State v Hekoi [2016] PGNC 212; N6413 (23 June 2016)

N6413

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR NOS. 598 - 599 OF 2016

THE STATE

-V-

ONOSEM HEKOI

Alotau: Toliken, J

2016: 23^rd June

CRIMINAL LAW – Sentence – Unlawful use of Motor vehicle – Armed robbery – Plea – Offender asked by accomplices to help them to rob store – Offender and accomplices hold up motor vehicle – Drove to store and rob storekeeper – Offender caught on scene and assaulted and later by police – Offender play minimal role – Mitigating and aggravating factors considered – sentence of 2 years for unlawful use of vehicle – Sentence of 5 years for armed robbery – Sentences concurrent – Effective sentence 5 years less time in custody – Nil suspension – Criminal Code Ch. 262; ss 383(2), 386 (1)(2)(a)(b).

Cases Cited:
Gimble v The State [1988 – 1989] PNGLR 271.
James Gurave Guba v The State (2000) N2020
Jim Tau Anis v The State (2000) SC 642
Public Prosecutor v Don Hale (1998) SC 564
The State v Ananias (2006) N3161
The State v Charles Wincy; CR 1000 of 2013 (Unnumbered judgment dated 28^th August 2015 at Alotau
The State v Henry Ben Simukai; CR No.1025 of 2007 (unreported and unnumbered judgment dated 8^th August 2013)
The State v Jimmy Banes Ere (2002) N2254
The State v Joe Rex Steven Basu (1997) N1537
The State v Magani (2011) N455
The State v Patrick Sogi (2008) N3437
The State v Paul Maima Yogol and Dama Teiye (2004) N2583

Counsel:
H. Roalakona, for the State
P. Palek, for the prisoners

SENTENCE

23^rd June, 2016

1. TOLIKEN, J: Yesterday the prisoner pleaded guilty to an indictment charging him with one count of unlawful use of a motor vehicle and one count of armed robbery contrary to Sections 383(2) and 386(1)(2) (a)(b) of the Criminal Code Ch. 262, respectively.
   

THE FACTS

2. The facts put to the prisoner to support the charges were that on Wednesday 16^th September 2015, at about 2.30p.m., the prisoner was at Tarelba Trading, KB, here in Alotau. There, he met Jamuga and John Waima who asked him to assist them to do a job – to hold up Kedu Trading up at Goilanai. Being drunk the prisoner agreed.
   
3. The prisoner and his accomplices then held up a Taxi, a white Toyota Carine, bearing the registration No. T. 5673, driven by its owner, Robert Kasai, and used it without his consent. They drove up to Goilanai and entered Kedu Trading where they held up Golovele Wari, a shop assistant, and other workers and stole mobile phones, packets of cigarettes and K200 cash. At the relevant time they were armed with a gun.
   
4. I read the committal depositions and was satisfied that the evidence supported the charges, that the pleas were safe and accordingly convicted the prisoner for both counts.
   

THE OFFENCE

5. The offence of unlawful use of a motor vehicle carries a maximum penalty of 5 years imprisonment, while, armed or aggravated robbery carries a maximum penalty of life imprisonment. For simple robbery the maximum penalty is 15 years.
   
6. Whether or not the maximum penalty will be imposed in this case, will depend very much on whether the offence can be viewed as falling under the worst category coupled with the peculiar circumstances of the case.
   

ANTECEDENTS

7. The prisoner hails from Mutuyuwa village on the outskirts of Alotau Town. He is 30 years old and is married with 2 children. He is the fourth born in a family of five siblings. His mother is still alive but his father has passed away. He has never attained any formal education but has been employed casually on part-time basis by Nawae Construction and KBD. He is a member of the Kwato Church. He is a first time offender and had been in pre-conviction custody for a period of 9 months and 1 week.
   

ALLOCUTUS

8. The prisoner apologised to God for his offence. He apologised to the State for breaking the law and to the victim Kedu Trading for what he did. He also apologised to his own family. He said he is a first time offender and promised never to re-offend.
   

