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State v Biromo [2018] PGNC 331; N7413 (8 August 2018)


N7413


PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]


CR 759 of 2017


THE STATE


V


BERNARD BIROMO


Lae: Kaumi AJ
2018: 22nd May, 4th June, 3rd, 6th, & 23rd July


CRIMINAL LAW – Criminal Code Act 1974, Part VI-Offences Relating to Property and Contracts-Division 1- Stealing and Similar Offences, Subdivision D-Stealing With Violence - Extortion by Threats-Section 386 (1) (2) (a) (b) (Offence of Robbery) and Section 7-Sentence-Sentencing Guidelines-Plea of Guilt-Robbery of a home at night-Gang of robbers-Use of Firearms-Proper Starting Point–Sentences Imposed for Equivalent Offences-Head Sentence-Identification of Relevant Considerations-Mitigating and Aggravating Factors-Pre-Trial in Custody-Should All or Part of the Sentence be Suspended –Imperative that there must be a basis substantiated by evidence for any recommendation of suspension of a custodial term in a Pre-Sentence Report


CRIMINAL LAW- Sentence-Guilty Plea-Expression of Remorse–Prevalent Offence.


CRIMINAL LAW- Not worst type of offence-Aggravating factors and Mitigating factors balance out- Plea considered-Portion of sentence suspended-Criminal Code Ch.262, section 19 (1) (d) (6).


Facts


The offender pleaded guilty of one count of armed and aggravated robbery.


Held:


[1] The discretion to suspend a part or whole of the starting sentence is a discretionary matter which must be exercised on terms and it must be supported by pre-sentence report either from the community or where that is difficult to obtain, it must come from prison or the institution from where the escape took place and the arresting officer. Unless there is such material supporting a suspension of the starting minimum sentence, it cannot be reduced. Affirmed and followed; State v Irox Winston [2003] N2304 (N2307) Kandakasi. J and The Acting Public Prosecutor v. Don Hale (SC564). This principle was prescribed by the Courts with respect to the offence of escape but is equally applicable to other offences and armed robbery is no exception.


[2] The consideration of any suspension of a term of imprisonment whether wholly or partial is dependent on three factors:

[i] Firstly, the availability to court of what is commonly known as a PSR or Pre-Sentence Report prepared by officers of the Community Based Corrections office and without which no suspension can be effected into the sentence. One reason for this is that the PSR is the vehicle which is used to get an input from the community from which the offender is to be returned to i.e. will they accept the offender back in their community or not.

[ii] Secondly, there must be a recommendation for any suspension of sentence;

[iii] Thirdly, the recommendation must be substantiated by evidence. The substantiating of the recommendation entails the engaging with a broad section of people in the community to gauge their views through interviews (victims included) on the potential of the offender being released back into the community and the aggregate result of all these views is for a suspension of sentence: State v. Raka Benson [2006] PGNC 68 CR 447, 445


Cases Cited:


Goli Golu v The State [1979] PNGLR 653
Public Prosecutor v William Bruce Tardrew [1986] PNGLR 91
Gimble v The State [1988-1989] PNGLR 271
The State v Billy Bimaru [2000] N2025 CR 1104
Tan Jim Anis and Others v The State [2000] SC 564
The State v Benjamin Nabata and Jeffery Jajata [2002] N2216
State v Irox Winston [2003] N2304 (N2307) Kandakasi. J
Philip Kassman v The State [2004] SC 759
State v Posanau [2004] PGNC 133; N2642 (Manuhu AJ),
The State v Allan Esi Waluta [2005] N2911
The State v James Negol CR No. 871/2005
Tom Longman Yaul v The State [2005] SC 803
The State v Benson [2006] PGNC 68 CR 447, 445
Ume v The State [2006] SC 836
The State v Sembengo [2006] N3020
The State v Moi [2006] PGNC 12; CR No. 546 of 2005
The State v John Carl Endekra and Others [2007] N3185 PGNC 82
The State v Francis Wangi [2007] N5057
Don Hale v The State [1998] SC 564
Saperus Yalibakut v The State [2008] SC 890 SCRA No. 52 of 2005, 27/04/2006
The State v John Manis & John Kitoia, CR No. 35 and 36 of 2013


Legislation Cited:


Constitutionof Papua New Guinea
Criminal Code 1974
Criminal Justice (Sentencing) Act 1986


Counsel


Ms. Comfort Langtry, for the State
Mr. Isaac Tsipet, for the offender


SENTENCE


08th August, 2018


  1. KAUMI AJ: INTRODUCTION: This is a decision on sentence for a man who on the 22nd May, 2018 pleaded guilty of one count of armed and aggravated robbery contrary to Section 386 (1) (2) (a) (b) and section 7 of the Criminal Code Act Chapter 262.

