State v Kaka [2021] PGNC 309; N9120 (2 September 2021)

N9120

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR NO. 491 OF 2021

THE STATE

V

GABRIEL KAKA

Kerevat: Tusais AJ
2021: 4^th & 11^th August, 02^nd September

CRIMINAL LAW – Sentence – plea to robbery of a house at night – Relevant matters for consideration

Legislations cited:

Cases Cited:
Avia Aihi vs the State (No 3) [1982] PNGLR 92
Goli Golu v the State [1979] PNGLR 653
Ure Hane vs The State [1984] PNGLR 105
Gimble v State [1988-89] PNGLR 271
Tau Jim Anis and Others v The State (2000) SC564
Public Prosecutor v Don Hale (1998) SC564
State v Simon Liliura (2014) N5785
State v Jacky Vutnamur and Kaki Kialo (No. 3) (2005) N2919

Counsel

Mr L. Rangan, for the State
Ms C. Pulapula, for the Accused

SENTENCE

02^nd September, 2021

1. TUSAIS AJ: INTRODUCTION: The prisoner pleaded guilty to one count of aggravated robbery contrary to s. 386 (1) & (2) (a), (b) (c) of the Criminal Code (Ch. 262) (the Code). This is the court’s decision on sentence.
   

Facts

2. The prisoner went with 4 other men from Kokopo to Klin Wara Plantation located at Lasul Bay LLG, Gazelle District on the North Coast of East New Britain Province, quite far from Kokopo city. They had a plan to rob a local businessman named Peter Woolcott. The gang leader had earlier befriended a local girl from that area and had gone to stay with her for a week. While staying there he learnt that Mr Woolcott kept large amounts of cash and a pistol in his house. So, this man named Ruben returned to Kokopo and recruited the 4 men including the prisoner, telling them that the intended victim had “heavy coins”. They all travelled back to Klin Wara and Ruben told his newfound girlfriend that the men were students who wished to spend their school holidays at Klin wara in her house. Three more men joined them a day or two later. The gang stayed for a week and carried out surveillance on Mr Woolcotts premises by walking around his store and residence and taking pictures on their mobile phones.
   
3. Finally, when they were ready, they went to Mr Woolcotts dwelling house between 2:00am and 3:00am on Friday the 17^th of July 2020. They were armed with homemade guns, knives and a pinch bar. Prisoner Gabriel Kaka stood guard outside keeping an eye on a security guard that they had subdued and tied up. The others entered the dwelling house where Mr Woolcott and his wife were sleeping. Both are very old people aged in their 70s. They were both rudely awaken from deep sleep and Mrs Woolcott thought she was having a nightmare while her husband quickly realised that they were being robbed. A man with a homemade gun smashed it into Mr Woolcotts’ face causing blood to start flowing. He continued to hit him repeatedly on his face and head while the men kept asking him... “mani we? gun we?” (“where is the money? where is the gun?”). Peter told them where the money was but said that the gun was not in the house. The robbers continued to assault Peter Woolcott very badly and only stopped after one of them found the pistol inside a drawer. They also assaulted his wife when she called out for help and tried to remove the old woman’s underpants. Some of the robbers said that the two old people must be killed because they had seen their faces but mercifully this did not happen. The robbers totally ransacked the house and stole K20,026.00 in cash, a Glock pistol valued at K25,000.00, there (3) laptops total valued at K7,300.00. They also stole some other property belonging to Peter Woolcott and his family before escaping.
   
4. Mr Woolcotts workmen went after the robbers, but they had already escaped. Later that evening the workers while manning a roadblock saw the group of men and again chased them and managed to catch two of them. The prisoner escaped with the others and was in hiding until he was caught by Kokopo police in March this year, 2021.
   

Issue

5. The issue in this case is the appropriate penalty to impose.
   

The law

6. The maximum sentence prescribed under section 347 (2) is death. However, the penalty is subject to section 19 of the Criminal Code. It gives discretion to the Court to impose a lower sentence.
   
