State v Leo [2018] PGNC 612; N9235 (23 March 2018)

N9235

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR NO. 84 OF 2016

THE STATE

V

CLIVE LEO

Alotau: Toliken, J
2017: 19 May, 20^th October
2018: 23^rd March

CRIMINAL LAW – Sentence – Aggravated robbery – Guilty Plea – Robbery on Highway – Criminal Code Ch.262, s 386 (1)(2)(a)(b)(c).

CRIMINAL LAW – Sentence – Amendment to maximum penalty – Increase of – Life to death – Need to raise starting point from current guidelines – Starting point set at 14 years – Mitigating factors considered - Offender played insignificant Role – First time offender – Guilty plea - Extra-judicial punishment by police after apprehension – Aggravating factors considered – Prevalent offence – Multiple victims – Three (3) deaths – Use of dangerous weapons – Company with others – Appropriate sentence – 13 years less time in presentence custody – Nil suspension –Criminal Code (Amendment) Act 2013, No.6, s 7.

Cases Cited:

Gimble v The State [1988-1989] PNGLR 271
Public Prosecutor v Don Hale (1998) SC564
Jim Tau Anis v The State (2000) SC642
Avia Aihi v The State (No.3) [1983] PNGLR 62
Goli Golu v The State [1979] PNGLR 653
The State v Yogol (2004) N2585
The State v Abau Mathew Kokorua & Tindility Gran Sipeima; CR 845 & 846 of 2016 (Unreported and unnumbered judgment dated 11 May 2017).
The State v Steven Nagega; CR 853 of 2011 (unnumbered judgment dated 3^rd March 2017)
The State v Bobby Magelamina; CR 84 of 2016 (unreported and unnumbered judgment of 26^th July 2017)

Counsel:

H. Raulakona, for the State
P. Palek, for the prisoner

SENTENCE

23^rd March, 2018

1. TOLIKEN J: On 19^th May 2017, Clive Leo you pleaded guilty to an indictment charging you with one count of armed robbery pursuant to Section 386 (1)(2)(a)(b)(c) of the Criminal Code Ch. 262 (the Code).
   
2. I heard submissions on 20^th October 2017 but was not able to pass sentence for various reasons including my prolonged absence from Alotau due to work commitments elsewhere for the last two months of last year. This is my judgment on sentence.
   

CHARGE

3. You were charged that on 10 December 2015 at Alotau, you stole with actual violence from Richard Tudesi and others cash monies in the sum of K231.00 and several mobile phones all valued at K548.00 the properties of the said persons, and that time you were armed with a dangerous weapon namely a firearm and you were in the company of others, and immediately before and after the robbery you used actual violence to those persons.
   

SUPPORTING FACTS

4. The brief facts in support of your charge are that on Thursday 10 December 2015, between 2.00 – 3.00p.m. Richard Tudesi was driving passengers on his PMV truck Registration Number P.O600H (Luma Tutua No.1) towards Padipadi, outside of Alotau Town.
   
5. In the meantime, you and other men, armed with guns waited in the bushes along the road at Pini Range. As Richard Tudesi was driving downhill at Pini Range, you and your accomplices jumped out of the bushes and held him up. When Richard Tudesi stopped the truck you and your accomplices threatened him and his passengers with guns and assaulted them with fists and gun butts.
   
6. You and your friends stole a bilum containing the day’s takings totalling K231.00 from Richard Tudesi. You also stole several mobile phones from the passengers, the estimated value of which was K548.00. You, however, did not benefit personally from or take away any of the items stolen. Notwithstanding that, you were in the company of others, whilst armed with dangerous weapons and stole properties with actual violence from Richard Tudesi and his passengers.
   

PLEA

7. You pleaded guilty to the offence. I confirmed the plea and convicted you after I had perused the Committal Court depositions.
   

THE OFFENCE

8. Section 386 of the Code provides for the offence of robbery in the following terms:

386. THE OFFENCE OF ROBBERY.

(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 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 subject to Section 19, to be sentenced to death.

8. The penalty for aggravated or armed robbery under Subsection (2) of Section 386 was previously life imprisonment. However, the penalty was increased to the ultimate penalty of death by Criminal Code (Amendment) Act 2013, No.6, s 7. This amendment was certified by the Speaker of the Parliament on 18^th September 2013 and since the amendment did not specify how and when it will come into force, it therefore came into operation on the date of certification by the Speaker of Parliament pursuant to Section 110 of the Constitution.
   
