State v Funil (No 2) [2021] PGNC 644; N9912 (18 November 2021)

N9912

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR NO. 50 OF 2018

THE STATE

V.

ROBINSON FUNIL
(NO 2)

Kokopo/Kerevat: Suelip AJ
2021: 16^th & 18^th November

CRIMINAL LAW – sentence – guilty – attempted armed robbery s.387(1)(a)(2)(a)(b) – part of armed group – aggravating factors weighed against mitigating factors – presentence and means assessment reports considered –presentence term deducted – sentence of 5 years – balance suspended with strict conditions

Case Cited

State v. Joshua Samson [2007] N4994
State v. Joe Rex Basu [1997] N1537
State v. Norman Giru & Anor [2018] N7478
State v. Terence Kumai (No. 2) [2004] N2699
State v. Ronnie Ruga [2012] N5927

Counsel

J Noma, for the State
S Pitep, for the Prisoner

SENTENCE

18^th November, 2021

1. SUELIP AJ: On 2 November 2021, the prisoner was found guilty of the charge of attempted robbery pursuant to section 387(1)(a)(2)(a)(b) of the Criminal Code after his trial.

2. This is my decision on your sentence.

3. The facts upon which he was found guilty are these. On 30 August 2017 between 8am and 11am, the prisoner, in the company of others armed themselves with home-made gun and bush knives, entered the Kadakakao Cocoa Buying Point at Kereba Block, past Kerevat Town in the East New Britain Province. When his gang entered the premises, he was armed with a home-gun and his brother Wilson Funil was armed with a bush knife. Robin Amos, Jeffery Vulia, Enoch Coleman, Anton Kilala and others were in the premises when they saw his gang approach and they ran from the premises. One of the gang members namely Wilson Funil chased Robin Amos and assaulted him and demanded for the money while the prisoner held the home-made gun in front of the premises and the others searched the warehouse for the money. However, they did not get the money and they swore at the employees and ran away. The actions of the prisoner contravened section 387(1)(a)(2)(a)(b) of the Criminal Code. The State also invoked section 7 of the Criminal Code.

4. Section 387(1)(a)(2)(a)(b) of the Criminal Code Act says:

387. Attempted robbery accompanied by wounding, or in company.

(1) A person who assaults a person with intent to steal any thing, and, at, immediately before or immediately after, the time of the assault, uses or threatens to use actual violence to any person or property in order–

(a) to obtain the thing intended to be stolen; or

(b) to prevent or overcome resistance to its being stolen, is guilty of a crime.

Penalty: Imprisonment for a term not exceeding seven years.

(2) If the offender–

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

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

he is liable to imprisonment for a term not exceeding 14 years.

5. The maximum penalty for the offence committed is imprisonment for period not more than 14 years.

6. The issue is what is the appropriate sentence for the prisoner?

7. For the purposes of sentencing, the prisoner’s personal particulars are these. He is 29 years old from mix parentage. His father is from Tanga Island in the Namatanai District of the New Ireland Province while his mother is from Iawakaka village in the Rabaul District of East New Britain Province. He is married with 3 children, and he lives with your family in a 2-bedroom bush material house at Kereba block until it was burnt down by the police after the armed attempted robbery in 2017. He has 5 brothers and one sister. Two of his brothers are currently serving time in prison. They all rely on subsistence farming for survival. He is of the Catholic faith.

8. What the prisoner said during allocutus was very brief. He said he respected this Court, its decision and that he is innocent.

9. To help me consider an appropriate sentence, I will consider the mitigating and aggravating factors in this case. In his favor, the mitigating factors are these. He is a first-time offender and has no priors. He also did not benefit from the robbery, nor did he cause any serious injuries to anyone during the attempted robbery.

10. Against him are these aggravating factors. It was a surprise attack on unarmed victims. There were lethal weapons used which included a gun and bush knife. It was a planned and pre-meditated group attack where the prisoner was a principal offender. Further, the robbery was committed during broad daylight, and he exhausted the State’s time and resources in conducting the trial. Further, the victim, Robin Amos had sustained knees injuries when he was chased by the prisoner’s brother, Wilson. Finally, the prisoner did not show any remorse at all during allocutus as he never said he was sorry for committing the offence whilst maintained his innocence.

11. Now, I will consider the sentencing trend in similar cases. Both counsels referred to the case of State v. Joshua Samson [2007] N4994 where the prisoner was charged for armed robbery amongst other charges. He was part of a gang who held up 2 victims, stole their vehicle and held them overnight so they can use the vehicle to commit the offence. The prisoner pleaded guilty to the charges and for armed robbery, he was sentenced to 4 years. As there were other charges, the totality principle was applied, and he was sentenced to 6 years less time spent in custody. The rest was served in prison.

12. Both counsels also referred to the case of State v. Joe Rex Basu [1997] N1537 where the offender and 2 others attacked the victim and his friends who were sitting on the lawn. One of the offenders pointed a gun at the victim but the victim and his friends retaliated and attacked the offender and his friends. The offender was caught and charged for attempted robbery. He was sentenced to 3 years less time spent in custody and the balance served in hard labor.