SUBMISSIONS

9. Mr. Palek, for the prisoner acknowledged the starting point set by the Supreme Court for this category of robbery (8 years), but submitted that the head sentence should be well below that. Counsel submitted also that for unlawful use of a motor vehicle, the case falls under Category (b) of James Gurave Guba v The State (2000) N2020 thus attracting a sentence between 3 – 4 years. However, because of good mitigating factors which include the fact that the prisoner was caught immediately after the offence and was severely beaten up, firstly by members of the public and later by the police head sentenced for each offence should be 2 – 4 years respectively.
   
10. Ms. Roakona, while acknowledging the prisoners mitigating factors, submitted that an appropriate sentence for the charge of armed robbery should be 8 years and 3 years for unlawful use of motor vehicle. This is because of aggravating factors such as use of firearms, involvement of others in the commission of the crime and its prevalence in the province.
    
11. A pre-sentence report was filed on behalf of the prisoner. Whilst seems favourable to the accused it does not make any specific recommendation.
    

STARTING POINTS

12. At this juncture, I must say that robbery is a very serious offence, and the penalties are a reflection of that. Aggravated or armed robbery is particularly serious because of the violence or potential violence or threat of violence that is associated with the offence. There is always a real likelihood that the victims of robbery or innocent bystanders can be hurt or even killed.
    
13. The prevailing sentencing guidelines set by the Supreme Court for this particular type of robbery i.e. robbery of a store, has a starting point of 8 years imprisonment. (Jim Tau Anis v The State (2000) SC 642; Public Prosecutor v Don Hale (1998) SC 564). This is a three-fold increase from the 5 year starting point set previously by the Supreme Court in Gimble v The State [1988 – 1989] PNGLR 271.
    
14. For unlawful use of a motor vehicle, I am not aware of any sentencing guideline by the Supreme Court but the guidelines suggested by Kandakasi J in The State v James Gurave Guba (supra) do provide some guidelines. There his Honour considered that offences under Section 383 can generally be classed under four broad categories. These are –
    

(a) The offence is committed under serious aggravating circumstances such as serious injuries to the owner of the vehicle, the vehicle itself or other properties and is being committed in the course of or in the furtherance of a serious crime such as armed robbery;

(b) The offence is committed under circumstances in which not all of the factors under (a) exist but only some of them exist. An example of that would be say the vehicle is being taken by force but without injuring the owner or its lawful driver, driven off and is recovered with minor damages to the vehicle or any other property;

(c) The offence is being committed in situations where say a single factor under (a) exist. An example of that would be a case in which say, the owner or legal driver leaves the vehicle unlocked and the offender gains entry and drives off and damages the vehicle;

(d) The offence does not fall under (a) (b) or (c) but is still an offence under s. 383. An example of that would be a case in which say an owner/employer authorizes his employee to use a vehicle for a specified purpose within a specified period but he simply exceeds the authorized purpose and time for the employee's own purpose or interest without advancing his employers interest in any way.

15. His Honour was of the view that a category (a) offence should attract sentences between 4 and 5 years, a category (b) offence should attract a sentence of between 3 and 4 years, category (c) offence a sentence between 1 to 3 years and a category offence should attract 1 year.
    
16. I respectfully adopt these guidelines.
    
17. I must say here that this is not a worst case so it should not attract the maximum prescribed penalties. However, following the starting points set by the Supreme Court for robbery of a store I fix a starting point of 8 years for the count of robbery.
    
18. For unlawful use of motor vehicle, I agree with Mr. Palek that the circumstances of this case would bring it under category (b) of the James Gurave Guba guidelines. Whilst the vehicle was commandeered forcefully by the prisoner and his accomplices to facilitate the armed robbery of the Kedu store, there was no evidence of injury to the owner for the Taxi, needless to say, the danger of that happening was something that the prisoner ought to have reasonably foreseen. I would therefore fix a starting point of 3 years.
19. I must determine an appropriate sentence for the offender. To do that, I must consider his mitigating factors and aggravating factors. I also need previous sentences on similar cases by this court in order to maintain some consistency.
    

