State v Tirigau (No 2) [2021] PGNC 672; N9938 (24 May 2021)

N9938

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR NO. 139 OF 2016

THE STATE

V

JACK PAURIA TIRIGAU
(NO 2)

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

CRIMINAL LAW – sentence – trial – convicted – armed robbery s. 386(1)(2)(a)(b) Criminal Code – little remorse – no steady place of residence – maintains denial of being involved in robbery – no support from community for probation except from adopted parents – custodial sentence – 12 years imprisonment less custody time.

Cases Cited

Goli Golu v. State [1979] PNGLR 653
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. Alphonse Asarombo & Timothy Lokora [2010] N4121
State v. Donatus Steven & Samson Paulus (No.2) [2018] N7612

Counsel

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

SENTENCE

24^th May, 2021

1. SUELIP AJ: On 26 February 2021, the prisoner was found guilty after trial to 2 counts of armed robbery pursuant to section 386(1)(2)(a)(b) of the Criminal Code. It was found that he committed the offence on 20 May 2016 at Bitavavar village, Kokopo, East New Britain Province, with threats of violence.

2. This is my decision on sentence.

3. The facts are these. On 20 May 2016, between 10pm and 11pm, the prisoner was at Bitavavar village in the Kokopo/Vunamami LLG, East New Britain Province. At the said time and place, he was in the company of others who held up Eva Taralulu, the storekeeper of a trade store called Bitalama Trading. The prisoner and his accomplices were armed with homemade guns and took from Eva Taralulu the sum of K3,500 cash belonging to Bitalama Trading and another K600 cash and three mobile phones worth K998 belonging to Eva Taralulu. They then fled the scene with the stolen properties.

4. The actions of the prisoner contravened section 386(1) of the Criminal Code in that he used threat of violence against another person and stole properties belonging to other persons. He was charged on 2 counts of armed robbery. The offence is aggravated further by virtue of section 386(2)(a)(b) of the Criminal Code in that he was in the company of other persons, and he was armed with a homemade gun which is an offensive and dangerous weapon. The State further invokes section 7 of the Criminal Code in that he aided and abetted others in the commission of the crime.

5. Section 386(1)(2)(a)(b) of the Criminal Code provides: -

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) ...

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

6. The maximum penalty for the offence is imprisonment for life, subject to section 19 of the Criminal Code. However, it is trite law that the maximum penalty is reserved only for the worse type offence as held in the homicide case of Goli Golu v. State [1979] PNGLR 653.

7. In his Record of Interview conducted on 21 June 2016, the prisoner said he was 19 years. However, in the pre-sentence report (“report”), it shows that he is 23 years old. As it is he would be around 23 or 24 years old this year. The report also says he was a juvenile at the time he committed the offence. This is not so as the records show he was 19 years old when he committed the offence.

8. The report says he comes from a family of 8 siblings and that he is the sixth born child. The report says further that he was adopted when he was only 2 years old to Mr Bilak Waninara and Mrs Nasain Waninara who brought him up until he found out in the latter part of his primary education that he was adopted. Whilst in grade 5, he ran away to his birth parents. This was when he started hanging out with the wrong peers and did not reside with either set of parents. The prisoner is educated up to grade 8 and only attended Woolnough Vocational Training School only for 2 months and could not continue as there were issues with payment of his school fees. He has never been employed.

9. The report is not comprehensive as it does not engage the views of others except for the prisoner’s adopted parents, his two biological sisters and the shop keeper who was held up. His adopted parents say they were not aware of his involvement in the robbery until recently. They say they are disappointed but do want him to go to prison but to return to them so they can keep watch on him. His biological sisters say he occasionally visit them but sleep elsewhere. The shop keeper says it was him who held her up after he kept watch on the shop for over a week. She said he played a major role in the robbery.

10. No views were engaged from the prisoner’s local Methodist Church pastor nor from his ward member. It is therefore unknown as to whether he can be adequately supervised if he was put on probation.

11. In the means assessment report, it shows the prisoner does not have any savings, but he says his elder brother, Ashley and his uncle, Kepas Walom are willing to repay the K5,695 that was stolen during the robbery. Ashley nor Kepas gave their undertaking to support this statement.

