State v Haria [2021] PGNC 236; N9100 (1 September 2021)

N9100

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR 158 OF 2019

THE STATE

V

NELSON HARIA

Waigani: Berrigan, J
2021: 5^th June, 6^th & 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 from a family soon after they arrived home – sentence of 9 years imposed, less time spent in custody, and partial suspension having regard to medical condition, prospects for rehabilitation and delay.

Cases Cited:
Papua New Guinea Cases

Hawai John v The State, unreported judgement delivered on 02/04/98, SCR 09 of 1995
Allan Peter Utieng v The State (2000) SCR No 15 of 2000
Tau Jim Anis and Others v The State (2002) SC564
Phillip Kassman v The State (2004) SC759
Kaya & Kuman v The State (2020) SC2026
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 Kuromo & 3 Ors (2009) N3743
State v Magani (2011) N4555
The State v Mailele (2012) N5181
State v Petrus (2014) N6522
The State v Keduke (2014) N5784
The State v Thaddeus (2014) N5795
State v Dominic (2014) N5823
State v Jaip (2015) N6188
The State v Bobby Andrew Don (2021) N8889

Overseas Cases

R v Law; Ex parte A-G [1995] QCA 444; [1996] 2 Qd R 63

References Cited

Sections 19, 386(1)(2)(a)(b) of the Criminal Code (Ch. 262) (the Criminal Code)
Section 16 of the Probation Act, 1979

Counsel

Ms J Siminji, 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 a dangerous weapon, namely a factory made pistol, 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 30^th of October 2016, between the hours of 9:00 am and 10:00am at Mairi Place, East Boroko, the victim, Oala Lawrence, was driving home with his wife and two daughters when they noticed another vehicle, a Toyota Harrier, parked in their street. They drove into their residence and parked. Whilst the family was taking out their shopping the offender and two other persons exited the Toyota Harrier and entered their gate. The offender pulled out a factory-made pistol, pointed it at the victim and asked for the car keys whilst his two accomplices, who were holding a home-made pistol, surrounded the victim’s wife and daughters. The victim was scared and gave the car keys to the offender. The offender and his accomplices stole from the family their mobile phones and wallets containing cash before driving away in the victim’s vehicle, a white Ford Ranger Double Cab belonging to Century Insurance (PNG) Limited.
   

Allocutus

3. On allocutus the offender said: Sorry to God and the Court of Papua New Guinea. I am sorry to the victim for what I have done. It is not good. I am sorry to my family for spoiling their reputation. Three years I have been in prison I have caused them great pain and suffering. Please have mercy on me, give me a suspended sentence and a good behaviour bond. That is all.
   

Sentencing Principles

4. The maximum penalty under s386(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 given the presence of a weapon, and other persons, and the general prevalence of the offence. She asked the court to take into consideration in mitigation that this was the offender’s first conviction, that he pleaded guilty and that he had contracted tuberculosis whilst in custody and was of poor health. Further, that the mitigating factors outweighed the aggravating factors and that a sentence of six years is appropriate. (Counsel is reminded that a range and not a specific sentence should be suggested to the court). Time spent in custody, four years, should be deducted and the balance 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 other items, including 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 with 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 a vehicle, 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 Dominic (2014) N5823, Geita J: Guilty plea. Around 8 pm the offender and five other boys robbed a shop, 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 addition to the factors already highlighted in aggravation it added that the offence was committed in the victim’s residential area and that phones and cash were also taken.
    
11. State counsel submitted that this case falls within category four of Gimble, as a robbery on the street, but that given its aggravating features it should attract a sentence between 6 and 10 years. The cases it relies upon all concern robbery of a person of their belongings on the street, some in which actual violence was present:
    
    1. State v Petrus (2014) N6522, Batari J: the offender pleaded guilty to accosting a victim, armed with a bush-knife, and when he resisted his accomplice cut his hand with a bush-knife, causing him to release the bag. The bag containing K1, 000 in cash was later retrieved with some personal items less the cash content. The offender went into hiding until his arrest. He was sentenced to 6 years in custody, less time spent in custody. He was 17 at the time of the offence;
       