MITIGATING FACTORS

20. The mitigating factors are:
    
    • The prisoner co-operated with the police by making early admissions to his involvement in the crime. In fact he had no choice because he was caught on the spot.
    • He pleaded guilty early to the charge.
    • He is a first time offender.
    • He is an unsophisticated illiterate person.
    • He was of previous good character.
    • He has expressed remorse for his offence.
    • There is no evidence that he pre-planned the robbery and hijacking of the vehicle with his accomplices. This seemed more like a crime of opportunity for him.
    • He was severely beaten by members of the public and later by the police. In this regard I agree entirely by what His Honour Batari AJ (as he was then) said in The State v Joe Rex Steven Basu (1997) N1537, that while strong reaction by victims and members of the public, and even the police, is expected in situations like this, the Court should not condone such extra-judicial actions. This was a case of attempted robbery of a motor vehicle where the offender was caught by the public and severely beaten up by the public and later by the police.
    • He also played a pretty insignificant role in the offence and may have simply accompanied the other two for the thrill of it.
      

AGGRAVATING FACTORS

21. There are statutory aggravating factors – the prisoner was in the company of two other persons and they were armed with firearms – a dangerous weapon.
    • This offense is a prevalent offence.
    • The prisoner was intoxicated.
      

SENTENCING TREND

22. Both counsel cited several cases to me to assist me in arriving at an appropriate sentence for the prisoner.
    

(a) Unlawful use of Motor Vehicle

23. The State v Garuve Guba (supra): There the prisoner had pleaded guilty to two counts of unlawful use of motor vehicle after plea bargaining from the more serious charge of robbery. On the first count, the prisoner and his two accomplices had held up the victim at a car park at knife point and took her vehicle. They drove off at high speed but were eventually caught by the police who gave chase almost immediately. His accomplices escaped. He was charged and committed for armed robbery. The vehicle was recovered without any damage to it.
    
24. On the second count the prisoner had approached the driver of a motor vehicle for a lift. The driver agreed and the prisoner and two of his accomplices got on and the driver drove off. On the way the prisoner and his accomplices and they held up the occupants of the vehicle and stole from them K60.00 and some other personal property and drove away in the vehicle. Following good police work, the prisoner was caught with the vehicle in Goroka the next day. The prisoner was also charged with armed robbery and committed for trial.
    
25. His Honour Kandakasi J considered that the circumstances of these cases brought them under category (a) of the tariffs he developed there, but because of the prisoner’s guilty plea, lack of priors and no damage to both vehicles or injury to the victims His Honour imposed head sentences of 3 years which were to be served cumulatively.
    
26. The State v Ananias (2006) N3161: The prisoner pleaded guilty to one count of unlawful use of motor vehicle. He accepted a lift in the vehicle which he knew had been stolen in the course on an armed robbery. He was sentenced to 2 years imprisonment which was partially suspended because of the prisoners ill-health.
    
27. The State v Patrick Sogi (2008) N3437: The prisoner joined a number of other persons to stop a vehicle being driven along a public road. They forced the driver to drive them around looking for beer, then took control of the vehicle and used it overnight before returning it the next day. The court (Cannings J) set a starting point of two and a half years imprisonment and imposed a head sentence of 2 years less time in custody. The balance was suspended.
    
28. The State v Jimmy Banes Ere (2002) N2254: The prisoner pleaded guilty for unlawfully using a motor vehicle which was forcefully removed from its lawful driver during an armed robbery. The vehicle was not damaged nor was anybody injured. The vehicle was recovered the same day in good condition. His Honour Kandakasi J. applied the considerations and tariffs he suggested earlier in Gurave Guba (supra) and found that the circumstances fell between category (c) or (d), but was of the view that a deterrent sentence was needed because of the increasing incidence of the robbery and unlawful use of motor vehicles, His Honour imposed a sentence of 3 years. His Honour ordered that the prisoner serves a year and suspended the balance on condition.
    