9. The maximum penalty is, however, usually reserved for the worst instances of an offence. And the sentence in any particular case will depend very much on the circumstances of each case. (Goli Golu v The State [1979] PNGLR 653; Avia Aihi v The State (No.3) [1983] PNGLR 62).
   
10. I must now determine an appropriate sentence for you. And to do that I need to consider, firstly, if this is a worst instance of armed robbery. If I find that it is then I can consider imposing the maximum penalty. Otherwise, I must impose a sentence that fits the circumstances of the offence.
    

ANTECEDENTS

11. You come from Ainagatoutou hamlet, Waima Ward, Alotau District. At the time of the offence, you were 32 years old. You are single and are the 2^nd born in a family of 4 siblings. Your father is deceased, but your mother is still alive, and you are a member of the Catholic Church. You were educated up to Grade 8 only. You have no prior convictions.
    

ALLOCUTUS & SUBMISSIONS
Allocutus

12. In your allocutus, you read from a prepared statement where in you apologised to victim’s family, the Borowai, Padipadi and Sagarai Communities and to God for your offence. You also apologised to your own family and the Waema Community. You said you are a first-time offender who was influenced into committing this offence by one John Waema Loihai and as a result you got shot by the police for your part in this crime.
    
13. You said you had been away from your family for 9 years in Popondetta and only returned home when you heard of your father’s death. You talked of the hopeless situation in which you found your widowed mother and your siblings after the death of your father and how you tried your best to care for their needs, how you started building your family a new house and made gardens so that your mother could sell produce at the market to repay a loan which your late father had taken from VOP (Village Oil Palm Scheme). You had only been with your family for 7 months and 2 weeks and because of John Waema Loihai’s influence you are now in Court. You are worried about the half complete work you have left behind and about the welfare of you mother and siblings.
    
14. You said the State had injured you in the process of apprehending you, and as a result you are not able to walk, run or do any heavy work.
    
15. You asked for a non-custodial sentence so that you serve for sentence outside and support your family as well as seek proper medical care (which was denied to you while in custody) for your injuries.
    
16. And finally, you asked the Court to take into account the period you had been in pre-sentence custody, which is 1 year, 8 months and 2 weeks.
    

Defence Counsel

17. Mr. Palek submitted in your behalf that an appropriate sentence for you should be in the range of 9 – 11 years. Whilst acknowledging that given the increase in the penalty from life imprisonment to death, Counsel submitted the starting point for your type of robbery should be 14 years. Mr. Palek relied on what I said recently in the case of The State v Abau Mathew Kokorua & Tindility Gran Sipeima; CR 845 & 846 of 2016 (Unreported and unnumbered judgment dated 11 May 2017). I will come back to this case later in this judgment.
    
18. Counsel cited a few factors which he said ought to mitigate your offence such as your guilty plea, your prior good character, your expression of remorse and the extra-judicial treatment you received from the police.
    
19. Counsel, however, conceded that this is a very prevalent offence coupled with the use of dangerous weapons.
    

State

20. Mr. Apo submitted on behalf of the State that this robbery ended in the tragic death of three persons, two of whom were your accomplices and an innocent passenger who was caught in the crossfire between the police and your armed accomplices. Mr. Apo, however, acknowledged that you did not fire the fatal shots as you were not armed with a firearm. Nevertheless, you were part of the group.
    
21. Counsel agreed that with the increase in the penalty from life to death the starting point should be 14 years. He cited several factors which he said aggravated your offence. These include the use of dangerous weapons, multiple victims, loss of life, committing the offence in company, robbery on highway where victims had no place to take refuge, use of extreme violence, emotional stress on victims and pre-planning the negative effect of the crime to the community and the PMV industry in the province and the prevalence of the offence in this province and the country in general.
    
22. Mr. Apo suggested that an appropriate sentence ought to be in the range of 12 – 14 years.
    

SENTENCING PRINCIPLES
Current Guideline Tariffs

23. The Supreme Court has provided guideline tariffs for the offence of armed robbery largely depending on the type or place the robbery took place.
    