    2. The State v Keduke (2014) N5784, Cannings J: the offender pleaded guilty to stealing K369 from a man on the street. He was sentenced to four years, less time spent in custody, a further two years was suspended;
       
    100. The State v Thaddeus (2014) N5795, Cannings J: the offender pleaded guilty to robbing a woman of her bilum at the bustop, taking almost K16,000 in cash and cheques. He was sentenced to five years;
         
    4. The State v Mailele (2012) N5181, Toliken AJ: the offender pleaded guilty that as part of a gang he held up an employee of the Alotau Family Store and robbed him of K47,559.55 whilst he was crossing the road to do the banking. He was sentenced to five years, less time spent in custody;
       
    5. Hawai John v The State, unreported judgement delivered on 02/04/98, SCR 09 of 1995: the Supreme Court considered a sentence of 8 years on a guilty plea by the appellant’s accomplice was too lenient. It reduced the appellant’s life sentence to 15 years due to the huge disparity between the appellant and his co-offender. Otherwise, the Court found that, the offence was most serious because it was a planned robbery carried out with reckless disregard for others, using firearms resulting in, one of the victims of the offence being rendered blind when it was fired in the vehicle. Monies were stolen from a person sitting in a vehicle.
       

Consideration

12. 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.
    
13. I do not agree with the State that this case concerns the robbery of a person on the street. It concerns the robbery of a vehicle. The fact that the offence took place once the vehicle was parked at the victim’s residence immediately after they arrived home, and not still driving on the road, makes it all the more serious, not less. It is being robbed in these very circumstances that many people fear the most. It should also 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 the robbery of a vehicle itself, and not just the items of value within it, become increasingly organised and prevalent.
    
14. Having regard to Gimble, Tau Jim Anis and Kassman (supra), this case falls into category three and the starting point is eight years. 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.
    
15. 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.
    
16. Having identified the starting point it is necessary to consider the aggravating and mitigating factors.
    
17. The offender is 34 years of age from Ipaipana Village in Bereina District, Central Province. The offender was 30 years old at the time and cannot be regarded as particularly youthful.
    
18. He previously lived with his mother in the family home in Hohola. His father is deceased. He is married with five children, three of his own, and two adopted children. The eldest is in Grade 8 and the youngest in Grade 1. He completed Grade 10 at Don Bosco Gabutu and is trained as a refrigeration mechanic. He worked with PNG Airlines in 2011. He was unemployed at the time of the offence other than for odd jobs, and relied on his wife’s salary.
    
19. In mitigation this is the offender’s first offence. He is of prior good character.
    
20. I place great weight on the fact that the offender co-operated with police and made early admissions. The offender pleaded guilty at the National Court. I take that into account as reflecting his genuine remorse, as well as the fact that it has saved the Court, State and its witnesses the time, inconvenience and trauma of reliving the offence during a trial.
    
21. The impact of the offence on the offender has been and will continue to be great. Any term of imprisonment will be especially difficult for the offender’s young children, who have already been without their father for several 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.
    
22. It is also relevant that medical evidence establishes that the offender contracted tuberculosis whilst on remand in 2019.
    
23. Defence counsel submitted that the vehicle was recovered. It was but only because police recovered it in unrelated circumstances which are not the subject of these proceedings.
    
24. I have taken into account that no one was physically harmed. It is also relevant here, particularly when considering comparative cases, that the offence was, by all accounts, over in a matter of moments.
    
25. Aggravated robbery is by its nature, however, a very serious offence. As Batari J in State v Magani (2011) N 4555 explained:

“It is a very serious crime as it attacks the very essence of constitutional guarantees for every man, woman and children in this country to have the freedom to live, move around and go about his or her lawful business anywhere and at any time of the day, without fear or apprehension of unwarranted attacks. People should feel safe in their homes, at their work places, on the streets and roads, without fear as many do, of prowling armed robbers threatening and stealing from them.”

26. In my view this was a very serious case of aggravated robbery for a number of reasons.
    
27. The value of the item stolen, the vehicle, was substantial, worth tens of thousands of kina. In addition, several personal items of value were also taken from the victims.
    
