State v Toure [2018] PGNC 481; N7572 (2 November 2018)

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CRIMINAL LAW – Sentence – Plea - Particular Offence – Arm Robbery – S386(1)(2) Criminal Code – Sentencing Considerations - Robbery of a Vehicle on the Street – More than One Person Involved - Use of Bush Knife, an Offensive Weapon – Threats of Violence – No Physical Injuries Received

CRIMINAL LAW – Sentencing – Parity Principle –Degree of Culpability or Participation – Totality Principle – Concurrent & Cumulative Sentence – 8Years & 4 Years Sentence Respectively

Gimble v The State [1988-89] PNGLR 271
Public Prosecutor v Don Hale (1998) SC564
The State v Tom Keroi Gurua & Ors (2002) N2312
John Peter Arua v The State (2000) SC 638
The State v Tom John Damu (2004) Cr 712/04
The State v Chris Banban & Nare Steri Banban [2004] PNGLR 14
The State v Dickson Talu (2005) CR1385/04
The State v John Carl Endekra & 2 ors [2007] PGNC82; N3185
The State v Boria Hanaio & 3 0rs Cr 122-123/2007
The State v Chris Baili CR1396/06
The State v Nimai [2008] PGNC72; N3355
Bobolan Mebu Peter v The State [2007] PGSC28; SC894
The State v Jonathan Singi [2009] PGNC91; N3692

1. SUSAME, AJ: Prisoners appeared in court on 17 October 2018 on a charge of arm robbery pursuant to s. 386 of the Criminal Code.

2. Both pleaded guilty to the charge and after affirming the plea conviction was entered against each of them. Sentence was reserved for which they now appear.

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

(c) at, immediately before or 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 imprisonment for life.

3. On 5 May 2016 accused were amongst a gang of six or seven involved in the robbery at Tzen Nuigini Limited premises at Takubar Commercial Center in Kokopo, East New Britain Province.

4. To execute the robbery earlier on that same day two members of the gang stopped a maroon PMV BT50 with initials J4U written on bearing the registration number P71185 outside the Water PNG Office in Kokopo. They asked the driver to drive up to Stage one at Kenabot under the pretext of picking up some Kunai grass.

5. In the meantime, accused Francis Toure and other gang members were already up on the Hill at Kenabot waiting. The PMV was made to stop by the members of the gang on the PMV at the location the other gang members were waiting. Immediately when the bus stopped Francis Toure and other members of the gang came out from their hiding armed with bush knives. They threatened the driver, the crew and one passenger who was on the bus and ordered them to lie at the back of the bus where they tied them up.

6. The gang got the vehicle and proceeded to Katakatai village. There they picked up accused Henry Bruno and few other gang members to effect the robbery at Tzen Nuigin Ltd premises.

7. Mr. Tugah has referred the court to few authorities on sentencing guidelines in arm robbery cases. The guidelines were first laid down in by the Supreme Court in Gimble v The state [1988-89] PNGLR 271. The guidelines were reviewed by the same court in 1998 in Public Prosecutor v Don Hale (1998) SC564. The guidelines were reaffirmed in subsequent judgments of the same court and which are often used by the sentencing courts. The guidelines are:

8. The present case involves robbery of a vehicle on the road which makes the case fall under category C with a baseline sentence of 8 years. Whether sentence should increase beyond the 8 years or less than 8 years is depending on other considerations including factors in mitigation and aggravation.

9. Court was referred to a number of cases by the counsels in their respective submissions.

No.	CASE	FACTORS	SENTENCE
1	John Peter Arua v The State (2000)SC 638	Plea – Aggravated Robbery & illegal use of vehicle	10 years sentence upheld
2	The State v Tom John Damu (2004) Cr 712/04	Plea –Arm Robbery & unlawful use of motor vehicle.	7 years & 3 years Concurrent sentence
3	The State v Chris Banban & Nare Steri Banban [2004] PNGLR 14	Plea- Aggravated Robbery – of vehicle on the road – more than one person involved – homemade guns, bush knives and sling shots used	7 years each
4	The State v Dickson Talu (2005) CR1385/04	Inactive passenger on a motor vehicle a robbed vehicle.	2 years & partial suspension
5	The State v Endekra & 2 Ors [2007] PGNC 82; N3185	Plea – Robbery truck on the road – guns & bush knives used – K6oo worth of cargo stolen – occupants wounded	5 years each
6	The State v Boria Hanaio & 3 Ors Cr 122-123/07	Both plea & Trial – Arm Robbery & unlawful use of motor vehicle	5 years for two 4 years for one 3 years for one
7	The State v Chris Baili CR1396/06	Robbery of company truck doing pay run on the road. Gang involved. K22,400.00 stolen	7 years each
8	The State v Nimai [2008] PGNC 72; 7335	Plea- Robbery of vehicle on highway – 4 persons involved – Items with K120 stolen – 19 year old boy – was acted as a spy	8 years with 2 years suspended
9	Bobolan Mebu Peter v The State [2007] PGSC 28; SC 894	Plea – Aggravated Robbery -	Appeal upheld 13 years reduced to 10 years
10	The State v Jonathan Singi [2009] PGNC 91; N3692.	Plea – 4 persons involved –PMV held up on road –bush knives used – K15 stolen	4 years

10. The law on sentencing of multiple convicted offenders is based on parity principle is settled and has been observed by courts in most commonwealth jurisdictions including Papua New Guinea. The principle is based on the notion of achieving justice. That sentencing of multiple offenders is determined by the level of their criminal culpability or degree of participation and other relevant characteristics.

