State v Naty [2021] PGNC 333; N9004 (19 May 2021)

N9004

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR 1846 OF 2020

THE STATE

V

FRANCIS NATY

Bialla: Batari J
2021: 18^th & 19^th May

CRIMINAL LAW– sentence – armed robbery – robbery of store – group of armed youths accosted owners of a village trade store, stole from them K1000.00 in cash and store items valued K3000.00 – plea – offence committed with actual violence – mitigating factors –considerations of – sentence of 9 years appropriate.

Cases Cited

Alex Pori v The State (2007) SC912
Bobolan Peter v The State (2007) SC894
Gimble v The State [1988-89] PNGLR 271
Phillip Kassman v The State (2004) SC759
Public Prosecutor v Don Hale (1998) SC564
Tau Jim Anis v The State (2000) SC642
The State v Kingsley Sovek & Andrew Kendani [2006] PGNC 13
The State v Michael Mingara (2018) N7450

Counsel

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

19^th May, 2021

1. BATARI J: Overview: Francis Naty, you were part of a group of youths who robbed a trade store of cash and items of store goods. This is your sentence following your guilty plea and conviction.
   

Background

2. The common facts are that about midday of 27/6/2020, you and your four accomplices set out from Bialla in East Nakanai to rob a store near Sege village in Central Nakanai along Kimbe/Bialla highway. The owners also operate a mini fuel service station. You had in your possessions, two popguns, a staple gun and two bayonet-type knives. Pretending to buy from the store, you held up Cathy Ngaungau and her in-law, Damien Gabougi. During the robbery, one of your accomplices struck Damien Gabougi with the gun-butt thereby causing him a deep cut to his head. K1000.00 in cash and K3000.00 worth of store goods were lost to the Ngaungau family from the robbery incident.
   

The offence & sentencing principles

3. Section 386 (1) of the Criminal Code defines the offence of armed robbery and prescribes the maximum penalty of 14 years imprisonment. If the person charged with robbery under Subsection (1) commits the offence in any of the circumstances of aggravation under Subsection (2), namely;
   
   • (a) armed with dangerous or offensive weapon;
   • (b) is in company with one or more other persons;
   • (c) wounds or causes actual violence to any person in the cause of the robbery,
     

he is liable “to be sentenced to death,” under the 2013 amendment to the Criminal Code.

4. You committed this armed robbery in 2020. The ultimate death penalty is where to start as a guide in deliberating your punishment. Matters to consider include, the seriousness and prevalence of the armed robbery incidences, the circumstances surrounding the way the robbery was committed and your personal circumstances. The Court in the exercise of its sentencing discretion under s.19 of the Code must first decide whether the circumstance of the robbery warrants the death penalty, guided by settled principles to maintain consistency of the sentencing pattern or tendency for the particular offence.
   
5. Sentences for robbery cases are now guided by four main categories. The accepted norm and practice has been to maintain those separate categories and that the maximum sentence is reserved for the worst type case. The seminal Supreme Court case of Gimble v The State [1988-89] PNGLR, 271 remains the focal point of reference on this aspect.
   
6. The recommended starting points in that case are relevant where young first offenders carrying weapons and threatening violence are convicted following a trial. Where actual violence was used or other aggravating factors like loss of substantial amount of money were present, or where the robbery was committed in breach of trust, a higher sentence may be justified. Conversely, a plea of guilty with special mitigating factors may justify a lower sentence.
   
7. From Gimble’s case, a three-year common denominator has been favoured and followed from subsequent Supreme Court Cases of, Public Prosecutor v Don Hale (1998) SC564, (Amet CJ, Woods J, Kirriwom J); Tau Jim Anis v The State (2000) SC642, (Sheehan J, Jalina J, Kirriwom J); and Phillip Kassman v The State (2004) SC759, (Jalina J, Sawong J, Batari J). So, the current guideline is:
   
   • (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 six years.
     
8. The Court may start at the suggested 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

9. Your lawyer Mr Takua has impressed upon the Court that a number of mitigating factors will justify a sentence of six or seven years based on the less serious nature of the robbery; your personal circumstances with the background of youthful first-time offender at 20 years; your plea of guilty and expression of remorse. Mr Takua relied on, The State v Michael Mingara (2018) N7450 to support his case for a lower sentence.
   
10. In that case, the offender and his accomplices entered the premises of Frabelle (PNG) Limited by fake Identification Cards and held up workers with guns. They robbers stole cash monies, a laptop and two mobile phones, all worth the sum of K92, 000. 00. A sentence of seven years was meted out by the court.
    
