State v Topin [2019] PGNC 102; N7786 (4 April 2019)

N7786

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR. NO. 468, 510 -513 OF 2016

THE STATE

V

MAPINAI TOPIN

Kokopo: Susame, AJ
2019: 7 March & 4 April

CRIMINAL LAW – Offence - Arm Robbery –S.386 – Plea - Sentencing–Aggravating Factors Outweigh Mitigating Factors – Robbery Of A Motor Vehicle On A Road – Prevalence Of Offence – Tariffs Set In Gimble V The State Irrelevant And Outdated – Tariffs To Increase Two Times – 10 Years Head Sentence- No Increase – 01 Year Concession Allowed – 09 Years Effective Sentence With No Partial Suspension – Pre –Trial Custody Period Deducted

Cases Cited:
Papua New Guinea Cases

Acting Public Prosecutor v Uname Aumane [1980] PNGLR 510
Goli Golu v The State [1988-89] PNGLR 653
R v Hodgson Unreported (Judgment S, C, 137 25 October 1978)
The State v. Eddie Peter (No 2) (2001) N2297
Gimble -v- The State [1988-89] PNGLR 27
Public Prosecutor v Don Dale (1998) SC564
Tau Jim Anis v The State (2000) SC642
Philip Kassman v The State (2004) SC759
The State v Joseph Ulukua [2002] PGNC 98; N2240
Joseph Nimagi & 02 ors v State [2004] PGSC 31; SC741

Overseas Cases

Veen v The Queen (1979)53 A.L.J.R 305

Counsel:

Mr G. Tugah, for the State
Ms C. Pulapula, for the Prisoner

DECISION ON SENTENCE

04 April, 2019

1. SUSAME AJ: Prisoner was convicted upon his plea to a charge of armed robbery on 7 March 2019. He is in court to receive his sentence.
   

Facts

2. Facts to which conviction was entered are as follows. The prisoner was with few other boys sitting by the road near Tinganavudu Ward cemetery between 6 and 7 o’clock in the evening on 28 December 2015. An 8C route 15 seater bus named “TAZRO” bearing the registration number P.081W was travelling through villages, dropping off passengers. As the bus reached the cemetery the accused and his other accomplices came onto the road armed with a home-made gun and other offensive weapons. They stopped the bus. They used actual violence and assaulted the driver and one passenger. They stole from them cash money and mobile phones. After robbing them they escaped.
   
3. What sentence should the court impose?
   
4. First, consideration of prescribed penalty for the offence of armed robbery under s 386 Criminal Code. In a normal robbery with no circumstances of aggravation penalty is, a term of imprisonment not exceeding 14 years. [s.386 (1)]. When robbery consists of circumstances of aggravation the maximum penalty is, death. [s 386(2) by amendment N0. 6 of 2013]. Though, courts have a wider discretion to impose a lesser penalty by invoking s 19 sentencing discretion. (Acting Public Prosecutor v Uname Aumane [1980] PNGLR 510)
   
5. With regard to maximum penalty it is the general principle of sentencing it should be reserved for the most serious instances of an offence, the worst possible cases normally encountered in practices: Goli Golu v The State [1988-89] PNGLR 653. That is to uphold the fundamental principle that sentence must be proportionate to the crime committed or sentence must fit the crime.
   
6. What are the suggested conditions to justify the maximum penalty?
   
7. In Goli Golu v The State (supra) the court considered a couple of English and Australian cases. I refer to judgment of Wilson J where his Honour alluded to the judgment of Mason J in Veen v The Queen (1979) 53A.L.J.R 305 at p.309 of the principle governing maximum penalty.
   

“The court imposes a sentence of life imprisonment on taking into account of the Offender’s record, his propensity to commit a violent crime, the need to protect the community and the very serious offence of which he stands convicted...”

8. Wilson J went on to cite with approval judgment of Court of Criminal Appeal (Lord Denning M.R Widgery and MacKenna JJ) in R v Hodgson Unreported (Judgment S, C, 137 25 October 1978) conditions to justify a life imprisonment sentence (maximum sentence):
   

“1. Where the offence or offences are in themselves grave enough to require a very long sentence;

2. Where it appears from the nature of the offence or from the defendant’s character that he is a person of unstable character likely to commit such offences in the future; and

3. Where if the offences are committed the consequences to others may be specifically injurious, as in the case of sexual offences or crimes of violence.”

9. The above considerations do not feature in this particular case so maximum sentence is not being considered.

10. Reference to past decided cases become useful. It is important to mention that guidelines are not binding. They are merely guides. [The State v. Eddie Peter (No 2) (12/10/01) N2297] However, they are important to maintain uniformity in sentencing tariffs. That no offender is punished severely than the merits of the crime and his or her personal characteristics. That is to say sentence must be proportionate to the crime.
    
11. Gimble -v- The State [1988-89] PNGLR 271 is the leading authority often relied on in sentencing offenders in armed robbery cases. The guidelines are:
    
    1. 7 years imprisonment for robbery of a dwelling house,
    2. 6 years imprisonment for robbery of a bank,
    100. 5 years imprisonment for robbery of a store, hotel, club, vehicle on the road etc.., and
    4. 3 years imprisonment for robbery of a person on the street.
       
