State v Herman [2021] PGNC 584; N9399 (24 May 2021)

N9399

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR NO. 591 & 592 OF 2017

THE STATE

V

TIKU HERMAN

Kerevat/Kokopo: Suelip AJ
2020: 17^th November
2021: 20^th April & 24^th May

CRIMINAL LAW – sentence – plea – guilty – 3 counts of armed robbery – s386(1)(2)(a)(b)(c) – unarmed – minor involvement – co-accused sentenced earlier to 10 years less pre-sentence custody – parity principle – family willing to pay compensation to victims – victims views not engaged in pre-sentence report – 15 years less pre-sentence term – suspension of 3 years

Cases Cited

Public Prosecutor v. Don Hale (1988) SC561
Tau Jim Anis v. State (2000) SC642
Philip Kassman v. State (2004) SC759
Gimble v. State [1988-1989] PNGLR 271
State v. Mapinai Topin [2019] N7786
State v. Jackson Nimai [2008] N3355
Goli Golu v. State [1979] PNGLR 653

Counsel

G Tugah, for the State
S Pitep, for the Prisoner

SENTENCE

24^th May, 2021

1. SUELIP AJ: On 17 November 2020, you, Herman Tiku, pleaded guilty to 3 counts of robbery with circumstances of aggravation pursuant to section 386(1)(2(a)(b)(c) of the Criminal Code.

2. This is my decision on your sentence.

3. Briefly the facts are these. On the 28 December 2015, between 5-6pm, you were in the company of others who held up a route 8C bus called Tasroh Tours, at Tinganavudu ward cemetery at Tinganavudu ward, Kokopo/Vunamami Urban LLG, Kokopo District, East New Britain. Your accomplices were armed with dangerous or offensive weapons namely home-made gardens, kitchen knives and bush knives when they held up the bus. You were with the group, but you were unarmed. You and your accomplices then took from the bus driver, Tony Kenol, K100 which were the bus takings of the day and a mobile phone also belonging to Tony Kenol. You and your accomplices also took from one passenger named Elly Voai, a Nokia mobile phone and 3 mobile phone batteries valued at K131.00. In the process of taking the said properties, you and your accomplices wounded Elly Voai by cutting the back of her head with a kitchen knife. You and your accomplices also took the basket of another passenger, Albert Kauba which had K130, monies belonging to him.

4. Your actions contravened section 386(1)(2)(a)(b)(c) of the Criminal Code. This section state as follows:

386. THE OFFENCE OF ROBBERY.

(1) A person who commits robbery is guilty of a crime.

Penalty: Subject to Subsection (2), imprisonment for a term not exceeding 14 years.

(2) If a person charged with an offence against Subsection (1)–

(a) is armed with a dangerous or offensive weapon or instrument; or

(b) is in company with one or more other persons; or

(c) at, immediately before or immediately after, the time of the robbery, wounds or uses any other personal violence to any person,

he is liable subject to Section 19, to imprisonment for life.

5. You can face from 14 years up to life imprisonment as the penalty for the crime you have committed.

6. You are about 24 years old. You are the third born child in a family of seven children. You are not married and live with your parents at Bitapebeke village. You only completed up to grade 6 at Ulagunan Primary School. You have never been employed and earn a little from assisting your parents in gardening and selling copra. You attend the United Church.

7. From the pre-sentence report, your father, mother and elder brother are of the general view that you were a good person until you started associating with your peers who were involved in committing similar offences. Your family is disappointed in you and they do not want you to remain in prison. They are willing to pay compensation on your behalf.

8. Further, your local church pastor and the ward member also say you are a good person but your peers have influenced you to participating in similar offences. Your pastor has offered to supervise you in church and community work if you are put on probation.

9. None of the victim’s views were engaged in the report. Hence, it is unknown as to what their views are regarding what sentence they would want for you to serve or whether they want you to compensate them for their losses or injuries. I will therefore not order any compensation.

10. From both the pre-sentence and means assessment reports, it is clear that you have no means of financial abilities. However, your family have indicated their support to assist you to pay compensation.

11. You have no prior convictions as shown in the Antecedent Report.

12. You expressed your remorse during allocutus. You say you are sorry for what you have done. You want to be put on probation. You show your injured hand where you say the police assaulted you when you were brought to the station after you were caught.

