State v Karulaka [2022] PGNC 277; N9741 (1 July 2022)

N9741

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR 971 OF 2021

BETWEEN:
INDEPENDENT STATE OF PAPUA NEW GUINEA

AND:
BARRY KARULAKA

Waigani: Wawun-Kuvi, AJ
2022: 3^rd May, 1^st June & 1^st July

CRIMINAL LAW-SENTENCE-Guilty Plea-Armed Robbery, 386(1)(2) Criminal Code-In company- Firearm used – Rear window smashed during robbery- Lone Female- Sentence of 8 years imprisonment

Cases Cited

State v Haria [2021] PGNC 236; N9100
State v Charlie [2021] PGNC 235; N9099
State v Yapoi [2021] PGNC 227; N9097
State v Koto [2021] PGNC 166; N8988
State v Manai [2011] PGNC 218; N4556
State v Nimai [2008] PGNC 72; N3355
State v Endekra [2007] PGNC 82; N3185
Pitaro v State [2006] PGSC 10; SC846
Phillip Kassman v The State (2004) SC759
State v Winston [2003] PNGLR 5
Gima v Independent State of Papua New Guinea [2003] SC730
Tau Jim Anis and Others v The State (2002) SC564
Public Prosecutor v Hale [1998] SC564
Gimble v The State [1988-89] PNGLR 271
The State v Kagai [1987] PNGLR 320
Tardrew , Public Prosecutor v [1986] PGLawRp 91
Goli Golu v The State [1970] PNGLR 653

References
Criminal Code Ch 262
Criminal Justice (Sentences) Act 1986

Counsel
Mr Johnathan Suminji, for the State
Mr Obadiah Himore, for the Offender

DECISION ON SENTENCE

1^st July, 2022

1. WAWUN-KUVI, AJ: The 19^th of February 2020, is a day that the offender now regrets. It’s a day that, had he considered the consequences of his actions he would not be seated in Court today. The offender on that day, decided to join his friends to steal a motor vehicle.
   
2. The offender approached the victim’s vehicle as she was driving out of a junction. Three of his friends were armed with homemade firearms. Two of them pointed the guns at the victim. One of them used the gun to break the right rear glass.
   
3. The victim was in a state of shock. The offender’s friends removed her physically from the vehicle. The offender then got into the driver’s seat and with his friends on board, he drove the vehicle away.
   
4. The offender was later apprehended and charged for this offence.
   
5. The offender pleaded guilty to these facts and so I must now decide the appropriate penalty.
   

The Charge

6. The offender pleaded guilty and was convicted of Robbery under section 386(1)(2)(a)(b) of the Criminal Code.
   

Penalty

7. The maximum penalty is life imprisonment with eligibility for parole after 30 years. There was an amendment to the Criminal Code which increased the maximum to the death penalty^[1]. However, recent amendments have now again reduced to life imprisonment.^[2]
   
8. The maximum is reserved for the worst case: see Goli Golu v The State [1970] PNGLR 653.
   

The Guidelines

9. Guidelines assist sentencing courts to reach appropriate sentences. They provide parity of sentence. Guidelines do not curtail the sentencing court’s discretion.
   
10. In State v Haria [2021]^[3], Berrigan J considered Gimble v The State [1988-89] PNGLR 271, Tau Jim Anis and Others v The State (2002) SC564 and Phillip Kassman v The State (2004) SC759 and suggested the following starting points on sentences on a plea of not guilty by young first offenders carrying weapons and threatening violence:
    

a) robbery of a house, a starting point of ten years;

b) robbery of a bank, a starting point of nine years;

c) robbery of a store, hotel, club, vehicle on the road or the like, a starting point of eight years; and

d) robbery of a person on the street, a starting point of six years.

11. In State v Manai [2011]^[4], Batari, J took a similar approach and formed the view that 8 years was the appropriate starting point for aggravated robbery of a motor vehicle on the road.
    
12. State v Haria [2021] was decided when the maximum penalty was the death penalty and State v Manai [2011] was when the maximum was life imprisonment. It appears that the suggested starting point of 8 years for robbery of a vehicle has remained consistent.

Submissions
State’s submissions

13. The State submits for a term of imprisonment between 8-10 years.
    
14. In mitigation it was submitted, that the offender is a first-time offender and he pleaded guilty, he made early admissions to the police and had demonstrated remorse in his allocutus.
    
15. The State submitted that factors in aggravation were that the offender was in company of other persons, offensive weapons were used, the victim was traumatized, she was a lone female, the vehicle was damaged, the offence is prevalent, and the offender escaped custody.
    
