State v Paul [2022] PGNC 278; N9747 (1 July 2022)

N9747

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR No. 764, 765, 766, 767 & 1067 OF 2021

THE STATE

V

ROBERT PAUL & ANTHON GAPO & NIAVI LOMO & EKA PATRICK & OIZA KUMITAKERE

Goroka: Miviri, J
2022: 04^th May, 1^st July

CRIMINAL LAW – PRACTICE AND PROCEDURE – Aggravated Armed Robbery Section 386 (1) (2) (a) (b) CCA – Five defendants Three Pleas & Two Trials – Street Robbery – Well Planned & Executed – Armed Three pistols & Knife – Large Sum of Money Stolen – Recovered – First Offenders – Three defendants Shot in Leg by Police – Unlawful Punishment – What is the appropriate sentence – Tariff & Range guide – Each case determined by own facts – Disparity – Role in Offence trial or plea – 10 years IHL for Plea – 12 years Trial.

Facts

Prisoners were a gang armed with a knife and pistols who held up one Christian Lai and made off in a getaway car with K163,400.00 in cash the property of one Istana Limited.

Held

Aggravated armed robbery.
3 pleaded guilty.
2 ran Trials Guilty after trial.
Unlawful Punishment.
Sentence deducted.
Parity.

Cases Cited:

Gimble v The State [1988-89] PNGLR 271
State v Leslie [1996] PGNC 42; N1496
Kwapena v The State [1978] PNGLR 316
Pauta & Susuve v Commissioner of Corrective Institution, ors [1982] PNGLR 7
Amaiu v Commissioner of Corrective Institution [1983] PNGLR 87.
Lamon v Senior Constable Bumai [2008] PGNC 195; N3468
State v Hagei [2005] PGNC 60; N2913
Sumai v Independent State of Papua New Guinea [2020] PGSC 35; SC1948
Allan Peter Utieng v. The State Unreported judgment delivered in Wewak on 23/11/00) SCR 15 of 2000.
Gimble v The State [1988-89] PNGLR 271
Anis v The State [2000] PGSC 12; SC642
Nimagi v State [2004] PGSC 31; SC741
Lahui, Hetau, Noho, and Eki, The State v [1992] PNGLR 325
Simbago v The State [2006] PGSC 23; SC849
State v Herman Eliakim Sai & Mori Joe Simbu [2018] N7309
State v Ere [2018] PGNC 370; N7484
Kumbamong v State [2008] PGSC 51; SC1017
Tardrew, Public Prosecutor [1986] PNGLR 91
Yalibakut v State [2006] PGSC 27; SC890

Counsel:

C. Langtry, for the State
V. Agusave, for the Defendant

SENTENCE

1^st July, 2022

1. MIVIRI J: This is the sentence of five (5) prisoners convicted of aggravated armed robbery pursuant to section 386 (1) (2) (a) (b) of the Criminal Code Act. Three had pleaded guilty to the charge. Two pleaded not guilty prompting a trial to be run. After which both have since been found guilty of the offence. And this now is the sentence of all inclusive.
   
2. They were all jointly indicted that they, Robert Paul of Kerohox village, Lufa, Eastern Highlands Province and Anthon Gapi of Sakanuka village, Bena, also in the Eastern Highlands Province and Niavi Lomo of Riverside village, Kairuku Hiri, Central Province, and Eka Patrick of Nalepa village, Goroka, Eastern Highlands Province, and Oiza Kumitakere of Komu village, Goroka, Eastern Highlands Province stand charged that they on the 20^th day of November 2020 at Goroka in Papua New Guinea stole from Christian Lai with actual violence one hundred and sixty three thousand four hundred kina (K163, 400.00) in cash the property of Istana Limited.
   
3. And at this time, they the said Robert Paul and Anthon Gapi and Niavi Lomo and Eka Patrick and Oiza Kumitakere were armed with dangerous weapons, namely, guns and a knife and were in company with another person.
   
