State v Sabas [2018] PGNC 151; N7248 (11 May 2018)

N7248

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR No. 1325 OF 2017

THE STATE

V

MAIA SABAS

Kimbe: Miviri AJ
2018 : 21 March, 26 April, 7 & 11 May

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

Facts:

Accused was with two others armed with slingshots and homemade firearms which they used to threaten the victims employees of a company and stole a chain saw.

Held:

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

Cases:

Public Prosecutor v Don Hale [1998] SC 564
The State v Anis [2000] PGSC 12 SC642
The State v Gimble [1988-89] PNGLR 271
The State v Gorop [2003] PGSC 1; SC732
The State v Lahui, Hetau, Noho, and Eki, [1992] PNGLR 325
The State v Malo [2006] PGNC 231; N4520
The State v Marase [1994] PGSC 11; [1994] PNGLR 415
The State v Simbago [2006] PGSC 23; SC849
The State v Thress Kumbamong (2008) SC 1017.

Counsel:

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

SENTENCE

11^th May, 2018

1. MIVIRI AJ: This is the sentence of a man who pleaded guilty to robbery.
   

Background

2. Prisoner accompanied two others who were armed with slingshots and homemade guns on the 25^th January 2017. They went to Galai 2 Matmat Forest. There they held up Benjamin Pomolo and Philip Wangi both of whom were employed by Stettin Bay Lumber Company. They threatened them with the weapons they had. In fear both victims gave possession of the chainsaw. The prisoner and accomplices took it and fled.
   

Charge

3. The charge is contrary to S.386 (1) (2) (a) (b) (c) Criminal Code Act prescribing a maximum penalty of death. Clearly the maximum is reserved for the worse case which isn’t the case here. Therefore a determinate term of years weighed out with the aggravating and the mitigating and extenuating circumstances of the case to arrive at.
   
4. Prisoner pleaded guilty which was confirmed from the depositions that were tendered. Initially to the Police in the record of interview he denied the offence. Other evidence before the court in the file implicated him and the subject chainsaw was recovered by his brother from where prisoner directed him to and returned to the company Stetting Bay Lumber Company.
   

Allocutus

5. I am sorry for what I have done. I apologise to the court for hearing my case. The Securities came with my elder brother and I handed over the saw to them.
   

Aggravation

6. It was a crime of violence in that the prisoner accompanied two others armed with slingshots and homemade guns which they threatened the two victim employees of the Stettin Bay Lumber company who were cutting logs and clearing the woods when they were held up. It was a dangerous offence committed without regard for the law. The grave consequences it posed were very real: Lahui, Hetau, Noho, and Eki, The State v [1992] PNGLR 325; Simbago v The State [2006] PGSC 23; SC849. It is the way and 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 to time to execute with as little resistance and in the event to have weapons ready as demonstrated here. And the role of the prisoner is important in this regard.
   
7. 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 lawless has no place and must be stopped with strong deterrent denouncing 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.
   
8. The offence is also a very prevalent offence society must be protected, business in Kimbe and elsewhere must be protected; human life must be protected from harm. It does not mitigate that he did not benefit, he might as well have got the item stolen, it is therefore of no significance in the determination of an appropriate sentence in his case.
   

Mitigation

9. In his favour is his guilty plea a change from when he spoke to the police in the record of interview. It is overt of his intent to change and to be a better person. In allocutus, He expressed remorse stating that he had returned the chain saw that they had robbed. 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 and which will be reflected in sentence now passed.
   
10. In this due regard first to the fact that the prisoner is a first offender aged 20 years old at time of offence, today at sentence 21 years old, married from Makubil, Dagua East Sepik Province, with two young children. He has no record of any formal employment as at the date of the offence. Having being educated only to grade 4 Galai Primary School. He is of the Assembly of God church. He has spent almost ten months 20 days in remand. 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.”

11. That is applicable here, and 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. The victim company has got the chainsaw back so has not lost out on anything. 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 which I give heed to in the way sentence is passed.

12. 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 three 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. It ought to and must come from his heart.

13. His action must be punished and denounced rehabilitation upon education is unlikely he is not employed nor does he have evidence in that regard. In accordance with Gimble’s case (supra). I determine this robbery to be likened to robbery on a street 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.

14. 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 20 years old at the time of the robbery and 21 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 workmen at a logging sight who are the victims of that robbery. They must be protected by the law like any other citizen in the country. 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 K165,924.17 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. Just returning the chainsaw is one of the matters for and against to be weighed. 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.

15. 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. Your role made the offence possible. You gave numerical strength to it so that there was no resistance to what you all set out to do.

16. 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 Galai 1 section 18 Block 44 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 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 Assembly of God church Galai or nearest to where you reside.
(viii) Within 2 weeks of your release on Probation you shall join your local Assembly of God church youth group and participate in all its activities during your probation period;
(ix) You shall undergo counselling from your local pastor of the Assembly of God church at Galai or closest to where you live for a number of times as may be determined by the counsellor;
(x) 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.
(xi) 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