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State v Taul [2016] PGNC 418; N6909 (7 March 2016)

N6909


PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]


CR NO. 1066 OF 2015


STATE

V

KUMUL TAUL
Prisoner


Kainantu: Polume-Kiele J
2015: 5th & 20th November
2016: 7th March


CRIMINAL LAW – Guilty Plea –Criminal Code Act - s 386 (1) (2) (a) & (c), Robbery- Penalty of which is subject to s 19, imprisonment for life - No prior convictions – Criminal Code, s 19 - Suspension of sentence considered.


CRIMINAL LAW – Sentence - 3 years imprisonment - less period held in custody- s 3(2) Criminal Justice (Sentences) Act - Sentence partly suspended - s 19, Criminal Code


Facts:


On the 27th day of April 2015, Racheal Denmark and Jones Nathan Denmark, who are sibling were on their way home from school. Upon reaching the Mix Compound, Kainantu Town, Rachael Denmark went into the bush to relieve herself while her brother Jones Nathan Denmark waited for her on the side of the road. When she went into the bush, the prisoner armed with a bush knife approached her and pulled her by her shirt collar and demanded money. She refused to give the prisoner any money. The prisoner still demanded for money and upon his insistence, the complainant gave him K2.00 but called out to her brother for help. Her brother Jones Nathan Denmark then ran across to her aid. The prisoner who was still armed with the bush knife chased the brother and also demanded for money and he forcefully got K10.00 from Jones Nathan Denmark as well. It was alleged that at, immediately before or immediately after, the time of the robbery, the prisoner then swung the bush knife at the victim, Jones Nathan Denmark and cut him on the back of his right leg on the thigh and tore his trousers.


The incident was reported to the Kainantu Police and consequently, the prisoner was arrested and charged for stealing with actual violence a sum of K12.00 in cash; the property of Rachael Denmark and Jones Nathan Denmark whilst armed with an offensive weapon, namely a bush knife and that he also applied personal violence to both victims, actions which contravened s 386 (1), (2) (a) & (c) of the Criminal Code.


The prisoner is 40 years old and comes from Kagul Village, in Sinesine, Simbu Province. He is married with 9 children. The prisoner has no formal education and is a subsistence farmer. Prior to and at the time of the commission of the offence, the prisoner was living with his family at the Mix Compound, Kainantu Town and supported them financially through subsistence farming.


Held:


  1. The offence of robbery with actual violence under s 386 (1), (2) (a) & (c) attracts a penalty subject to s 19, imprisonment for life.
  2. The prisoner during his arraignment admitted to the charge of robbery with actual violence under s 386 (1), (2) (a) & (c) of the Criminal Code.
  3. The State relied on documentary evidence which comprised of Witnesses’ Statements and the Police Record of Interview which had been tendered into evidence by consent.
  4. Sentence to 3 years imprisonment; less the period of 7 months 21 days held in custody. In the exercise of discretion under s 19 of the Criminal Code, 2 years of the sentence is suspended on terms. The balance of the term of sentence of 4 months 9 days imprisonment will be served in CIS, Bihute.

Cases cited:

Gimble v the State [1988-89] PNGLR 271
Public Prosecutor -v- Don Hale (1998) SC564
Ure Hane v the State [1984] PNGLR 105
SCR No. 1 of 1984: Re Maximum Penalty PNGLR 418
State v Albert Kavena (CR No.1444 of 2014) (21 September 2015) (Unreported)
State v Epo Matao (CR NO. 168 OF 2015) (21 of September 2015) (Unreported)
State v Knox [2008] PGNC 79; N3339 (15 May 2008)
State v Nigel Kopper Kingsley (2011) N4465
State v Tingin [2005] PGNC 5; N2956 (26 September 2005)


Counsel:


Barbara Gore, for the State
Samuel Ifina, for the Prisoner


JUDGMENT ON SENTENCE


7th March, 2016


  1. POLUME-KIELE J. The prisoner appeared before me on the 5th of November 2015. He pleaded guilty to one count of robbery with actual violence contrary to s 386 (1), (2) (a) & (c) of the Criminal Code Act (Ch No 262). This offence attracts a penalty which is subject to s 19, imprisonment for life.