(b) Robbery

29. The State v Henry Ben Simukai; CR No.1025 of 2007 (unreported and unnumbered judgment dated 8^th August 2013): There, I sentenced the prisoner there on a plea of guilty to 8 years for robbery of Alotau Enterprises Wholesales. The prisoner there was in the company of others. They were armed with a pistol and a bush knife and stole a total of K23,699.62. The prisoner not only facilitated the hire of the vehicle that was used in the robbery, but also drove the vehicle to and out of the scene of the robbery. He was a first time offender and had pleaded guilty to the charge. However, because of the prevalence of the offence and hence the need for personal as well as general deterrence, I sentence him to 8 years imprisonment.
    
30. The State v Charles Wincy; CR 1000 of 2013 (Unnumbered judgment dated 28^th August 2015 at Alotau): The prisoner pleaded guilty to one count of armed robbery. He was in the company of others and they were armed with firearms when they held up a trade store in a village in the Esa’ala District and stole boxes of batteries valued at K314.20. The offender was caught by villagers and severely beaten up while his accomplices escaped. I fixed a head sentence of 8 years, but because the offender pleaded guilty, was a first time offender and was severely beaten up by villagers, I imposed a sentence of 6 years. I did take into account the prevalence of the offence and the need for deterrence. However, I opted for a sentence below the starting primarily because of the extra-judicial treatment meted out on him.
    
31. The State v Paul Maima Yogol and Dama Teiye (2004) N2583: The prisoners were part of gang of 10 young men who held up a vehicle on a public road and stole cash and goods from the occupants of the vehicle valued at K1300. They were sentenced to 12 years.
    
32. The State v Magani (2011) N455: The 17 year old offender pleaded guilty to the armed robbery of a motor vehicle. He was in the company of others and they were armed with a home-made gun. The vehicle was recovered the next day. The court (Batari J.) considered that a 7 year sentence would have been appropriate in the circumstances, but because an accomplice of the offender had previously been give a 5 year suspended sentence, His Honour imposed a similar sentence to avoid disparity.
    

APPROPRIATE SENTENCE

33. What then should be appropriate sentences for the offender? Having considered the above, it is clear to me that his involvement in these offences was minimal. He was approached by Jamuga and John Waima on the street and was asked to assist them in their illegal enterprise. He was, however, not forced or coerced in any way. On the contrary, he willingly went along with them. While his judgment may have been clouded by intoxication, there is nothing to show me that he was so intoxicated that he was completely oblivious to what he was agreeing to or understand the nature of the enterprise he was being invited to join in. In any case, intoxication is not an excuse as we all know unless it rendered the offender insane, which, I think is not the case here at all.
34. Having said that, I do accept that his part in the whole enterprise was minimal and as I have alluded to earlier, he seemed to have tagged along for the thrill of it. I take into account the fact that he was badly beaten up by members of the public and later by the police, something which cannot be condoned. He is a first time offender and pleaded guilty.
    
35. On the flip-side, armed robbery in company of others is latently a very dangerous offence which poses a lot of danger to victims and innocent bystanders alike. Victims are often left traumatized and the trauma may be indelibly etched in their psyche for the rest of their lives. Possession and use of offensive weapons and the company of others are statutory aggravating factors of the offence which cannot be over-looked.
    
36. The offence of robbery is a very prevalent offence, even, for a so-called peaceful province like the Milne Bay Province. We have seen a spate of robberies in Alotau in the recent past where business houses and Public Motor Vehicles have fallen victim. Hotels, Resorts and guest houses have been broken into and robberies of small crafts and boats are reported to happen quite regularly. All this flies in the face of what the government is doing in promoting the province as the tourism hub of the country. So, I must impose a sentence that not only must be fair on the offender, but must also serve to deter him personally and others as well.
    

SENTENCE & ORDERS

37. For the charge of unlawful use of a motor vehicle I fix a head sentence of 2 years. For the charge of armed robbery I impose a sentence of 5 years. That is a total sentence of 7 years. These offences were committed at the same time, hence, they will be served concurrently. The offender will therefore serve 5 years from which the time spent in pre-conviction custody (9 months and 1 week) will be deducted. None of the balance will be suspended. The offender will serve his sentence at Giligili Corrective Institution.
    

Orders accordingly.
_________________________________________
The Public Prosecutor: Lawyer for the State
The Public Solicitor: Lawyer for the Prisoner