State v Levin [2017] PGNC 324; N6962 (20 May 2017)

N6962

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR 1001 of 1999

THE STATE

V

BABEN LEVIN

Kandrian : Batari J
2017: 17, 20 May

CRIMINAL LAW– sentence – armed robbery – robbery of vehicle – group of armed youths set up road block and stole from a vehicle items valued K173.00 – plea - offence committed 18 years ago – accused voluntarily surrendered from absconded bail - youthful offenders in 1999 – incarceration – long period of, without trial - person charged with criminal offence - effect of – mitigating factors – co-accused sentenced in 2014 - considerations of - sentence of five years with probation orders 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:

A. Bray, for the State
D. Kari, for the Accused

20 May, 2017

1. BATARI J: Overview: You 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. I had earlier, on 20/10/2014 dealt with your co-accused. This is your turn to be punished following your guilty plea to the same charge.
   

Background

2. The common facts are that on the afternoon of 26/3/1999, you and your accomplices set up a roadblock at Coup Six Junction, a logging operation road at Passismanua, Kandrian. You had in your possession, an axe, grass-knife and homemade guns. An employee of Rimbunan Hijau logging company, Lui Siu Wong Kaikaiwin, stopped at the road blockade and you forced him out of the vehicle. One of your group struck him on the shoulder with the axe and demanded money. Because he had nothing on him, the three of you stole from the vehicle, two chain saw chains and a fuel container at total value of K173.00.
   

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 intention known through a recent amendment, that stealing with violence is such a serious crime, for which the ultimate death penalty will be justified for armed robbery committed with circumstances of aggravation
   
4. You committed this armed robbery 18 years ago in 1999. The maximum then was life imprisonment. The maximum penalty provides a guide for the Court’s 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 persons 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 communities today. Armed robbery violates 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 apprehension and fear of harassment and 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 vicious conduct of the prisoner and his cohorts threatened the lawful presence of the victim on the road. The victim, Lui Siu Wong Kaikaiwin and his workers were no doubt badly shaken and apprehensive by the sudden attack. The potential for serious injury in armed hold-up is always present and can be most intimidating. Fortunately, no actual personal injury was alleged in the agreed facts. But this does not remove the gravity of the robbery incident.
   
8. These considerations favour tough measures against the crime of robbery within the legal limits of what the Court to can do.
   
9. In my view, punishment should be aimed at discouraging young urban dwellers and villagers against anti-social behaviour and such criminal activity as in this case. The sentence should be aimed, not only at punishing the offender personally but, it should also have the effect of warning would-be offenders, they risk meeting with severe punishment 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 four main categories. The accepted norm and practice has been to maintain those separate categories and that the maximum sentence is reserved for the worst type case. The seminal Supreme Court case of Gimble v The State [1988-89] PNGLR, 271 remains the focal point of reference on this aspect.
    
11. The recommended starting points in that case are relevant where young first offenders carrying weapons and threatening violence are convicted following a trial. Where actual violence was used or other aggravating factors like loss of substantial amount of money were 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.
    
12. From Gimble’s case, a three year common denominator has been favoured and followed from subsequent Supreme Court Cases of, 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). So, the current guideline is;
    
    • (i) robbery of a house – a starting point of ten years;
    • (ii) robbery of a bank – a starting point of nine years;
    • (iii) Robbery of a store, hotel, club, vehicle on the road or the like – a starting point of eight years; and
    • (iv) Robbery of a person on the street – a starting point of five years.
      
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. For your case, the aggravating features alleged under s.386 (2) (a) (b) of the Criminal Code are, that you were armed with dangerous weapons, you were in the company of others and that you used actual violence.
    
15. My task today is made easier by the pre-sentence report compiled by Probation Officer Mrs Delker Samuel in a commendably short space of time. The report is fairly comprehensive. It recommends that the same treatment your convicted accomplices got, be extended to you. I think that is the most sensible approach. I see no reason to deviate from the sentences imposed on your accomplices.
    
16. Both counsel also agree that the principle of disparity of sentence does not apply in your case and that you be given the same sentence as Apet Anton. Your accomplice Stanis Selkit was sentenced to seven years imprisonment as he had a second conviction. Apet Anton was sentenced to five years. The sentences were wholly suspended and the prisoners placed on probation. Reviews of their progress on probation have shown most promising results. Both are now heavily involved in their local church and community leadership roles.
    