“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) –

Committal Court Disposition


  1. The State relied on documentary evidence which comprised mainly of statements from the witnesses including the victims and the Police Record of Interview which were contained in the Kainantu District Court Deposition that had been tendered into evidence by consent to substantiate its allegations against the prisoner. These documents consisted of:
  2. Upon the reading of the Committal Court dispositions; this Court was satisfied that the evidence contained in the dispositions supported the charge and the prisoner’s guilty plea was accepted. The prisoner was convicted on the charge of robbery with actual violence under s 386 (1), (2) (a) & (c) of the Criminal Code Act (Ch No 262).

Antecedent Report


  1. The prisoner is an adult male and married with 9 children. His first wife has since died but his second wife is alive. He lived with his family at Mix Compound, Kainantu Town, Eastern Highlands Province. He had been employed previously as a security guard but is now unemployed. He is now a subsistence farmer. The prisoner has no prior convictions. This fact is inconsistent with the Pre-Sentence Report which indicated that there had been a prior incident of being in trouble with the law but no details had been disclosed so I will not venture into this.

Pre-Trial Detention


  1. The prisoner was committed to stand trial on the charge of robbery with actual violence under s 386 (1), (2) (a) & (c) of the Criminal Code Act (Ch No 262) on the 24th of July 2015. He has been remanded since then. He has been held in custody for a period of 7 months 21 days to the date of this ruling on sentence.

Allocutus


  1. When administering the allocutus, you were asked if you had anything to say on the issue of penalty. You stated that you wished to speak to the Court on the issue of penalty and thus given the opportunity to speak on the issue of penalty. In your statement on penalty, you said that you were sorry for what you did. You apologised to the court and court staff and all those people present in the court room for what you had done. In addition, you asked for leniency from the Court. Furthermore, you stated that you are married with children. You stated that your first wife has since died but you have four children from that marriage. Your second wife is still alive and you have 5 children from that relationship. You also stated that five of your children are at school. Apart from your family, you also have a number of domesticated animals, pigs and dogs and that you also cultivated gardens including coffee gardens. In your overall statement to the Court on the issue of penalty, you have stated that you are very sorry again for what you did and that you asked this Court that you be placed on probation so that you can go home and take care of your family and coffee gardens. You asked again for leniency from the Court and said that you are prepared to pay compensation for the wrong done to the victims.
  2. Because you had asked to be placed on probation and to pay compensation, your lawyer, Mr Ifina requested that this Court direct the Community Based Corrections (CBC) Office to prepare a Pre-Sentence Report and a Means Assessment Report to be complied on you and have it filed for purposes of assisting this Court determine the issue of penalty. This process is now a necessary component of the Court process where prisoners have exercised their right to ask the Court to be placed on probation. To facilitate this process, this Court had directed the Probations Officer, (Kainantu) to prepare and file a Pre-Sentence Report and Means Assessment Report on for purposes of determining your suitability as a candidate for probationary orders to be filed prior to the 19th of November 2015. I have perused these Reports in determining the severity of sentence.

Pre-Sentence Report


  1. According to the Pre- Sentence Report, you have three brothers and two sisters who are all married and living at the Mixed Compound, Kainantu in their own respective homes. You are the second child in the family. All your siblings are subsistence farmers and do not earn a regular salary. However in spite of not earning a regular income, you have indicated that you are prepared to pay compensation to the victims, whatever the outcome of the National Court decision. Furthermore, you also asked that the court to give you a grace period of three months to pay compensation. With regard to community views, this Court noted that the Community hold the view that payment of compensation is necessary for purposes of reconciliation however, the family members interviewed during this process have stated that they lacked the capacity to pay compensation due to their lack of employment but they are prepared to organize themselves raise funds for compensation payment.
  2. Overall, the Pre-Sentence Report compiled by the Probation Officer, recommended that you are a suitable candidate to be placed on Probationary supervision with certain terms and conditions and these are:
  3. Whilst this court is grateful for the preparation of the Pre-Sentence and Means Assessment Reports and his promptness in the completion of such; there are certain aspects of the recommendations which are unclear such as the time frame in terms of counselling sessions and the type of work hours recommended. However, this Court will exercise its discretion in determining the time frame and type of works hours to be imposed should it determine that such probationary orders are to be imposed. Furthermore, the overall demeanor of the prisoner over the period when the offence was committed, does not favour him. In that there has not been any attempts made to pay any compensation to the victims for the items stolen nor any reconciliation made towards maintaining peace and harmony within the community of Mix Compound, Kainantu Town. This behaviour does not indicate any remorsefulness for what you have done wrong. Furthermore, whilst the community speaks well of you and has shown their willingness to assist rehabilitate you back into the community, including your request to this court to give you an opportunity to make amends and to pay compensation, nothing constructive has materialised up to now.