24. In Gimble v The State (1988-1989) PNGLR 271, the Supreme Court laid down the following starting points for plea matters -
    
1. Robbery of a house - 7 years
2. Robbery of a bank - 6 years
   
3. Robbery of a store, club, hotel, vehicle

on the road - 5 years

4. Robbery of a person on a street - 3 years
   
25. However, subsequent Supreme Court decisions have suggested that those tariffs should be increased three-fold due to the prevalence of the offence in recent times. (Jim Tau Anis v The State (2000) SC 642; Public Prosecutor v Don Hale (1998) SC 564).
    
26. It must be noted that the tariffs set by the Supreme Court in Gimble were in respect of plea matter involving young offenders (18 years and above) for whom the court said no suspension should be considered. The court said at p. 275:
    

In suggesting sentencing tariffs in the above four categories of robbery, we have been considering young first offenders, 18 years and above, and in those cases, we do not consider that a suspension of any part of those sentences is appropriate. If, however, the offender is very young or there are special circumstances, a suspended sentence may be considered. If the offender has a prior conviction, then the suggested tariffs may be exceeded and suspension of any part would rarely be appropriate.

27. It is safe to say therefore that adult offenders must necessarily expect higher starting points as would those youthful offenders whose cases exhibit serious aggravating factors such as use of actual violence or where injury is inflicted on victims.
    
28. The community needs to be protected from people who think it alright or fun to subject innocent people to grave danger and even death. Robbers often say that they do not mean to hurt anybody, but experience tells us that robberies always often leave a lot of victims, some unfortunately losing their lives. The real likelihood of loss of life or serious injury to persons is the very reason the offence of armed robbery has always attracted a very stiff penalty.
    
29. Despite stiff penalties being meted out to offenders by the courts the offence continues almost unabated. And Parliament has not been blind to this. It in fact has responded by repealing the penalty of life imprisonment for aggravated robbery and replacing it with “death.”(Criminal Code (Amendment) Act 2013 (No. 6 of 2013, s7)
    

Post Amendment Tariffs - Suggestions

30. Because of those amendments, I said in The State v Abau Mathew Kokorua (supra) the starting point should now increase to 14 years from the starting points set by Gimble. There I said:

30. ... with the maximum penalty for aggravated or armed robbery now being death, it is perhaps now appropriate to revisit the guideline tariffs set by the Supreme Court. While the tariffs may still be appropriate for simple robbery, they may not now be appropriate for aggravated robbery.
    
31. The fact that Parliament has prescribed different penalties for simple and aggravated robbery, demonstrates its intention that armed robbers ought to be served with stiffer penalties. And a sentencing court must likewise take heed and act accordingly to give effect to Parliament’s will.
    
32. To that end I would like to think that the starting point for aggravated robbery should now be a lot higher than what it is currently. In fact, it ought to be around the maximum penalty for simple robbery (14 years) which I think is logical and augers well with Parliament’s intention.
    
33. That Parliament has increased the maximum penalty for aggravated robbery from life imprisonment to death is not without basis. The offence is prevalent and continues to rise. Current sentences by this court – premised on the prevailing guideline tariffs - have not, or appear to have not deterred would be offenders at all.
    

Culpability/Starting Point

31. Earlier in The State v Steven Nagega; CR 853 of 2011 (unnumbered judgment dated 3^rd March 2017), when commenting on the task of assessing the objective seriousness of an offence and setting a starting point, I said that the following:
    
    22. While the starting points set or suggested by the Supreme Court in the above cited cases [i.e Gimble v The State and those that followed it] are still very much relevant, I think that it is not enough to set a starting point by simple reference to the type of robbery involved.
    23. I am of the view that the sentencing court ought to assess the objective seriousness of the offence as well, by assessing and categorizing culpability, and the harm (actual or foreseeable) caused to the victim. Once the degree of culpability and level of harm are assessed, the court should then set a starting point that reflects the objective seriousness of the offence.
    24. Objective culpability, which can either be high, medium or low, can be assessed by taking into account several factors. I tabulate these in the table below.
        

