State v Selkit [2014] PGNC 365; N6525 (20 October 2014)

N6525

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR 174 of 2000

THE STATE

V

STANIS SELKIT & APET ANTON

Kandrian: Batari J
2014: 14, 20 October

CRIMINAL LAW – sentence – robbery – robbery of vehicle – group of armed youths set up road block and stole from the vehicle – plea - offence committed 15 years ago – youthful offenders in 1999 – delay in dealing with case – long period of incarceration – unnecessary - effect of – mitigation – principles of sentencing applied - sentence of 7 years and 5 years appropriate.

Cases Cited:

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.
Public Prosecutor v Don Hale (1998) SC564,
Tau Jim Anis v The State (2000) SC642,

Counsel:

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

20 October, 2014

Overview

1. BATARI J: The accused persons were part of a group of youths who set up a road block and stole from a vehicle, chain saw chains and container of fuel. They have each pleaded guilty to armed robbery and were remanded for sentence subject to a pre sentence report ordered from the Probation Officer under s. 13 of the Probation Act (Ch. 381).
   

Background

2. The facts supporting the armed robbery charge are, that on the evening of 26 March 1999 at about 4.00pm, the prisoners with two others armed themselves with homemade guns and set up a roadblock at Coup Six Junction, a logging operation road at Passismanua, Kandrian. One Lui Siu Wong Kaikai win, an employee of Rimbunan Hijau logging company drove by and stopped at the road blockade. The robbers forced him out of the vehicle and made him and his passengers lie on the ground. They searched and stole from the vehicle, two chain saw chains and fuel container valued at K173.00. The two prisoners were arrested following police operation. Stanis Selkit was shot and injured on his ankle in that police raid.
   

The Offence

3. The offence of armed robbery is defined under s. 386 (1) of the Criminal Code. Where the offence is committed in circumstances of aggravation, the prescribed maximum penalty is life imprisonment, subject to the recent amendment to the Criminal Code. Parliament has made its intentions known through a recent amendment, that stealing with violence is such a serious crime for which the ultimate death penalty will be justified.
   
4. The offence before this Court was committed 15 years ago in 1999. The maximum then was life imprisonment. The maximum penalty is not mandatory. It is nevertheless, a guide for the Court in the exercise of its sentencing discretion under s.19 of the Code. Where the Court considers a particular sentencing option is open on the facts of the case, it will be guided by settled principles so as to maintain a consistent sentencing pattern or tendency for the particular offence.
   
5. This is a typical armed robbery of a vehicle that so frequently occurs along the main as well as residential streets of our towns and cities, along highways and rural roads. It is invariably committed by young men from the neighbourhood or the surrounding settlements, camps or villages, who seem to have nothing better to do then prey upon unsuspecting motorists to steal from them.
   
6. In general, armed robbery has become the most prevalent offence and feared crime of violence confronting our people today. It is a very serious crime as it attacks the very essence of constitutional guarantees that every man, woman and children in this country has the freedom to live, move around and go about his or her lawful business anywhere and at any time of the day without fear or apprehension of unwarranted attacks. People should feel safe in their homes, at their work places, in the streets and on the roads, without fear as many do, of prowling armed robbers threatening and stealing from them.
   
7. The conduct of the prisoner and his cohorts is most serious as it threatened the lawful presence of the victim on the road. The victim, Lui Siu Wong Kaikaiwin and his workers must have felt badly shaken and apprehensive. The potential for serious injury in an armed hold-up is always present and can be most intimidating. Fortunately, no serious personal injury is alleged in the agreed facts. But this does not take away the seriousness of the prisoners’ conduct.
   
8. These considerations favour tough measures against the crime of robbery within the legal limits of what is in the powers of the Court to do.
   
9. The effect of the sentence that may be imposed should be aimed at discouraging young urban dwellers and villagers against this criminal activity. The sentence should be aimed, not only at punishing the offender personally but, it should have the effect of warning would-be young offenders that they risk being imprisoned for a long time when caught. The imposition of tougher punitive measures is also warranted by the prevalence of the offence.
   
10. Sentences for robbery cases are now guided by the four main categories. The accepted norm and practice has been to maintain those separate categories in the imposition of appropriate sentences and that the maximum sentence is reserved for the worst type of robbery. These categories with suggested starting points were enunciated by the Supreme Court in Gimble v The State [1988-89] PNGLR, 271 as:
    
    • (i) robbery of a house – a starting point of seven years;
    • (ii) robbery of a bank – a starting point of six years;
    • (iii) Robbery of a store, hotel, club, vehicle on the road or the like – a starting point of five years; and
    • (iv) Robbery of a person on the street – a starting point of three years.
      
