State v Charlie [2021] PGNC 235; N9099 (1 September 2021)

N9099

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR 158 OF 2019

THE STATE

V

MANU CHARLIE

Waigani: Berrigan, J
2021: 5^th June, 18^th August & 1^st September

CRIMINAL LAW – SENTENCE – GUILTY PLEA - AGGRAVATED ROBBERY – S 386(1)(2)(a)(b) of the Criminal Code - Offender in company with others, and armed with firearms, robbed a vehicle stopped at a roundabout – sentence of 8 years imposed, less time spent in custody, and partial suspension having regard to disability and prospects for rehabilitation.

Cases Cited:

Allan Peter Utieng v The State (2000) SCR No 15 of 2000
John Peter Arua -v- The State (2000) SC759
Tau Jim Anis and Others v The State (2002) SC564
Phillip Kassman v The State (2004) SC759
Ramsay Lestor Pitaro -v- The State (2006) SC846
Robin Gaibuli & 5 Ors -v- The State: SCRA Nos 32 -37 of 2006 (Unnumbered & Kaya & Kuman v The State (2020) SC 2026
Unreported Judgment of the Supreme Court of 27th June 2007)
Goli Golu v The State [1979] PNGLR 653
The Public Prosecutor v Vangu’u Ame [1983] PNGLR 424
The State v Tardrew [1986] PNGLR 91
The State v Frank Kagai [1987] PNGLR 320
Gimble v The State [1988-89] PNGLR 271
Lawrence Simbe v The State [1994] PNGLR 38
State v Mondol and 4 Ors (2004) N2707
The State v Paul Kumkumbun (2006) N3645
The State v Kuromo & 3 Ors (2009) N3743
State v Sarufa (2009) N3595
State v Titus Manai (2011) N4556
State v Dominic (2014) N5823
State v Jaip (2015) N6188
State v Hekoi (2016) N6413
The State v Bobby Andrew Don (2021) N8889
The State v Nelson Haria (2021) N9100

References Cited

Sections 19, 386(1)(2)(a)(b) of the Criminal Code (Ch. 262) (the Criminal Code)

Counsel

Mr J Gubon, for the State
Ms A Peter, for the Offender

DECISION ON SENTENCE

1^st September, 2021

1. BERRIGAN J: The offender pleaded guilty to one count of the aggravated robbery of a vehicle, whilst in the company of two others and armed with dangerous weapons, namely a pistol and a knife, contrary to s386(1)(2)(a)(b) of the Criminal Code, on the basis of the following facts which were admitted on arraignment and are supported by the depositions.
   
2. On the 19^th of April 2019 at around 2pm the offender was in the company of two others at Saraga, Six Mile in the National Capital District. At the time the offender was armed with dangerous weapons, namely a factory-made pistol and a knife. The offender and his accomplices held up a vehicle, a Toyota Hilux belonging to Black Swan International Limited, which had stopped at a roundabout. The male driver and his passenger were ordered to get out of the vehicle at gunpoint, following which the offender and his accomplices immediately got on the vehicle and drove off. The robbery was reported to police who were driving toward the scene a few minutes later. The stolen vehicle was tracked down by security guards and the offender was apprehended and brought to the police station. He was identified by the driver and the passenger of the stolen vehicle as the gunman who held them up.
   

Allocutus

3. On allocutus the offender said: Thank you to this Court to have the opportunity to appear. It is true that happened... I drank some beer and met three of boys. They told me to get on... I apologise to God and this court for what I have done. I also apologise to the people that I wronged. I also say sorry to my family while I was inside they visited me. The police assaulted me. They broke my leg. My lawyer has the photograph of the injuries I sustained. I would like the court to have mercy and suspend my sentence so I can stay outside on a good behaviour bond. If I was able to stay outside I would not do this kind of offence again. I am done doing this kind of thing again. While I was in prison, my father passed away. I have five brothers and sisters. None are working. If I go out I will help them. I will stay with them in peace and I will not commit any kind of offence again. That is all.
   