11. I endorsed the principle in The State v Joshua Sagalol & ors [2018] N7353 (13 July 2018) following the decision by His Honour Kirriwom J in The State v Tom Keroi Gurua & Ors (2002) N2312). It would be an omission for this court to depart from it in sentencing of the offenders in the case at hand.

12. The offenders are convicted prisoners serving a ten years concurrent sentence. They were convicted by this court for offences of wilful damage and armed robbery on 4 April 2017. The vehicle used in that robbery is the subject of this proceedings.

13. Question is whether the sentence passed should be made cumulative or concurrent.

14. This is when consideration of totality principle of sentencing comes in. The principle requires that when consecutive or cumulative sentences are imposed, a final review of the sentence is to be made to ensure that the total is not excessive. (Public Prosecutor v Terrence Kaveku [1977] PNGLR 110.)

15. Prisoner Francis Toure expressed this in mitigation. He apologized to the court for what he had committed in breach of the laws of this country. He asked court to be merciful on him.

16. Prisoner Henry Bruno expressed he had the desire to complete his education. He is serving a long prison term and may have no time to get back to school to complete his education.

17. Prisoner Henry Bruno in his brief address on sentence expressed his intention to complete his education. He considered his current term of imprisonment was quite long and that he may not have time to attend school and complete his education. This was backed up by Miss. Pulapula who asked for a concurrent sentence. The basis of that submission is that all the offences were committed in a single transaction.

18. On the other contrary Mr. Tugah had submitted for a cumulative sentence. The rational being that present case has separate set of facts. Offence was committed at a different location, different time of the day and with different complainants.

19. By the characteristics of the crime, armed robbery is a crime that consist of threats of violence against other person(s). When dangerous or offensive weapons or instruments are used and more than one person was involved and wounds or uses any other personal violence to other person(s) these are factors of aggravation. Those factors make up a case to attract the maximum penalty of death sentence pursuant to subsection (2) of s386.

20. Both prisoners are not considered first time offenders. Francis Toure has three prior convictions, one by Kokopo District Court and two by the Kokopo National Court.

21. Francis was the active participant in the theft of the vehicle. He was the one armed with a bush knife and together with others threatened and held up the driver of the PMV and two others.

22. Henry Bruno has one conviction by the National Court. At the time offence was committed Bruno was 21 years of age. Though he is young he is not a juvenile. Bruno was never an active participant in the theft of the vehicle. He never imposed any threats of violence or used any offensive or dangerous weapons. He was picked up in his village. He was convicted as principal offender by operation of s 7 of the Criminal Code.

23. Courts assessment of the reports and other characteristics of the offenders are as follows.

24. The author of the pre-sentence reports considered prisoners are suitable candidates for Probation. The author recommended probation sentence. Reports contain additional information on each of the prisoners. The reports also captured views from their family members as well as the owner of the vehicle. Like in almost every case family members were regretful of prisoners’ actions. They were quite sympathetic.

25. The owner of the vehicle was quite concern of the damage to his vehicle and the loss suffered. He relied heavily on the vehicle to generate income to maintain his family. He also had a loan obligation to settle as the vehicle was purchased with a loan from Credit Corporation.

26. There were indications from the prisoner’s family members to assist in payment of some compensation. I wonder if some form of compensation will be paid by the prisoners considering their negative financial status. They committed the offence they should be personally responsible and account for their own actions. Then they could solicit back up support from their family.
27. In any case if they were serious family members should have taken initiative to pay some form of compensation to the complainant to mitigate his loss instead of making such an intention known at eleventh hour. From that date of the offence nothing tangible had been done.

28. I consider therefore Francis Bruno is not a suitable candidate for probation. Henry Bruno may be a suitable candidate for probation sentence because of the favourable report of his background.

29. Further observations. Two robberies were committed on the same day but at different times and locations. The vehicle was robbed from different complainant. That vehicle was used to facilitate the second robbery. I do not consider that to be a single transaction but distinct and separate acts.

30. Offence of arm robbery is a serious offence and is becoming quite prevalent and is disturbing the beautiful and peaceful Province of East New Britain which has been declared by the government as a tourism hub amongst few other Provinces.

31. To restore public confidence and for the common good a punitive sentence is appropriate. Not only should that sentence achieve the purpose of personal and general deterrence. While there are critiques that prison sentence have not fared well for reformation of offenders. I think otherwise. Reformation and rehabilitation of prisoners is achievable if there are active rehabilitation programs run in prisons. That if there is willingness of a prisoner to participated in such programs and allow change.

32. All that said what sentence should the court pass on each of the prisoner using the 8 years base line sentence in Public Prosecutor v Don Hale (supra).

33. With respect to Francis Toure scale should be 8 years. For Henry Bruno because of the less role he played his sentence be less than 8 years just about 4 years following The State v Jonathan Singi (supra).

34. Accordingly, bearing in mind the totality principle the following sentence is passed.

Public Prosecutor: Lawyer for the State
Public Solicitor: Lawyer for the Accused

National Court of Papua New Guinea

State v Toure [2018] PGNC 481; N7572 (2 November 2018)