11. The recommended 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. On the other hand, a plea of guilty with special mitigating factors may justify a lower sentence.
    
12. The sentencing guideline in Gimble’s case remains useful, subject to the plus three year increase sanctioned by the Supreme Court in, Public Prosecutor v Don Hale (1998) SC564, (Amet CJ, Woods J, Kirriwom J); Tau Jim Anis v The State (2000) SC642, (Sheehan J, Jalina J, Kirriwom J); and Phillip Kassman v The State (2004) SC759, (Jalina J, Sawong J, Batari J).
    
13. The Court may start at the prescribed mid-range, subject to the judge’s discretion to increase or decrease the term, depending on the facts of each case. See, Bobolan Peter v The State (2007) SC894 (Mogish, Manuhu, Hartshorn, JJ); Alex Pori v The State (2007) SC912 (Davani, Mogish, David, JJ).
    
14. The case before this Court, has no aggravating features beside that which is alleged under s.386 (2) (a) (b) of the Criminal Code namely, that the prisoners were armed with dangerous weapons and that they were in the company of others. The Court’s sentencing discretion is also made a lot easier by the pre-sentence reports by Probation Officers Mrs Elizabeth Passingan and Mrs Christine Robe. The two reports are commendably, comprehensive.
    
15. I have considered extending the offender that benefit for reasons that:
    
    • (i) The term he has served in prison waiting for his trial and sentence is sufficient to have impressed upon him that crime does not pay. It would have taught him hard lessons that severe restrictions on individual freedom and choices in prison are best avoided.
      
    • (ii) Punishment is not all about punitive imprisonment sentence in the name of general deterrence. Where rehabilitation and reformation of the prisoner has a real chance outside prison, the court may take the risk to subject the prisoner to appropriate measures designed to influence his or her future behaviour through supervision, treatment or preventive confinement.
      
    • (iii) The offender is a recommended candidate for probation orders.
      
    • (iv) Both were youthful first offenders, with potential to redeem his past to be a better and useful member of the community again.
      
16. In the upshot, I consider that a term of imprisonment is appropriate. Six years may appropriate for Stanis Selkit. This will be added to the 4 years for the 1996 robbery, so, 10years. Looking at the totality principle, in my view, 7 years is warranted on the facts. For Apet Anton, I will impose 5 years. In both cases I will suspend the whole sentence and order that the sentence be served on Probation Orders.
    
17. To ensure that the prisoners are also effectively punished in the community, I will order community work orders. The prisoners are sentenced as follows:
    
    1. Stanis Selkit, 7 years imprisonment IHL.
       
    2. Apet Anton, 5 years imprisonment IHL.
       
    3. The pre-custody periods of 3 years 3months for Stanis Selkit and 3 years 2 months for Apet Anton are deducted. The balance of 3 years 9 months (Stanis Selkit) and 1 year, 10 months (Apet Anton) are wholly suspended to be served on the usual probation orders and in addition the following will apply:
       
       • (a) Stanis Selkit and Apet Anton Shall within 48 hours, report to the Probation Officer;
         
       • (b) Stanis Selkit Shall reside at Papsa village and Apet Anton Shall reside at Angelek village, Inland Kandrian District and nowhere else without leave of the National Court;
         
       • (c) Shall not leave Kandrian, Kimbe or West New Britain Province without leave of the Court;
         
       • (d) Shall perform 600 hours of unpaid community work at a worksite nominated by Probation Officer and approved by the National Court;
         
       • (e) Shall attend church every weekend for service and worship and submit to counselling by Rev Robinson Aisoli or Rev. Johnson Noah;
         
       • (f) Shall join a Church Fellowship group and take active part in all its programs and activities during the probation period;
         
       • (g) Shall not take, consume, or deal with any form of alcohol or drug;
         
       • (h) Shall keep the peace and be of good behaviour at all times;
         
       • (i) Shall have a satisfactory probation report filed with the National Court Registry as required;
         
       • (j) Shall appear before the National Court as and when required.
         
    4. The Probation Office shall file six monthly reports with the first of such report due on 20 April, 2015 and whenever required on your responses and progress on probation until discharged.
       
    5. In the event of a breach of any of these conditions, you shall be brought before the National Court to show cause why you should not be incarcerated to serve the remaining term of imprisonment.
       
    6. These Probation Orders will lapse or deem to lapse on or about 20 October 2019 for Stanis Selkit and 20 October 2018 for Apet Anton unless, the Court upon application, orders otherwise.

_________________________________________________________________
Public Prosecutor : Lawyer for the State
Paul Paraka Lawyers : Lawyer for the Accused