13. Counsel for the prisoner further referred to the case of State v. Norman Giru & Anor [2018] N7478 where a group of men including the accused were armed with bush knives and homemade guns tried to stop a PMV bus. When the bus did not stop, one of the accused shot and injured a passenger on the bus. Both accused persons pleaded guilty to attempted robbery and were sentenced to 5 years imprisonment minus time spent in custody and the balance of their sentence suspended with strict conditions.

14. The State referred to other cases, that of State v. Terence Kumai (No. 2) [2004] N2699 and State v. Ronnie Ruga [2012] N5927. In the former case, the prisoner was convicted for armed robbery and sentenced to 6 years less time spent in custody with no suspended sentence. In the latter case, the offender pleaded guilty to attempted armed robbery on the victim and his son at sea in their outboard motor to Torokina, in Bougainville. The victim and his son fought off the armed attackers and during the resistance, he sustained lacerations to his body. The offender was sentenced to 3 years in hard labour minus time spent in custody with no suspended sentence.

15. Both counsels agree that the starting point for the prisoner is 7 years and will increase or decrease subject to the weight of the aggravating factors against the mitigating factors.

16. Whilst counsel prisoner submits that 5 years is appropriate for him, the State submits that a sentence between 6 – 7 years is proper in his case as the aggravating factors outweigh the mitigating factors.

17. In the presentence report, only his father, his mother and his ward member were interviewed. His father speaks highly of him but says he’s easily influenced to participate in this offence. He says the prisoner drinks alcohol but never create problems in the village. He also says he misses the prisoner’s services at home and no one else can help him the way his son does. The father asks for a lenient sentence for the prisoner like probation or good behavior bond instead of jail time and he is prepared to monitor the prisoner to ensure his compliance with orders. He also pleads for the Court to be lenient on the prisoner as he is married with children and his wife is struggling to provide for his children.

18. The prisoner’s mother also shares the same views as his father. She also blames the other offenders for influencing the prisoner to join them to commit a crime. She says he has spent 5 years in custody and that is sufficient punishment for him. She also says that she does not have money to help him pay for compensation but if he is released, he can help her raise money to pay any restitution, if ordered by the Court.

19. The ward member, Christopher Suku, says the prisoner is generally a good person and wants everything in order. He says he is a hardworking person and does work willingly. He says the prisoner is a respected person, and he believes he was influenced by his brother to participate in the crime. He is prepared to supervise the prisoner if he is released into the community and he is also willing to counsel, advise and encourage the prisoner to refrain from involving himself in similar offences in the future. He also asks for a lenient sentence for the prisoner such as probation and good behavior bond.

Consideration

20. This is not a worse type case and so the maximum penalty will not apply. During the attempted robbery, the prisoner held a weapon and kept watch at the entrance of the depot whilst the others entered the depot and demanded money. No money was stolen that day except for the personal properties of Robin Amos. Also, only Robin Amos sustained scratches on his knees when he was chased by the prisoner’s brother and fell twice. However, the threat posed by the prisoner and his group is serious when he was armed with a home-made gun and others with bush knives. The victims were fearful of their lives during the attack. The prisoner and his gang had the intention to steal, and this is only possible after some planning prior to the actual commission of the offence. Further, the prisoner never expressed any remorse for the crime he committed. It is clear in the circumstances that the aggravating factors far outweighs the mitigating factors.

21. I am therefore satisfied that the circumstances in the prisoner’s case warrant a sentence of 5 years. He has been in custody now for exactly 4 years and in my view, such a long period is sufficient to rehabilitate him and should deter him and others from recommitting this or any other offence. This period is therefore deducted from the head sentence of 5 years. The balance remaining is one year.

22. I will not order compensation as the prisoner was not the person who chased Robin Amos or stole his personal items. There are also no statements from the victim nor the owner of the depot to show their respective injuries and losses, and whether they want compensation. The prisoner also does not have the means to pay compensation as shown in his Means Assessment Report.

23. Since his presentence is favorable to him and recommends him as a suitable candidate for probation but with tougher conditions, I am prepared to suspend the balance of his sentence but with the following strict conditions:

(a) he shall not commit similar or other offences during the period of suspension.

(b) he shall not consume alcohol or drugs during the period of suspension.

(c) he shall attend church every Sundays and submit to counselling during the period of suspension.

(d) she shall do 100 hours of unpaid community and church work during the period of suspension.

(e) he shall not associate with peers who cause trouble in the community during the period of suspension.

(f) he shall not leave his residence at Kereba block or the province without leave of the Court during the period of suspension.

(g) if he fails to comply with any of these conditions, he will be arrested and brought to this Court to show cause as to why he should not spend the balance of your sentence in prison.

________________________________________________________________
Public Prosecutor: Lawyers for the State
Public Solicitor: Lawyers for the Prisoner