12. The above are preferred starting points but are never intended to put restrictions or limitation of the sentencing discretion of the court. The court may go lower or higher depending on the merits of the case. The tariffs in Gimble v The State have been considered by the courts as outdated and irrelevant having no effective deterrence. This is due to escalating and frequent occurrences of armed robbery in recent time. Couple of these cases are Public Prosecutor v Don Dale (1998) SC564 Tau Jim Anis v The State (2000) SC642 and Philip Kassman v The State (2004) SC759 which counsel prosecuting has alluded to.
    
13. The starting point court should consider imposing is the maximum penalty. The onus shifts to the offender to plead for a lesser penalty. This was the view expressed by Kandakasi J (as he then was) in The State v Joseph Ulukua [2002] PGNC 98; N2240 and which I endorse. His honour stated:
    

“Parliament made no mistake in prescribing life imprisonment for someone who takes away any other person’s life without any lawful excuse or one that is not permitted by law. The onus is therefore in my view, on a prisoner to show why he should not be given the prescribed sentence and make a case for it. Yes of course, some might argue that this suggestion goes contrary to the presumption of innocence. The response simply to that is, take a good look at the wording in the relevant provision of Constitution and you find that that presumption is only in relation to guilt. Once guilt is established or admitted the presumption no longer exists.”

14. That view was reiterated by the Supreme Court in Joseph Nimagi & 02 ors v State [2004] PGSC 31; SC741 (1 April 2004) when it said “the Courts should approach sentence with a view to imposing the maximum prescribed sentence, unless there are good reasons justifying a lesser sentence.”
    
15. The Supreme Court in Public Prosecutor v Don Hale (supra) stated; “crimes of violence have definitely increased with the use of guns being more prevalent and the community is calling for heavier punishments as a deterrence....”
    
16. I endorsed the statements. If the maximum penalty is not being considered head sentence should therefore go up over and above the tariffs in Gimble v The State. That case was decided 30 years ago. The tariffs are way too low and irrelevant given the increase in occurrences of armed robbery incidents in the present day. They do not reflect the serious nature of the offence which by its nature is a violent and frightening one.
    
17. It was because of prevalence of armed robbery incidents and public sentiments the legislature decided to repeal the maximum penalty for aggravated armed robbery from life to death sentence. (Amendment No.6 of 2013).
    
18. The courts are vested with judicial authority held in trust for and on behalf of the people by s 158 (1) of Constitution. The society is calling for tougher penalties due to prevalence of violent crimes. It is imperative courts have a duty to respond to those concerns in our efforts to create a just, safe and secure nation. That enough is enough. Offenders who commit serious violent crimes should expect lengthy goal sentences to be imposed on them.
    
19. The case before me is one of robbery of persons on a motor vehicle on a public street. Naturally, the case falls under category (c) or (3) of the tariff in Gimble v The State with starting point of 5 years. A quick survey of recently decided case show that there has not been significant increase in sentencing tariffs those set in from Gimble v That State. With respect some sentences are way too low and are not reflective of the seriousness of the offence.
    
20. I have been referred to some decided cases by counsels in their respective submissions. I have taken note of them all. They involved robbery of persons on motor vehicles on public roads and quite relevant. I do not intend to cite them all. Sentences range from as low as 2 years, 4 years, 5 years, 7 years, 8years and as high as 10 years.
    
21. Counsel representing the prisoner urged the court to consider 5 years as the starting point but sentence to be suspended. It is not clear from her submission whether sentence should be 5 years or slightly above 5 years or lower than 5 years. It is uncertain if she is asking for a suspended sentence.
    
22. Counsel representing the State was much clearer in his submission. He recommended for 8 years starting as based sentence following views expressed by the Supreme Court in Public Prosecutor v Don Dale and Tau Jim Anis v The State (supra).
    
23. With respect I think 8 years is still low. I propose that head or base sentence should increase two times in all category of robbery cases set in Gimble v The State. So, for category 3, I consider 10 years to be the base sentence. That is subject to court exercising discretion to go lower or higher depending on the factors court considers relevant and appropriate to justify a decrease or increase.
    

Means Assessment and Pre-sentence Report

24. The reports are important for purposes of sentencing. They provide additional information on the prisoner, his financial capacity, and his personal and family background, views from various people interviewed including complainants and Probation Officer’s recommendations. The views expressed are not binding. Court may either endorse or not endorse their views and decide independently. Information provided most often than not goes towards mitigating a sentence and may be relevant if court considers rehabilitation or a non-custodial sentence.
    
25. The pre-sentence report confirms prisoner is a first time offender. The fact that he does not have prior conviction does not necessarily mean he is a good person. He may be a rogue known to his peer group and people in their local community but was never been arrested and brought to court. It may have been for that reason the boys approached him and gathered at his house to plan the robbery.
    
