State v Mingara [2018] PGNC 334; N7450 (12 September 2018)

N7450

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR 751 of 2017

THE STATE

V

MICHAEL MINGARA

Lae: Kaumi AJ
2018: 22 May, 12 June, 3, 6 & 24 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 an office-Gang of robbers-Use of Bogus Identification Cards –Firearms planted in office prior to robbery-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.

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 a 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 [2003] N2304 (N2307) 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] I find that in this case that the recommendation for suspension of the sentence by the CBC office here in Lae is substantiated by evidence as per the PSR. The State v Benson [2006] PGNC 68 CR 447, 445 Cannings. J

Cases Cited:

Avia Aihi v The State (No.3) [1982] PNGLR 92
Goli Golu v The State [1979] PNGLR 653
Gimble v The State [1988-1989] PNGLR 271
Philip Kassman v The State [2004] SC 759
Public Prosecutor v William Bruce Tardrew [1986] PNGLR 91
Saperus Yalibakut v The State [2008] SC 890
State v Roy CR Nos. 508 and 509 of 2007
Tan Jim Anis and Others v The State [2000] SC 564
The Acting Public Prosecutor v Don Hale (1998) SC 564
The State v Benson [2006] PGNC 68 CR 447, 445
The State v Dickson Kauboi CR No. 495/2001
The State v Henry Feda; CR No. 1225 of 2016
The State v Irox Winston [2003] N2304 (N2307)
The State v John Carl Endekra and Ors [2007] N3185 PGNC 82
The State v Lesly Cletus Malo CR N0. 379
The State v Momaku Aube; CR No. 110 of 2009
The State v Norai N7260
Tom Longman Yaul v The State [2005] SC 803
Ure Hane v The State [1984] PNGLR 105

Legislation Cited:

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

Counsel

Ms. Langtry, for the State
Mr. Tjipet, for the offender

SENTENCE

12^th September, 2018

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

ISSUE

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

AGREED BRIEF FACTS

3. Between 8:30am and 9:30am on the 24th day of March 2016 (CL), the accused and his accomplices, namely Eddie Aisi, Pesi, Stanley and Tom went to the gate of Frabelle (PNG) Limited, showed fake Identification Cards to the guards and went inside to the Administration Office where they armed themselves with guns that Tom had hidden away. The accused armed himself with a staple gun.
   
4. They held up the staff at Frabelle (PNG) Limited and stole cash monies, a laptop and two mobile phones, all worth the sum of K92, 000. 00.
   
5. They made arrangements for a getaway boat to wait for them on the beach so three of their accomplices namely, Ben Tati, Kigo and Wage waited for them on the boat. After the robbery, they got on the boat and went to Apo village in Bukawa and shared the money equally amongst themselves. After sharing the money, they split up – the accused walked to Situm and caught a bus back to his house at Back Road and Eddie, Ben Tati and Wage fled to Finschaffen on the boat.
   
6. The State alleges that when the accused stole with actual violence from Wesley Misek the cash monies, a laptop and two mobile phone, all worth K92, 000.00 the property of Frabelle (PNG) Limited and at that time was armed with a staple gun, a dangerous weapon and was in company with other persons, he contravened section 386 (1) (2) (a) (b) of the Criminal Code Act.
   
7. The State invokes section 7(1) (a) of the Criminal Code Act.
   

ANTECEDENT

8. The Antecedent Report provided to the Court by the State states that he has no prior convictions.
   

ALLOCATUS

9. 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 am sorry for breaching the law of this country. Before this court I say sorry for breaching the constitution of this country. I say sorry for taking up the time of the court in dealing with my case. I say sorry for causing the offence against the company, management, and owner of the company. I say sorry for my family and my block and have been in custody and there have been escapes but I have remained in custody and not escaped though there has been overcrowding and sickness spreading in there. I have been patient and continued to stay in custody because I respect the law and want my case in court. I am sorry for what I did, this is my first time and I will not do it again in future. This I promise I will not do. I ask for the mercy of the court for Probation or a Good Behaviour Bond. Thank you Your Honour”.

OTHER MATTERS OF FACT

10. 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

11. The Counsel for the Offender, Mr. Tjipet highlighted matters that went to his mitigation; the offender is a first offender, he pleaded guilty saving the court time and expense if a trial were to be conducted, he cooperated well with police and made early admissions, even though guns were used they were never actually fired causing injuries to the victims and the prisoner is not in a position of trust to the victims.
    
12. In aggravation he acknowledged the seriousness and prevalence of the offence, the offence was committed in company with others and they were armed with dangerous weapons, and substantial amount of monies were robbed from the victim.
    