Mitigating Factors


  1. In order to determine the severity of sentence, the Court took into consideration factors relevant to this case such as your early guilty plea, which greatly assisted this Court in arriving at this early outcome. In addition, this Court also noted that you are a first time offender, your co-operation with the police and explanation as to how you committed the offence in the Record of Interview are factors in your favour.

Aggravating Factors


  1. The aggravating factors against you stole a sum of money of K12.00, although not very substantial, it should be pointed out that this Court does not condone your actions. You had robbed the victims of their cash of K12.00 and also applied physical violence on their persons by pulling one of the victims Rachel Denmark by the collar of her shirt and cutting the other victim, Jones Nathan Denmark with a bush knife on his right leg on his thigh; at, immediately and/or during the commission of this robbery with a dangerous weapon, namely a bush knife. This type of offence is prevalent.

Elements of the Offence - s 386(1) (2) (a) (b) (c) Criminal Code


  1. In order to substantiate the charge of armed robbery, the elements of the offence must be established by evidence under section 386(1) (2) (a) (b) (c) of the Criminal Code. In that the State must prove the following:
  2. In your case, the State did not call any oral evidence to corroborate the evidence contained in the various witnesses’ statements but relied on these oral statements which had been tendered into evidence by consent to substantiate the allegations. These witnesses’ statements clearly showed that a robbery had occurred along the Okuk Highway within the surrounding of the prisoner’s food garden on the 27th of April 2015. The cash amount of K12 was recovered by police on the same day that you were arrested and charged for the offence. For purposes of this charge, money is capable of being stolen and the commission of this robbery was carried out with the use of a bush knife which is a dangerous and offensive weapon. Furthermore, personal violence was used to commit the robbery whereby the victims were threatened with a bush knife and one of the victims, Nathan Jones Denmark sustained a cut on his right thigh with the bush knife. The case of Gimble v the State [1988-89] PNGLR 271 is a useful guide in determining the severity of sentence in armed robbery with actual violence cases. Matters taken into account in the determination of sentence therefore will involve the amount of money stolen, the weapons used to commit the offence, and the effects on the victims. This is a case of robbery that occurred due to opportunity. There was no planning involved.