4. They were arraigned that on the 20^th November 2020, between 8.00am and 9.00am, four of the Accused lured one Philip Korul Mone driver of a green CRV taxi registered number JWK 408-to-8-mile junction. There they forcefully tied his hands and feet up and put him in the boot of the taxi. They then picked up two more accomplices and drove back to Goroka town, where five of them got out and waited for Christian Lai, who used to take the cash money belonging to Istana Limited to be banked at the Bank of South Pacific Goroka.
   
5. She left Istana Limited with a black bag containing the cash in the sum of K163, 400.00 belonging to Istana Limited. As She did, one of the Accused Niavi Lomo approached her in the street and pulled that black bag containing the cash. She resisted him and shouted, whereupon he took out a knife and ordered her to let go of the bag. Two of the other accused approached and showed her the pistols that each had concealed within their clothing and told her not to make a noise. Niavi Lomo then cut the strap of the black bag freeing it from Christian Lai. The five accused then took the black bag containing the money and ran back to the green CRV Taxi and took off towards Seigu. There they abandoned it with Philip Korul Mone still in its boot.
   
6. They ran away and divided the money amongst themselves. In the evening of that day, they were apprehended by Police where the cash and the three pistols were also discovered and taken back from their possession. Their conduct jointly and severely breached section 386 (1) (2) (a) (b) of the Criminal Code Act. Further they aided and abetted each other and so were covered by section 7 (1) (a) (c) (d) of the Criminal Code Act for the offence of aggravated robbery.
   
7. Robert Paul of Kerohox village, Lufa, Eastern Highlands Province and Anthon Gapi of Sakanuka village, Bena, also in the Eastern Highlands Province and Niavi Lomo of Riverside village, Kairuku Hiri, Central Province, all pleaded guilty to the Indictment. Provisional pleas of guilty to aggravated armed robbery pursuant to section 386 (1) (2) (a) (b) of the Criminal Code Act were entered against each of them which was confirmed on the reading of the depositions after the trial of the other two run and completed. The two accused Eka Patrick and Oiza Kumitakere after trial have been found guilty of the charge laid all now will be processed in their sentences on the conviction sustained.
   
8. At the outset sentences will differ in those who have pleaded guilty and both prisoners who ran a trial on the matter. No difference will be made in their respective roles in the crime following Gimble v The State [1988-89] PNGLR 271 at 273, “The general rule is that all active participants in the crime shall be sentenced on the same basis The Court does not normally stop to consider whether a particular prisoner actually held up the victim, or held the gun, or the iron bar, or was a watchman outside, or was the driver of the get-away vehicle. All are equally guilty because without each playing his part the crime could not be perpetrated.”
   
9. In the case of the four prisoners Robert Paul, Anthon Gapi, Niavi Lomo, and Oiza Kumitakere, all were shot by police in their legs and assaulted. The evidence is clear in the course of the trial, all prisoners have appeared before me with the aid of crutches evidencing serious grievous bodily injuries. This is the physical evidence the emotional and phycological cannot be assessed. I do not have the benefit of material to confirm or deny that fact. But common-sense dictates that in the way they have been assaulted and shot, they will live with that permanent disfigurement and disability for the remainder of their natural lives. Unto or res ipsa loquitur , the thing speaks for itself. It is sufficient to imply that what has been meted out at the hands of the police illegally and unlawfully is, in itself punishment that was meted out even before the process of sentencing due by the Court for that matter. At the time they were shot by Police, it was an allegation that had not sustained proof beyond all reasonable doubt that they had committed the crime of aggravated armed robbery. Yes, they were apprehended with the implements used in the aggravated robbery together with the proceeds, K163, 400.00 belonging to Istana Limited. But that was not authority, nor licence or permit to use the government issued guns upon its own citizens who were accuseds only not convicted sentenced prisoners. It is not the situation as was seen by this Court in State v Leslie [1996] PGNC 42; N1496 (17 October 1996). He was a convicted prisoner who was sought out by Police against whom he shot one officer fatally in the shoulder hospitalizing him. That is not the situation here so that use of the guns by the police is warranted in response to that threat to life current and prevailing authorizing use of the firearm in self-defence, Kwapena v The State [1978] PGSC 4; [1978] PNGLR 316 (1 September 1978). It was an unlawful use that has left the prisoners with lingering injuries that are borne out by their individual medical reports.
   