7. It is also trite law, that the maximum sentence for any offence is usually reserved for those crimes described as the worst of its kind. The Supreme Court in the cases Avia Aihi v the State (No. 3) [1982] PNGLR 92, Goli Golu v the State (1979) PNGLR 653 and Ure Hane v The State (1984) PNGLR 105 all restate this principle of law. Does this particular case fit into the category of worst type case? To decide that, I must weigh up both mitigating and aggravating factors and consider the seriousness of the offence. In arriving at a just sentence befitting the crime the court refers to the following factors.
   

Antecedents

8. Prisoner is aged 18 years. He is from Vunamami village, Kokopo. He completed grade 10 at Don Bosco Technical Secondary School and in 2020 he was doing electrical course at Kumul Training Institute in Kokopo when he committed this trouble. He is the last born in a family of 8 and is single. His parents are very old aged in the 70s. He attends the Catholic church and was an active member of his congregation.
   

Mitigating Factors:

9. I find the following to be mitigating factors in favour of the prisoner.
   
   • (i) Plea of guilty: He saved the court time and expense to conduct a trial. I give a lot of weight to this factor.
     
   • (ii) Prisoner did cooperate with the police and admitted the trouble in his interview.
     
   • (iii) Prisoner is a first-time offender.
     
   • (iv) He is a youthful offender.
     
   • (v) Prisoner received injuries at the hands of the police when arrested. He lost one tooth and other teeth are loose causing him difficulty in chewing his food. This constitutes extra judicial punishment by police and is a breach of his constitutional right to full protection of the law and freedom from cruel and inhuman treatment. I will give due consideration to this factor, but I hope that the prisoner while bemoaning the state of his teeth will give a thought to the victims who were also subjected to great pain and suffering, molestation and indignities and threats of death issued by his accomplices.
     

(vi) Remorse expressed. In Allocutus he said...“I am a first time offender now appearing before Court. I am still a young boy attending school. I am schooling at Kumul Institute. Now I am in jail. My parents are both old. They are farmers. They just stay in the house. I am the only one who is residing with them. My two brothers are living elsewhere. I got big injury from Police. I Lost one tooth. Other teeth are shaking. I find it hard to eat. At times I would just swallow any food.

I ask for mercy of the Court. I consider my education to be very important in my life. I say sorry to God, to Court. What I have done I already did wrong things. I will not repeat that.”

10. I accept that he is regretting his criminal conduct which has landed him in jail. However, I note that he did not in fact say sorry to the two elderly people who were brutally attacked and robbed by his gang. I will therefore treat his remorse as moderate remorse instead of full and genuine contrition and remorse which often leads an offender on the part to full rehabilitation.
    
11. I give great weight to all the above factors and especially to his plea of guilty, lack of previous convictions, youthfulness and mistreatment by police. I will give the prisoner a lesser penalty because of these factors. However, I must balance these against other matters which go against the offender.
    

Aggravating Factors

12. The offence of robbery whilst armed and with the use of actual violence is very prevalent in PNG. This is also happening in East New Britain Province. In the Pre-sentence report compiled by the Probation office, the victims Peter and Marie Woolcott said this ...
    

“Gabriel willingly participated in the bashing, stealing and causing damage to the home. Nobody in the gang had any sympathy for us the victims or our property.

We have also witnessed the high rate of increase in criminal activity in East New Britain Province over the past five years where the criminals are mainly youths who show no care, sympathy or remorse to victims of the crimes they commit. Some victims of crime are seriously injured, lose massive amounts and also lose their lives.”

13. This was a robbery of a dwelling house in the middle of the night.
    
14. Actual violence was used against the victims. Mr Woolcott was severely bashed up and rendered as weak as a child. He required many stitches on his head. Mrs Woolcott, an elderly woman was also assaulted and indecently molested. It is shameful behaviour indeed when an old woman of advanced age is treated as a sexual object by virile young men. These two people will live for the rest of their lives with memories of the traumatic experience caused by the accused and his gang.
    
15. There was further threats of violence issued by some of the gang members to kill the two victims.
    
16. Homemade guns and other dangerous weapons were used during the robbery.
    
17. A large amount of money of over K20,000, a gun worth K25,000 and other property all worth over K50,000 was stolen. None of the money and property have been recovered.
    
