State v Burua [2021] PGNC 666; N9957 (29 July 2021)

N9957

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR NO. 775 OF 2020

THE STATE

V

RONALD BURUA

Kerevat/Kokopo: Suelip AJ
2021: 15^th April, 7^th, 24^th May & 1^st, 29^th July

CRIMINAL LAW – sentence – plea – aggravated robbery s.386(1)(2)(a) Criminal Code – principal offender – held up victims with knife – stole personal items with cash – all items recovered except the cash – prisoner’s family uninterested in his well-being – sentence of 5 years less custody time.

Cases Cited

Public Prosecutor v. Don Hale (1988) SC561
Tau Jim Anis v. State (2000) SC642
Phillip Kassman v. State (2004) SC759
William Ukukul Gimble v. State [1988-1989] PNGLR 271
Bobolan Peter v. The State (2007) SC894
Alex Pori v. The State (2007) SC912
State v. Henry Wartia [2018] N7293
Goli Golu v. State [1979] PNGLR 653

Counsel

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

SENTENCE

29^th July, 2021

1. SUELIP AJ: On 15 April 2021, the prisoner pleaded guilty to one count of robbery with circumstances of aggravation, thus contravening section 386(1)(2)(a) of the Criminal Code.

2. This is my decision on sentence.

3. The facts on which he pleaded guilty to and was convicted upon are these. On 29 January 2020, between 2pm and 3:30pm, the prisoner was at Takubar Resort at Takubar village, Kokopo, East New Britain Province. At that time, he was drinking alcohol with his friends at Rabaul International School. After drinking, they all were walking back to Takubar village. The three (3) complainants namely Carrie-Anne Peter, Michaeline Elison and Marrie-Stella Tokula were sitting on their own at Takubar Resort when the prisoner walked towards them, pulled out a knife from under his shirt and told them to give all their properties. At that time, he stole from the complainants 2 mobile phones (an Oppo A57 and a Samsung Galaxy valued at K1,800), a JBL Bluetooth speaker valued at K365, 2 tulip bilums valued at K100, 2 visa cards, a China Construction bank card, Chinese student ID card, Chinese medical insurance card, and K200 cash, total value of K2,465.00. His actions contravened section 386(1)(2)(a) of the Criminal Code, and he is charged with one count of aggravated robbery.

4. Section 386(1)(2)(a) of the Criminal Code states 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. For committing this offence, the prisoner can face up to life imprisonment, subject to section 19 of the Criminal Code.

6. For purposes of sentencing, his personal particulars are these. He is 24 years of age and he comes from Takubar village in Kokopo, East New Britain Province. He was adopted into a family of five (5) children when he was still small. He feels that he has been neglected by his adopted parents. He said he was selected to attend Karlae Vocational School but due to school fees issues, he could not attend school. He said he committed the offence whilst under the influence of alcohol.

7. In the brief pre-sentence report prepared by Probation Officer Christine Robe, only the prisoner’s views with those of the victim Carrie-Anne Peter and her mother were engaged. None of the prisoner’s family members gave their views about him. Further, none of the community leaders were consulted to give their views about him. This report lacks vital information for purposes of rehabilitating the prisoner within his family and the community in the event, he is placed on probation.

8. The prisoner has no prior convictions as recorded in the Antecedent Report.

9. During allocutus, he said he is sorry to this Court, to God, to this country and this province. He says he is also sorry to the victims for what he did to them. He said this is his first time to stand before this Court and begged the Court for mercy. He said he wants to be placed on good behavior bond and on probation.

10. In his favor, the mitigating factors are these. He is a first-time offender and he co-operated with the police. He also pleaded guilty early to his charge and all the stolen items were recovered except for the cash.

11. Against him, the aggravating factors are these. He was drunk and he stole personal items from 3 individuals whilst being armed with a bush knife. Further, his victims were traumatized, and such offence is fast becoming prevalent in this society.

12. As a guide to sentencing in similar cases, reference was made to Public Prosecutor v. Don Hale (1988) SC56, Tau Jim Anis v. State (2000) SC642 and then in Phillip Kassman v. State (2004) SC759 where the Supreme Court observed the sentencing guidelines in William Ukukul 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.

13. From these guidelines, it is likely that the prisoner will face up to 6 years imprisonment. The State argued that the aggravating circumstances outweigh the mitigating factors, and so his sentence should be increased to 8 years as the starting point.

14. However, counsel for the prisoner refers to the case of Bobolan Peter v. The State (2007) SC894 and Alex Pori v. The State (2007) SC912 where it was commonly discussed that it is within the sentencing Judge’s discretion to increase or decrease by one or two years depending on the facts of each case. She argued that the starting point for the prisoner should be 6 years.

15 Further, counsel also referred to some comparable cases, but I will only discuss the local case of State v. Henry Wartia [2018] N7293 where the prisoner and his friends were drinking alcohol at the golf field whilst the complainants were sitting under the trees and having snacks. The prisoner and his friends then approached the complainants and threatened them with a bush knife. They took the complainants belongings and ran away. The prisoner was caught and was sentenced to 5 years less time spent in custody. None of his sentence was suspended.

Consideration

16. It is trite law that the maximum penalty is reserved only for the worse type offence as seen in Goli Golu v. State [1979] PNGLR 653. As this is not a worse type case, the maximum penalty will not apply to the prisoner. However, since the aggravating factors outweigh the mitigating factors, his sentence is considered accordingly. I also note from the pre-sentence report that the victim had learnt from his parents that the prisoner has regular behavioral issues, and it is good that he is in the hands of the police. Also, since there are no views from his family or community leaders, it makes it difficult to consider releasing him back into society.

17. The offence of robbery is serious, and it warrants for his personal deterrence as well as for general deterrence. He also need to be rehabilitated to be a better person. From recent reports in the media, this offence is fast becoming prevalent in society and the Court must send a stern warning to wannabe offenders out there to refrain from engaging in such an illegal act. I also take into consideration that all the items the prisoner stole were recovered except for the K200 cash.

18. In the circumstances, I am satisfied that a sentence of 5 years is warranted in this case. The prisoner has spent 1 year and 6 months in prison and this period will be deducted. As there is no one from his family or community willing to supervise him if he is given probation or placed on good behavior bond, it is a risk releasing him back into the society in fear of him likely to recommit this or similar offence without proper guidance or supervision.

19. Therefore, the Orders of the Court are as follows:

(i) He is sentenced to 5 years in prison in hard labour.

(ii) His time in custody prior to sentence of 1 year and 6 months is deducted.

(iii) He will serve the balance of 3 years 6 months in prison at Kerevat Correctional Institution.

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