13. Mr. Tjipet submitted that although Section 386(1)(2)(a)(b) CCA provided for maximum penalty has now been elevated to death after the amendment and passing of the Criminal Code (Amendment Act) 2013, which came into effect and operation on 18th September, 2013 for the offence of Armed Robbery that was subject to Section 19 of the Criminal Code Act which allows for the discretion of the court in sentencing.
    
14. He referred to the case of Goli Golu v The State [1997] PNGLR which laid the general principal that the maximum penalty prescribed for an offence should be reserved for the worst case and that the current case cannot be classified as a worst case to warrant the maximum penalty.
    
15. He referred to cases that reflect the Supreme Court approach to the proper starting points; Gimble v The State [1988-1989] PNGLR 271, Don Hale v The State [1998] SC 564 , Tau Jim Anis and others v The State [2000] SC 564 and Philip Kassman v The State (2004) SC 759 and submitted that the current starting points are:
    • (a) Robbery of a house – 10 years
    • (b) Robbery of a bank – 9 years;
    • (c) Robbery of a store, hotel, club, vehicle on the road or the like – 8 years;
    • (d) Robbery of a person on the street – 6 years.
16. That the current case is one involving robbery of a company office hence a starting point of 8 years was warranted in the circumstances.
    
17. He made reference to sentences imposed in similar cases; The State v Henry Feda; CR No. 1225 of 2016 (18 April 2018) in which the prisoner pleaded guilty to armed robbery of a motel and was sentenced to 6 years imprisonment, period in remand deducted and part of the sentence suspended conditionally; and State v Momaku Aube; CR 110 of 2009 (11 May 2018) in which the prisoner pleaded guilty to armed robbery of a shipping vessel and was sentenced to 5 years and period in remand was deducted. However that the court could not use its discretion to suspend part or whole of the sentence because the pre-sentence report was not clear as to the community’s views on punishment and how the prisoner would be monitored if he was to serve punishment by doing community work on probation.
    
18. He submitted a similar sentence should be imposed on the current case and that the court to consider what was raised in allocutus, factors in mitigation as opposed to aggravation and also favorable views expressed in the pre-sentence report. We submit a term of between 5 to 6 years is appropriate, period in remand to be deducted and further suspension as the court sees fit.
    

SUBMISSION BY THE STATE

19. Ms. Langtry for the State highlighted the aggravating factors.
    
20. Ms. Langtry for the State highlighted that the circumstances of the offence called for an immediate custodial sentence considering the aggravating factors:
    • (a) Robbery is a prevalent offence.
    • (b) The offender had been armed with a home-made gun;
    • (c) The offender was in company of others.
    • (d) The cash and properties taken were worth a large amount of money.
    • (e) The accused got an equal share of the stolen properties.
21. Some level of pre-planning was involved as the offenders used fake identity cards to gain access to the premises of the company. They hid guns in the company’s premises prior to the offence and they made arrangements for a get-away boat to wait for them on the beach.
    
22. Ms. Langtry made reference to the sentencing guidelines of Gimble v The State [1988-89] PNGLR 271 and Public Prosecutor v Don Hale (1998) SC564, the later which introduced the following starting point:
    • (a) robbery of a house – ten years;
    • (b) robbery of a bank – nine years;
    • (c) robbery of a store, hotel, club, vehicle on the road etc – eight years;
    • (d) robbery of a person on the street – six years.
23. If the Court has regard to the sentencing guidelines in Don Hale (supra) it would find that the present case attracts a penalty of 8 years imprisonment.
    
24. She made reference to a number of precedents, firstly,
    • (a) State v Norai N7260 of 30 March 2018 in which the prisoner, who was in the company of others who were armed with 2 home-made guns and two knives, stole from Julie Fan 7 laptops and other properties including K4, 500 in cash. All stolen items were worth the sum of K15, 000. During the robbery the robbers threatened, disarmed and tied up the security guard. He was sentenced to 8 years imprisonment;
    • (b) State v Roy CR Numbers 508 and 509 of 2007 by Cannings J in which the two offenders pleaded guilty to robbing a store manager and his wife. They were armed with a home-made gun and bush knives and in the company of two other persons when they committed the offence. The offenders held them up and stole K31, 405 in cash and cheques. Each offender was sentenced to 8 years imprisonment;
    • (c) The State v Dickson Kauboi CR No 495/2001 by Cannings J, the offender pleaded guilty to robbing a business called Commodore Bay Company in Kimbe. The offence was committed while in the company of three other persons. He was sentenced to 8 years imprisonment; and
    • (d) The State v Lesley Cletus Malo CR No 379 of 2005 by Cannings J. The offender pleaded guilty to being in company with other persons when they robbed the Spirit of WNB. They stabbed an innocent person in the course of the robbery and stole property worth approximately K165, 000. He was sentenced to 8 years imprisonment.
25. Ms. Langtry submitted that the penalty for this offence suggests that the robbery of a business entity is a very serious matter. To personally deter the prisoner and other like-minded individuals from committing similar offences, we submit that a term of imprisonment between 7 and 9 years is appropriate.
    