ISSUE


  1. The relevant issue is what the appropriate sentence is in this case.

AGREED BRIEF FACTS


  1. The brief facts giving rise to the charge are as follows:
  2. The State alleges that between 3:00am and 3:30am on the 13th day of February 2017, the accused and eight of his accomplices went to the residence of Papindo Trading Company at China Town with a home-made gun, a factory made pistol, an iron bar, plastic rope and a bamboo ladder. The accused and his accomplices used the bamboo ladder to climb over the fence of the Papindo Trading Company premises and went into the property. They subdued the security guard, Jimson Ipis, and tied him with the plastic rope. While the accused kept a look-out, his accomplices forced their way into the building by opening the steel door of the veranda with the iron bar and shooting and damaging the glass door of the building. They hit Enrique Pineda with the butt of a gun and he fell unconscious. They stole a number of items from the house, namely;

A. A cannon camera, a card reader adapter and a green Mitsubishi L200 utility bearing registration number BCF 077, the property of Papindo Trading Company Limited.


B. A Hyundai DVD player, a jumbo speaker, an mp3 USB, a 16 gigabyte USB, a wrist watch, a Swiss wrist watch, a pair of Jordan shoes, two pairs of Nike shoes, K300 cash from a piggy bank, a wallet, a driver’s licences, K300 cash, 1, 700 Philippine Peso, US$100, an eye glass and a cell phone, the property of Whallen Garcia.


C. A Casio G-Shock wrist watch, a laptop, a 4 gigabyte Samsung Galaxy Tab, a Nokia cell phone, a Philips Hair Clipper, a pair of CAT shoes, a pair of Adidas Sports shoes, a brown military bag, ten imported bracelets, an 8 gigabyte USB, a Sony Headphone, a set of speakers and a Lenovo PC monitor, the property of Enrique Pineda.


  1. They then broke the main gate lock and drove off with the vehicle and other stolen property. The accused subsequently affixed a false registration number plate to the vehicle and hid the vehicle at a cocoa plantation at Singaling village at Busu River for later use.
  2. The State alleges that when the accused stole from Enrique Pineda and Whallen Garcia with actual violence all the items listed above the property of Papindo Trading Company Limited, Enrique Pineda and Whallen Garcia, and at this time was armed with a homemade gun and a factory made pistol, was in the company with other persons and used personal violence on Enrique Pineda (CL). He contravened section 386(1) (2) (a) (b) (c) of the Criminal Code Act.
  3. The State invokes section 7(1) (a) of the Criminal Code Act.

ANTECEDENT


  1. The Antecedent Report provided to the Court by the State on paragraph 9 states that he has no prior convictions.

ALLOCATUS


  1. When I administered allocatus to the offender i.e. allowing him the opportunity to say what matters he would like the court to take into account when contemplating what kind of punishment to give him; the following is a paraphrased summary of his response:

“I say sorry for breaching the constitution of this country and sorry to the victim, say sorry to the victim of the crime who suffered as a result. I am a student doing a trade course when I was caught up in the trouble. I ask for leniency and mercy of the court to have mercy on me. I promise to this court that I will not commit this trouble again in future. My father disserted my mother and two siblings, an elder and younger brother and we stay together. That’s all”.


OTHER MATTERS OF FACT


  1. The prisoner pleaded guilty and so I will give him the benefit of the doubt on mitigating matters raised in the committal depositions, the allocatus in submission that are not contested by the prosecution (Saperus Yalibakut v. The State (2008) SC890).

