State v Kait [2018] PGNC 489; N7601 (23 November 2018)

N7601

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]

CR N0. 1182 OF 2011

THE STATE

V

MARTIN KAIT

Kokopo: Susame AJ
2018: 8^th & 23^rd November

CRIMINAL LAW – Sentence On Plea- Offence – Robbery - s 386(1)(2)(a)(b) (c) Criminal Code - Sentencing Considerations – robbery of a Person on Street at Night- Verbal Threats Used – no Violence- no Weapons Used – no Injuries Sustained

CRIMINAL LAW – Sentence – Special Considerations - Family Lost Home and Properties When Police Set Fire to The House- Prisoner Taken to Secluded Spot by Police And Shot And Wounded His Leg - 3 Years Sentence, Less Period In Custody - Balance of Sentence Wholly Suspended Upon Prisoner Being Placed on Probation With Conditions

Cited Cases
State v Henry Wartia [2018] PGNC 200; N7293
William Ukukul Gimble v The State [1988-89] PNGLR 271

Counsels

Mr. Tugah, for the State
Mr. Ainui, for the Prisoner

DECISION ON SENTENCE

23 November, 2018

1. SUSAME, AJ: Prisoner is in court to receive his sentence. On arraignment on 8 November 2018, he pleaded guilty to the charge of aggravated robbery pursuant to s 386(1)(2)(a)(b)(c) and was accordingly convicted.

FACTS

2. Facts upon which the prisoner was convicted are as follows. The complainants who are couples were walking home at Ulagunan village between 11pm and 11.30pm on 2 November 2011. As they were walking past the PNG Power Station the prisoner and his other accomplice followed them from behind. When they got to the couple they ordered them to put their baskets and other things on the ground.
   
3. They verbally threatened to shoot them with a gun so in fear they placed their personal items on the ground. They were then ordered to run to their house.
   
4. The following items were stolen from the couple:
   • A bush knife
   • A torch
   • A basket containing a mobile phone worth K65.00, wallet, Westpac Bank Card, ID card, driver’s license, easy pay card and K20.00 cash.
   • Wife’s basket containing her mobile phone worth K49.00, cream buns, betelnuts, mustards, lime and other personal items.
     
5. The prisoner kept in his possession a mobile phone and a bush knife while his other accomplice kept rest of the properties.
   

Offence of robbery

6. Section 386 provides two types of robbery. First is ordinary robbery which carries an imprisonment term not exceeding 14 years. Second is aggravated robbery which formerly provided the maximum life imprisonment until amendment N0. 6 of 2013. That law came into operation on 18^th September 2013 by amending the words, “subject to section 19, imprisonment for life” with the words: “to be sentenced to death.” The maximum penalty for aggravated robbery is now death sentence.
   
7. Subsection (2) should now read;
   

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 with one or more other persons; or

(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 to be sentenced to death.”

SENTENCING CONSIDERATIONS

Address on Sentence

8. In his address the prisoner pleaded for the mercy of the court. He has children to care for, one is in grade 3. His father had passed on. He also takes care of his widow mother and his other siblings.
   
9. Ms. Ainui representing him followed through with her submission. In her oral presentation she basically asked the court to take into account the reports compiled by the Probation Officer which are generally favourable to the prisoner and the recommendations by the author for the prisoner to be released on probation with conditions.
   
10. In her written submission she provided list of factors which were in the prisoners favour. She submitted prisoner and his family are now without home and displaced after police set their house on fire. In addition to that police had shot him twice and wounded his leg.
    
11. Ms. Ainui submitted for a 3 years sentence which is the baseline sentence of category 3 of William Ukukul Gimble v The State [1988-89] PNGLR 271 guidelines. She submitted prisoner had been in custody for well over a year and that be considered as sufficient punishment. Considering these factors, she asked for the sentence to be wholly suspended.
    
12. Miss Batil made reference to seven recently decided cases. They are all cases involving robbery of persons on the street and more appropriate. They were all early plea cases except one.
    
13. Miss Batil also listed a number of factors she thought were for and against the prisoner. In the end she asked for a strong deterrent sentence due to prevalence of the offence.

Pre-sentence & means assessment reports

14. The pre-sentence and report provided additional information about the offender, his educational back ground, employment history, financial situation, health, his future plans and his community relationship. Report captured views from offender’s family members, ward development committee member, the complainant, offender and recommendations of the author of the report.

Factors of aggravation and mitigation

15. Factors that weigh against the prisoner are that he was in company of other person. The offence was committed in the cover of night. Items stolen have not been returned to the complainants. Factors that lean to his favour are that he cooperated with police and he pleaded guilty to the charge. No weapons were used. There was no actual violence and complainant suffered no physical injuries. Prisoner and his family lost their dwelling house and properties when their house was set alight by police. Offender was shot and wounded by police on his leg during his apprehension.
    

REASONS FOR DECISION

16. What should be the appropriate penalty? First of all, offence of robbery is a serious crime by its nature. It is a crime of stealing of money or goods by means of threat or actual violence upon persons. Most often than not offensive or dangerous weapons are used. Peoples’ lives are put at great risk. At times they suffer physical injuries or even death and properties are damaged. It is an undeniable fact that incidents of robbery are quite prevalent in our society’s including East New Britain Province.
    
17. In this case the prisoner and one other used the cover of the night, blinded the couple with torch light flashed directly on their face. Then they issued verbal threats to shoot them with the gun ordering the complainants to place all their items on the road and made them run. It did cause some fear but there was no actual violence used or weapons used. The couple never suffered any injuries. In that respect facts set out above do not make the case a serious aggravated robbery. I would like to think that prisoner and his other colleague were opportunists trying to be just smart picking on unsuspecting members of their own community using the cover of the night, particularly in the community with a high crime risk. It was a one off incident that happened at the wrong time which is regrettable.
    