10. In the case of the prisoner Robert Paul the Medical report is dated the 20^th May 2022 from the Eastern Highlands Provincial Health Authority Goroka Provincial Hospital. Relevantly the report under hand of Doctor Eri Ebos SMO Surgeon states:
    

“He was allegedly shot by Police over alleged armed Robbery on the 21/11/20 and sustained gunshot wounds to his left ankle joint. The bullet penetrated through the ankle joint, the wound was infected and the patient was repeatedly treated with antibiotics and had an uneventful recovery. Upon his final updated review on 18^th May 2022;

Patient is unable to walk without crutches due to pain on walking and not able to stand without support. The gunshot wounds have healed with ugly scaring. There is reduced range of movements at the ankle joint. The final updated x-ray taken on 13^th May 2022 showed reduced disc space at the ankle joint, calcifications and osteosclerotic changes signifying the establishment of post traumatic arthritis of his ankle joint.

The final assessment revealed that, he has developed a permanent disability of post traumatic osteoarthritis of his ankle joint AND IT REALLY EFFECT HIS DAILY LIVELIHOOD.”

11. In the case of the prisoner Anton Gapo, he has a medical report also dated the 20^th May 2022 under hand of Doctor Eri Ebos SMO Surgeon at the Goroka Provincial Hospital Eastern Highlands Provincial Health Authority. That report details relevantly that, “He was allegedly to have been shot by Police sustaining gunshot wound to his left ankle joint. The left ankle joint gunshot wound was infected with pus discharging, he was treated with antibiotics, pain medications and daily wound care. He had an uneventful recovery. The final updated assessment as of 18^th May 2022; Very painful ankle joint on walking. Wound has healed with scaring. Not able to play or do heavy work. Still mobilizing with crutches. The repeat x ray of the left ankle showed reduced disc space, osteosclerotic changes of the ankle joint. Thus, the final assessment revealed he has developed post traumatic osteoarthritis of the ankle joint and it will affect his daily livelihood now and into the near future.”
    
12. In the case of the prisoner Oiza Kumitakere he too has a medical report dated the 20^th May 2022 under hand of Doctor Eri Ebos SMO Surgeon at the Goroka Provincial Hospital Eastern Highlands Provincial Health Authority. It is in the following terms; “He was alleged to have been involved in armed robbery and shot by Police and sustained injuries to his right thigh. He had compound comminuted distal 1/3 fracture of the right femur bone, bleeding profusely and in a lot of pain. The patient was admitted to Surgical ward; D.O. A=21/11/20. Date of discharge 13/02/2021. The fractured femur was reduced with skin traction for almost 2 months, given antibiotics, pain relief medications and daily wound care in the ward. He had an uneventful recovery. The final updated review done on the 18^th May 2022; Wound healed with ugly scaring. Still very painful. Swelling at times. He is still walking with crutches. He is not able to do heavy work and playing sports. The final updated x-ray of the right femur bone showed bone healed but there multiple brodie’s abscess from chronic osteomyelitis. Thus, the final assessment shows that, he has developed permanent disabilities of chronic osteomyelitis and osteoarthritis of the right femur bone. The disabilities sustained will affect his daily livelihood by not taking part in sporting activities and work.”
    
