State v Wickless [2018] PGNC 382; N7507 (15 October 2018)

N7507

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR No. 332 OF 2018

THE STATE

V

STEVEN WICKLESS

Kimbe: Miviri AJ
2018: 20^th 28^th September 9^th 11^th October

CRIMINAL LAW – PRACTICE AND PROCEDURE – Robbery – Plea – store robbery – first offender – PSR and MAR considered - discretion of court – serious and prevalent offence – active role in offence – daring robbery in heart of Kimbe Town – deterrent sentence.

Facts
Prisoner and others held up employees of City Pharmacy Chemist as they were opening the shop for the day with guns and knives and stole K 29, 431. 41 but could not escape as police were alerted who set up outside and apprehended all.

Held
Early Guilty plea.
Well planned robbery.
Serious and prevalent offence.
Deterrent punitive and sentence

Cases Cited:
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 Max Ere Cr 236 of 2017
The State v Simbago [2006] PGSC 23; SC849
The State v Thress Kumbamong (2008) SC 1017.

Counsel:

D Kuvi, for the State
B Takua, for the Defendant

SENTENCE

15^th October, 2018

1. MIVIRI AJ: This is the Sentence upon Steven Wickless who pleaded guilty that he on the 13^th February 2017 accompanied 7 others who were armed with homemade guns a pump action shotgun and knives went into the Kimbe City Pharmacy Chemist as it was opening for the day, held up the employees and stole K 29, 419. 41 the property of that Company. But as they made their way out to escape Police who were alerted set up outside and apprehended the Prisoner and all others involved.
   

Charge

2. Prisoner was indicted with aggravated armed robbery 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. He was accompanied by seven others who were armed as set out above who threatened and assaulted the victim’s employees to get the properties stolen set out above.
   

Allocutus

3. In allocutus the prisoner recountered:
   

“It is true that I followed the boys and did this. I carried their bag and it is true we went into the store I did not hurt or injure anyone in the store. It is true we got the properties we came out police came we left everything inside and surrendered to Police. I was in custody worried about my four year old son with my old mother as my father had died. I used to market near our house to look after my three little ones pay for our light and water. I am sorry to be before this high Court and I apologise for what I did breaking the mother law of the Country. I say sorry to Jackson Maga and the staff for what we did to them. Have mercy upon me and give me probation”

Mitigation

4. He made an early plea of guilty to the crime. The offence took place on the 17^th February 2018. And Committal was on the 12^th March 2018. He pleaded guilty to the charge on 25^th September 2018. It was an early and honest plea of guilty he owed up for his wrong coupled with the fact that they were all caught at the scene of the crime. The sentence will reflect this. There was nothing retrieved off the prisoner evidencing that he had benefitted from the offence. He was 28 years old married with a 4 year old child his wife was no longer with him. And the child with his mother.
   
5. In the presentence and means assessment report ordered and obtained before the court dated the 9^th October 2018 he was resident at Gigo 2 Settlement originally from Meselia in Kandrian Coastal where his father was from. His mother was from Buluma and resident there. Prisoner was the eldest out of three children. He was educated to grade 10 in 2008 and then went onto Moramora Technical School where he took up spray painting and panel beating courses in 2009 to 2010 graduating with a panel beating certificate. He did practical training with Ela Motors for 6 months in 2010. Immediately before stepping into the crime he did informal marketing that was helping him in his life. In the means assessment report dated the 9^th October 2018 he had experience as a panel beater with Ela Motors after attending course on the same at Moramora Technical School. It would have been basis to further lawful living after time in jail upon him. The manager of City Pharmacy at the time of the offence resigned and was traumatized including the employees.
   
6. It has been submitted on your behalf that your case is likened to State v Max Ere - Cr 236 of 2017 (27^th September 2018) where prisoner pleaded guilty to armed robbery of a canteen at a plantation residence and made away with K1000 in cash and goods to the value of K72. He was a watchman armed with a bush knife and caught at scene after pursuit by those in that plantation community. Seven (7) years IHL was imposed. There is clear distinction apparent in the locality of where the crime took place between that case and the present. That was in a plantation compound residency. Here is the heart of Kimbe Town where business is run including the Provincial Government headquarters, agencies of Government and Instrumentalities, including the law Courts, the police Station, banks and shops. It is therefore a complete difference in the way the court will address in determining sentence. It is the hub of the province and attacking a Pharmacist which is frequented by town’s people for their personal needs must have its safety guaranteed. It is the duty of the court given the facts to so guarantee by the imposition of appropriate sentence called in view. To impose a term of 8 years and below would not be comparable nor proportionate with the facts and circumstances of the case. A robber or criminal takes a gamble that he will benefit or not benefit in the offence. The property is not his when he sets out in the criminal enterprise. It cannot be a defence or a mitigating factor that he did not receive anything out of the robbery. It is not analogous with going to a bank to withdraw ones savings. The former is not guaranteed the latter is by virtue of the doctrine of ownership in property. It would therefore be not a mitigating factor in the determination of sentence upon the prisoner.
   