26. Expressions were made for payment of compensation by the prisoner and his mother and one of the victim who was assaulted. Other two victims were not available and their views are not captured in the pre-sentence report. Court may as a matter of discretion order compensation considering all relevant factors. Not in this case. Prisoner does not have a steady or real source of income. He is without formal or paid employment. He has expressly stated he does have financial difficulties. If that is his situation, there is no point ordering a poor man to pay compensation when it is quite obvious he will have difficulty paying it.
    

Factors in Mitigation and Aggravation

27. In mitigation of his sentence prisoner said he was sorry. He admitted what he did was not right. He was concerned about is old mother’s welfare. He asked the court for leniency and place him on probation. He was apologetic to the court.
    
28. As regards prisoner’s apology I consider it to be superficial. Prisoner and his accomplices did nothing tangible to apologise and reconcile with the complainants who they had wronged. In a customary setting observance of payment of compensation is a noble practice. It restores peace and harmony between conflicting parties. It would be meaningful if that is done at the earliest convenient opportunity witnessed by the leadership and the entire community.
    
29. That said though payment of compensation does not and cannot operate as an alternative penalty nor can a prisoner buy is freedom from being incarcerated by payment of compensation. It may however, be taken into account in mitigation of sentence.
    
30. Furthermore, for the prisoner to plea for leniency of the court using his mother’s welfare is of little significance. His mother’s welfare was of no consequence to him when he knowingly chose to follow the boys and commit the offence. He cannot use his mother’s welfare to buy his way out from going to prison.
    
31. The offence was committed at night, Prisoner was in company of other boys. He was an active participant in the planning of the robbery at his house. He was an active participant in the actual robbery except that though, he was armed he never assaulted or wounded any person. In the commission of the offence a female passenger Elly Voai was assaulted and slashed with a kitchen knife by one of the robbers. All the elements constituting an aggravated robbery are present in this case. All these are factors that weigh against the prisoner.
    
32. The offence no doubt is a prevalent one not only in East New Britain Province but every major towns in the country. Frequent occurrences of armed robbery does not represent well the desires and good intentions of the business community and the people of East New Britain Province. There is a greater desire of the leadership and people to promote peace, respect, love and good will to all manner of people within and abroad who want to visit or work and live in the Province. The Province has been declared a “Tourism Hub.” Armed holdups negatively impact on positive developmental agenda of the Province. Operating a transport service like Taxi service, PMV service and Hire car service is part of that development, contributing to economic development of the Province.
    
33. This court has a duty to ensure that people’s lives and properties are protected from opportunist like the prisoner. That any like-minded individual who care less of the safety and welfare of others in the community will expect stiffer penalties from the courts. The sentence to be imposed should serve as a deterrence to the prisoner personally and would be offenders in the community.
    
34. Accordingly, I consider 10 years head as appropriate. Are there any other factors apart from factors that have been considered that would either tilt the scale lower or upwards?
    
35. I note that one of the female passenger robbed was cut on the back of her head with a knife. I could go upwards by a year or two. However, the extent of injuries is uncertain at this stage without proof by medical evidence. Prisoner is therefore, given the benefit of doubt. For that reason court decides against increasing the sentence. Sentence of 10 years should be sufficient punishment for the prisoner.
    
36. There is one factor that cannot be ignored. That is prisoner’s early plea. By doing so he has saved high cost of running a lengthy trial. It is only fair court considers a concession in doing justice to the prisoner. In the exercise of my discretion one year will be discounted from the head sentence. That will leave an effective goal sentence of 09 years prisoner will serve.
    
37. Should I suspend portion or whole of the sentence? Suspension of portion of or whole of the sentence is discretionary by virtue of s.19. That requires proper exercise of court’s powers in view of special or extenuating circumstances of the cases. Needless to say those factors are wanting in this case. Hence, no order for suspension of sentence will be made.
    
38. Concluding obiter. Some have expressed views that prison sentence impacts negatively on a prisoner. That may be true to some extent. I would like to think otherwise. Sending an offender to jail does not necessarily mean he is being condemned. He is simply being punished in accordance with law because of the wrong he had committed against the society. The same society gives the prisoner every opportunity to make a chance in his thinking and behavioural pattern to becoming a better citizen after completing his prison term. And that is through reformation or rehabilitation initiatives/programs run by the institutions and churches in prisons. Major prisons in the country are now more focused on reformation and rehabilitation for reintegration of prisoners back in the community upon release. Specific order will be issued towards achieving that.
    

Summary

1. 10 years head sentence.
2. 01 year concession allowed.
3. 09 years effective sentence.
4. Pre-trial custody period to be deducted.
5. Resultant sentence to be served with hard labour at the Kerevat Goal.
6. Prisoner to attend all rehabilitation/reformation programs run by the Goal Command including Christian Ministry Programs while serving his sentence.
7. No order for compensation or restitution made.

________________________________________________________________
Office of the Public Prosecutor: Lawyer for the State
Office of the Public Solicitor: Lawyer for the Prisoner