State v BN (Juvenile) [2021] PGNC 269; N9005 (20 May 2021)

N9005

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR 296 OF 2021

THE STATE

V

BN (Juvenile)

Bialla: Batari J
2021: 18^th, 20^th May

CRIMINAL LAW– sentence – robbery – robbery on street – accused in the company of another person armed with axe imitating a gun held up a lone lady along a track and stole from her, a mobile phone worth K300.00 – threat of violence with an accomplice - seriousness of – mitigation - plea – effect of – 16-year-old youthful offender - sentencing principles applied - sentence of 4 years wholly suspended appropriate.

Prisoner Benjamin Navak aged 16 committed robbery whilst in the company of another person and armed with an axe handle pretending it to be a gun. He held up one Essie Nelson and robbed her of a mobile phone worth K300.00. This is his sentence after he pleaded guilty and expressed remorse.

HELD

1. On sentence, the sentencing authority is obliged to apply appropriate measures to meet the seriousness of the crime based on the two distinct system of sentencing under s. 19 of the Criminal Code to reflect the different penal objectives governed by different principles to determine the form of sentence or measure to follow. [para 6 - 7]
   
2. Accepting that the general sentencing guidelines in Gimble v The State [1988-89] PNGLR 271 remains useful, the starting terms for each category of robbery has however been increased by a three year common denominator as settled in, Philip Kassman v The State (2004) SC 759 following Public Prosecutor v Don Hale (1998) SC 564 and Tau Jim Anis v The State (2000) SC 642 so, the starting point for street robbery is now six years to be adjusted upward or downward based on the facts of each case: Alex Pori v The State (2007) SC 919. [para 10]
   
3. On sentencing following a plea of guilty, the benefit of a genuine plea of guilty should be apparent in the outcome of the sentence imposed. [para 23 - 25]
   
4. The sentencing authority ought to aim for rehabilitation and reformation of the individual juvenile offender by imposing a sentence that favours helpful and useful curative measures to avoid incarceration as intended under the Juvenile Court Act. [para 30 - 37]
   
5. A term of four years wholly suspended on probation terms and conditions is warranted on all the facts. [para 38]
   

Cases Cited

Alex Pori v The State (2007) SC912
Bobolan Peter v The State (2007) SC894
Gimble v The State [1988-89] PNGLR 271
Kalabus v The State [1988] PNGLR 193
Phillip Kassman v The State (2004) SC759
Public Prosecutor v Don Hale (1998) SC 564
Public Prosecutor v Tom Ake [1978] PNGLR 469
State v David Henry (2010) CR. No. 495 of 2008,
State v Waiyape Kuromu & 3 Ors (2009) N3743
State v Win Thomas (NC unnumbered judgment) Cr No. 837 of 1994
Tau Jim Anis v The State (2000) SC642
The State v Bluey Hanua (1997) N1625
The State v Desmond Gobe (2011) N4547

Counsel

Mr C. Sambua, for the State
Mr B. Takua, for the Accused

SENTENCE

20^th May, 2021

1. BATARI J: Benjamin Navak was aged 16 at the time of the offence. I will refer to him as BN, to protect his identity. Whilst in the company of another person, BN held up one, Essie Nelson and robbed her of a mobile phone. He pleaded guilty. This is his sentence.
   

Brief background facts

2. On the early Saturday morning of 15/8/2020 the victim Essie Nelson was on her way to work at Bialla from Matililiu village when BN and an accomplice accosted her near the Morobe camp. BN used an iron axe handle pretending it to be a firearm to threaten the victim and stole from her, a mobile phone valued at K300.00. He was the only one arrested and charged shortly after the incident.
   
3. To assist with this difficult task of sentencing a first-time, youthful offender, I ordered the Probation Officer to compile a Presentence Report. The Report, commendably prepared by Probation Officer Gasi Kelemesi in the short time given, is sufficiently informative on BN’s background. He left his parents in Wosera, East Sepik Province at about 11 years old to live with his aunt, Joycelyn John at Banana Camp, Bialla. Ms John spoke of life being difficult for BN in having to cope with many challenges and peer group pressure at the settlement. A community leader, Elias Dennis and a Christian Apostolic elder, Basil Anda expressed similar sentiments and support for BN being placed on probation orders. His teacher, Cynthia Naramus confirmed he completed Grade 8 at Bialla Primary School. She also spoke well of BN being an obedient student albeit, with some learning difficulty. She would assist BN to repeat Grade 8 if given the opportunity to be on probation.
   
4. The victim on the other hand wants restitution of her mobile phone. She has not got it back despite assertions the item has been returned. Ms Nelson also suggested the Court order the parties to reconcile to settle an ongoing animosity and fighting that had followed the incident. I will not make any orders on unconfirmed, scanty information. Too that issue is not before the Court.
   