13. This three prisoners together with Niavi Lomo have been sentenced even before they were tried and verdict pronounced by the police in this way. This independent medical evidence in each case will seriously affect the sentence that is passed upon each of them. Niavi Lomo has no medical report but evident throughout the sittings he came with a crutch and had difficulty walking into and out of court. I am firm here having regard to the case of Pauta & Susuve v Commissioner of Corrective Institution, ors [1982] PNGLR 7 and also the case of Amaiu v Commissioner of Corrective Institution [1983] PGNC 19; [1983] PNGLR 87 where damages were awarded against the State for the unlawful conduct of its servants in assaulting the prisoners whilst in the jail at Bomana corrective institution. That reinforces that the shooting of the prisoners by Police were illegal and unlawful actions. And the effect is that anything that is against the law will not be held against the prisoner. Any sentence passed here will take account of that fact. There will be deductions made in the term of imprisonment upon and for each prisoner equal and proportionate to all having sustained the same injuries at the hands of the police. The deduction will be same given that the injuries will be there even after they have survived out their terms in prison. It is punishment given without authority in law. The term deducted in each case I determine will be deducted from the head sentence imposed. Given the medical reports that I have seen out above of all three, and my observations of all prisoners in court, including Niavi Lomo, I determine that the fair and proportionate term to be deducted from each prisoner from the head sentence is 6 years imprisonment from the head sentence for the four prisoners, Robert Paul, Anthon Gapi, Niavi Lomo and Oiza Kumitakere. I am fortified to implement by section 57 enforcement of guaranteed rights and freedoms that these prisoners’ rights under section 37 protection of the law and section 42 liberty of the Person. It does not say there, that the police can shoot a person as is the case here. The facts depict section 41 that this is a harsh and oppressive act. It was done not in execution of observance of the Constitution set out by these sections, Lamon v Senior Constable Bumai [2008] PGNC 195; N3468 (17 September 2008). The Court will protect where the law is breached.
    
14. Where the prisoner raped the victim who tried to run away naked, the prisoner chased after her, punched her causing her to fall to the ground, as she did, he picked up a stick hit the back of her head causing internal injuries to the neck and the head from which she died. This court-imposed life years upon the prisoner because of the extenuating circumstance, that as soon as he was taken in by Police, he was taken to the relatives of the deceased girl, who severely beat him up, speared him with spear that come out just below his chest. He died and his body was wrapped up with plastic, and as he was about to be put into the morgue when he became alive again. He pleaded guilty before this court the death penalty was envisaged, but not pursued because of this extenuating circumstance, State v Hagei [2005] PGNC 60; N2913 (21 September 2005). And this view is not isolated because the Supreme Court set aside the sentence that was imposed by the National Court and substituted minus 3 years in each case in Sumai v Independent State of Papua New Guinea [2020] PGSC 35; SC1948 (28 May 2020) because the appellants responded killing the deceased as he burnt down three (3) of their houses. He was killed when the appellants responded. It was an identifiable error in the sentencing discretion that was not considered to arrive at the sentence due. Accordingly, three (3) years was reduced.
    
15. When the penalty is dished out in this way, unlawfully, unconstitutionally, in defiance of the law, the individual policemen involved will not shield nor shy away under the veil of the Master and servant veil, contending that the State is responsible, I am not responsible. That does not exist in law to derail what is due to him in law for the unlawful assaults committed including attempted murder, or grievous bodily harm here. For the present some time will be deducted from the head sentence due the prisoners Robert Paul, Anton Gapo, Niavi Lomo and Oiza Kumitakere. And this is on the basis of the independent confirmation by the medical reports that I have set out above including my observation in court.
    
