State v Kiudu [2019] PGNC 150; N7872 (20 May 2019)

N7872

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]

CR. N0. 101 OF 2019

THE STATE

V

DEPSEY ROBIN KIUDU

Kerevat: Susame, AJ
2019: 25 April & 09, 17, 20^th May

CRIMINAL LAW – Sentence On Plea – Offence Of Aggravated Robbery S 386 (2) Criminal Code – Robbery At A Residence At Night - Prisoner Active Participant – 10 Years Head Sentence – 01year Deducted For Plea And Assault By Police During Apprehension – 9 Years To Serve With Period In Custody Deducted

Cited Cases:
Gimble v The State [1988-89] PNGLR 27
Public Prosecutor v Don Hale (1998) SC564
The State v Larry [2018] PGNC 352; N7432
The State v Rat [2014] PGNC 230; N5783

The State v Mapinai Topin (2019) N7786

Counsel
Mr. Rangan, for the State

Ms. Ainui, for the Prisoner.

DECISION ON SENTENCE

20^th May, 2019

1. SUSAME, AJ: Prisoner is in court to receive his sentence. He pleaded guilty and was convicted on a charge of aggravated armed robbery under s 386 (1) (2) of the Criminal Code on 25 April 2019.

Facts

2. Facts to which he pleaded guilty and convicted are set our below.
   
3. On 18 August 2018 the prisoner and three of his relatives had gone to watch rugby touch game at Birar village. There the prisoner and his relatives stopped the Isuzu PMV truck named ‘Morning Star’ registration number P. 1793K carrying load of copra driven by the complainant Toiki Wate. Complainant gave them a lift and were dropped off at Rainau junction.
   
4. In the night the other suspects went to the prisoner’s house and got him to show them the way to the complainant’s house. The prisoner took them along a short cut bush track to the complainant’s residence at Birar village. They arrived there between 2:00am and 3:00am. Prisoner stood on the road and kept a watch whilst the suspects headed for the house. The suspects put on the masks and approached the security guard armed with weapons. They pointed the guns and bush knives at him. They threatened to cut him and got his torch and basket containing his mobile phone and BSP card.
   
5. The suspects ordered him to lie down and they tied up his legs. Then they placed a chair on his neck and a scraper on his back and asked him where the complainant kept his money.
   
6. Complainant heard the dogs barking so he got up and flashed the torch through the window and called the security guard. That was when the suspects rushed up, broke open the door and snatched the torch from him. They pointed guns and knives at him and his family, threatening to kill them. They ordered them to lie on the floor. They tied his hands and legs and pointed knives at him while they searched the house and stole K26, 000.00 from the room. Also stolen was his Samsung phone worth K1 500.00, one secular saw worth K280.00 and a bush knife worth K25.00.
   
7. The PMV truck parked outside the house was also searched and sum of K4000.00 left in the vehicle was stolen. The robbers drove the PMV truck and reversed it into the front door of the complainant’s trade store. They gained entry and stole goods valued at K1200.00.
   
8. The robbers discharged four shots as they drove away with the PMV truck. The prisoner was dropped off at his house at Tapo village and was paid K250.00 for the role he played. The other suspects drove on to Ratavul Village, within Bitapaka Local Level Government (LLG) area and abandoned the vehicle.
   
9. Prisoner was later apprehended and taken into custody. He was arrested and charged as a principal offender for the role he played in the robbery.

Issue

10. What sentence should I impose on the prisoner?

Offence

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 to be sentenced to death.(amendment N0.6 of 2013)

Allocutus

11. Regarding his sentence prisoner said: I say sorry in the eyes of God, the court, the Constitution of this country, the manager and his family of Morning Star Business Group and everyone in court. I am a first time offender. I had no intention and plan to show the short cut track. They woke me up and they showed me guns and I was scared and showed them the track. Police got me and got the K250. 00. They assaulted me and two of my teeth are moving. I am concerned about my wife and children because children are in school. There is no one to help my wife to find school fees and food because my parents are dead. I ask mercy of the court to put me on probation or good behaviour bond. That is all.

Pre-Sentence Report & Means Assessment Report

12. The reports provided information of the prisoner, his family his financial capacity. The author of the reports obtained views from prisoner’s family members and the complainant. Prisoner hails from Tavui No.2 village Bitapaka LLG within Kokopo District. He is 28 years old, married and has a 7 year old child. The highest grade prisoner had attained is grade 10 at Kokopo Secondary School. Prisoner was never in employment when the offence was committed. He relies on self-help activities to earn income for himself and his family.
    
13. Prisoner’s family members interviewed were sympathetic of the prisoner and pleaded for a probation sentence with condition to pay compensation. The catechist of the Catholic Church gave a negative report of the prisoner’s conduct in the community. He creates problems in the community especially when he is under the influence of alcohol. His wife had fallen victim of prisoner’s violent behaviour. Complainant had also expressed his views which I also take into consideration.