28. This type of offence is often referred to as “car-jacking”. It is a term that Papua New Guineans are all too familiar with, and something they fear might happen, as it did in this case, when simply returning to their home. Women and girls are particularly afraid of being abducted and raped during such incidents.
    
29. The family was robbed at gunpoint by the offender and his two accomplices, at their home on a Sunday morning. The robbers surrounded the victim’s wife and daughters. Whilst Probation Services was unable to speak to the family for the purposes of its report, I have no doubt that all of them were traumatised. The victim and his wife were terrified that the offender and his armed accomplices would abduct their daughters. One of the girls was so afraid she tried to run away at the time. The other was afraid to look any of the men in the face. It is easy to sit here some years later in the quiet of the court room and lose sight of how terrifying the incident that shattered the family’s quiet enjoyment of their Sunday would have been.
    
30. 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. That is particularly so as offences like this one remain increasingly prevalent. It is not difficult to imagine that the offence continues to play on the minds of each of the victims as they return home every day.
    
31. Whilst the fact that dangerous weapons were used and the offence was committed in the company of others is to a large extent already reflected in the starting point I have identified, I do take into account that at least two factory made weapons were used. In addition, it was the offender himself who held one of these and played a leading role in the robbery, demanding the keys to the vehicle from the driver whilst his accomplices threatened his wife and daughters. The fact that the offence occurred at the family’s home, and in the presence of children or teenagers is seriously aggravating.
    
32. The aggravating factors in this case outweigh those in mitigation. The penalty imposed in this case must be strong enough to ensure both specific and general deterrence.
    
33. 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 9 years of imprisonment.
    
34. The offender has been in custody since 5 May 2017, that is 4 years, 3 months, 26 days.
    
35. I exercise my discretion to deduct the time spent in custody to date.
    
36. The question remains whether any or all of the sentence should be suspended.
    
37. 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.
    
38. I take into consideration that the offender contracted tuberculosis and whilst treated is currently taking medication for related issues. Whilst I do not believe that alone would cause an excessive degree of suffering, it is a relevant consideration, and would certainly make his incarceration more difficult.
    
39. Neither party addressed the issue of delay. A lapse of time between the commission of an offence and the imposition of sentence is not a mitigating factor of itself: In R v Law; Ex parte A-G [1995] QCA 444; [1996] 2 Qd R 63. Delay may be a relevant consideration on sentence but it will depend on the circumstances. In determining whether delay is a mitigating factor consideration should be given to the reason for the delay. S 37(3) of the Constitution guarantees a fair trial within a reasonable time. Where there has been a failure on the part of enforcement authorities or the judicial process to bring an offender to justice within a reasonable time that may properly constitute a factor in mitigation. This may be particularly relevant where an offender has cooperated with authorities from an early stage. Consideration should also be given to the conduct of the offender himself and his role in the delay. For obvious reasons a person who absconds should not benefit by the delay he himself has caused. Delay may also be relevant where the offender has made demonstrable progress towards his or her rehabilitation during the period of delay. As in any case delay must be balanced against all the other factors for consideration, including the nature and seriousness of the offence.
    
40. The offender confessed the crime to police in May 2017 following his apprehension. The offender has demonstrated good prospects for rehabilitation. He has been ready to serve his sentence since 2017. Probation Services recommends him for probation and there is evidence to support his statements that he has learnt a lot since he first came into prison and is ready to work with his community and support his wife, and his children through school.
    
41. In the circumstances, I am satisfied that partial suspension of his sentence would promote his rehabilitation and reintegration into the community, and is warranted having regard to his medical condition and the delay occasioned to date. This must also be balanced against the serious nature of the offence and the need for deterrence.
    
42. 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.
    
43. I make the following orders.
    

Orders

(1) The offender is sentenced to 9 years of imprisonment in light labour to be served at Bomana Correctional Institution.

(2) Time spent in pre-trial custody, namely 4 years, 3 months, 26 days spent in pre-trial custody is deducted from time to be served, leaving a balance of 4 years, 8 months, 4 days.

(3) 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 1 year, 8 months, 4 days to be served prior to release on probation.

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