Sentencing Principles

4. The maximum penalty under s 386(1)(2)(a)(b) is death: see The State v Bobby Andrew Don (2021) N8889 at [4] to [11].
   
5. Having regard to Gimble v The State [1988-89] PNGLR 271, and the Supreme Court decisions in Tau Jim Anis and Others v The State (2002) SC564 and Phillip Kassman v The State (2004) SC759 the following may be regarded as appropriate starting points on sentence on a plea of not guilty by young first offenders carrying weapons and threatening violence for:
   
   1. robbery of a house, a starting point of ten years;
   2. robbery of a bank, a starting point of nine years;
   100. robbery of a store, hotel, club, vehicle on the road or the like, a starting point of eight years; and
   4. robbery of a person on the street, a starting point of six years.
      
6. Features of aggravation such as actual violence, a large amount stolen, or where the robber is in a position of trust towards the victim may justify a higher sentence; a plea of guilty may justify a lower sentence.
   
7. Through its 2013 amendment Parliament has clearly indicated that aggravated robbery is a very serious offence which must be met with strong punishment: see the discussion regarding amendment to s 383A of the Criminal Code in Kaya & Kuman v The State (2020) SC 2026 per Batari J at [3] to [5], and Berrigan J at [107]. The necessary corollary of the grave increase in the maximum penalty is that all sentences imposed under s 386(1)(2), regardless of whether or not in the worst category, should, in general terms, increase: Bobby Andrew Don (supra) at [16].
   
8. Defence counsel conceded that the offence was serious, it involved the use of a dangerous weapon, was committed in the night, in the company of others, and is generally prevalent. In mitigation this was the offender’s first conviction, he cooperated with police, pleaded guilty, is a youthful offender, was assaulted and injured by both security guards and police at the time of his apprehension, the vehicle was recovered on the same day, and he is the sole breadwinner for his wife and family. The offence fell into category c of Gimble, but that having regard to the mitigating factors a head sentence of four years is appropriate[1] but should be wholly suspended.
   
9. Defence counsel relied upon the following cases in support of her submissions:
   
   1. State v Mondol and 4 Ors (2004) N2707, Lenalia J: The offenders pleaded guilty to a very serious aggravated robbery. They set up a road block and then held up a PMV carrying fourteen passengers on its way into Mendi, whilst armed with bushknives and home made weapons, and in the company of even more men. All passengers were dragged to a quarry, some were stripped of their clothing and a total of almost K20,000 in cash together with wallets, shoes, and even clothing was taken. The driver was cut three times with a bushknife. A female victim also suffered bruises and wounds from a bushknife. They were sentenced to 12 years’ imprisonment, less time spent in custody;
      
   2. The State v Kuromo & 3 Ors (2009) N3743, Kirriwom J: four juveniles pleaded guilty. Whilst armed with three home-made guns and bush knives held up a PMV laden with passengers travelling from Lufa to Goroka. They stole from the driver and passengers whilst threatening them with their weapons and using violence, one wrist watch valued at K12, one mobile phone and K120 in cash. The prisoners were apprehended soon thereafter with the assistance of the village people and most, if not all of the stolen items were returned to the owners. In addition, monetary compensation was also paid on top of the items stolen as show of reconciliation between the community and the PMV operator concerned, and there was strong support for them from the community to be allowed to continue their education. The prisoners were young students, three of them aged 15 and the other 16. They were sentenced to four years of imprisonment, less time spent in custody, the balance was suspended on strict conditions including community service;
      
   100. State v Jaip (2015) N6188, Murray J: the offender pleaded guilty to two counts of the aggravated robbery of separate vehicles, occurring a few months apart. Following a media campaign the offender surrendered himself to police. The vehicles were not recovered. He was sentenced to eight years on each count, to be served cumulatively, but reduced due to the totality principle to a sentence of 14 years, less time spent in custody;
        
   4. State v Hekoi (2016) N6413, Toliken J: Guilty plea. Offender ran into his accomplices who asked him to join them, so he did. They held up a taxi and drove to a store at which they robbed phones, cigarettes, K200. He was drunk at the time and played a minimal role. He was caught at the scene and severely assaulted by the public and later police. He was sentenced to 5 and 2 years’ respectively, to be served concurrently, less time spent in custody;
      
   5. State v Dominic (2014) N5823, Geita J: Guilty plea. Around 8 pm the offender and five other boys robbed a shop of goods and cash valued at K45,000, armed with 2 home made guns and bolt cutter. They escaped by dinghy out to open sea. Three days later you were all arrested and charged. He was sentenced to 7 years for purposes of consistency and parity with the sentences received by his co-accused, less one year for police brutality and a further 4 years for the period already spent in custody. The remaining 2 years was suspended on strict conditions, including community service.
      