Degree of Culpability	Factors – Demonstrated by one or more of the following:
High Culpability	Use of weapon to inflict violence Production of an a bush knife, an axe or a firearm (loaded or not) or imitation firearm to threaten violence Use of very significant force Discharge of loaded firearm Sophisticated and well organised and planned offence Offence motivated by or demonstrating hostility based on the characteristics (real or assumed) of the victim such as ethnicity, religion, gender or sexual orientation Being in the company of others Leading role in the commission of the offence where in company with others Offence committed in public place Offence committed in the night
Medium Culpability	Production of a weapon other than a bush knife, axe or a firearm or imitation firearm to threaten violence Threat to use any weapon but weapon is not produced Significant role where offence committed in company of others Other cases where characteristics for Category 1 or Category 3 are not present.
Lesser or Low Culpability	Performed limited role under direction Involvement through coercion, intimidation or exploitation Threat or use of minimal force Very little or no planning Mental or learning disability associated with commission of crime

25. To determine the level of harm that was caused or intended to be caused to the victim the court can take into account the following factors and categorize them according to the level of seriousness:
    

Level of Harm	Factors
Category 1	Serious physical and/or psychological harm caused to the victim Serious detrimental effect on the business Very high value of property obtained or targeted Substantial damage caused to property
Category 2	Other cases where the factors for Category 1 and Category 3 are not present
Category 3	No physical harm to the victim or harm is minimal No detrimental effect on the business or the effect is minimal

Setting the Starting Point

26. Working from the current starting points for the different types of robbery as suggested by the Supreme Court, it is appropriate, I should think, to factor in the degree of culpability and the level of harm to arrive at a more realistic starting point. Where culpability and harm are in the high range or category, I think the starting point should be slightly above the current range of starting points for each type of robbery. Medium level culpability and harm should warrant the starting point to remain at the current range while low level culpability and harm should see the starting point set slightly below the current starting point.
27. These will then be adjusted further, either upwards or downwards, when the aggravating and mitigating factors are taken into account together with the offender’s individual degree of participation, to arrive at a notional head sentence.
    
32. But while the above may have a general application as regard the prevailing tariffs set in Gimble, I am of the respectful opinion that new sentencing guidelines and tariffs should now be developed specifically for aggravated robbery. And of course, as I have said in Abau Mathew Kokorua, the Starting point should be 14 years.
    

CURRENT CASE

Culpability/Staring Point

33. So, how serious is your case and what should be a starting point for you? I quite agree with both Counsel that while you obviously were part of the gang led by John Waima Loihai as you yourself said in your allocutus, individually your culpability appears to me to be quite low. Granted you were in company with others who were armed and that serious injury including no less than three deaths resulted, there was preplanning and engaging in armed exchange with police thus rendering this type of robbery to fall under the highest category of culpability or seriousness, your individual role and degree of participation in the crime was quite minimal.
    
34. I would therefore set a starting point for you at 14 years. So, what should be an appropriate head sentence for you?
    

Appropriate Head Sentence

35. To arrive at an appropriate sentence for you let me consider those factors which can mitigate and aggravate your offence.
    

Mitigating Factors

36. I find the following factors as mitigating your offence –
    

• You pleaded guilty to the offence
• You are a first-time offender
• You played a minimal role in the offence
• You did not benefit personally from the crime
• You suffered extra-judicially at the hands of the police when they apprehended you; and
• You were of prior good character.
  

Aggravating Factors

37. Against you are the following factors, of which some are statutory aggravating factors –
    

• You were in the company of others
• You were armed with dangerous weapons such as loaded firearms and bush knives
• You and your colleagues used actual violence against the victims
• The robbery was planned
• There were multiple victims
• Three deaths resulted one of which was an innocent passenger who was shot in the crossfire by the police
• Your armed accomplices engaged the pursuing police officers in a gun fight
• Emotional distress caused to the victims
• Prevalence of armed robbery in this province as well as around the country.
  

Sentencing Trend

38. Several cases were cited by Counsel to assist the Court in fixing an appropriate sentence for you. Most of the old cases cited are, however, not appropriate as they were decided before the amendment to the Code.
    
39. However, there are two matters that came before me which I think are more similar to your case. There is Abau Mathew Kokorua (supra) where the co-offenders were part of a group that held up staff and tourists of Tawali Resort and stole from them cash, alcoholic beverages and computers and mobile phones valued in excess of K40,000.00. They also subjected the victims to physical violence and indignities. For instance, one of their accomplices forcefully kissed one of the female staff members. As I already said above, I set the starting point for this case at 14 years and imposed a head sentence of 13 years. The offenders there pleaded guilty and were first time offenders.
    
40. In The State v Bobby Magelamina; CR 84 of 2016 (unreported and unnumbered judgment of 26^th July 2017), the prisoner was part of a gang who held up and robbed the owner of Eda International Ltd store on Samarai Island. They were armed with guns, axes and bush knives and used actual violence on the victim. They stole K4000.00 in cash and other goods and valuable to the total value of K11,057.40. The offender also pleaded guilty to the offence, was a first-time offender and played a rather minimal role in the offence. I sentenced him to 13 years imprisonment after also setting the starting point at 14 years.
    
