State v Kapre [2018] PGNC 219; N7310 (21 May 2018)

N7310

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR No. 289 & 290 OF 2017

THE STATE

V

JOHN KAPRE

Kimbe: Miviri AJ
2018 : 08^th 21^st May

CRIMINAL LAW – PRACTICE AND PROCEDURE – Robbery – Plea – vehicle robbery – store robbery – first offender – PSR MAR discretion of court – serious and prevalent offence – active role in offence – deterrent sentence.

Facts

Prisoner and others held up a PMV bus removed the driver and crew drove it to a food bar where they held up owner and workers and stole properties and then drove away in that bus abandoning it and escaping.

Held

Early Guilty plea.
Two robberies
Serious and prevalent offence.
Deterrent sentence
8 years IHL

Cases Cited:

Public Prosecutor v Don Hale [1998] SC 564
Public Prosecutor v Kerua [1985] PNGLR 85
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 Mase [1991] PNGLR 88
The State v Simbago [2006] PGSC 23; SC849
The State v Thress Kumbamong (2008) SC1017.

Counsel:

P Bannister, & L. Jack, for the State
D Kari, for the Defendant

SENTENCE
21^st May, 2018

1. MIVIRI AJ: This is the sentence of a man who pleaded guilty to armed robbery firstly of a bus which was used to commit the second armed robbery of a food bar where properties were stolen.
   

Background

2. The Prisoner accompanied four others whilst armed with homemade guns, all dangerous weapons on the morning of 11^th October 2014 at Kimbe. They held up one Duan Benny and Kalu Amio, a PMV driver and crew of PMV bus registered number P5599 valued at K88, 400.00.They stole the bus off them including a mobile phone valued at K130 the property of Kalu Amio and Duan Benny. They drove the bus to GFC trading where they pointed the homemade guns at the owner and employees and stole K200, four mobile phones, 200 pieces of K3 flex cards 17 pieces of K5 flex cards total value of K1, 414.60 the property of Charlie Jheng. Then they drove off in the bus to a secluded area where they abandoned the bus and ran away.
   

Charge

3. Both charges were contrary to section 386 (1) (2) (a) (b) (c) of the Criminal Code Act prescribing a maximum penalty of death. A determinate term of years was in order but one was committed to facilitate the other. Both were separate and distinct offences of armed robbery and therefore drew sentences individually following. The first was committed at a separate location proceeds of it the bus was used to access the location of the second armed robbery. It could not be of the same transaction as set out by Public Prosecutor v Kerua [1985] PNGLR 85 and Mase v The State [1991] PNGLR 88 where the Supreme Court made the following in deciding whether sentences should be cumulative or concurrent. The court should be guided by the following principles;
   
   • (i) Where two or more offences are committed in the course of a single transaction all sentences in respect of the offences should be concurrent;
   • (ii) Where the offences are different in character, or in relation to different victims the sentences should normally be cumulative;
   • (iii) When a court has arrived at an appropriate sentence and decided whether they should be concurrent or cumulative, it must then look at the total sentence to see if it is just and appropriate. If it is not it must vary one or more of the sentences to get a just total.
     
4. Given the facts here it was not single transaction but were not different offences in character though were to different victims and therefore cumulative sentences to be imposed. But then to be considered on the basis of Totality and varied to appropriate term given.
   

Allocutus

5. In allocutus, the prisoner said: “I am sorry for what I have done. I apologise to the court for hearing my case”.
   

Aggravation

6. It was a very serious and aggravated armed robbery in each case. The bus was robbed so that it could facilitate the second robbery. In that sense it was well planned together with the fact that all were armed with homemade guns all dangerous weapons with potential to fatally injure or maim or kill the victims held up or any other person within the vicinity. The PMV bus was a public frequented vehicle a transportation means that had to be protected from persons such as the prisoner. It was held up in a public place undeterred. It was used to perpetrate another offence a shop a food bar where public frequented to eat and attend to personal needs sold there. There was immediate need to protect that area from persons like the prisoner. A dangerous offence committed without regard for the grave consequences it posed as in, Lahui, Hetau, Noho, and Eki, The State v [1992] PNGLR 325 (August 1992); Simbago v The State [2006] PGSC 23; SC849 (31 August 2006). More lethal in this case where homemade guns involved particularly considering that they did not have safety in the weapons as in the case of factory made ones. Their use was in anticipation of resistance and therefore very serious. It was no accident that the recent amendment by parliament increasing the maximum penalty from life years to the death penalty, Criminal Code amendment No. 6 of 2013 was against the backdrop of the aggravated and prevalent occurrence of this offence in Kimbe and also elsewhere in the country. There was serious need in sentencing to protect the community and lives from perpetrators such as the prisoner. And this offence is viewed in that regard here.
   

Mitigation

7. Prisoner confirmed his admissions to police in the entry of the plea in court. And accepted responsibility for both overt of his intent to change and to be a better person. He expressed remorse asking to be accorded mercy in the sentence that was passed upon him. Defence counsel applied under section 25 of the Probation Act for presentence report to be tendered in pursuit of a sentence giving the prisoner alternative to imprisonment. The intent that he fit back into society. Both the presentence and the means assessment reports invoked the matter to the discretion of the court particularly with its seriousness pointed out above. But it is accepted that the prisoner will revert back to society after due time in prison for the wrong. Both the presentence and means assessment reports determined that there was proper basis to impose alternatives to imprisonment. As at the date of sentence he was serving five years imposed by this court for escaping from lawful custody. It related to the incarceration for the present offences. It was an affront to the rule of law and was serious against the prisoner.
   
8. Originally from Sarkim village, Wosera East Sepik Province, the prisoner is a resident at Section 21 Kimbe. His guilty plea saved court time and resources. The victim owner of the bus got it back so did the second victim the properties that were stolen. Fundamental was that violence and crimes of violence, armed and aggravated robberies could not be tolerated by the courts. On the converse good antecedents and good prospects with evidence demonstrated before the court will be accorded favourably in the sentence passed. Here evidence was for the presentence and means assessment reports. Though the crime must be punished and denounced. He is educated to grade 3 in 1999 with no record of any formal employment married with two children, one 7 years old and the other 3 years old.
   
9. In accordance with Gimble v The State [1988-89] PNGLR 271 this robbery is likened to robbery on a street drawing a starting point of 8 years, aggravated for the reasons set out above fitting this tariff and range. These guidelines were set in 1988-89 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.
   
10. In Anis v The State [2000] PGSC 12 SC642 (25 May 2000) 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 24 years old at the time of the robbery, 28 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 a PMV on a public Street and a shop which must be protected. Sentence imposed must take account of the changing times and circumstances, in State v Malo [2006] PGNC 231; N4520 (19 December 2006) 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. Just returning the properties stolen is one of the matters for and against to be weighed as in Marase v The State [1994] PGSC 11; [1994] PNGLR 415 (27 October 1994) where the appeal was dismissed and the 19 and half year sentence IHL was confirmed for rape and robbery.
    
11. The converse is Gorop v The State [2003] PGSC 1; SC732 (3 October 2003) where 20 years 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. But you must be given concession in that you have pleaded guilty. And also the fact that you are serving 5 years for escaping from lawful custody which is related to the present offence of robbery.
    
12. You are sentenced to 8 years IHL concurrent for both convictions of robbery. 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 Kimbe section 21 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 Seventh Day Adventist church Kimbe or nearest to where you reside.
    • (viii) Within 2 weeks of your release on Probation you shall join your local Seventh Day Adventist church youth group and participate in all its activities during your probation period;
    • (ix) You shall undergo counselling from your local pastor of the Seventh Day Adventist church at Kimbe 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