17. There are other important factors which favour the individual treatment in sentencing you. Your personal circumstances showed a pursuit of useful employment as heavy machinery driver with various timber logging companies in Kandrian. Following you bail abscondment, you married two wives and pursued self-help cash cropping to sustain your family. You also got involved in church activities. I accept your plea of guilty and expression of remorse have merit for consideration. Although belated, your plea is explained in the administration of your case from arrest to your initial conviction and sentence on this same charge and appeal to the Supreme Court. The sketchy chronology of your case is that –
    
    • 26/3/1999 – robbery was committed.
    • Date of arrest confusing from Police charge sheet CB. NO.566/99.
    • 8/6/1999 – Notice of Committal to stand trial in National Court.
    • Pleaded guilty and convicted on unknown date.
    • 25/5/2000 – Supreme Court upheld appeal and ordered retrial
    • 20/7/2001 – Bail granted to Accused Baben Levin.
    • 20/7/2003 – Bench warrant issued for arrest of accused.
    • 11/5/2017 –Voluntarily surrender during Court Sittings at Kandrian.
    • 17/5/2017 – Pleaded guilty and convicted.
    • 20/5/2017 – Sentenced
      
18. There is no reason why the Supreme Court orders for re-trial was not progressed in 2000 or soon thereafter. Your record of interview contained clear admissions. You could have simply been re-arraigned or a short trial conducted on a defence of compulsion. In the brief written judgment, the Supreme Court, (Los J, Salika, J, Injia J, then) stated “...we are of the view that his honour ought to have vacated the guilty plea and ordered a trial or alternatively inquired of counsel what his instructions were.”
    
19. All along and before bail you had spent more than three years in custody. This is an excessive period against which the Constitution guards. Furthermore, your bail condition which required you to report at Kimbe was untenable. No regard was paid to the fact that your residential location was at Kandrian Inland. The bail condition was excessive, possibly hush and oppressive. Expectation of strict compliance would be unreasonable. It is no wonder you jumped bail by returning to your village.
    
20. I view that the system failed you badly when an early trial could have shortened your waiting time. There was then, a judge resident in Kimbe with lawyers from the two constitutional offices on ground. The delay is inexcusable.
    
21. I take into account the difficulties and distress caused by the long delay in finalising your case. Mr Kari submitted that your pre-bail custody period of three years, nine months in custody before bail be deducted from the head sentence. I propose to deduct that time from the head sentence.
    
22. I have considered whether or not to suspend all or part of the sentence. The PSR states that you have been an active member of the Baptist Church Youth group (Whiteman Range) as a guitarist for the local and outreach programs. I am satisfied on the evidence of your involvement as guitarist for your church singing ministry that you will not re-offend.
    
23. I consider alternative to imprisonment is warranted for the reasons that:
    
    • (i) The term you have served in prison awaiting trial is sufficient to have impressed upon you, crime does not pay. It would have taught you hard lessons that severe restrictions on individual freedom and choices in prison are best avoided.
      
    • (ii) Punishment is not all about imprisonment. Where rehabilitation and reformation of the prisoner has some 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) You were a youthful first offender, with potential to redeem your past to be a better and useful member of the community again.
      
24. In the upshot, I consider that a term of imprisonment is appropriate. I will impose five years and suspend the whole sentence to be served on Probation. To ensure you are also effectively punished in the community, I will include community work orders.
    
25. You are sentenced as follows:
    
    1. Five years imprisonment IHL.
       
    2. The pre-custody period of three years, nine months is deducted and you shall be discharged forthwith to serve the balance of one year three months imprisonment on probation and in addition, YOU SHALL -
       
       • (a) Within 48 hours, report to the Probation Officer;
         
       • (b) Reside at Dinang village, Kandrian Inland and nowhere else without leave of the National Court;
         
       • (c) Not leave Dinang village, Kandrian or West New Britain Province without leave of the Court;
         
       • (d) Perform 600 hours of unpaid community work at a worksite nominated by Probation Officer and approved by the National Court;
         
       • (e) Attend church every weekend for service and worship and submit to counselling;
         
       • (f) Join the Baptist Church Youth group at Whiteman Range and take active part in all its outreach programs and activities;
         
       • (g) Not take, consume, or deal with any form of alcohol or drug;
         
       • (h) Keep the peace and be of good behaviour at all times;
         
       • (i) Have a satisfactory probation report filed with the National Court Registry as required;
         
       • (j) Appear before the National Court as and when required.
         
    3. The Probation Officer shall file a report in October, 2017 and thereafter, six monthly reports and whenever required on your responses and progress on probation until discharged.
       
    4. 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.
       
    5. These Probation Orders will lapse on or about 19 August, 2018.
       

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