41. A case that is very similar to your case, because it involved robbery of a vehicle on a highway is that of The State v Yogol (2004) N2585 (per Kandakasi J). There Yogol and his co-accused and 10 other youths put up an illegal roadblock along the Highlands Highway outside of Goroka Town. They were armed with home-made guns and knives. They ordered the driver out of the vehicle and then stole cash and other properties totalling K1300.00 from him and his passengers. The offenders pleaded guilty and were first time offenders, but His Honour Kandakasi J, after reviewing both National and Supreme Court cases, imposed sentences of 12 years. And this was, I might add when the maximum penalty was a mere life sentence.
    

Considerations

42. I have considered your mitigating factors against the aggravating factors as well as plea in mitigation and submissions by Counsel.
    
43. There is no denying that this offence is very prevalent in this province. Numerous individual and businesses here in Alotau and in the islands and rural villages have fallen victim to armed hold-ups and unfortunately some victims have lost their lives. And this unfortunately includes Police Officers in the recent past. Businesses have incurred substantial loss and armed robberies have unfortunately eroded the reputation of the province as a peace-loving place, the tourism hub of the country and as a safe investment destination.
    
44. Sentences must therefore increase to deter people like you and those whom you run around with and those with similar inclinations.
    
45. The general public and businesses, large, medium or small aspiring businesses like the owner of the PMV in this case, as taxpayers expect and deserve to conduct their lives and business in a free and safe environment. And this Court has a duty to ensure that they do by imposing appropriate sentences on offenders, which will hopefully serve as personal and general deterrence.
    
46. You blamed your participation in the crime on the influence of hardened criminal John Waema Loihai had on you. However, I do not think that he held a gun against your head to force or compel you to run with him and his gang. On the contrary you chose to run with him and unfortunately you got more than you bargained for. You nearly lost your life, and you definitely will lose your liberty for quite some time. One’s liberty is precious and, in my opinion, second only to life itself. Lose it and you are reduced to a life that you will have no control over.
    
47. You are now very concerned about your family, who of course will have to suffer because the help and care that you can provide is no longer there. Their predicament is certainly something that you could have foreseen. Instead, you chose to walk the path of criminals, for whatever reason, only you can tell.
    
48. And so, you have nobody else to blame for your own situation and the predicament your family now find itself in.
    
49. Now, this case is one of the more serious of armed robbery cases that have ever come before me. It resulted in the death of 3 people – two of your accomplices who probably had it coming to them and one totally innocent civilian passenger – not to mention that the depositions also show that a police officer was injured in the shootout with your accomplices.
    
50. And while your own level or degree of participation may not have been significant, for which you should get favourable consideration, the whole incident, which you were an integral part was a serious one.
    
51. Your lawyer Mr. Palek urged the Court to give you a sentence between 9 -11 years while Mr. Apo asked for a term between 12 – 14 years. I have set a starting point of 14 years. Hence, while I accept that you pleaded guilty to the offence, are a first-time offender and may have not played a significant role in the crime, you were part of a group that set out to commit a crime that is wrought with really serious consequences on victims, and as can also turn out, for the perpetrators themselves as was the case here. A stiff deterrent sentence is needed and as much as I would want to impose anything lower than 13 years. I think that the appropriate sentence for you should be 13years imprisonment.
    
52. You will no doubt be devastated by this sentence because it will mean that you will spend a good part of your adult life behind bars, but that is entirely because of a deliberate choice, albeit a bad one, that you made when you chose to run with John Loihiai, who by the way is enjoying his freedom outside. Furthermore, a lengthy sentence like this will also provide a level of security to the general public and businesses alike in this province.
    

SENTENCE

53. I therefore sentence you to 13 years imprisonment, less the time you spent in pre-sentence custody which is 2 years 1 month 2 weeks and 3 days. None of the resultant sentence, which you will serve at Giligili Corrective Institution, will be suspended. You have the right to appeal to the Supreme Court within 40 days if you are not happy with your sentence.
    

Ordered accordingly.

________________________________________________________________
The Public Prosecutor: Lawyer for the State
The Public Solicitor: Lawyer for the Prisoner