State v Wingan [2016] PGNC 433; N7490 (20 October 2016)

N7490

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR NO. 899 OF 2016

THE STATE

-V-

JETHRO HOSEA WINGAN

Lae: Pitpit,J
2016: 3^rd, 14^th & 20^th October

CRIMINAL LAW - Sentence-Aggravated robbery-on the street-Pleaded guilty-First time offender-Expression of remorse and regret-A Juvenile of 17 years- was a student when he committed this offence-school still very interested to take him back-Willingness to reconcile and apologise to the victim in person-Criminal Code Act section 386(1)(2)(a) and (b).

Cases Cited:

Gimble-v- The State [1988-89] PNGLR
Tau Jim Anis –v- The State [2000] SC 642

Counsel:

Ms. Patricia Matana, for the State
Mr. Joshua Huekwhain, for the Accused

20^th October, 2016

1. PITPIT,J: You had been charged and had pleaded guilty to the following allegations:
   

That you on the 26^th of December 2015, at about 3:00pm in the afternoon of that day you were at the 4^th street here in Lae with four (4) others,

when one Steven Gola an employee of the Lae International Hotel was on his way to work. As he came to where you and your four (4) friends were, you held him up with a gun and knife and stole from him, 3 Alcatel mobile phones valued at K150 each, 1 boom box valued at K70.00, a billum and a new collar shirt totalling to a sum of K550.00 the properties of said Steven Gola.

2. The State says that the conduct and action by you and your four (4) accomplices were contrary and in breach of the Criminal Code, section 386 (1), (2)(a) and (b).
   
3. State also alleged that the accused and his four (4) friends have acted in concert and are each and severally guilty of committing this offence under section 7 of the Criminal Code Act.
   
4. On allocutus, the prisoner had stated the following to the Court;
   

Thank you Your Honour for giving me this opportunity to say something for what I had done.

Firstly, I wish to say that I am truly sorry to the victim for what I have done to him. I was a student and since this trouble I have been in custody and have learned many things.

Your Honour, when I was small, my father had left us and it has now been 7 years. My mother is unemployed and I asked the Court for understanding and mercy.

I have learnt a lot of things and regret what I have done and the life I am now experiencing and living.

I ask if the Court can have mercy on me and place me on probation.

5. In support of what you had stated on your allocutus, your lawyer Mr Tjipet had submitted the following;
   
   1. That you are 17 years old and comes from a mixed parentage of East Sepik Province and Morobe. Your father for some reasons has left your mother for another woman when you were only two weeks old. It is said that he now has remarried and lives with his new wife at 12 mile just outside the city. Meanwhile you have been living with your mother in a three bedroom house at Hornbill Crest, 7^th Street here in the city.
      
   2. I am told also that you come from a family of 4 children and you are the youngest. You have two other brothers and a sister. Two of your siblings are living away from your family home while you and your eldest brother reside with your mother.
      
   3. I am also told that you have lost contact with your father and that you depend entirely on what little your mother could make from whatever she sells.
      
6. The maximum punishment for the offence you have been charged with and you had pleaded guilty to; is death. This was recently changed by Parliament from the previous maximum of life imprisonment. The Parliament had caused this change following numerous calls from the Public throughout the communities from the length and breadth of our country.
   
7. The people are tired and fed up of this sort of crimes that have besieged our communities and villages. Hardworking law abiding citizens who are surviving on an honest day work are being terrorised, threatened and disposed of whatever little possession they have earn through hard work and sweat. The Parliament has played its part in positively responding to the cry of the people. It is now for the Court to compliment the change the Parliament has made and give effect to the wishes of the people.
   
8. This to me, means the Court needs to get tough and start imposing the kind of penalty that would discouraged and deter others for committing such crimes.
   
9. Even though, the maximum punishment is “death”, the punishment that is to be imposed has to be proportionate to the gravity of the offence.
   
10. From the brief of the circumstances of your case, your case to me is one that does not warrant the maximum or next maximum of punishment.
    
11. What could the appropriate punishment be in your case? I have been guided by previous decision made by the Supreme Court and in the case of Gimble -v- The State [1988-89] PNGLR 271 it was stated:
    

That 1.On a plea of not guilty by young first time offenders carry weapons and threatening violence for-:

(a) robbery of a horse – a starting point of seven years;
(b) robbery of a bank – a starting point of six years;
(c) robbery of a stove, hotel, club, vehicle on the road or the like – a starting point of five years
(d) robbery of a person on the street – a starting point of three years.

4. features of aggravation such as actual violence, large amount stole, or where the robber is in a position of trust towards the victim may justify a higher sentence.
   
5. A plea of guilty may justify a lower sentence.
   
12. The Supreme Court in the case of Tau Jim Anis –v- The State [2000] SC642 – when reviewing a sentence of 10 years imposed on first time young offender said:
    

We are of the view that a sentence of 10 years for first time young offenders like the two appellant in this case who according to Gimble-v- The State would be sentenced to five years on a trial as the starting point seems to be a big jump.

13. In my view, Gimble’s tariff was a decision of some 25 years ago. The case of Tau Jim Anis-v- The State is also some 16 years ago now. The tariff ought to be reviewed and ought to be consistent with the recent intention by Parliament.
    
14. In the present case you are 17 years old first time offender, armed with dangerous weapons threatened and robbed someone on the street would no doubt called for a lenient sentence but has to be articulated to ensure deterrence and retribution objective is achieved.
    
15. Taking everything into account I have decided that a sentence of 6 years imprisonment is appropriate:
    

Less period spent in custody, 9 months, 2 days.

16. The balance of 5 years, 2 months and 29 days are to be fully suspended on condition:
    
    1. That you would be of good behaviour;
       
    2. That the duration of your suspended sentence, you are to abstain from consumption of alcohol or homebrew or any forms of drugs; and
       
    3. That you are not to be associated with any criminal groupings;
       
    4. That you undertake a 24 months probationary monitored programs.
       
    5. And that you are to report first thing on Monday morning 24^th of October 2016 at 10:00am to the probation officer Jane and for the probation officer to identify, determine and facilitate the appropriate program for you to undertake.
       
    6. That a quarterly report is to be formalised to this Court for the duration of the probationary programmes.
       
    7. That this matter be returned before this Court on Tuesday 8^th November 2016 for the probation officer Jane Taibob to brief the Court on the details and nature of the probationary program that the prisoner would undergo.

______________________________________________________________
Public Prosecutor: Lawyer for the State
Public Solicitor: Lawyers for the Prisoner