10. The State agreed in mitigation that the offender had no prior convictions, pleaded guilty, and expressed remorse. In aggravation it noted the presence of offensive weapons, the company of others, the threats of violence and the prevalence of the offence.
    
11. State counsel submitted that this case falls within category three of Gimble, but should attract a sentence between 8 and 12 years because of its aggravating features.
    
12. It relies on the following cases:
    
    1. State v Sarufa (2009) N3595, Paliau AJ: Guilty plea. The prisoner was at his sister’s house at Gerehu Stage 3 when three others went to see him and told him that they were going to steal a car. He accompanied them to Gerehu Primary School. One of his accomplices was in possession of a home made gun. They held up a man as he dropped his wife off at the school and dragged him from the vehicle. The prisoner played a limited role, he stood away from the vehicle when this was happening. The prisoner’s two other accomplices jumped into the vehicle and drove off. One of the accomplices was apprehended by bystanders. The prisoner ran away but was apprehended later that day. He was sentenced to six years of imprisonment, less three years spent in custody.
       
    2. The State v Paul Kumkumbun (2006) N3645, Makail J: the offender pleaded guilty to stealing an ambulance belonging to the Enga Provincial Government which was travelling from Wabag towards Laiagam along the Okuk Highway. The the offender in the company of some men numbering 10 to 15 staged a road block using a body of a used motor vehicle. The ambulance came to a stop and the offender and his accomplices surrounded it and demanded the driver give them the key and the passengers disembark. The offender got into the vehicle and drove down to Wabag. From there, he drove to Mt Hagen the same afternoon and sold it to a third party in Mt Hagen. The vehicle is the property of the Enga Provincial Government. There was no use of offensive weapons, no actual violence, and no other property was stolen. The offender had an unblemished record and had been instrumental as a youth leader in restoring peace and harmony in the community following a large tribal fight several years ago. He was sentenced to 9 years of imprisonment, less time spent in custody. 4 years was suspended on conditions including community work every Monday for the period of his suspension;
       
    100. Robin Gaibuli & 5 Ors -v- The State: SCRA Nos 32 -37 of 2006 (Unnumbered & Unreported Judgment of the Supreme Court of 27th June 2007) where the Supreme Court dismissed appeals by the six Appellants against the decision of the National Court in convicting them on their guilty pleas and sentencing them to 10 years imprisonment. The National Court found that the armed robbery occurred on a highway, there was use of firearms and bush knives, and there were substantial loss of properties although some of them were eventually recovered. On appeal, the Supreme Court said that the sentence of 10 years imprisonment was lenient, given that there were present other aggravating factors such as the offence was committed in the early hours of the morning (3:00 am), logs and large rocks were used to block the road and the victims were also body searched and ordered to lie on the ground;
         
    4. John Peter Arua -v- The State (2000) SC 759, the Appellant appealed against a 10 years imprisonment sentence imposed by the National Court on his guilty plea to armed robbery of a motor vehicle. The Appellant had cooperated with the police during the investigation. On the other hand there was use of firearm. The Supreme Court dismissed the appeal and confirmed the sentence imposed by the National Court;
       
    5. Philip Kassman -v- The State (2004) SC 759, armed men had attacked a bank customer outside the precincts of the bank and stole K128,464.24. The Supreme Court said that applying the 3 year denominator in Don Hale’s case (supra), the sentence should have been around 8 years. However, while "the sentence of 10 years is slightly above what might be the starting point of 8 years, we do not, however, consider that the sentence of 10 years was manifestly excessive in all the circumstances.";
       
    6. Ramsay Lestor Pitaro -v- The State (2006) SC 846. The brief facts are these; Mahara Auhi, an employee of Neptune Fisheries Limited, was dropping off another employee of the said company at his home at Papuan Compound and had arrived at the front gate of the house and the motor vehicle came to a halt. Soon after, the Appellant and 3 others appeared on the scene armed with a homemade gun. They made threats with the gun and ordered the two men out of the car and to leave the keys in the ignition. The order was obeyed and the Appellant and his accomplices drove off in the motor vehicle. The appellant had a prior conviction for robbery. The Supreme Court dismissed the appeal against sentence of 8 years;
       
    7. State v Titus Manai (2011) N4556, Batari J: the prisoner, who had a prior conviction for unlawful use or stealing of a vehicle, pleaded guilty. He with two others robbed a vehicle from a convenience store whilst armed with a pistol and a bush knife. Police intercepted the stolen vehicle shortly after the incident resulting in the arrest of the offender. He was sentenced to 10 years of imprisonment, less time spent in custody.
       