SUBMISSION BY DEFENCE COUNSEL


  1. The Counsel for the offender, Mr. Tjipet highlighted matters that went to his mitigation; his lack of prior convictions, his co-operation with police by making early admissions in a confessional statement, his plea of guilty and his expression of remorse.
  2. He referred to the aggravating, mitigating and extenuating factors as well in this case.
  3. He made reference to sentencing tariffs in Gimble v The State [1988-1989] PNGLR 271, Don Hale (supra), Tau Jim Anis and Others v The State [2000] SC 564, and sentences imposed in similar cases, The State v Billy Bimaru [2000] N2025 CR 1104, State v Posanau [2004] PGNC 133; N2642 (Manuhu AJ).
  4. On the basis of the circumstances of the matter and the sentencing tariffs and trends he submitted for a sentence of 3 to 5 years.

SUBMISSION BY THE STATE


  1. Ms. Langtry for the State highlighted that the circumstances of the offence called for an immediate custodial sentence especially for the fact that:

Aggravating Factors:

(a) Robbery is a Prevalent Offence.
(b) The Offence involved robbery of a house at night time;
(c) The Offender had been armed with a dangerous weapon;
(d) The Offender was in company of others.
(e) They used personal violence to one of the victims.
(f) The items stolen were of considerable value.
(g) Most of the stolen goods were not recovered.

(f) Offence committed on a defenseless and unsuspecting victim in his own home.


  1. Ms. Langtry submitted that having regard to sentencing precedents and the need for a sentence to reflect the peculiar circumstances of the case, a term of imprisonment between 5 and 8 years was appropriate.

DECISION MAKING PROCESS


  1. In arriving at a penalty that befits the offence for which the prisoner has pleaded guilty to, I apply the following process:

STEP 1: WHAT IS THE MAXIMUM PENALTY?


  1. Section 386 (1) (2) (a) (b) of the Criminal Code states:

“(1) A person who commits robbery is guilty of a crime.


Penalty: Subject to Subsection (2), imprisonment for a term not exceeding 14 years.


(2) If a person charged with an offence against Subsection (1)-

(a) is armed with a dangerous or offensive weapon or instrument; or
(b) is in company of one or more other persons; or
(c) at, immediately before immediately after, the time of the robbery, wounds or uses any other personal violence to any person,

he is liable, subject to Section 19, to death.”


STEP 2: WHAT IS THE STARTING POINT?


  1. In The State v John Carl Endekra and others (2007) N3185 PGNC 82 (21 March 2007) Cannings. J after considering what the Supreme Court had said in the cases of Gimble (supra), Hale (supra) and Anis (supra) with respect to sentencing tariffs applicable in Armed Robbery cases, stated that the appropriate starting points in like cases nowadays should be:
  2. The Courts have stated that the sentencing principles of Gimble (supra) were good for the type of robberies but starting points are out of date given prevalence of robberies.
  3. The proper starting point in this case is ten years.

STEP 3: WHAT SENTENCE HAD BEEN IMPOSED FOR EQUIVALENT OFFENCES?