18. Secondly, prisoner’s characteristics. The views expressed by the prisoner’s family and the ward development committee of the prisoner’s character are noted. The ward committee is a leader in the community where prisoner hails from. He lives in the community. He is in a much better position to know how youths conduct themselves in the community, those who have serious behavioural issues and those who do not behave as such. The ward development committed has given a favourable character report of the prisoner. I have no reason to think otherwise unless the family members and the ward development committee were just sympathetic of the prisoner and gave an exaggerated report. The report also stated there was a positive turnaround by the prisoner to live a law abiding citizen after he committed the offence.
    
19. Prisoner has a previous conviction in his police crime report. He was convicted by Kokopo District Court for a minor offence of drinking in a public place back in 2009. That conviction was 9 years ago. Despite that conviction I do not consider he has serious behavioural law and order issues in the community nor do I consider him to be a repeated offender. In that regard I do not consider the conviction will have substantial bearing in deciding the penalty. Penalty will be based on the merits of the case under consideration and other factors discussed above.
    
20. Thirdly, the prisoner and his entire family have lost their home with all their properties when set alight by police. When he absconded bail and later arrested by police in executing a bench warrant that was issued prisoner was taken away to a secluded spot. There he was shot and wounded on his leg. Whether actions taken by the police were lawful or not is of no concern to me in deciding the penalty. The court cannot disregard that in doing justice. I consider that as a special factor in favour of the prisoner. To this court and to any ordinary Papua New Guinean the prisoner had already received some form of punishment which was life threatening even before the court decided his penalty in accordance with law.
    
21. Fourthly, despite the punishment prisoner had received at the hands of police he is remorseful for what he did. However, all that is required of him is to do something tangible to reconcile with the complainants. Complainants have expressed their willingness for a reconciliation ceremony requested for K3000.00 compensation in the pre-sentence report. Prisoner had indicated his willingness to pay some form of compensation. Even though his financial status is not that good he is able to with the support of his family. With such a strong family support there is a real possibility compensation will be paid. In that respect court may invoke the Criminal (law) Compensation Act and order compensation in addition to the penalty court imposes.
    
22. At this point let me consider the types of sentences courts have imposed in the seven cases court has been referred. At the outset present case does not deserve the maximum death sentence in view of the circumstances of the case and prisoner’s characteristics discussed above. Of the 7 cases, one received an 11 years sentence which was considered excessive and was reduced to 7 years on appeal by the Supreme Court; one received a 4 years sentence; in three others 3 years, sentences were imposed and in the remaining three cases 5 years sentences were imposed. One of them is the case of State v Henry Wartia [2018] PGNC 200; N7293 (13 June 2018) which I dealt with. It was a plea case in which I imposed a 5 years jail term, 2 years more than the baseline sentence of 3 years prescribed in William Ukukul Gimble v The State (supra) because of the increase in sentencing trends on account of prevalence of the offence.
    
23. On other point. Ms. Ainui had submitted prisoner had been in custody for well over one year. She asked the court to consider that as sufficient punishment. A thorough check on the court file reveals otherwise. Prisoner first appeared before the committal court on 3 October 2011 from custody. He was released on bail on or about 9 December 2011 after two months in custody. He was out on bail until he jumped bail awaiting his trial before the National Court. A bench warrant was issued for his arrest on 04 December 2012. Subsequently, he was arrested by police on or about 5 February 2018 and taken into custody. Excluding the time spent in custody while going through the committal proceedings, the period in custody would commence from 5 February 2018 up till the date of sentence. That is computed to 9 months 18 days. That will obviously be discounted from the imprisonment term imposed.
    
24. Going by guidelines in Gimble v The State 3 years should be the appropriate sentence.
    
25. Accordingly, the prisoner is sentenced to 3 years in jail less time spent in pre-trial custody. Should I suspend the sentence? If so what would be the basis for justifying that? Court’s power to suspend part or whole of the sentence is vested by s 19.
    
26. Prisoner had been very harshly punished at the hands of police. For the prisoner to be further incarcerated from the community and his family would be harsh, adding more pain to the prisoner and his family who have also suffered. Secondly, parties are willing to hold a reconciliation gathering. Although prisoner had not taken the initiative to do that earlier court will allow that opportunity for parties to do that by specific orders in addition to the punishment court has pronounced.
    
27. It follows therefore the entire balance of the sentence is wholly suspended upon prisoner being placed on probation for the entire duration of the suspended sentence.
    
28. In addition to the mandatory conditions of Probation sentence under the Act the following additional conditions are ordered.
    
    1. Prisoner shall report to OIC Probation Services Kokopo upon release at 9.00 am on Monday 26 November 2018.
    2. He shall comply with all directions/instructions given him by the Probation Officer.
    3. As regards compensation a nominal award will be made as complainants loss was estimated at around K380. That is not a substantial loss. Accordingly, prisoner shall pay compensation of K380.00 with 70 fathoms of traditional legal tender of tolai people equivalent to K700.00.
    4. Payment of compensation and reconciliation to be concluded within 30 days to be witnessed by the Probation Officer, Church Pastor/Priest and Ward member.
    5. Prisoner is restraint from consumption of alcohol and other illicit drugs.
    6. Prisoner is restraint from associating with peer groups
    7. Prisoner is restraint from changing his residential address or leave ENBP without notifying the Probation Officer and without leave of the court.
    8. Prisoner to attend church services every Sunday.
       
29. The court further orders that prisoner’s bail money is refunded forthwith

__________________________________________________________________
Public Prosecutor: Lawyer for the State
Public Solicitor: Lawyer for the Prisoner