The offence of armed robbery and victim’s response

5. A simple case of robbery under s. 386 (1) of the Criminal Code carries 14 years maximum sentence. Where the robbery is committed with circumstances of aggravation under s. 386 (2) (a) (b) by use of a dangerous or offensive weapon or instrument; or being in company with one or more other persons; or use of actual personal violence, Parliament has, in the 2013 amendment, stamped its strongest disapproval and condemnation of robbery incidences, by replacing the penal servitude of life imprisonment with the ultimate penalty of death.
   

Sentencing principles and guides

6. Section 19 provides for the primary legislative structure by creating two distinct systems of sentencing to reflect the different penal objectives governed by different principles. These sentencing options have their roots in the common law. As the learned author of, Principles of Sentencing, DA Thomas, 2^nd Edition stated at page 8:
   

“The options are to impose a sentence that may be loosely termed as “tariff sentence” or impose a sentence based on the needs of an offender as an individual.”

7. The sentencing authority must first decide which of the two sentencing objectives should prevail over the other on the circumstances of each case before applying the appropriate body of principles to determine the form of sentence or measure to follow.
   
8. As a guide, robbery cases fall into four main categories of seriousness. The Supreme Court in Gimble v The State [1988-89] PNGLR, 271 set these out as:
   
   1. Robbery of a house – a starting point of seven years;
   2. Robbery of a bank – a starting point of six years;
   3. Robbery of a store, hotel, club, vehicle on the road or the like – a starting point of five years; and
   4. Robbery of a person on the street – a starting point of three years.
      
9. The recommended starting points are relevant where young first offenders carrying weapons and threatening violence are convicted following a trial. Where there was actual violence or other aggravating factors like loss of substantial money were present, or where the robbery was committed in breach of trust, a higher sentence will be justified. Conversely, a lower sentence will be justified in a plea of guilty with mitigating factors.
   
10. While the sentencing guideline in Gimble’s case remains useful, the Supreme Court has since reviewed the suggested starting points for the different categories of robbery and subsequently settled on a three-year increase factor for all the categories robbery cases. In, Phillip Kassman v The State (2004) SC 759 (Jalina J, Sawong J, Batari J) the Court affirmed the three-year common denominator initiated in Public Prosecutor v Don Hale (1998) SC564 (Amet CJ, Woods J, Kirriwom J) and Tau Jim Anis v The State (2000) SC642, (Sheehan J, Jalina J, Kirriwom J. So, the current guideline appears thus;
    
    • (i) robbery of a house – a starting point of ten years,
    • (ii) robbery of a bank – a starting point of nine years,
    • (iii) Robbery of a store, hotel, club, vehicle on the road or the like – a starting point of eight years, and
    • (iv) Robbery of a person on the street – a starting point of five years.
      
11. The Court may start at the prescribed mid-range, subject to the judge’s discretion to increase or decrease the term, depending on the facts of each case. See, Bobolan Peter v The State (2007) SC894 (Mogish, Manuhu, Hartshorn, JJ); Alex Pori v The State (2007) SC912 (Davani, Mogish, David, JJ).
    

Parties’ submissions

12. Mr Takua of Counsel for the prisoner has impressed upon the Court to impose a sentence in the vicinity of four years based on the less serious nature of the robbery; the personal circumstances of BN as a youthful first-time offender; his plea of guilty and expression of remorse. Mr Takua relied on The State v Desmond Gobe (2011) N4547 (Yagi J) to support his case for a lower sentence.
    
13. In that case, Desmond aged 17 years and three others of his peer group armed with a bayonet type knife, a pistol and two bush knives held up two young females at the junction of Minogere Police Barracks, Goroka. They stole from them K300.00 cash, 2 Nokia mobile phones and a bag containing personal properties. The mobile phones and bag were recovered shortly after the incident. K300.00 cash was also refunded to the victims. Desmond was the only one apprehended. The court imposed four years fully suspended on conditions.
    
14. Mr. Takua also referred to, State v Waiyape Kuromu & 3 Ors (2009) N3743 (Kirriwom J) where four young primary school boys in Lufa, armed with home-made guns and bush knives, held up a PMV truck along the highway, and stole from the passengers, a wristwatch valued at K12.00, one mobile phone and K120.00 cash. The properties were later recovered. They were each sentenced to 4 years wholly suspended on conditions.
    
15. Mr Sambua for the State conceded that the facts of this case fall into the least serious within the category of street robbery and that the involvement of a juvenile makes the consideration of incarceration secondary to the need for rehabilitation and reformation of the offender. Counsel agreed a term within the vicinity of four years would be warranted on the facts.
    

Considerations and sentence

16. When sentencing an offender, one always starts on the premise that the maximum sentence prescribed by legislation speaks of the degree of seriousness of the crime charged and the need to give effect to the intention of Parliament that the offender meets with severe penalty.
    