16. The State refers the Court to the following cases:
    

State v Haria [2021]^[5], Berrigan, J: The offender pleaded guilty to robbery of a vehicle. He was with two others, and they were armed with a factory-made pistol. The victim parked his vehicle at his home. The offender and his accomplices then approached the victim and his family. The offender pointed the factory-made pistol while his accomplices pointed a home-made gun. They stole personal items and drove off in the vehicle. The offender had made admissions to police and had been willing to plead guilty, but his case was not heard. He had since reformed himself whilst waiting for his case to be heard. The offender was sentenced to 9 years imprisonment. 2 years of his sentence was deducted.

State v Charlie [2021]^[6], Berrigan, J: The offender pleaded guilty. He was with two others and armed with a pistol and knife. The offender had held up a vehicle that had stopped at a roundabout. The driver and his passenger were ordered out of the vehicle. They drove off however the vehicle was tracked, and the offender was arrested. He was identified as the person who armed with the firearm. The offender was stabbed and shot security guards. He sustained serious injuries. The offender was sentenced to 8 years imprisonment. 2 years of the sentence was suspended.

State v Yapoi [2021]^[7]; Berrigan, J: The victim was driving his son and others to their home. He has arrived at a junction when the accused and his accomplices ran towards them shouting “ “hold up! hold up!”. The offender was armed with a homemade gun. The offender pointed the gun at the victim and ordered him to stop the car and get out. The victim got out in fear. Once all the passengers got out of the vehicle, the offender and his accomplices boarded the vehicle. The victim recognized the offender and called out to him. The offender ignored the victim and they drove off. The offender was sentenced to 8 years imprisonment.

State v Manai [2011]^[8], Batari, J: The prisoner pleaded guilty to the robbery of a motor vehicle. The victim drove to a shop to buy refreshments. The offender and his accomplices armed with a pistol and bush knife demanded the vehicle keys. They took the vehicle and drove off. Police apprehended them shortly after. The offender had also escaped from custody prior to his sentence. The Court also considered a previous conviction for unlawful use of motor vehicle. He was sentenced to 10 years imprisonment.

Pitaro v State [2006]^[9]; The victim was dropping off a fellow employee at his residence. The offender and three others approached them armed with a homemade gun. They ordered the men to leave keys in the ignition and exit the vehicle. The victim and his friend complied. The offender and his accomplices then drove away. The Supreme Court noted that the sentence would have been more than 8 years since the offender had a prior conviction, however due to his character references, he was given 8 years. The appeal was dismissed, and the sentence of 8 years was confirmed.

Defence submission

17. Mr. Homore submits for a term of imprisonment between 5-8 years.
    
18. He submits that in mitigation, is the offender’s guilty plea, the vehicle was recovered, the offender is a first-time offender, the offender expressed remorse, the offender has not caused further trouble to the victim and the victim did not sustain any injuries.
    
19. In aggravation, it was submitted that there were threats of violence, the offender used a weapon, there was damage to the windscreen, which was not replaced, the offence is prevalent, and the victim was traumatized.
20. The following cases were submitted:
    

State v Koto [2021]^[10], Salika, CJ: The prisoner pleaded guilty to armed robbery of a vehicle. The vehicle was parked at a health center. The prisoner walked to the driver’s side and pointed a pistol at the driver. His accomplices pointed their pistols at the passengers. They got into the vehicle and drove off. The offender surrendered himself to police and gave a confessional statement. The offender was sentenced to 5 years imprisonment.

State v Nimai [2008]^[11], Makail, AJ (as he then was): The offender pleaded guilty to aggravated robbery. The offender and three others held up a vehicle and stole money and properties from the driver and passengers. The offender was a look out and was aged 19 years at time of offence. He sentenced to 5 years imprisonment.

State v Endekra [2007]^[12], Cannings, J: The three offenders pleaded guilty to armed robbery. The victim and others were travelling in a truck carrying cargo. As the truck was travelling up a small mountain, the three accused and two others approached the vehicle with guns pointed at the driver. They were armed with homemade guns and two bush knives. The driver was forcefully removed, and the passengers were attacked with the bush knives. They got on the vehicle and drove off. The cargo was later recovered. The offenders were sentenced to 5 years imprisonment.

Personal Antecedents

21. The Offender is 28 years old and is from Lese Aviara Village, Malalau, Gulf Province. He is an only child. He was married and had twins. His wife had left him. He father is deceased, and his mother is alive.
    
22. The offender has a certificate in light motor vehicle from St Michael’s Vocational College in Lae. He had also attended the La Salle College in Hohola.
    
23. He was unemployed and support by his family at the time of the offence.
    

Pre-Sentence Report

24. The Probation Officer was not able to interview the victim or any members of the offender’s family. He had made attempts to do so but no one attended to the Probation Office.
    