Consideration

13. It is well established that the maximum penalty is reserved for the most serious instances of the offence: Goli Golu v The State [1979] PNGLR 653. Whilst this case does not fall within that category, it remains very serious.
    
14. Having regard to Gimble, Tau Jim Anis and Kassman (supra), it is my view that this case falls into category three and that the appropriate starting point is eight years.
    
15. In my view, however, the penalties set out in Gimble, Tau Jim Anis and Kassman must be regarded as out of date not only because of the prevalence of aggravated robbery but having regard to the 2013 amendment.
    
16. Section 19 of the Criminal Code provides the Court with broad discretion on sentence. I remind myself when considering the guidelines and comparative cases that whilst they are relevant, every sentence must be determined according to its own facts and circumstances: Lawrence Simbe v The State [1994] PNGLR 38.
    
17. Having identified the starting point it is necessary to consider the aggravating and mitigating factors.
    
18. The offender is 26 years of age from Woitape Village in Goilala District, Central Province. He has lived at 6 Mile his entire life. His parents died some years ago and he and his 5 siblings have had to fend for themselves. He is married with three children, two sons and a daughter. The sons are aged five and two. It is unclear how old his daughter is. The offender’s wife left him whilst he was in prison and his children are now being cared for by his elder sister. The offender has no formal education and prior to his detention, earned his living through informal marketing.
    
19. In mitigation this is the offender’s first offence. He is of prior good character. He was 24 at the time of offence and whilst youthful it cannot be regarded as a matter of special mitigation. It cannot be said that the offender cooperated with police as was submitted by counsel. He maintained his right to silence as he was entitled to do. That is not a matter in aggravation but he does not get the benefit of that which he would have done if he had cooperated at that stage. Nevertheless, I place great weight on the fact that the offender pleaded guilty at the National Court. I take this into account as reflecting his genuine remorse, which he expressed on allocutus, as well as the fact that it has saved the Court, the State and its witnesses the time, cost and inconvenience of a trial.
    
20. Whilst already reflected in the starting point, I also take into account that no physical violence was done to either of the victims. The offence was over very quickly.
    
21. Whilst the vehicle was recovered later the same day, it must be noted that was after it crashed into a fence whilst being pursued by a Black Swan Security Response Unit.
    
22. The impact of the offence on the offender has been and will continue to be significant. His wife has already left him as a result of his incarceration. Imprisonment will have a significant impact on his young children, who have already been without their father for at least two years. Whilst regrettable, it is well established that except in very extreme circumstances, it is not ordinarily a relevant consideration on sentence: see for example Allan Peter Utieng v The State (2000) SCR No 15 of 2000; The Public Prosecutor v Vangu’u Ame [1983] PNGLR 424.
    
23. I also take into account that the offender was shot and stabbed by security guards during his apprehension, which is not in dispute. There is no medical report properly outlining the nature and extent of the injuries. It appears he has never been properly treated for them. That is unacceptable. Having observed him during the sentence proceedings, I am satisfied that the offender has permanent injuries to both his right ankle and left arm. The injury to his leg severely affects his mobility and requires him to use crutches. His arm is held in a sling and appears wasted.
    
24. The State submits that the injuries are not relevant as they were not inflicted by police but by security guards. I do not agree. Whilst it would be significantly worse if inflicted by police, the injuries are, like any health issue, relevant when determining an appropriate sentence. The fact that they were inflicted at the time of the offence is also relevant. Whilst the use of reasonable force to prevent an offence or apprehend a suspect is acceptable, no one is entitled to take the laws into their own hands and such conduct by security guards, bystanders or police must be condemned in the strongest terms.
    
25. In aggravation the value of the item stolen was substantial, a vehicle. It should be remembered that a vehicle is an item of great monetary value, both to its owner, and to those who steal them. It is this that has seen “car-jacking”, the taking of the vehicle itself, not just items of value within it, become increasingly organised and prevalent.
    