Aggravation

7. It was a daring and dangerous armed robbery committed in the heart of Kimbe Town square in the heart of all business activities meters from the Police Station the Law Court premises West New Britain Provincial Government headquarters and all other instrumentalities of Government and business. There was no heed or fear of this fact including the danger that was committed and posed to all grave consequences in the likes of Lahui, Hetau, Noho, and Eki, The State v [1992] PNGLR 325 (August 1992); Simbago v The State [2006] PGSC 23; SC849 (31 August 2006). Resistance was expected and anticipated therefore the arming with a pump action shotgun, a homemade stapler gun and knives. It was no accident when parliament increased the maximum penalty from life years to the death penalty, Criminal Code amendment No. 6 of 2013. The backdrop of the aggravated and prevalent occurrence of this offence in Kimbe and elsewhere in the country warranted. There was serious need in sentencing to protect the community and lives from perpetrators such as the prisoner. He did not think twice as to the consequences of the offence a grown man of his age 28 years married with a child four years old educated to Moramora vocational centre with certificate in panel beating. Rather than seek employment he sought to enter the criminal domain.
   
8. In accordance with Gimble v The State [1988-89] PNGLR 271 this is likened to robbery of a shop drawing a starting point of 8 years, aggravated for the reasons set out above fitting this tariff and range. 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) SC1017. Prisoner pleaded guilty asking for mercy from the court. It has been submitted on your behalf that you were lured to the offence. That submission falls because you are 28 years old not a juvenile or a teenager. There is no physical injury but the emotional trauma suffered in that respects has been set out by the presentence report which are accepted as immediate from the offence.
   
9. 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 28 years old now not a youthful offender a mature man who should have known better. Here is a shop within the heart of Kimbe town that 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 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: 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. Given the facts and circumstances set out here that is applicable here because it is perpetrated daringly in the heart of Kimbe putting lives of all there at serious risk of injury and death. There is no second offence but what is set in motion is total disregard for law order and security of the town by the prisoner and accomplices. Shops and businesses including law enforcing authorities the Police and Court whose presence in the heart of Kimbe did not deter the prisoner and accomplices. Criminals who dare to bring the security of the heart of Kimbe Town or any other town or city or locality into disarray and unlawfulness must be deterred by stern punitive and decisive sentences. The court will not be deterred to so imposing as here. Whether a person is in the shop as here or in the house or on the road or street either in a town or city or rural setting all are accorded protection of the law by the same Constitution including the prisoner. One is not inferior from the other and it would not be justice to differentiate. Accordingly the prisoner is due what is called for on the basis of his own facts and circumstances.
   
10. That is not to say that consistency and comparativeness must not be avoided as in 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 whilst remanded for this offence. You were living a good life and have good qualifications notably that you are a grade 10 leaver who went onto attain a certificate of panel beating with practical experience at Ela Motors. Rather than pursue that you resorted to criminal conduct that has now landed you in jail.
    
11. You paid no heed that the employees of City Pharmacy Chemist like yourself were despite whatever conditions in life were trying in their way to make life’s ends meet so that they could live from day to day. There is no doubt each was traumatized as shown by the evidence set out in the file. Use of one of the employees Natalie Petrus as a shield to come out of the scene to escape was itself serious aggravation of the offence. She has since resigned after the robbery including the manager Samuel Diaz. There should never be any threat to safety and security of persons who are employed within the heart of Kimbe Town from criminals such as you. And the court will protect by the imposition of sentence that will deter and punish those who dare. Because every criminal in an offence play their individual part in the execution of the criminal offence. One is not lessor or inferior than the other. All bear equal responsibility. It is not mitigation to say that the planning was by someone else who came and lured you into the offence. Especially given that you are a grade 10 graduate and a certificate holder in panel beating from a vocational centre. By that fact you no doubt have the intelligence to know wrong from right.
    
12. You are sentenced to 15 years IHL for the robbery. The time that you have spent in custody will be deducted forthwith. You will serve the balance in jail.
    

Orders Accordingly

__________________________________________________________________Public Prosecutor: Lawyers for the State

Public Solicitor : Lawyers for the Defendant