State v David [2021] PGNC 381; N9131 (13 September 2021)

N9131

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR 1027 OF 2019

THE STATE

V

DANIEL DAVID

Bomana: Berrigan, J
2021: 5^th and 18^th June and 13^th September

CRIMINAL LAW – SENTENCE - GUILTY PLEA - AGGRAVATED ROBBERY – S 386(1)(2) of the Criminal Code - Offender in company with one other, and armed with a firearms and knife, robbed a taxi driver, with actual violence - sentence of 10 years imposed, less time spent in custody, and partial suspension given youth and prospects for rehabilitation.

Cases Cited:

John Peter Arua v The State (2000) SC 759
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
Ramsay Lestor Pitaro v The State (2006) SC 846
Liri v State (2007) SC883
Robin Gaibuli & 5 Ors v The State: SCRA Nos 32 -37 of 2006 (Unnumbered & Unreported Judgment of the Supreme Court of 27th June 2007)
Kaya & Kuman v The State (2020) SC 2026
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
State v Sarufa (2009) N3595
The State v Kuromo & 3 Ors (2009) N3743
The State v Yandi (2010) N4064
State v Titus Manai (2011) N4556
State v Jaip (2015) N6188
State v Hekoi (2016) N6413
The State v Bobby Andrew Don (2021) N8889

References Cited

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

Counsel

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

DECISION ON SENTENCE

13^th September, 2021

1. BERRIGAN J: The offender pleaded guilty to one count of aggravated robbery of a vehicle, namely a taxi cab, with actual violence, whilst in the company of another, and whilst armed with dangerous weapons, namely a factory made pistol and a knife, contrary to s 386(1)(2)(a)(b)(c) 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 4^th of August 2018 the offender and one other, Joe, after drinking at Diamond Club caught a taxi cab, a Toyota Camry white in colour bearing registration number T5818, the property of Simon Peter. They headed to 8 Mile. When they stopped at the roundabout at 8 Mile, Joe, who was armed with a factory made pistol, held up the driver of the taxi, Raphael Piu. At the same time the offender stabbed the driver on his right arm. The driver was removed from the vehicle. Joe drove with the offender as his passenger and they went to 14 Mile. The offender and his accomplice were subsequently seen at 9 Mile Bomana turn off by the owner of the vehicle, Simon Peter, who got the police and apprehended the offender.
   

Allocutus

3. On allocutus the offender said: Sorry to the Court, sorry to my lawyer and State lawyer, and the owner of the vehicle, and my family. That is the first time I did this thing and I will not commit this kind of offence again. I ask if you can suspend my sentence and I will serve it outside.
   

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 another, the victim was assaulted and injured, the victim was a service provider, and the offence is prevalent. In mitigation this was the offender’s first conviction, he pleaded guilty, is a youthful offender being 20 years old at the time, the vehicle was recovered, he has a medical condition (peptic ulcer), and a favourable pre-sentence report. He was in the company of another person who negatively influenced him to participate in the crime. The offence fell into category c of Gimble, but that having regard to the mitigating factors a head sentence of five years would be 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.
      
10. The State agreed in mitigation that the offender had no prior convictions, cooperated with police, pleaded guilty, and expressed remorse. In aggravation it noted the presence of offensive weapons, the company of another, the element of pre-planning, the presences of actual violence, the offence occurred in the night, and the prevalence of the offence. In addition, there was a breach of trust on the part of the offender as a passenger. A key to another stolen vehicle was found in the offender’s pocket at the time of his apprehension.
    
11. State counsel submitted that this case falls within category three of Gimble, but should attract a sentence of 10 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 Yandi (2010) N4064, David J: Guilty plea. The prisoner and his accomplice boarded a PMV at Ialibu which was travelling to Erave in the Southern Highlands Province. On the vehicle were Noami Loya and her family and other passengers together with their store goods and other personal belongings. When they reached the Batri junction which is at the boarder of Kagua and Erave, the vehicle stopped to drop off the prisoner and his colleague. Unknown to the passengers and the driver at the time, the prisoner had a bush knife and pulled it out. He swung the bush knife at the passengers and in the course struck Noami Loya’s daughter namely, Kerani Loya, inflicting a superficial cut to her nose. The prisoner’s colleague pulled out a pistol and pointed it at the driver. The prisoner robbed Noami Loya and the other passengers of their property including store goods and personal belongings valued at K2,000.00 and cash in the amount of K1,040.00. He was sentenced to 10 years of imprisonment less time spent in custody;
    100. 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 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;
    4. 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;
    5. 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;
    6. 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.";
    7. 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;
    8. 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 from Enopia Village in Tari/Pori District, Hela Province. Prior to his arrest he lived at 9 Mile with his mother’s elder sister. His father died some time ago. He has 6 siblings, all of whom but he and his sister, live in the village with their mother. He is a member of the Seventh Day Adventist Church. He attended high school until Grade 10 but did not sit final exams. He has no history of formal employment and was previously the sole breadwinner for his family through informal marketing, which he used to support his younger sister in Port Moresby, including her school fees. They share the same mother but different fathers. She received a scholarship to attend nursing school but could not meet her second semester school fee of K12,000 and withdrew in June. She pleads for the offender to be released so that he might look after her and support her school fees again. Contrary to defence counsel’s submission, the offender is in good health.
    