26. Whilst the fact that dangerous weapons were used and the offence was committed in company of others is to a large extent already reflected in the starting point I have identified, I do take into account that both a pistol and a bush knife were used in the commission of the offence. Furthermore, it was the offender who was in possession of the gun, and clearly played a leading role as it was he who held up the driver.
    
27. These types of offences, in particular the “car jacking” of vehicles by armed men are increasingly prevalent and strike fear into every driver on the road. See also The State v Nelson Haria (2021) N9100.
    
28. It is also well accepted that the victims of such offences are often left with psychological scars that live on long after the incident itself. Whilst Probation Services was not able to speak to the victims, I have no doubt that they were terrified by the hold up. As Sgt Numbos who stopped his vehicle to assist them that day says in his statement, they were shaking in fear. As a matter of common sense, I am sure that they continue to live with what happened that day every time they go out on the road, particularly as such offences remain prevalent.
    
29. The aggravating factors outweigh those in mitigation.
    
30. The penalty imposed in this case must be strong enough to ensure both specific and general deterrence.
    
31. Having regard to the general circumstances of the case, the personal circumstances of the offender, the aggravating and mitigating factors, the submissions of counsel, the guidelines contained in Gimble, Tau Jim Anis and Kassman, and comparative cases, I sentence the offender to 8 years of imprisonment.
    
32. The offender has been in custody since 15 July 2019. I exercise my discretion to deduct the time spent in custody to date.
    
33. The question remains whether any or all of the sentence should be suspended.
    
34. In The State v Tardrew [1986] PNGLR 91 the Supreme Court set out three broad, but not exhaustive, categories in which it may be appropriate to suspend a sentence, namely: where it will promote the general deterrence or rehabilitation of the offender; where it will promote the repayment or restitution of stolen money or goods; or where imprisonment would cause an excessive degree of suffering to the particular offender, for example because of bad physical or mental health. Suspension is not an act in leniency but a form of punishment that is to be served outside the prison system in the community interest to promote restitution or rehabilitation: The State v Tardrew [1986] PNGLR 91; The State v Frank Kagai [1987] PNGLR 320.
    
35. I take into consideration the offender’s disabilities. Whilst I do not believe they will cause an excessive degree of suffering, I am sure that they make his detention more difficult.
    
36. Probation Services regard the offender as suitable for probation. I am satisfied that he has demonstrated through his guilty plea at the National Court stage good prospects for rehabilitation. I am further satisfied that partial suspension of his sentence would promote his rehabilitation and reintegration into the community, and is also warranted having regard to his disability and my condemnation of the fact that it was inflicted during his apprehension. These considerations must, however, be balanced against the serious nature of the offence and the need for deterrence.
    
37. Having regard to the amended maximum, it appears that suspension under s 19(1)(d) of the Criminal Code may no longer be available. It remains available, however, when s 19(1)(aa) and (a) of the Criminal Code are read together with s 16(2)(a) of the Probation Act.
    
38. I make the following orders.
    

Orders

(1) The offender is sentenced to 8 years of imprisonment in light labour to be served at Bomana Correctional Institution.

(2) Time spent in pre-trial custody, namely 2 years, 1 month, 16 days is deducted from time to be served, leaving a balance of 5 years, 11 months, 14 days.

(3) Of that balance, 2 years is suspended on the following conditions required under s 17 of the Probation Act, such that the offender:

1. remain at the address specified in the pre-sentence report as his home address following his release until he is contacted by a probation officer, unless
   1. he has given to a probation officer reasonable notice of his intention to change the address and the reasons for the proposed change;
   2. where by virtue of the change of address, the probationer has moved to another declared area–he shall, within 48 hours of arrival, report to a probation officer in that area and advise that officer of the nature and place of his employment and of his new address in that area; and
      
2. report to a probation officer as and when he is required by the probation officer to do so;

100. keep the peace and be of good behaviour for the period of his probation;

4. shall, if applicable, give to a probation officer reasonable notice of his intention to change his employment and advise him of the nature and place of his proposed employment; and
5. allow a probation officer to enter his home during reasonable hours.
   

(4) Leaving a balance of 3 years, 11 months, 14 days to be served.

Sentence accordingly.
_______________________________________________________________
Public Prosecutor: Lawyer for the State
Public Solicitor: Lawyer for the Accused

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[1] Counsel is reminded that it is appropriate to suggest a range not a specific term to the Court.