when you committed this robbery. At 45 years of age with grown up children, you had reached the stage in life when you should be the wiser to lead an honest and responsible life for the sake of your family. It is late to think of them now.
    
18. You will be sentenced to a term of imprisonment. I have considered on the basis of a commendably comprehensive presentence report by Probation Officer Christine Robe, whether to suspend all or part of the sentence I will shortly impose. There are two factors in your favour. After waiting in custody for nearly three years you continued to be faithful and consistent in observing your bail conditions. There seems to be no plausible reason why you had to wait for your case that long to stand trial.
    
19. Second, the bail condition for you to report at Kimbe National Court Registry and attend call-overs there instead of Kandrian had occasioned you, personal hardship. You had to relocate to Kimbe and had to make your way to Kandrian to answer your charge there. Your wife and children also had to relocate from the village to Kimbe to join you. Consequently, your cocoa and coconut blocks back at your south coast village were abandoned. You have since kept out of trouble and catered well for your family at Section 21 Bush-camp in Kimbe.
    
20. Even with that, the Probation Officer considers you as a threat to the community. Nevertheless, the report recommends, that you serve your term on probation with community work orders and counselling. The upshot of the report is that you have changed from your evil ways and that you should be further assisted in the form of sentence to be imposed.
    
21. In my view you may be usefully punished with part-suspended sentence. To ensure that you are also effectively punished in the community, I will order community work. You are sentenced as follows:
    
    1. 10 years imprisonment with hard labour. Your pre-trial custody period is deducted. You have 7 years, 5 months left to serve;
       
    2. 5 years is suspended to be served on probation;
       
    3. You are to serve 2 years and 5 months, IHL after which you are to be released from custody forthwith to be on probation for 5 years on the usual terms under the Probation Act and in addition, you shall;
       
       1. Report to the Probation Officer within 48 hours of release;
          
       2. Perform 400 hours of community work without pay at Kimbe Catholic Church and to be supervised by the local catechist;
          
       100. Attend church every weekend for service and worship and submit to counselling by the local priest;
            
       4. Within two weeks of release, join a church fellowship group of your church and actively participate in the group activities;
          
       5. Keep the peace and be of good behaviour at all times;
          
       6. Not to take, consume or deal with alcohol and drugs;
          
       7. Maintain residence at Section 21, Arove Bush Camp and nowhere else without informing the Probation Officer of your change of residential address;
          
       8. Not leave your place of abode, or Kimbe or West New Britain Province without prior approval of the National Court;
          
       9. Appear before the National Court as and when required for review of your performance on probation.
          
    4. The CBC office is to file in the National Court Registry, quarterly reports on your responses and progress on probation.
       
    5. In breach of your probation bond, you shall be imprisoned for 6 months in addition to the suspended sentence of 5 years.
       

_________________________________________________________________

Public Prosecutor : Lawyer for the State
Public Solicitor : Lawyer for the Accused