26. With respect to any suspension of the custodial term Ms. Langtry referred to the case of Public Prosecutor v Tardrew [1986] PNGLR 91 that outlined the principles guiding the discretion of the court and submitted that the Pre-Sentence Report was favourable towards the offender. It suggested that he could be supervised if given a suspended sentence. She submitted that a suspended sentence was open to the court but a wholly suspended sentence would not adequately reflect the gravity of the offence. Thus, a partly suspended sentence was appropriate.
    

DECISION MAKING PROCESS

27. In arriving at a penalty that befits the offence for which the prisoner has pleaded guilty to I apply the following process adopt and apply parts of the process:
    • (a) Step 1: what is the maximum penalty?
    • (b) Step 2: what is a proper starting point?
    • (c) Step 3: what sentence have been imposed for equivalent offences?
    • (d) Step 4: what is the head sentence?
    • (e) Step 5: should the pre-sentence period in custody be deducted?
    • (f) Step 6: should all or part of the sentence be suspended?

STEP 1: WHAT IS THE MAXIMUM PENALTY?

28. In this jurisdiction it is trite law that the maximum penalty prescribed for an offence is reserved for the worst form or a category or offending for that particular offence. Goli Golu v The State [1979] PNGLR 653, Avia Aihi v The State (No.3) [1982] 92 and Ure Hane v The State [1984] PNGLR 105.
    
29. 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?

30. 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:
    • (a) Robbery of a house- ten years
    • (b) Robbery of a bank- nine years
    • (c) Robbery of a store, hotel, club, vehicle on the road etc.- eight years
    • (d) Robbery of a person on the street- six years
      
31. The Courts have stated that the sentencing principles of Gimble (supra) were good for the type of robberies but starting points were out of date given the prevalence of robberies.
    
32. The proper starting point in this case is eight years.
    

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

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

NATIONAL COURT SENTENCES FOR ARMED AND AGGRAVATED ROBBERY OF OFFICE

(a) The State v Henry Feda CR No. 1225 of 2016 (18 April 2018). The prisoner pleaded guilty to armed robbery of a motel and was sentenced to 6 years imprisonment, the period in remand was deducted and part of the sentence suspended conditionally.
(b) State v Roy CR Numbers 508 and 509 of 2007 (30 March 2018). The two offenders pleaded guilty to robbing a store manager and his wife and each offender was sentenced to 8 years imprisonment.
(c) State v Momaku Aube CR No. 110 of 2009 (11 May 2018). The prisoner pleaded guilty to the armed robbery of a shipping vessel. He was the watchman and was sentenced to 5 year imprisonment and the period in remand was deducted.
(d) The State v Dickson Kauboi CR No 495/2001. The offender pleaded guilty to robbing a business called Commodore Bay Company. The offender committed the offence while in the company of three other persons. He was sentenced to 8 years imprisonment.
(e) The State v Lesley Cletus Malo CR No 379 of 2005. The offender pleaded guilty to being in company with other persons when they robbed the Spirit of WNB. He was sentenced to 8 years imprisonment.

34. I note from the cases above that the starting point is 8 years and generally the head sentence is 5 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?

35. 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.
    
36. There are a number of mitigating factors in the matter. First, the prisoner has pleaded guilty and as we all know a plea of guilt saves courts the time and expense of running a trial to determine the question of innocence or otherwise. Second, it also saved the victim the ordeal of having to come to court and relive what happened to them by way of testifying in open court before others. Third, was his early co-operation with the police investigators when he made early admissions. Fourth, I note that though guns were used in the matter they were never fired. Fifth, I accept that his expression of remorse was genuine when he expressed it in his allocatus. Sixth, in his mitigation I note that the offender was not in a position of trust to the victims.
    
