N7484

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR No. 236 OF 2017

THE STATE

V

MAX ERE

Kimbe: Miviri AJ
2018: 23 August, 27 September

CRIMINAL LAW – PRACTICE AND PROCEDURE – Armed Robbery – Plea – store robbery – first offender – PSR and MAR not favourable – serious and prevalent offence – bush knife watchman – deterrent sentence. 

Facts

Accused was the watch man in a group of armed men who held up a canteen at a plantation compound and stole cash and goods to the value of K1072.

Held

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

Cases Cited: 

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 Herman Eliakim Sai & Mori Joe Simbu [2018] N7309
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
E Yavisa, for the Defendant
		
SENTENCE

27th September, 2018 

1.	MIVIRI AJ: Max Ere is charged with Armed Robbery committed on the 28th August, 2016 at NBPOL Sapuri Compound Ismin Kimbe with others armed with homemade guns and bush knives. He was armed with a bush knife and kept watch as his accomplices with firearms went to a canteen and held up one Bernadette Giru threatened her with the weapons assaulted her and stole K1000 in cash and goods valued K72.00 and escaped. Prisoner was aided and abetted the offence. 

Charge

2.	The charge was contrary to Section 386 (1) (2) (a) (b) (c) Criminal Code Act prescribing a maximum penalty of death. The maximum under the section of death will be imposed in a worst case. The facts circumstances here do not depict that, but certainly a term of years will be imposed. That will be calculated from the aggravating mitigating and any extenuating circumstances.

Aggravation

3.	It is a crime of violence wherein the prisoner accompanied others who were armed with homemade guns and bush knives all dangerous weapons. His accompaniment 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 holding a bush knife. 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.

4.	The immediate area of the robbery is a canteen at New Britain Palm Oil Sapuri Compound at Ismin. It is an area frequented by people who live there together with the victim who was intent on trying to make a living. By going as they did prisoner and those who were with him put the lives of both those who were there at risk including the workers of the compound. 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 (August 1992); Simbago v The State [2006] PGSC 23; SC849 (31 August 2006). 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: State v Herman Eliakim Sai & Mori Joe Simbu [2018] N7309 (20 June 2018). Including bush knives as was the case of the prisoner. 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 of to have weapons ready as demonstrated here. And the role of the prisoner is important in this regard.

5.	Lawlessness in this way 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.

6.	The offence is also a very prevalent offence human life must be protected from harm. It is immaterial whether or not the prisoner benefitted. But it must also be commended that the people at Sapuri Compound did not stand back and watch but took active participation to apprehend those who were involved leading eventually to the apprehension and arrest of the prisoner.

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. Sentence will not be wholly dependent on whether a prisoner benefits from the robbery or not it is the manner in which the crime is committed that will count most. There must and ought to be basis to consider alternatives to imprisonment. In the presentence and means assessment reports presented there is no basis to consider. But it is important also to consider his age and that he has pleaded guilty to the charge.

8.	I do so here having due regard first to the fact that he is a first time offender aged 19 years old at time of offence, today at sentence is 21 years old. He has no record of any formal employment as at the date of the offence. 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.	His action must be punished and denounced and rehabilitation upon education is unlikely he is not employed nor does he have evidence that he is at a school. 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. 

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 19 years old at the time of the robbery, 21 at sentence today. He is a young 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 canteen in a plantation compound therefore analogous to 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 (19 December 2006) 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. And this view is consistent with Marase v The State [1994] PGSC 11; [1994] PNGLR 415 (27 October 1994) where the appeal was dismissed and the 19 and half year IHL was confirmed for rape and robbery.

11.	The converse is Gorop v The State [2003] PGSC 1; SC732 (3 October 2003) 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. 

12.	You are sentenced to 7 years IHL. The time that you have spent in custody will be deducted forthwith. The balance will be served in jail forthwith.

Orders Accordingly,
__________________________________________________________________Public Prosecutor:  Lawyer for the State	
Public Solicitor   : Lawyer for the Defendant