25. He informs that the offender is not a suitable person for Probation considering that he escaped from custody whilst waiting for his case.

Allocutus

The offender in Allocutus stated:

“I want to say sorry to the Court and to the victim for my actions which was wrong. I am a first-time offender and I ask the Court to be lenient on me and have pity on me.”

26. Considering the offenders cooperation with the police and his guilty plea, I accept his statement in allocutus to be a genuine sign of remorse and contrition.
    

Aggravating Factors

27. I find in aggravation that the offender was in company, that whilst he was not the person armed, he was with others who were armed. The rear glass of the vehicle was damaged. The victim was a lone female who was left in a state of shock. She was physically removed from the vehicle. The offence according to the depositions occurred when she going to pick up her child. It happened near a school.
    

Mitigating Factors

28. In mitigation is the offender’s cooperation with the police where he made admissions, his plea of guilty and that he has no prior convictions. I also accept that he had expressed remorse.
    

Consideration

29. Robbery is a prevalent offence. Robbery of a motor vehicle is very prevalent.
    
30. Motor Vehicle are very expensive items of property that people have worked hard to purchase. Not only is there trauma caused when the vehicle is stolen but the effects of losing such a valuable item of property compounds the situation for most if not all victims.
    
31. This offence is serious because the robbery happened near a school and as the victim was on her way to pick up her child. It is now common occurrence for people like the offender to rob parents as they either drop of or pick their children up from school. The parents and children are especially vulnerable victims because children take their time and do not understand the risks, they place themselves in or their parents. Children at their tender ages should not be living in fear or going to school and worrying about whether they could be robbed. It is however the reality of our society today.
    
32. The offender has pleaded guilty and has cooperated with the police. He has no prior convictions. His injury was not because of the present offence. It was a result of him escaping from custody. None the less, there is nothing before the Court to demonstrate any permanent disability. It was observed that he initially came to court with crutches but now walks unassisted.
    
33. I accept the offender was not armed nor did he break the rear window. He also did not physically remove the victim. However, his presence gave encouragement, and he played an active role. He was the driver of the vehicle.
    
34. This case falls into category of 3 which attracts 8 years as in Gimble, Tau Jim Anis and Kassman (supra), however, considering the prevalence of the offence, the range appears to be outdated. As I had stated, guidelines assist the Court but are not the definitive factor. It is the peculiar circumstance of each case.
    
35. In considering the mitigating factors, the aggravating factors, the guidelines, and the comparative cases and all the foregoing matters, the offender is sentenced to 8 years imprisonment.
    
36. Excluding the period of his escape, the offender has been in custody for 1 year, 5 months, 1 week and 5 days. In the exercise of my discretion under the Criminal Justice (Sentences) Act 1986, that period is deducted. The offender shall serve 6 years, 6 months, 2 weeks, and 2 days.
    
37. I have given consideration as to whether any part of the sentence should be suspended. Sentencing is a community approach, and the views of the community must be considered.^[13] There were none. I have also given thought to the broad categories in Public Prosecutor v Tardrew [1986]^[14]. There is nothing before the Court that justifies suspension of the sentence.
    

Orders

38. The Orders of the Court are as follows:
    
1. The Offender is sentenced to 8 years imprisonment.
2. Pre-sentence custody of 1 year, 5 months, 1 week and 5 days is deducted.
3. The Offender shall serve the balance of 6 years, 6 months, 2 weeks, and 2 days at the Bomana Correctional Institution in light labor.

___________________________________________________________________________
The Public Prosecutor: Lawyer for the State
The Public Solicitor: Lawyer for the Defence

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^[1] Section 7 of Criminal Code(Amendment) Act 2013, certified on 18 September 2013
^[2] Section 7 of Criminal Code (Amendment) Act 2022, certified on 12 April 2022


^[3] PGNC 236; N9100 (1 September 2021)
^[4] PGNC 218; N4556 (23 March 2011)
^[5] Refer to note 3
^[6] PGNC 235; N9099 (1 September 2021)
^[7] PGNC 227; N9097 (30 August 2021)
^[8] Refer to note 4
^[9] PGSC 10; SC846 (30 June 2006)
^[10] PGNC 166; N8988 (21 June 2021)
^[11] PGNC 72; N3355 (21 April 2008)
^[12] PGNC 82; N3185 (21 March 2007)
^[13] State v Winston [2003] PNGLR 5, Gima v Independent State of Papua New Guinea [2003] SC 730, Public Prosecutor v Hale [1998] SC 564; The State v Kagai [1987] PNGLR 320
^[14] PGLawRp 91 (2 April 1986)