37. The aggravating factors against the prisoner are matters the court also must take into consideration and I mention them; first, the offence of arm robbery is prevalent in society in Papua New Guinea today not only in the urban centres or in the urban areas but also in the rural areas it is rise across the length and breadth of Papua New Guinea; second, I note that the gun that was used is a dangerous weapon had it been discharged the bullet that was in it, the potential to cause harm was very real; third, I note that the prisoner was also in accompany and when people embark on a mission to commit crime and are in company it gives them courage and empowers them to commit the offence; fourth, I note that a large amount of cash and the properties was stolen a large to fair amount and K92, 000.00 which in anybody’s language is a fairly large amount and remains unrecovered; fifth, the prisoner benefited in that he got an equal share of the loot; sixth, the robbery was premediated; seventh, the modus operandi of the robbery involved a degree of sophistication in that fake identification cards were made and used to gain entry to into the premises of Frabelle PNG Limited and guns were planted in the premises well before the robbery by an inside accomplice. This robbery did not occur like the run of the mill robbery where robbers bust into a premises with guns. In addition they had a getaway boat ready.
    
38. Both mitigation and aggravating factors may be mild or strong and weighed accordingly. The State v Raka Benson (2006) CR 447 and 445.
    
39. There are six aggravating factors and six mitigating factors.
    
40. Considering the circumstances of this matter and the sentencing trend in the case of Hale (supra), Anis (supra) and Kassman (supra) the head sentence should not be above the starting point of eight years therefore it will be seven years.
    

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

41. 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.

42. 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.
    
43. I note the offender was arrested on 4 January 2017 and been in custody since and so that would make it 1 year 6 months and it is proper that this period be deducted.
    

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

44. 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:
    
    • (a) Where suspension will promote the personal deterrence, reformation or rehabilitation of the offender.
    • (b) Where suspension will promote the restitution of stolen money or goods.
    • (c) Where imprisonment would cause an excessive degree of suffering to the particular offender, for example because of his bad physical and mental health.
45. 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.
    
46. The consideration by court for any suspension of a term of imprisonment whether wholly or partial is dependent on three factors:
    • (a) 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.
    • (b) Secondly, there must be a recommendation for any suspension of sentence;
    • (c) Thirdly, the recommendation must be substantiated by evidence. The substantiating of the recommendation entails 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
47. 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 that is for suspension of sentence has been substantiated.
    
48. In consideration of whether the recommendation for suspension was substantiated I note the views of Michael, his wife Ms. Sylvia Nessat, Mr. Abi Brui, a community leader at Ass Mambu block where Michael lived were sought through interviews with the CBC officer Ms. Shirley Kwam. I note as well that Ms. Kwam went to the Frabelle PNG Ltd premises to speak with the victims and the management but they refused to cooperate with her resulting in their views not being gauged. Mr Abi Buri is a Village Court Magistrate under the Buhasep Village Court area, Ward (12) of the Ahi Local Level Government. He has held the position of Village Magistrate since 2014 and is a long-time resident of Ass Mambu, Backroad Lae and he knew Michael very well, not just because they lived in the same area together but also because Michael was an active member of the community in sports and church activities and in helping community leaders in solving small law and order issues in the community, and so he was surprised to hear of his involvement in this trouble. However he said Michael was a good person in the community and did not have a bad record there as such he was willing to assist the court in supervising Michael to ensure he abided by any orders the court imposed. The aggregate view was that Michael was a suitable candidate for Probation Supervision and therefore I impose a suspension of sentence but only partial. 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 1 years 6 months of the sentence but conditionally. The effective sentence he will serve is 4 years.
    
49. 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.
    
50. I suspend one (1) years six (6) months of the sentence subject to the following conditions:
    • (a) Upon release the offender will keep the peace and be of good behaviour for the period of the suspended portion of his sentence (1 year 6 months);
    • (b) The offender shall reside at his residence at, Ass Mambu, Backroad, Lae, Morobe Province;
    • (c) The offender shall not leave Morobe Province without the written approval of the National Court;
    • (d) The offender shall not associate himself with criminals;
    • (e) The offender shall attend his local church for service on every day of worship;
    • (f) The offender shall perform 500 hours of unpaid community work in his community, under the supervision of Mr. Habbie Buri (Village Court magistrate).
    • (g) If the offender breaches any one or more of the above conditions, he shall be brought before the National Court to show cause why he should not be detained in custody to serve the rest of the sentence. (see Tom Longman Yaul v The State (2005) SC 803)

SENTENCE

51. The orders of the Court are as follows:
    • (a) Length of Sentence imposed is 7 years.
    • (b) Pre-sentence period to be deducted is 1 year 6 months.
    • (c) Resultant length of sentence to be served is 5 years 6 months.
    • (d) Amount of sentence to be suspended is 1 year 6 months.
    • (e) Time to be served is 4 years at Buimo Correctional Institute.
      

Sentence accordingly.

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