17. In this case, the elevation of aggravated robbery to the death penalty under the new sentencing regime is in direct response to robbery incidences being committed with increasing frequency, sometimes with careful planning and use of extreme violence, or involving substantial amount of money or property. Robbery incidences have continued unabated despite government and Christianity influences pervading the length and breadth of this Nation over the years. It has become the norm, that hardly a day goes by without a report of a robbery being reported in the print media, electronic media and the social media.
    
18. This sad reality tarnishes the good image of our community and country through adverse publicity and brings shame to our people.
    
19. Robbery of any type, form or magnitude is always a very serious crime of violence. It is a direct attack against the constitutional freedom of movement and the right to enjoyment of life and property. People should feel safe whenever and wherever they are going about their lawful duties or at their leisure time. They should be able to move around freely and should not have to live in fear as many do, of prowling armed robbers stealing with threats of violence and actual violence from the unwary on the roads and streets, business houses, clubs, vehicles on the road, factories, banks and homes.
    
20. There is thus, an overwhelming obligation on the sentencing authority to apply tough measures to meet the seriousness of the offence within the permissible limits of the sentencing schemes under s.19 of the Criminal Code.
    
21. This case falls into the last category namely, street robbery. This category of robbery is particularly common these days. The aggravating features are that BN was armed with a dangerous weapon and he was in the company of another person. The seriousness of his conduct is seen in the ultimate penalty of death. That is where to start in deciding the appropriate sentence.
    
22. Accepting that the circumstances of this robbery fall into the least serious category of similar type robbery, that it being more of a chance offence by a juvenile, fuelled by alcohol and that his friend in fact was dissuading him to stop, a determinate term is warranted within the sentences for street robbery. The starting point is six years to be increased or decreased depending on the presence of aggravating factors and factors in mitigation. BN is a juvenile. He is a youthful first-time offender. BN has also vastly improved his chances of a lower sentence by his plea of guilty.
    
23. It is trite, that the benefit of pleading guilty should be apparent in the outcome of the sentence imposed. One effect of that is the incentive in itself to plead guilty. The plea must however result from a genuine and free choice to confess as Los J stated in The State v Win Picinon Thomas (un-numbered National Court Judgment) CR No. 837 of 1994;

"... an honest plea of guilty must be taken into account in an apparent fashion so that the prisoner must know that his guilty plea has been well appreciated and taken into account by the Courts. This would also encourage other people who genuinely want to plead guilty must do so knowing that it will help them in their punishment."

24. In The State v Bluey Hanua, (1997) N1625, it was observed that, with the increasing length, complexity and costly criminal trials at public expense, guilty persons when charged with offences be encouraged to enter honest plea of guilty at the earliest possible time. The incentive must of course come from what is apparent on the final sentence of the Court.
    
25. It has also been long recognised that a guilty plea may demonstrate and support remorse and contrition: Public Prosecutor v Tom Ake [1978] PNGLR, 469; Kalabus v The State [1988] PNGLR 193. And there is added value where the early plea is consistent with mitigating conduct of the offender since the commission of the offence as for instance; where the offender makes early admissions and cooperates with police in arresting others involved in the offence; or pays restitution and reconciles with the victim.
    
26. In summary, the value of pleading guilty will depend on several factors namely, but not limited to:
    
    • seriousness of the offence;
    • circumstances of aggravation;
    • special or exceptional factors in mitigation;
    • young age or advanced age of offender;
    • health of the offender;
    • how soon the plea is taken after committal;
    • any reconciliation or restitution before arrest.
      
27. Conversely, a plea of guilty standing alone will have little or no effect in mitigating such serious crimes of violence like murder, aggravated armed robbery, rape or sexual penetration committed with circumstances of aggravation.
    
28. This is the first time the Court has sat and called BN’s case at Bialla. His guilty plea followed from his early confession to the police. He has also expressed remorse. I accept his expression of remorse to be genuine. It followed his early confession, his plea and his recent admissions to the Probation Officer of being under the influence of alcohol at the time of the robbery. I am satisfied this is a case where an early plea of guilty deserve a good discount on sentence.
    
29. NB came to Bialla at a very young age and cared for by a widowed aunt who also has children of her own to care for. The aunt seemed to have little or no control over him. The result of inadequate parental control and guide is a child with the propensity towards criminal activities. An unstable upbringing is a factor that is relevant for sentencing in this case.
    
30. It is common sense that one does punish a juvenile for his unstable upbringing. Young offenders who find themselves on the wrong side of the law because of their unfortunate background needed corrective measures that are helpful and useful, and not destructive. The measures must be aimed at rehabilitating and reforming the individual offender. The challenge in sentencing a young offender has always been the risk of making him or her come out of prison worse off than when he or she first went in.
    