13. The mitigating factors in your favor include:

(i) you were unarmed when the offence was committed
(ii) you had minimal involvement
(iii) you were a youthful offender
(iv) you pleaded guilty early
(v) you did not harm anyone
(vi) you expressed remorse
(vii) you have no prior convictions

14. Against you, the aggravating factors are these:-

(i) you were in the company of others
(ii) you were in the company of armed men
(iii) you all stole properties and monies
(iv) there were many victims
(v) one victim was injured
(vi) there was pre-planning
(vii) offence is prevalent

15. In Public Prosecutor v. Don Hale (1988) SC561 and subsequently in Tau Jim Anis v. State (2000) SC642 then in Phillip Kassman v. State (2004) SC759, the Supreme Court observed the sentencing guidelines in Gimble v. State [1988-1989] PNGLR 271 to be outdated. Hence, it increased each threshold by 3 years as follows: -

(i) robbery of a house – from 7 years to 10 years
(ii) robbery of bank – from 6 years to 9 years

(iii) robbery of a store, hotel, club or vehicle on the road – from 5 years to 8 years

(iv) robbery of a person on the street – from 3 years to 6 years.

16. You are likely to face up more than 8 years imprisonment.

17. One of your accomplices was sentence to 10 years less time spent in custody before conviction. His case is referenced as State v. Mapinai Topin [2019] N7786. He pleaded guilty to one count of aggravated robbery. The Court considered the recommended tariff of 8 years was too low and did not reflect the seriousness of the offence.

18. The law on sentencing two or more persons charged and convicted together for the same offence is largely determined according to the level of criminal culpability or the degree of their participation and their individual circumstances. This is called the parity principle. I am therefore bound to the parity principle and apply it accordingly in this case.

19. However, there are some circumstances in your case that are not similar to the case of your co-accused, Mapinai Topin. I will discuss this a little later.

20. The State referred to several cases which have similarities to this case. The closest in facts is that of State v. Jackson Nimai [2008] N3355, where the 19 year old offender pleaded guilty to one count of armed robbery of a vehicle along the Highlands Highway. They took K120 from a passenger and stole personal items from others. The offender only acted as a spy or watchman. He was sentence to 8 years with 2 years suspended less pre-sentence custody time. He is sentenced to serve 5 years, 5 months and 14 days in prison.

21. Your counsel also referred to a few case authorities on sentences but none of them is worth discussing. Sentences ranged from 2 to 8 years, some of which were wholly suspended depending on the peculiarity of each case.

22. While the State submit that a sentence of 8 years would be the most appropriate sentence for you, your counsel say that a sentence of 6 years would suffice.

23. It is trite law that the maximum penalty is reserved only for the worse type offence. See Goli Golu v. State [1979] PNGLR 653. As this is not a worse type case, the maximum penalty will not apply here.

24. In this case, all 3 counts of the same offence arise from the same set of facts, despite the 3 different victims. It is conceded by the State that the offences were committed in the course of a single transaction. The sentences therefore should be served concurrently.

25. I take particular consideration into these factors in deciding your sentence. You showed remorse and pleaded guilty. You were unarmed at the time the offence was committed and your participation was minimal. I also note that you have an injured wrist which you say was done to you by the police. However, in the pre-sentence report, it is stated that your brother assaulted you as a result of committing this offence.

26. You were arrested on 29 March 2016 then escaped police custody. You were re-arrested after your conviction at the District Court on 21 December 2016. You then escaped CS custody on 3 February 2019 and was re-arrested on 21 July 2019.

27. The mitigating factors equates the aggravating factors. However, I note from the pre-sentence report you have other pending charges and you along with your peers have repeatedly committed similar offences. This is not in your favor and may become a habit if a strict, punitive and deterrent sentence is not imposed at this stage. I also note that your co-accused was sentence to 10 years less custody time only for one count of aggravated robbery. You are convicted of 3 counts. The distinct difference between your case and that of your co-accused is that whilst you were unarmed, your friend was armed with a dangerous weapon. That puts him in more threating position than you. However, since he pleaded guilty early to only one count of armed robbery, he was sentenced to 10 years imprisonment less time spent in custody before sentence. You, on the other hand, decided to prolong your plea and waited until 20 November 2020, 5 years after the crime was committed. In my view, you would have received a lesser sentence on each count had you pleaded guilty as early as your friend.

28. In the circumstances, I am therefore satisfied that a sentence of 5 years is warranted for each count. You are thus sentenced to 15 years in hard labour minus your pre-sentence custody period of 3 years and 10 months which leaves a balance of 11 years and 2 months. As you played a minor role in the robbery, I will suspend 3 years which leaves you to serve a sentence of 7 years and 10 months.

29. The orders of this Court are:

(i) on the first count, you are sentenced to 5 years imprisonment in hard labor.

(ii) on the second count, you are also sentenced to 5 years imprisonment in hard labor,

(iii) on the third count, you are also sentenced to 5 years imprisonment in hard labor,

(iv) your pre-sentence term of 3 years and 10 months is deducted,

(v) a term of 3 years is further suspended,

(vi) you will serve the balance of 7 years and 10 months in hard labor at Kerevat Correctional Institution.

___________________________________________________________

Public Prosecutor: Lawyers for the State

Public Solicitor: Lawyers for the Prisoner