Submission on Sentence


  1. Mr Ifina in his submission on behalf of the prisoner on sentence submitted that although the prisoner had pleaded guilty upon indictment to the charge of one count of armed robbery with actual violence contrary to of the Criminal Code Act; for which the maximum penalty prescribed under s 386 (1), (2) (a) & (c) of the Criminal Code Act (Ch No 262) is subject to s 19, life imprisonment. Mr Ifina reiterated that the courts have wide discretion under s 19 of the Criminal Code to impose a lesser penalty.
  2. In these circumstances, the issue before the court is whether the prisoner should be sentenced according to the penalties prescribed under s 386 (1), (2) (a) & (c) of the Criminal Code Act (Ch No 262)? Mr Ifina submitted that the maximum sentence of life imprisonment is not applicable in this case because of a number of reasons and outlined these reasons to be as follows: Firstly, the facts of the case is peculiar and different thus this court should consider imposing sentence on a case by case basis; Secondly by operation of s 19 of the Criminal Code, this exercise of powers gives this Court wide discretion in making the maximum sentence discretionary; thirdly, this case does not fall into the worst case scenario and thus does not attract the maximum sentence prescribed under s 386 (1) (2) (a) & (c). Whilst this Court noted that you had used force or used a lethal weapon, namely a bush knife to apply personal violence and cut the one of the victims, Jones Nathan Denmark on the right leg on his thigh, during the commission of the offence, Mr Ifina argued that this present case does not warrant the imposition of the maximum penalty and therefore submitted that the imposition of the maximum penalty should be reserved for the very worst types of cases of armed robbery and referred to the cases SCR No. 1 of 1984: Re Maximum Penalty [1984] PNGLR 418; Avia Aihi v the State [1982] PNGLR 92 and Ure Hane v the State [1984] PNGLR 105 in support of his submission. A number of case authorities were also referred to in support of submission on sentence and these case authorities are appropriately discussed in this judgment.
  3. Ms Gore for the State submitted that this is a case where you, had robbed the victim of their cash of K12.00 and applied physical violence on their persons. Ms Gore argued that you; at, immediately and during the commission of the offence used force or used a lethal weapon, namely a bush knife to apply personal violence by cutting one of the victims, Jones Nathan Denmark on the right leg on his thigh. Ms Gore further submitted that to date, no attempts have been made to reconcile or to pay compensation to the victims. Whilst it is also noted that the prisoner has stated in the Pre-Sentence Report that he is willing to pay compensation, there is really no genuine attempt or efforts made to do so. This Court has wide discretion under s 19 of the Criminal Code to impose an appropriate penalty; including discretion to also impose conditions as to the payment of compensation and to reconcile and make peace with the victims and their family. Overall, the Court exercise discretion to impose a custodial sentence.