31. This is more so particularly where the opportunity for rehabilitation and reformation are not present in most of the adult prison institutions in this country. So, sentencing BN to an adult prison may do him more harm than good.
    
32. I propose to attempt a sentence that should influence his future conduct. The sentence must reflect the circumstances of his offence and his personal circumstances as a youthful first-time offender and his plea.
    
33. What sentence should then be imposed?
    
34. This is where NB has insurmountable advantage under the Juvenile Court Act which provides the guidance as to how a juvenile should be dealt with by the Courts. That legislation dictates, this Court must exercise the powers of a Juvenile Court in dealing with child offenders.
    
35. I will do just that and adopt what his Honour Yagi J succinctly applied in, State v David Henry (2010) CR. No. 495 of 2008, (unreported and unnumbered National Court Judgment):

“The scheme of the Juvenile Courts Act is essentially to protect, promote and foster the welfare and interest of children who violate the criminal law. One of the objects of this legislation is to provide a regulatory guideline and procedure in sentencing of juvenile offenders.

The key consideration under the Act that is of paramount importance when a Court is dealing with juvenile offenders is the “interests of the juvenile”. This is stipulated very clearly by the Juvenile Courts Act at the very outset. Section 4 of the Act states:

“4. INTERESTS OF JUVENILE PARAMOUNT.

In proceedings and actions under this Act, the interests of a juvenile shall be the paramount consideration.”

The powers of the Court in sentencing a juvenile is vested in ss. 30 and 32 of the Act. These provisions provide a range of sentencing options such as discharge without conviction, conviction and discharge, fine, order to pay compensation, probation, placing a juvenile in a ward of Director of Child Welfare and detention is a juvenile section of a corrective institution.

However, whilst the Court has a wide discretion in sentencing, the Court must take into account a number of important factors in its deliberation. These are what I would call “mandatory factors”. These factors are enumerated under s. 31 of the Act. They are:

“(a) the seriousness of the offence and the circumstances in which it was committed;

(b) the age, maturity, education, health, character and attitude of the juvenile;

(c) the juvenile’s parental and family background as well as the social and community environment in which he lives and to which he is likely to return;

(d) the juvenile’s previous history in respect of offences and his responses to previous orders in relation to those offences;

(e) the community services and facilities that are available to assist the juvenile and his willingness to use those services or facilities;

(f) any proposals that the juvenile or his parents may put forward for the future improvement of the juvenile;

(g) any views of a Juvenile Court Officer in relation to the juvenile;

(h) any views of any person who is involved in the education or custody of the juvenile;

(i)any other factor that the Court may consider relevant.”

36. Balancing all the facts for and against the offender, term of imprisonment below the starting point is in my view warranted on the facts of the case. This is because in my view, mitigating factors outweigh the aggravating factors.
    
37. I have also considered whether to suspend the whole or part of the sentence. It is clear from the legislative intent of the Juveniles Court Act that the interest of the prisoner as a juvenile must always remain a paramount consideration.
    
38. NB is sentenced to four years imprisonment in hard labour. I order that the sentence be wholly suspended, and NB shall serve the prison term on probation pursuant to s. 30 (2) (c) (iii) of the Juvenile Courts Act as follows:
    
1. The whole term of four years is suspended and BN is to be placed on a four year probation on terms and conditions, THAT HE SHALL:
   
   • (a) Within 48 hours after release from custody, report to the Probation Officer;
   • (b) Pay K600.00 part restitution and part compensation to the victim within two months from today or by Friday 16 July 2021 upon undertaking by his support person, Ms Jocelyn John;
   • (c) Reside at a place approved by the National Court;
   • (d) Not leave Banana Block, Bialla or West New Britain Province without written approval of the National Court;
   • (e) Perform 200 hours of unpaid community work at a worksite nominated by the Probation Officer and approved by the National Court;
   • (f) Attend church every weekend for service and worship and submit to counselling;
   • (g) Within two weeks of release from custody join and take active participation in the youth group of his local church;
   • (h) Not consume any form of intoxicating liquor, alcohol or drug;
   • (i) Keep the peace and be of good behaviour at all times;
   • (j) Avoid any association or contact with any known youth or youths with criminal history or with propensity towards anti-social behaviour;
   • (k) Have a satisfactory probation report submitted to the National Court Registry as required;
   • (l) Appear before the National Court as and when required for assessment of your progress on probation.
     
2. The Probation Office shall file six-monthly reports and whenever required on your progress on probation until discharged.
   
3. In the event of a breach of any of these conditions, BN shall be summoned to show cause why he should not be incarcerated to serve the remaining term of imprisonment.
   

_________________________________________________________________
Public Prosecutor : Lawyer for the State
Public Solicitor : Lawyer for the Accused