Submissions.

14. In brief Ms. Ainui of the prisoner amongst other things referred the court to the much celebrated Supreme Court case of Gimble v The State [1988-89] PNGLR 27 on sentencing considerations in robbery cases. She was of the view the case fell under category 3 which involves robbery of a store, vehicle on the road etc. which attracts a head sentence of 5 years. Ms. Ainui assisted the court with two decided cases of The State v Larry [2018] PGNC 352; N7432 and The State v Rat [2014] PGNC 230; N5783. She submitted this was not the worst type of case that warrant the maximum. The court should be lenient on the prisoner as he played a minimal role in showing the robbers the short cut track to the complainant’s residence. Ms. Ainui submitted for a 4 years sentence.
    
15. Mr. Rangan of the State during hearing of submissions earlier argued the recent amendment No: 6 of 2013 by the parliament does not include the wording subject to s.19 and prescribed the maximum penalty of death sentence. Hence removing the court’s power to impose lesser penalty except the maximum death sentence.
    
16. I took issue on that and intimated to counsels that the omissions of the words subject to s 19 in the amendment does not remove the courts power to consider a lesser penalty. Court still had powers under s 19 of the Criminal Code. In spite of that I directed counsels to file supplementary submissions on that point for court’s consideration.
    
17. Since then when matter returned to court Mr. Rangan abandoned that argument and submitted court still had wider discretion under s 19 to impose a lower sentence than the maximum. He made reference to decision of the Supreme Court in Reservation N0. 01 of 2017 BETWEEN The State and Luke Koit Bawai & Roger Gawi Kaindu (12 December 2017) in which the court answered the question in the affirmative in holding that the judge has the discretion under s 19 when sentencing a person convicted for an offence punishable by death.
    
18. Mr. Rangan referred the court to the Supreme Court case of Public Prosecutor v Don Hale (1998) SC564 in which the court considered the minimum sentences prescribed in Gimble v The State (supra) may no longer be appropriate in view of the prevalence of robbery cases. Based on that proposition Mr. Rangan submitted the minimum tariffs in Gimble v The State were no longer appropriate and suggested for a 10 years starting point for robbery of a home where there exists a store and business, regardless of whether person pleads guilty and regardless of the role prisoner played. Further justifications for that sentence are the aggravating factors that weigh against the prisoner.
    
19. Mr. Rangan further argued there is no medical evidence from the prisoner as proof that prisoner was assaulted by police and court to disregard that. With regard to the pre-sentence report he submitted no views from persons in the community were obtained on the prisoners on how he conducts himself in the community. Further complainant is not willing to accept any compensation and no order for compensation should be made.
    

Court on Sentence

20. Offence of aggravated armed robbery carries the maximum penalty of death sentence. It is settled principle of sentencing that maximum penalty should only be imposed in a case considered the worst type. Otherwise court has a wide discretion to impose a sentence other than the maximum by invoking s 19 of the Criminal Code.

Mitigating Factors

• Prisoner pleaded guilty to the charge

• He is a first time offender

• He cooperated with police and made early admissions of his guilt in the record of interview

• Prisoner played a lesser role

• K250.00 given to him had been recovered.

Aggravating Factors

• The prisoner was in company of others

• Offence was committed in the early hours of the morning when the place was still dark

• Dangerous weapons and threats were used

• People’s lives were put at high risk.

• Substantial amount of money and goods stolen had not been recovered.

• Prevalence of the offence

21. As it is, comes out factors against the prisoner slightly outweigh those that are favourable to him.
    
22. Prisoner is a first time offender. No information is before this court if he had been in court for any offence. Information about prisoner’s character has been provided by the catechist and the prisoner’s immediate family members. As you would expect the family members spoke well of the prisoner and were sympathetic with him from going to jail and asked for a probation sentence. From the catechist Christop Uratigal, prisoner’s indulgence in alcohol was a bit of a concern which contributes to him creating problems in the community. One member of the community became a victim of assault by the prisoner. His spouse is often subject to physical harassment and violence.
    
23. That said prisoner cannot be considered a psychopath or a person of unstable character who has propensity to commit such serious life threatening offences. I do not consider the case before me is of substantial gravity to be classified as the worst type of robbery case. In that regard the maximum penalty is not being considered here.
    
24. I am guided by sentencing tariffs and guidelines in decided cases. Sentencing considerations in robbery cases were prescribed in the much cited authority of Gimble v The State (supra). They are:
    

a) 7 years imprisonment for robbery of a dwelling house,

b) 6 years imprisonment for robbery of a bank,

c) 5 years imprisonment for robbery of a store, hotel, club, vehicle on the road etc.., and

d) 3 years imprisonment for robbery of a person on the street.