18. This was a well planned and executed robbery. The gang showed great determination in carrying out its aim to steal money and a firearm. When chased by the victims’ workers, they fired a shot at them to deter them.
    

Comparable cases

19. Defence counsel referred to various case authorities and I note in particular the following cases:
    
    • Gimble v State (1988 -89) PNGLR 271 a supreme court case that established tariffs in Robbery cases. On a plea of guilty by first time offenders carrying weapons and threatening violence:
      
      • (a) Robbery of a house – a starting point of 7 years
      • (b) Robbery of a bank – a starting point of 6 years
      • (c) Robbery of a store, hotel, club, vehicle on the road or the like – starting point of 5 years
    • (d) Robbery of a person on the street – a starting point of 3 years.
      
20. The Supreme Court further increased the sentencing tariffs by an additional three (3) years in the subsequent case of Public Prosecutor v Don Hale (1998) SC 564. The increase was reaffirmed in a later case of Tau Jim Anis and Others v The State (2000) SC 564 when the Appellants appealed against a sentence of ten (10) years imposed for robbery of a factory.
    
21. The two subsequent decisions of the Supreme Court to increase the sentence by an additional three (3) years is that given the high prevalence of armed robbery cases in recent times, an increase may serve as a deterrent factor. The current tariffs are as follows:
    
    • (a) Robbery of a house – a starting point of 10 years
    • (b) Robbery of a bank – a starting point of 9 years
    • (c) Robbery of a store, hotel, club, vehicle on the road or the like – starting point of 8 years
      
22. Defence counsel submitted that a term of 5 years imprisonment is appropriate in this case. Counsel further submitted that this is a suitable case for suspension of the whole sentence because the prisoner was a youthful offender and was prepared to repay K2,500 to the Woolcotts within 6 months.
    
23. State Prosecutor countered that aggravated robberies were becoming prevalent in the country and also in East New Britain Province. He conceded that this particular case did not fall into the most serious category in order to attract the maximum penalty. Nevertheless, it was serious enough to warrant a head sentence of 20 years. Mr Rangan referred the court to two cases with similar facts of robbery of a dwelling house. In State v Simon Liliura (2014) N5785, Cannings J imposed 13 years on the prisoner for robbery of a bank after the bank manager had previously been held up and kept hostage overnight inside her house. Although the prisoner pleaded guilty, his honour imposed a sentence above the recommended 9 year term for bank robbery because a large amount of money was stolen, the robbery was committed in a public place recklessly exposing people to harm, the offender acted in a gang and the victims were inevitably traumatised by this incident.
    
24. In State v Jacky Vutnamur and Kaki Kialo (No 3) (2005) N2919, Cannings J sentenced both prisoners to 12 years for the robbery of an off-duty policeman and his family inside his home. A gun was stolen. The gang threatened to abduct the daughter but no other violence was used.
    
25. The Probation report is favourable to the offender. It suggests that he is a good candidate for probation. The PSR however states that the prisoner does not have any means to pay compensation but if released on suspended sentence he would do street sale of food and repay K2,500 within 6 months. I find this to be unrealistic. The prisoner has no real means to pay such an amount in the time frame he suggests.
    
26. In this case, I consider that a deterrent prison sentence is warranted. I find that the aggravating factors outweigh the mitigating factors. The crime is prevalent, and dangerous weapons were used. A large amount of money and property was stolen. The property included a semi-automatic pistol and 50 bullets which continues to pose real threat of other crimes being committed. Actual violence was used against two very old and vulnerable people who stood little chance of defending themselves against the group of strong young men in their prime.
    
27. Because of the plea of guilty, his young age and lack of priors, I will impose a sentence less than 15 years which would be justified in the circumstances of this particular case. Probation is not an appropriate sentencing option in this case. I do not consider that any suspension is justified given the seriousness of the offence. To do so, would be to send out the wrong message to would be offenders of violent crime like aggravated robbery.
    
28. ORDERS OF THE COURT
    
    1. 10 years IHL
    2. Less 5 months 2 weeks
    3. To serve 9 years 6 months 2 weeks IHL
       

Sentence accordingly.
________________________________________________________________
Office of the Public Prosecutor: Lawyer for the State
Office of the Public Solicitor: Lawyer for the Accused