State v Mosley [2018] PGNC 149; N7222 (24 April 2018)

N7222

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR No. 23 OF 2018

THE STATE

V

GABRIEL KAYKAY MOSLEY

Kimbe: Miviri AJ
2018 : 15^th March 23^rd April

CRIMINAL LAW – PRACTICE AND PROCEDURE – Robbery – Plea – office robbery – first offender – PSR MAR favourable to prisoner – serious and prevalent offence – watchman important role – deterrent sentence.

Facts
Accused was part of a group of men who were armed with homemade guns and knives, who held up employees of Air Lines PNG and stole K 1100 in cash and ran away with it.

Held
Early Guilty plea.
First offender.
Serious and prevalent offence.
Deterrent sentence
8 years IHL

Cases Cited:
Anis v The State [2000] PGSC 12 SC642
Gimble v The State [1988-89] PNGLR 271
Gorop v The State [2003] PGSC 1; SC732
Lahui, Hetau, Noho, and Eki, The State v [1992] PNGLR 325
Marase v The State [1994] PGSC 11; [1994] PNGLR 415
State v Malo [2006] PGNC 231; N4520
Simbago v The State [2006] PGSC 23; SC849
Thress Kumbamong v The State (2008) SC 1017.

Counsel:

A Bray, for the State
R Bailey, for the Defendant

SENTENCE

24^th April, 2018

1. MIVIRI AJ: Gabriel KayKay Mosley is charged with Armed Robbery, that he on the 19^th November, 2015 at Kimbe entered the airlines PNG office accompanied by others armed with homemade guns and knives, the office is located in Kimbe Mega Mart Store, they held up Cathy Loi, Miriam Zao, and Elizabeth Foro, threatened them with the weapons and stole K 1100 and escaped.
   

Charge

2. The charge is contrary to Section 386 (1) (2) (a) (b) (c) Criminal Code Act prescribing a maximum penalty of death. Clearly the maximum penalty is reserved for the worse type of cases, which isn’t the case here. It will draw a determinate term of years. And to do so, it is necessary to weigh out the aggravating, the mitigating and the extenuating circumstances of the case.
   

Aggravation

3. It is a crime of violence in this particular case the prisoner accompanied others who were armed with homemade guns and bush knives all dangerous weapons. His company of the group gave it numbers to be able to commit the crime. It is not a light matter to say that he simply stood watch outside. He played a very important part in the robbery because his eyes and ears gave his accomplices comfort to do what they did, go in threaten and to steal the money. And to do it successfully dependent on the role that he played despite his contention that he was unarmed. He played an important role in the robbery.
   
4. The immediate area of the robbery is an office in the heart of Kimbe town where it is frequented by the town people at large. Because the office is of airlines PNG where travelling public frequented and so it put the lives of both those who were there at risk including the workers. And it does not need to be looked far to see the grave result of robbery Lahui, Hetau, Noho, and Eki, The State v [1992] PNGLR 325, Simbago v The State [2006] PGSC 23; SC849. There are many others reported of such magnitude to state fundamentally that it is not the proceeds of the robbery, but the manner in which the crime is perpetrated. Guns are lethal and dangerous weapons and have in many instances killed in the course of robberies. It is even more lethal with homemade guns that do not have safety in the weapons as in the case of factory made ones. The production are with anticipation that there will be resistance it is therefore well planned and timed to execute with as little resistance and in the event of to have weapons ready as demonstrated here. And the role of the prisoner is important in this regard.
   
5. Lawlessness in this way drives business and economic activities to the brink of disaster. Development is chained if left unchecked when the country is now 42 years old going 43 it is important by the sentences imposed to put in bold that criminality and lawlessness has no place and must be stopped with strong deterrent and punitive sentences. This is the intent of parliament when it amended the maximum penalty of this offence from life years to the death penalty, Criminal Code amendment No. 6 of 2013.
   