  1. I will now consider the sentencing trends in recent history.

NATIONAL COURT SENTENCES FOR ARMED AND AGGRAVATED ROBBERY OF HOMES


Case
Details
Sentence
The State v Billy Bimaru (2000) N2025; CR 1104 of 2000 Gavara-Nanu. J
Gang of men smashed down door of the house at 11:30 pm;
Armed with 2 guns, 2 bush knives and a crow bar;
Destroyed household goods;
Large quantity of goods including gold got stolen and not recovered;
Court referred to Tau Jim Anis (supra), Don Hale(supra) and Gimble(supra);
Court noted that starting point for robbery of a house at night with use of firearm in the event of a full trial should be ten years imposed;
In this case Accused pleaded guilty and did not go into the house. He was a watchman;
Plea of Guilty.
8 years imposed.
The State v Benjamin Nabata and Jeffrey Jajata (2002) N2216
Prisoner in company; Plea of guilty;
Gun, grass knife and chainsaw used;
Stole K530 and personal properties;
No physical violence was used against the victims and no properties damaged;
Most stolen goods were recovered;
Offender first time offender, expressed remorse, however offence of armed robbery is a prevalent offence.
8 years imposed less time spent in custody.
The State v Negol N2801" title="View LawCiteRecord" class="autolink_findcases">[2005] PNGLR N2801-Cannings. J
Prisoner in company;
Factory made shotgun, bush knives and bolt cutter used;
No aggravated violence done to the victims;
Prisoner of the relatively young age;
Plea of guilty.
7 years imposed
The State v Allan Esi Waluta (2005) N2911
Offender in company;
3x shotguns, 1x SLR rifle, bush knives and axes used;
Threats of actual violence;
Plea of Guilty.
8 years imposed less time in custody.
The State v Moi [2006] PGNC 12; Cr No. 546 of 2005
Prisoner in company;
Gun and threats used;
Pre-meditated;
Stole a cassette recorder valued at K400.00
Plea of Guilty;
12 years less the pre-custody.
The State v Sembengo [2006] N3020
Prisoners in company;
Forcible entry of home in the middle of the night;
Use of homemade gun, axe, bush knife and spear;
Stole K460.00 cash and clothes valued at K86.00
Armed with a homemade gun, an axe, a bush knife and a spear.
Female occupant was gang raped while husband and children in the house. Conviction after trial.
12 years for armed robbery.
13 years for rape.
Sentence reduced down to 17 years.
The State v John Morris and John Kitoria CR Nos 35 and 36 of 2013
Broke into the house by using a huge rock to break open the door to the victim’s house.
Stole properties valued at K20,000.00
One victims assaulted with bush knife and another slashed with a bush knife
Plea of guilty.
9 years imposed

  1. I note from the cases above that the starting point is 10 years and generally the head sentence is 8 years on a plea of guilty and suspension of these periods have depended on the peculiar circumstances of the matter. I note where the circumstances dictated and also upon conviction after trial the head sentence increased over the starting point.

STEP 4: WHAT IS THE HEAD SENTENCE?