11. Mr Sambua for the State conceded that the facts of this case fall into the serious category of robbery of a store and that the case calls for a deterrent sentence. Counsel agreed a term of years is warranted and that 10 years be imposed. Counsel relied on, The State v Kingsley Sovek & Andrew Kendani [2006] PGNC 13
    
12. In that case the offenders with two others, held up the Salamo Health Centre canteen workers with a homemade shot gun, a bush knife and an axe. They stole various items, including K256.00 in cash. In a plea of guilty a sentence of 10 years was imposed.
    

Considerations & Sentence

13. What you and your friends did is a classic case of the serious law and order concerns, that just about anywhere in the country today, someone or some corporate body is robbed off properties of small or vast amounts and in some instances physical harm is done to the victim, as in this case. In the worst-case scenario, someone is killed or raped, or properties of substantial value are lost through associated arson or vandalism.
    
14. It is a sad fact; robbery has become the most prevalent and feared crime of violence confronting our communities today. Incidences of robbery violate the very essence of constitutional guarantees envisaged for every man, woman, and child in this country. Every person has the right to live, move around and go about his or her lawful business anywhere and at any time of the day free of apprehension and fear of sudden harassments and attacks. People should feel safe in their homes, at their workplaces, in the streets and on the roads, without fear as many do, of prowling armed robbers threatening and stealing from them.
    
15. The frequency of incidences of robbery cases has also been a real national concern. The economy of the country suffers when the frequency of robbery forces business houses to close their doors or are keeping investors away. In the end result, workers are left jobless and their rights to employment is affected. This paints a bad image of this country and the people.
    
16. This is a typical armed robbery of a store that is so frequently committed by armed young persons who seemed to have nothing better to do then prey upon unsuspecting store owners, traders, and business houses to steal from them.
    
17. Your sudden confrontation of the victims at the comfort and safety of their premises, armed to the teeth with assorted weapons, threatened the lawful and peaceful conduct of their business. The victims were no doubt, badly shaken and apprehensive by your conduct. The potential for serious injury in armed hold-ups is ever present and can be most frightening. Indeed, in your case, actual violence was used resulting in head injury to one of the victims. He was possibly lucky to have survived a head injury.
    
18. The amount of goods and cash you stole might not be substantial. However, your victims were operating a trade store in a rural area where the returns are not expected to be high. So, whatever is made is substantial. That is how much the loss is to your victims.
    
19. The call for increased sentences is in response to public outcry for greater protection for individuals and business houses from this type of banditry. The alarming feature of your case is that it involved actual violence.
    
20. Those considerations favour tough measures against your offence and conduct. I will take that into account in deliberating your sentence.
    
21. My task today is made easier by your early plea of guilty and expression of remorse. That is the most sensible thing to do in the light of your early admissions and the overwhelming evidence on the face of the records. I see no reason to deviate from the sentences imposed on those who plead guilty early.
    
22. I have considered all that your lawyer has submitted on your behalf. There is not much that is apparent or latent from the circumstances of the crime and your personal circumstances which support your lawyer’s contentions for a lower sentence of six years to seven years. Mr Sambua submitted a sentence of 10 years is appropriate.
    
23. Both counsel have submitted, the circumstances of your case do not warrant the death penalty. I agree. However, that does not avert the seriousness of the offence and your conduct. A term of years is called for. I will start with the mid-range of 8 years and consider a term up to 15 years at the highest.
    
24. The community will be safer if you are sent to prison for a long time. The punishment I am going to impose on you is I believe a reflection of the community’s abhorrence of such activity where armed men hold-up and rob business houses, which are carrying out their lawful commercial activities. I believe that crimes in the circumstances of your case are in the serious category, which the Court has to deal with.
    
25. I bear in mind that the punishment should be aimed, not only at punishing you personally but also to discourage other young persons against anti-social behaviour involving such criminal activity that, they risk meeting with severe punishment when caught. The imposition of tougher punitive measures is also warranted by the prevalence of the offence.
    
26. You are sentenced to 9 years imprisonment in hard labour. You have served 12 months in custody which I will deduct. You have 8 years to serve.
    

27. Before I finish and in the interest of justice of this case, and the protection of the Central Nakanai people and the community at large, I recommend that the Police Commissioner through his commissioned officers take appropriate steps to investigate one Channel John of Sege village in regard to this robbery.

Sentenced accordingly

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