6. The offence is also a very prevalent, society must be protected, business in Kimbe and elsewhere must be protected and human life must be protected from harm. Prisoner contends that he did not benefit from the proceeds which are even more so of the victim who has not recovered any of the money stolen. It does not mitigate that he did not benefit, he might as well have got the whole sum stolen it is therefore of no significance in the determination of an appropriate sentence in his case.
   

Mitigation

7. In his favour is his early guilty plea made to Police when apprehended which he has maintained in court. It is overt of his intent to change and be a better person. In allocutus, He expressed remorse stating that he has not benefitted from it. Coupled with his credibility in the community depicted out in the presentence reports which I accept in his favour. Here the presentence and the means assessment report are in his favour recommending a non-custodial sentence with conditions on probation. It is a very serious offence but must also be accepted that the prisoner will revert back to society after due time in prison for the wrong. It is therefore important as much as possible based on proper material to give effect to this which is the case with both the probation and the means assessment reports.
   
8. I do so here having due regard first to the fact that the prisoner is a first time offender, aged 23 years old at the time of offence, today at sentence 26 years old, married from Lese in the Gulf Province, with a 3 year old daughter from that union. He has no record of any formal employment as at the date of the offence. But educated to grade 12 maintained by foster parents who have pledged to ensure that he is helped to offset any compensation ordered. Which the prisoner is not capable of as he is not employed. He is of the United Church Kimbe and maintains in youth activities there. He has spent almost eight months in remand since the 28^th August 2017 when information was laid in court on the matter. He was a watchman in the robbery intent on getting money to pay for his course at Moramora Vocational School in pursuing an automotive electrical trade. As said in Gimble v The State [1988-89] PNGLR 271 at 273:
   

“The general rule is that all active participants in the crime shall be sentenced on the same basis The Court does not normally stop to consider whether a particular prisoner actually held up the victim, or held the gun, or the iron bar, or was a watchman outside, or was the driver of the get-away vehicle. All are equally guilty because without each playing his part the crime could not be perpetrated.”

9. That is applicable given the facts and circumstances here, which I apply in the determination of an appropriate sentence for the prisoner. According to the presentence report he is not a threat to the community. His guilty plea has saved court time and resources. It is an honest plea as it was made initially when he was apprehended by police in his confessional and then record of interview 1^st November 2017. This will be accorded in the sentence that is passed upon him. The victim company has asked for reimbursement of the money stolen. To accede and to place that totally upon the prisoner would be not balanced as he is the only one before the court from that crime. There were others as set out by the facts in the offence. But to pay part of it would be fair on his part. In this regard the presentence reports his family will support to dispose the sum of K500 which is one third of the sum charged to which he has pleaded. He was in the crime because he wanted quick money to pay his school fees. But he must be educated that there are no short cuts and he must earn his keep by honest means. Violence and crimes of violence especially armed and aggravated robberies will not be tolerated by the courts. But good antecedents, good prospects with evidence demonstrated before the court will be accorded favourably in the sentence passed. There is evidence of the latter before me in the presentence and means assessment reports.
   
10. Here the prisoner through the presentence and the means assessment reports with the help of his family can be able to pay the sum of K500 to the victim company, but need a minimum of six months within which to pay that money. He must be educated and deterred that crime does not pay. The victim company lost that money instantly it was not taken over time, which is the plea of the prisoner to be given time to settle. And the payment is by his family not he himself as author of the crime. It would not be justice to impose upon his family to wrong the right he was principle to. He must make amends for his action not his family.
    
11. His action must be punished and denounced rehabilitation upon education is unlikely he is not employed nor does he have evidence that the School will accept him back. In accordance with Gimble’s case (supra) I determine this robbery to be likened to robbery of a bank and a store drawing a starting point of 8 years. It is aggravated for the reasons that I have set out above fitting this tariff and range. It is a prevalent offence. That guidelines were set in 1988-89 and since that time to the present this offence has not gone down, it is prevalent as ever. But each case must be determined and sentence passed based on its own facts and circumstances. Tariff and range are amongst matters for and against that are considered in determining an appropriate penalty in a given case: Thress Kumbamong v The State (2008) SC 1017.
    