  1. In order to arrive at a head sentence I have to consider the particular circumstances in which the prisoner has committed the offence and the result of which will come the factors in his aggravation as well as those in his mitigation.
  2. Both mitigation and aggravating factors may be mild or strong and weighed accordingly. The State v Raka Benson (2006) CR 447 and 445.
  3. In this matter I note that the prisoner is a first offender and a first offender means that he has never committed any offence before at least on record with the courts he does not have a prior conviction and that is in his favour. Secondly, the plea of guilt is significant in that it saves the State time and expense for example, expenses involved in the use of fuel for police vehicles or allowances for the investigating office to go out and look for witnesses and bring them or fly them in for the trial. In this instance one of the victims had left the country. Thirdly, his plea of guilty has also saved the court time that would have been used in conducting a trial to determine the innocence or otherwise of the offender. Fourthly, a plea of guilty also saves the victim the ordeal and trauma of having to come to court and reliving the whole ordeal again and that is a factor which is in his favour. Fifth, I also note here that the prisoner co-operated early with police in that he made the confessional statement which made the investigation easier for police. The offender knew that the circumstances of the robbery were very serious and the consequences likewise nevertheless from the day police apprehended him he cooperated with them and told them everything. He told the police exactly what happened and he spoke the truth. He has come to court and pleaded guilty which is consistent with his attitude since he was arrested. Sixth, the court also considers the fact that he played a passive role as a watchman to be in his favour. He was not inside with the people who assaulted Pineda as he was a watchman outside of the house near the gate and on the same token the court also notes that irrespective of the different roles that co-offenders play in a crime it is all for a common cause. However in the circumstances of this matter I consider it to be a significant mitigating factor as I wonder whether the act of knocking Mr. Pineda unconscious was part of the initial plan to rob him. It was not raised by the prosecution and so the benefit of doubt on this aspect is given to the offender: Saperus Yalibakut v. The State (supra).
  4. When an offence is committed in the process of committing an initial crime, take for instance the wounding of a victim during the robbery and the prosecution chooses not to charge the offender with an additional charge arising out of this and instead use it as an aggravating factor, a co-offender who played a lesser role in terms of his culpability and enters an early plea of guilty may be given a discount in terms of sentence for this plea in addition of course to the existence of other mitigating factors such as early co-operation with police, lack of prior convictions and other factors from his antecedent like ill health etc.
  5. The aggravating factors against the prisoner which the court must also consider are as follows. Firstly, armed robbery is a prevalent offence in this country. Secondly, it was a robbery of a house and not only was it a robbery of house but it was a robbery of a house at the night. The court views robbery of a house as the most serious of all forms of armed robbery and the offence is further aggravated when it is committed at night. This is because it is said that a man’s house is his castle whether it is a luxurious apartment on Touaguba hill or here in Lae down at the Water Front or a bush hut in Kabwum or Menyamya. Robbery of a house is in fact an invasion of a private domain which the Constitution guarantees to people as a place where they should be able to enjoy their life in privacy and comfort. Thirdly, I also note that there were dangerous weapons used in the matter. There were guns involved and even the iron crow bar is a dangerous weapon. Fourthly, I note as well that it was not a solo robbery but one executed in company and when people are in company of one and other it gives them encouragement, strength and motivation to carry out the offence and that is why the court considers a robbery conducted in company to be more serious. Fifthly, the other matter of aggravation is that there was personal violence used on one of the victims, Mr. Pineda. Not only was personal violence used but he was knocked unconscious. Sixth, the next matter of aggravation is that the items that was stolen were of considered value and I went through the three lists of stolen items already and the value is obviously very high so that is a factor which is also against him. I also note that most of the items or goods that were stolen have never been recovered to date. Where are they today, there are in the hands of people out in the community who are using these stolen properties. When items are stolen and not recovered it is a factor of aggravation against the offender as not only are the owners deprived of the enjoyment and use of their property but also because unrecovered stolen property inevitably falls into the hands of the community and this encourages them to live on stolen property. Another factor in his aggravation is that the offence was committed on defenceless and unsuspecting victims in their own house. The victims were fast asleep and did not know what was about to befall to them and were rudely awaken in what I can only imagine was utmost terror when they heard the offender’s accomplices breaking down the metal grill door followed by the inner door being blasted open by gunfire. This was an audaciously brazen home invasion on the victims. The offender and his accomplices acted with the uttermost contempt for the law and with seemingly complete impunity. They didn’t care who heard them crushing down the metal grill door with the crow bar followed by the blasting open of the inner door with the gunfire from the gun they had in their possession.
  6. There are seven aggravating factors and six mitigating factors.
  7. I have considered the circumstances of this matter and also the sentencing trend in the cases of Hale (supra), Anis (supra) and Kassman (supra). I also considered the sentence imposed by Gavara-Nanu. J in The State v Billy Bimaru (supra) which also involved a robbery of a home at night and had similar circumstances. In that case a gang of men smashed down door of the house at 11:30 pm and were armed with 2 guns, 2 bush knives and a crow bar; destroyed household goods; large quantity of goods including gold got stolen and not recovered. His Honour referred to Tau Jim Anis (supra), Don Hale (supra) and Gimble (supra) and noted that starting point for robbery of a house at night with use of firearm in the event of a full trial should be ten years imposed. In that case the accused was a watchman and did not go into the house and pleaded guilty. He was sentenced to 8 years imprisonment. Considering that the starting point I have set is 10 years I still have discretion either to go higher than the starting point or lower depending on the circumstances of this matter.
  8. Working out a sentence is not exact science. A sentence cannot be reached using formulae like mathematical formulae for instance. A sentence is reached by the proper consideration by court of what the sentencing guidelines like trends and tariffs for a particular offence might be but it is not necessarily restricted by such factors. The common denominator in sentencing for both guilty pleas and conviction after trial is the circumstances of a particular case. It is an exercise of judicial discretion done wisely and sparingly.
  9. I consider that this case does not fall into the worst category of cases but is in the middle of the range and that the head sentence should not be above the starting point of ten years therefore the head sentence will therefore be nine years imprisonment. I could have gone down below that but for the personal violence used on one of the victims which was a strong aggravating factor hence the head sentence of 9 years. Had it not been for the plea of guilty by the offender I would have seriously contemplated a term of imprisonment above the starting point of ten years.

STEP 5: SHOULD THE PRE-SENTENCE PERIOD IN CUSTODY BE DEDUCTED?