Determination of sentencing criteria


  1. In the present case, the prisoner admitted to the offence. In determining whether the prosecution has proven the elements of the offence under s 386(1) (2) (a) & (c) of the Criminal Code, it is clear that a robbery had occurred at the Mix Compound, Kainantu Town whereby the complainants Rachael Denmark and Jones Nathan Denmark has been robbed. It is also clear that they were robbed of their money, K12.00 in all. Furthermore, at the time of the robbery, the offender was armed with a dangerous weapon, namely a bush knife which he used to attack Jones Nathan Denmark on the right thigh and tearing his trousers. The offender also physically used other personal violence on Racheal Denmark by pulling her on the collar of her shirt.
  2. Money in this instance is capable of being stolen. Furthermore, the robbery was perpetrated using a dangerous and offensive weapon, namely a bush knife. The prisoner was subsequently arrested by police along the Mix Compound Road and taken into police custody for interrogation. During interrogation, the police found that the prisoner had on his person a K2.00 and K10.00 bank notes, which was consistent with the statements of the witnesses, namely Racheal Denmark who stated that she was robbed of a K2.00 note and Jones Nathan Denmark who stated that he was also robbed of a K10.00 note.
  3. This court is satisfied that all of the elements of the offence have been proved by the prosecution. The next issue therefore is to determine an appropriate penalty and I refer to the sentencing guidelines established in the case of Gimble v the State [1988-89] PNGLR 271; which is relevant to this case where several indicators were used to determine the severity of sentence for robbery cases. These were:
  4. As Mr Ifina Counsel pointed out, the principle applied in Gimble v State (supra), although relevant to the determination of penalty involving robbery cases, this case was decided more than 25 years ago. Whilst these principles are applied by the Courts, the Courts also have a wide discretion to impose sentences over the starting point established due to the prevalence of such offences. However, Mr Ifina submitted that although this Court has discretion to impose an appropriate, he submitted further that it is settled law in this jurisdiction that the maximum penalty for an offence should ordinarily be reserved for the very worst types of cases. Thus the question which arises is whether this present case is the worst type of robbery? (SCR No. 1 of 1984; Re Maximum Penalty [1984] PNGLR 418, Avia Aihi v the State [1982] PNGLR 92 and Ure Hane v the State [1984] PNGLR 105).
  5. Mr Ifina submitted that this Court should determine the facts and circumstances of each case on its own merits in order to determine an appropriate penalty. The prisoner in this case was annoyed that the victims were using his garden patch as a toilet. Further, the robbery was unplanned. However, the facts remained that a robbery had occurred. The victims were robbed of their case K12.00 and sustained personal physical violence on their persons and the prisoner has admitted to committing such an offence and has to be dealt with accordingly. This Court is assisted with citation of a number of case law and I refer to these accordingly in determining penalty.
  6. In the case of State v Nigel Kopper Kingsley (2011) N4465, the offender had pleaded guilty to taking part with another person in a holdup of a victim on the street whereby the victim was threatened with a hammer which had been disguised as a home-made gun and stealing his bilum containing his personal items including two mobile phones. Whilst there was no actual physical violence occasioned on the victim, the victim was nevertheless traumatized by the incident. The offender was subsequently sentence to three years imprisonment.
  7. Similarly in the cases of State v Tingin (2005) N2956 and State v Knox (2008) N3339, the offenders were part of a group that had planned a holdup and robbery of persons walking their way around a Golf Course. Items of value stolen included cash, wristwatches, shoes, golf club, bush knife, tools and other personal items. The Court in determining sentence imposed a sentence of 11 and 9 years in regard to the State v Nigel Kopper Kingsley case (supra) and in the case of the State v Tingin case (supra), the offenders were sentenced to imprisonment for a term of 7 and 6 years respectively with three years of the sentence suspended on terms.
  8. In applying the principles applied in these cases to your circumstances, this Court notes that you have pleaded early in your indictment. This has saved Court’s time and expenses. You have cooperated with the police and a first time offender. Whilst this Court noted that the value of the money stolen is not substantial and that you acted alone; this does not absolve you from the wrong that you have committed. On the other hand, you have also expressed remorse for your wrongs and apologised to the Court for what you have done. At the same time, there are aggravating factors that go against you and these are that you had robbed the victims of their cash of K12.00 and also applied actual violence on their persons by pulling one of the victims Rachel Denmark by the collar of her shirt and cutting the other victim, Jones Nathan Denmark with a bush knife on his right leg on his thigh; at, immediately and/or during the commission of this robbery with a dangerous weapon, namely a bush knife.
  9. This type of offence is prevalent and serious in nature, for which an appropriate punishment must be imposed as a deterrent so that others must be aware that such crimes do have consequences and that offenders are deterred from re-offending. On the other hand, the severity of such punishment have to considered in relation to the circumstances and merits of each case and must be reserved for the worst type of offences given the principles established in the case of (SCR No. 1 of 1984; Re Maximum Penalty (supra); Avia Aihi v the State (supra); Ure Hane v the State (supra)
  10. Furthermore, consideration would also be given where there is some indication of willingness to pay compensation and reconcile with the victims and their families. As stated in a number of judgment (see State v Albert Kavena (CR No.1444 of 2014) (21 September 2015) (Unreported), State v Epo Matao (CR NO. 168 OF 2015) (21 of September 2015) Unreported; on compensation, it would be more convincing if some form of payment were made prior to the matter being brought before the courts or the conclusion of these proceedings.
  11. The Pre-Sentence Report provided by the Probation Officer has also recommended that the prisoner is a suitable candidate for a suspended sentence and this is supported by the case of the Public Prosecutor -v- Don Hale (1998) SC564 and where the prisoner has requested for a suspended sentence. In the light of the matters discussed above, I am satisfied a partly suspended sentence is appropriate.
  12. Upon consideration of the above matters, the prisoner is sentenced to 3 years imprisonment with hard. I deduct the period of 7 months 21 days that the prisoner has been held in custody pursuant to s 3 (2) of the Criminal Justice (Sentences) Act 1986. In the exercise of discretion under s 19 of the Criminal Code, 2 years of the sentence is suspended on the following terms:
  13. The prisoner is to serve the balance of the term of sentence of 4 months 9 days imprisonment at CIS, Bihute.

Orders accordingly
__________________________________________________________________________
Public Prosecutor: Lawyer for the State
Public Solicitor: Lawyer for the Prisoner


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