12. In Anis v The State [2000] PGSC 12 SC642 sentence of 10 years was reduced upon first offenders who had robbed a factory. In reducing the court held that the youthfulness of the offenders were not given due consideration and so reduced to 5 years. I take due consideration and adjudge that the prisoner is 23 years old at the time of the robbery 26 at sentence today. He is not a youthful offender. He cannot be likened to Public Prosecutor v Don Hale [1998] SC 564 because that was a robbery of a dwelling house. Here is an airline ticketing office therefore analogous to a bank and a store drawing a minimum of 8 years starting point. The prevalence of the offence warrants that sentence imposed must take account of the changing times and circumstances, in State v Malo [2006] PGNC 231; N4520 a store was robbed of K 165,924.17 with use of guns and firearms a vehicle was also stolen in that robbery. Police pursued and apprehended the prisoner who was slashed with a knife when apprehended. He pleaded guilty and was sentenced to 8 years IHL. In my view the amount stolen does not weigh heavily in the sentence that is determined it is more to do with the way that the robbery is carried out. And this view is consistent with Marase v The State [1994] PGSC 11; [1994] PNGLR 415 where the appeal was dismissed and the 19 and half year IHL was confirmed for rape and robbery.
    
13. The converse is Gorop v The State [2003] PGSC 1; SC732 where the 20 years sentence for robbery was reduced to 18 years because the National court did not accede to current sentencing trend and tariff. Appellant had badly assaulted a tourist couple with a hockey stick injuring both seriously and then stealing their properties. Consistent in all cases is the fact that it is a serious and violent offence which must be sternly punished. And it is no different here you were given a mobile telephone from which you were going to set the offence into being. It was the call from that mobile phone that was to set the stage for the robbery. You had the choice there and then to stop it or get it into action, and you chose the latter. Your role in my view is critical and important and your sentence will reflect that fact balanced out with your guilty plea together with all that I have set out above.
    
14. You are sentenced to 8 years IHL. You will serve 4 years IHL in jail. The time that you have spent in custody will be deducted forthwith. The other remaining 4 years IHL is suspended on a Probation order for the same period on the following conditions:
    • (i) You shall enter into a probation order for 4 years on the usual terms under the Probation Act.
    • (ii) You shall be resident and remain at section 15 allotment 19 Kimbe and shall not move residency from there without leave of the National Court during the term of your probation.
    • (iii) You shall within 48 hours after release from Jail after service of the 4 years in jail report to the Probation Officer.
    • (iv) You shall perform 600 hours of community work at a worksite to be approved by the Probation Office;
    • (v) You shall keep the peace and be of good behaviour at all times;
    • (vi) You shall not take liquor or any form of intoxicating substance or drugs during the period of your probation;
    • (vii) You shall attend church every weekend for service and worship whilst on probation at the Kimbe United Church.
    • (viii) Within 2 weeks of your release on Probation you shall join your local United church youth group and participate in all its activities during your probation period;
    • (ix) You shall undergo counselling from your local pastor for a number of times as may be determined by the counsellor;
    • (x) Upon release within 6 months you shall reconcile and compensate PNG air K 500 in cash.
    • (xi) The cash payment is to be attended and witnessed by the Probation Officer, and the Police Arresting Officer.
    • (xii) The cash payment is to be recorded and a receipt filed at the National Court Registry by the Probation Officer;
    • (xiii) The Probation Officer shall file a report on the responses and progress of the probationer every six months after the prisoner is released on probation until the probation order lapses.
    • (xiv) In a breach of any of these Probation Orders, your Probation shall lapse and you shall be arrested to serve the whole term of your sentence.
      

Orders Accordingly

__________________________________________________________________Public Prosecutor: Lawyer for the State

Public Solicitor : Lawyer for the Defendant