  1. Section 3 (2) of the Criminal Justice (Sentences) Act 1986 provides that:

There may be deducted from the length or any term of imprisonment imposed of any court any period before the sentence was imposed during which the offender was in custody in connection with the offence for which the sentence was imposed.


  1. This provision allows the court discretion to decide whether or not to deduct the period an offender has spent in custody in remand awaiting trial. It is not an automatic right of the offender to have this period deducted. I note that despite the acute overcrowding situation in Buimo Corrective Institution (which has the national record of highest number of inmates) and major escapes during his pre-trial custody he has chosen to respect the law and wait patiently for his case to be dealt with by the court. The offender was in pre-trial period for 1 year 4 months and it is proper that this period be deducted.

STEP 6: SHOULD ALL OR PART OF THE SENTENCE BE SUSPENDED?


  1. Suspension of sentence is primarily the discretion of the Court and is stipulated under Section 19(6) of the Criminal Code that after a court has sentenced an offender to a term of years, it may order a portion of the sentence to be served and the remaining sentence to be suspended. The Supreme Court in the case of Public Prosecutor –v- William Bruce Tardrew [1986] PNGLR 91 when considering suspension of sentence held that suspension was appropriate in three categories:
  2. The discretion to suspend a part or whole of the starting sentence is a discretionary matter which must be exercised on terms and it must be supported by pre-sentence report either from the community or where that is difficult to obtain, it must come from prison or the institution from where the escape took place and the arresting officer. Unless there is such material supporting a suspension of the starting minimum sentence, it cannot be reduced. Affirmed and followed The State v. Irox Winston (supra) and The Acting Public Prosecutor v. Don Hale (SC564). This principle was prescribed by the Courts with respect to the offence of escape but is equally applicable to other offences and armed robbery is no exception.
  3. In the immediate case one of the victims had already left the country while the remaining one was interviewed and he said he was just glad to be alive.
  4. The consideration by court for any suspension of a term of imprisonment whether wholly or partial is dependent on three factors:

[i] Firstly, the availability to court of what is commonly known as a PSR or Pre-Sentence Report prepared by officers of the Community Based Corrections office and without which no suspension can be effected into the sentence. One reason for this is that the PSR is the vehicle which is used to get an input from the community from which the offender is to be returned to i.e. will they accept the offender back in their community or not.

[ii] Secondly, there must be a recommendation for any suspension of sentence;

[iii] Thirdly, the recommendation must be substantiated by evidence. The substantiating of the recommendation entails the engaging with a broad section of people in the community to gauge their views through interviews (victims included) on the potential of the offender being released back into the community and the aggregate result of all these views is for a suspension of sentence. State v. Raka Benson [2006] PGNC 68 CR 447, 445

  1. In terms of any suspension of sentence I find that the three pre-requisites have been met that is, firstly, there is a PSR, secondly, it has a recommendation for suspension of sentence and thirdly, the recommendation is for suspension of sentence has been substantiated.
  2. I have considered the PSR and find that there was recommendation for a suspension and that this recommendation was substantiated and so I will impose a suspension of sentence but only partial suspension. We are human beings and human nature being what it is we all make mistakes in life and no one is perfect and so people should be allowed a second chance in life to prove that they are better persons. So having said that I am suspending 2 years 8 months of the sentence but conditionally. The effective sentence he will serve is 5 years.
  3. If I was to suspend the entire sentence that would not in my view serve the purposes of personal and general deterrence and would be a disservice to society. Hence I suspend part of the sentence and impose strict conditions so the offender and the community do not think that the offender is getting off lightly.
  4. I suspend two (2) years eight (8) months of the sentence subject to the following conditions:

SENTENCE

  1. The orders of the Court are as follows:
Length of Sentence imposed
9 years
Pre-sentence period to be deducted
1 year 4 months
Resultant length of sentence to be served
7 years 8 months
Amount of sentence to be suspended
2 years 8 months
Time to be served in custody
5 years to be served at Buimo Correctional Institute.
Bail
Not Applicable

  1. Sentence accordingly.

___________________________________________________________________
The Public Prosecutor: Lawyers for the State
Public Solicitor: Lawyers for the Prisoner

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