25. Those guidelines have been considered outdated and inappropriate in the subsequent decisions of both the National and Supreme Courts. Courts have expressed the tariffs in Gimble were not having any deterrent effect given the increasing incidents of robbery and the escalating law and order issues. And that society was calling for much stiffer punitive sentences. In Public Prosecutor v Don Hale (supra) the Supreme Court proposed an increase of the tariffs in Gimble by denominator of 3 years for each category. So for robbery of a dwelling house the head sentence of 7 years to increase 10 years.
    
26. I have taken that approach and started imposing sentences over and above the head sentences prescribed in Gimble in some of my recent judgments. In The State v Mapinai Topin (2019) N7786. I expressed similar sentiments in sentencing the prisoner to 10 years for robbery of a family at their home and stealing from a shop attached to the dwelling house.
    

Comparable Decisions

27. I have read the decisions in The State v Larry (supra) and The State v Rat (supra). The cases were decided on their own set of facts and circumstances. In The State v Larry three youthful offenders were convicted for robbery of Able Computing in their Lae Office and theft of electronic and computer equipment worth K95 155.74. Most of the properties were recovered. Upon their plea they were sentenced to 5 years which was partially suspended. They were to serve the balance of 2 years.
    
28. In The State v Rat prisoner was convicted for robbery of a store in which cash and goods of a total value of K15 000.00 were stolen. On his guilty plea he received a sentence of 4 years.
    
29. The Judgements are not binding but of assistance to me in reaching a specific sentence.
    
30. The case before me is no different to Mapinai Topin’s case. The family was robbed within the shelter and privacy of their home at night. They were also robbed of cash from the parked PMV truck and store goods from within the residential area.
    
31. It was submitted by Ms. Ainui the prisoner played a minimal role and court should be lenient on him.
    
32. This brings to mind the parity principle of sentencing that offender must be punished in accordance with the degree of his participation. (The State v Tom Keroi Gurua & ors (2002) N2312 (11 December 2002) & In Lowe [1984] HCA 46; (1984) 154 CLR 606).
    
33. The prisoner in this case led other members of the robbery through a short cut to the complainant’s residence. Prisoner never left the crime scene. He stayed on all through the robbery until the end. I consider him to be an active participant.
    
34. With respect to an order for compensation that is a matter of court’s discretion depending on circumstances of a case. Criminal Law (Compensation) Act 1991 provides for payment of compensation up to K5000.00 which court may order [s 5 (3)]. In some instances, the court has ordered compensation over the maximum limit of K5000.00 under the Act in the exercise of its inherent power under the Constitution.
    
35. Complainant has suffered a substantial loss of K34 000.00 in cash and store goods. He has expressed his views in the pre-sentence report. He is not willing to accept any compensation and prisoner to be sent to jail. If that is his position, there is no point making an order for compensation.
    
36. Prisoner had told the court he was assaulted by police during his apprehension. Ms. Ainui had submitted for the court to consider that as one of the mitigating factors. Mr. Rangan argued that there is no medical report as proof of that assertion and court to disregard that.
    
37. With respect there are many instances suspects are often man handled with such aggression by police during arrest. Offenders are often bashed up and locked up. Often they are denied the right to seek medical treatment and injuries healed up while in custody. Obviously no medical report will be available to the offender to produce in court. Prisoner has raised an important point which court doing justice cannot ignore. I accept that he was assaulted by police during his apprehension. That in itself is some form of punishment prisoner had received which I consider as a factor to mitigate his sentence.
    
38. Incidents of armed holdups increasing and are becoming so prevalent in East New Britain which is portraying a negative image of this beautiful Province. I endorse what I said in The State v Mapinai Topin (supra)

“Frequent occurrences of arm 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. Arm holdups negatively impacts on positive developmental agenda of the Province.”

39. Providing services right to the door step of village people like what the complainant has been doing is part of that positive development, contributing to economic development of the Province. This court has a duty to ensure that people’s lives and properties are protected. Persons who commit serious life threatening crimes will expect stiffer penalties from the courts. I hope that the punishment will serve as a personal deterrence from committing similar offences in future as well as general deterrence to would be offenders in the community. It is hoped that the sentence will also give the prisoner an opportunity to participate in the programs initiated within the Kerevat Jail targeted at rehabilitation of prisoners.
    
40. The case before me no doubt falls within category I of Gimble with the starting point of 10 years.
    
41. Accordingly, prisoner will receive a starting sentence of 10 years. I will not go up any higher as I consider 10 years should be sufficient sentence.
    
42. In the exercise of my discretion I will grant a discount of 1 year for his plea and that he had received some form of punishment at the hands of police.
    
43. Prisoner shall serve the balance of the 9 years sentence with period in custody to be deducted at the Kerevat Jail with hard labour.

Summary of Sentence

1. 10 years head sentence
2. 1 year deducted
3. 9 years balance of sentence
4. 6 months 18 days deducted for period in custody
5. 8 years 5 months 12 days resultant sentence to serve.

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