19. In mitigation this is the offender’s first offence. He 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 not a juvenile, the offender is properly regarded as youthful. He was about 20 years of age at the time of the offence.
    
21. The impact of the offence on the offender has been and will continue to be great. Imprisonment will also have a significant impact on the offender and his younger sister, whose education he had been trying to support so that she might have a better life. Whilst this is highly commendable, it is well established that except in extreme circumstances, the impact on an offender’s family is not 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. I don’t accept counsel’s submission in mitigation that he was influenced by his accomplice. It is not borne out by the depositions but I will accept that he was not the ringleader, bearing in mind that he did not carry the firearm, or drive the vehicle. Nevertheless, he must take responsibility for his own actions that night.
    
23. In this regard there are several matters which make this case a very serious one.
    
24. 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, it is relevant that both a pistol and a knife were used in the commission of the offence. Moreover, it was the offender who was in possession of the knife, and he who stabbed the victim. Supreme Court authorities like Liri v State (2007) SC883, together with National Court decisions, make it clear that the courts regard the infliction of actual violence as seriously aggravating. That is entirely appropriate. In this case the victim was completely defenceless, and was stabbed in the arm whilst being held, in his vehicle, at gunpoint. I note, however, that the nature and extent of the injury are not made clear on the depositions.
    
25. In addition, 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. For the owner or a driver of a taxi, it represents his livelihood. As I have said before, it is the value of the vehicle itself, that has seen the armed robbery of vehicles become increasingly organised and prevalent. I do take into account in this case, however, that the vehicle was recovered.
    
26. As has been said many times, aggravated robbery is extremely serious. 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 victim as no contact details were available, I have no doubt that he was terrified by the hold up. Not only was he held up and thrown from his cab, but he was stabbed in the process. I also have no doubt that he carries that fear with him every day, which must be particularly difficult given that he is, or at least was, a taxi driver. A taxi driver clearly owes a duty of trust to his passenger. Regardless of whether a passenger owes a duty of trust to a taxi driver in any strict legal sense, I agree with the State that this case is aggravated by the fact that the victim took the offender into his vehicle, thus rendering himself vulnerable, on the pretext by the offender and his accomplice that they intended to use his services. Furthermore, whilst almost every aggravated robbery in company will require some degree of planning, planning was clearly evident here in those circumstances. In addition, the offence occurred in the night.
    
27. The penalty imposed in this case must be strong enough to ensure both specific and general deterrence.
    
28. I make it clear that I reject the State’s submission that the case is aggravated by the fact the offender was found with a key in his pocket to another vehicle. Whilst the initial case at committal might have concerned two vehicles, the case at plea proceeded with respect to the charge and facts outlined above and it is on that basis alone that the sentence will be determined.
    
29. 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 10 years of imprisonment.
    
30. The offender has been in custody since 13 August 2018. I exercise my discretion to deduct the time spent in custody to date.
    
31. The question remains whether any or all of the sentence should be suspended.
    
32. 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.
    
33. 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. The offender has not benefited from the supervision and support of a father. Despite those challenges he has tried to perform that role for his younger sister, despite his young age. That is no excuse for his behaviour but I am satisfied that some suspension of his sentence would promote his rehabilitation and reintegration into the community, particularly given those circumstances and his age. These matters however, be balanced against the serious nature of the offence and the need for deterrence.
    
34. The State lawyer appearing submitted that having regard to the amended maximum under s 386(1) suspension under s 19(1)(d) of the Criminal Code may no longer be available. I agree that appears to be so. Nevertheless, it remains available when ss 19(1)(aa) and (a) are read together with s 16(2)(a) of the Probation Act.
    
35. I make the following orders.
    

Orders

(1) The offender is sentenced to 10 years of imprisonment in hard labour to be served at Bomana Correctional Institution.

(2) Time spent in pre-trial custody, namely 3 years, 17 days spent in pre-trial custody is deducted from time to be served, leaving a balance of 6 years, 11 months, 13 days.

(3) Of that balance, 2 years are 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 4 years, 11 months, 13 days to be served.

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

---

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