12. During allocutus, the prisoner said he was sorry about what he did. He said he will obey whatever sentence the Court imposes on him.

13. The mitigating factors in his favor are these. No-one was hurt during the robbery, and it was an isolated incident. His accomplices are still out at large except for one who is currently on a Bench Warrant. He also does not have prior convictions.

14. Against him, the aggravating factors are these. He was in the company of others, and he was in possession of dangerous or offensive weapons. Further, there was pre-planning, and the robbery took place in the night. There was also a substantial amount of money and 3 mobile phones stolen which is considered as being of big value in the village setting. Finally, he was convicted after a trial and the offence is prevalent in society.

15. His counsel referred to some comparable case authorities to show the sentencing trends imposed by the Court. However, those case authorities were plea matters and therefore distinct from this case. Nevertheless, counsel referred to Public Prosecutor v. Don Hale (1988) SC561, Tau Jim Anis v. State (2000) SC642 and Philip Kassman v. State (2004) SC759, where 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. This case falls into category (iii) where the prisoner is likely to face up to 8 years imprisonment.

17. On the other hand, the State counsel referred two cases which can be compared to this case. The first is the case of State v. Alphonse Asarombo & Timothy Lokora [2010] N4121 where two prisoners were charged for armed robbery of a store pursuant to section 386(1)(2) of the Criminal Code and stole K43,491.74. The Court in that case held that the starting point in that sort of robbery was 8 years and in consideration that the only mitigating factor was that both prisoners were shot and assaulted by police and both have no priors. Each of the prisoner was sentenced to 9 years imprisonment with no suspension.

18. The second case is that of State v. Donatus Steven & Samson Paulus (No.2) [2018] N7612. In that case, the two prisoners with another person went into the store of the victim, held her up with home-made guns and bush knives, stole K4,100 cash with goods, and escaped. They were convicted after trial and sentenced to 8 years imprisonment in hard labor.

19. Both counsels agree that this Court should consider a starting point of 8 years imprisonment. However, the State submits that the aggravating factors outweigh the mitigating factors and therefore a sentence above 8 years imprisonment for each count should be imposed and since the two counts were committed in the course of a single transaction, the sentences should be served concurrently.

20. Counsel for the prisoner argued that although the starting point is 8 years imprisonment, the head sentence should be less than 8 years as this is not a worse type case. She also argued that that a sentence of 5 years imprisonment less time already spent in prison is preferred. She says further that any suspension of the balance of the sentence is within the discretion of this Court.

21. It is obvious that the aggravating factors outweigh the mitigating factors. Further, the prisoner did not show genuine remorse as he still denies he committed the offence. In the presentence report, he told the probation officer that he was walking to your adopted parents’ house further down the village at the time of the offence. This is completely contrary to his defence that he was drinking with some individuals at the time the robbery took place. Further, it has been established during trial that he was not residing with his adopted parents at the material time. I therefore do not think he was truthful in his statement to the probation officer. There is one too many discrepancies.

22. Further, I do not think it is wise to place him on probation as there is no one in the community except his adopted parents who have offered to keep watch over him. I will also not order him to pay any compensation because the owners of the shop were not interviewed and the storekeeper, he stole from did not indicate her wish to be compensated. I am therefore inclined to impose a custodial sentence for rehabilitation purposes.

23. In the circumstances, I am satisfied that a sentence of 6 years imprisonment for each count is warranted for him. His pre-sentence custody term of 4 years and 5 months is deducted from the total sentence with no suspension of the balance as he was found guilty after a trial was conducted.

24. The Orders of the Court are:

(i) on the first count of armed robbery, he is sentenced to 6 years imprisonment in hard labor.

(ii) on the second count of armed robbery, he is also sentenced to 6 years imprisonment in hard labor.

(iii) his pre-sentence term of 4 years and 5 months is deducted.

(iv) he will serve the remainder of 7 years and 7 months at Kerevat Correctional Institution.

___________________________________________________________

Public Prosecutor: Lawyers for the State

Public Solicitor: Lawyers for the Prisoner