16. Antecedent report tendered into Court of each Prisoner showed all were first offenders. This was their first conviction known and recorded. And when given an opportunity to address the court on sentence, the prisoner Robert Paul stated; “Before the Court convict and sent me to Jail, I did commit this crime. The money K163, 400.00 I did not benefit from it Police got it. Not even K1.00 or K0.01. I was held at Seigu and told to come out from the vehicle. I left the gun in the vehicle to come out. They cable tied me and shot me in the leg. And was told that you will take the State to Court. We drove past the Police station to the graveyard. They pulled me out and shot me. Second time I was shot on the leg again. I have permanent injury there for life. I cannot move and involve myself in sports. I say sorry before the Court for what I did and before God. I say sorry for breaking the mother law and in court before you honourable Court. I say sorry to you Judge, Associate, Public Solicitor, State, and the recorder. I also say sorry to the CIS and to the Public for what I did. I say sorry to my own family. And also, to Istana supermarket for what I did to them. I am sorry. I ask for mercy and to give me probation. Help me to serve my time outside because of my leg. My family is at Simbu. And I ask the court to help me serve my time in Simbu at Barawagi where it would be easy for my family to visit me.”
    
17. The presentence and means assessment reports of the prisoner Robert Paul now before me detail out his personal antecedents extensively. He is 29 years old of Kerehox village, Lufa district, Eastern Highlands and is resident at 6-mile Goroka with his wife and four children. The wife has left his children and has gone to her village. They are now in the care of his mother. He is the second born out of three siblings. And is educated to grade 6 at the Lufa Primary School leaving because he had no money for fees to complete. He has no employment history. But pleads to be given time on probation to settle the matter with the Istana Shop owner. And he details that he is not in good health because he was shot twice on the left ankle by police when he surrendered at Seigu. The second shot was when he was taken to Mt Kiss and then brought down to the Police Station and locked up in the cells. He regrets the commission of the offence and asks for forgiveness from God and all the parties. And says he will settle down after whatever outcome of his sentence. This is supported by his referee SDA church elder Zachariah Roney who gives positive reference as to his character in the community. Which are echoed by Village Court Magistrate Christina Zani. And this is evident in that he is a first-time offender. The owner of the Shop confirms only part of the recovered money was retrieved K110, 000.00, the other half was lost between the prisoners and police.
    
18. He is favourably recommended by the presentence and means assessment reports will be considered with all else for and against to determine an appropriate and proportionate sentence due him.
    
19. In the case of the prisoner Anthon Gapo, he recounted in allocutus, “I also committed wrong at Seigu Police held me. I surrendered to Police easily. Police got my hand and tied it with a cable. And got the K163, 400.00. I did not get any of it, K1 or K0.01t of it. They got me up to the Police Station passed up to Mt Kiss at graveyard told me to sleep on the ground whilst tied with the cable on the hands. And they shot me and said you will not take us to court but the State. They brought me to the Police Station and then to the Hospital where I was treated after which I was taken to Bihute CIS. I am sorry before God for what I did. I say sorry to the Judge, Associate with my heart. I say sorry to the State and Public Solicitor, Court Recorder, interpreter with my heart. I say sorry also to the owners of Istana with my heart. Could the Court give me Probation.”
    
20. He too has a presentence and means assessment reports both filed 24^th May 2022. He is 26 years old resident at Komu village Ward 2 Gahuku LLG. He is the second born in the family of six siblings. His parents are alive. He is married but does not have any children. He is educated to grade 8 at Koningi Primary School, Chuave district, Eastern Highlands Province. He too was shot in the left ankle by police at Seigu when he was initially arrested. As a result, he cannot walk properly. It is painful and he cannot do heavy work because of the permanent injuries that he has now sustained. And will affect him in his life into the future. His character is supported by Church Elder Bejo Poteres who says the prisoner has a very good character. He does not bear any bad name within his community. It is pleaded that mercy be accorded in the sentence passed. That is the views also of Reverend Karavagae Ila of the Komu United Church who says the prisoner was very much involved in the activities of youth within the church. Again, he is recommended as a suitable candidate for probation. And the money amount of K110.000.00 was recovered. He is a first offender.
    
21. In the case of Niavi Lomo he had the following to say; “Yes, I want to say sorry to the honourable Court for what wrong I committed. I say sorry for breaking the ten commandments, thou shall not steal which I did. I say sorry. I am also sorry to the Court, the Judge, the State, the Public Solicitor, the interpreter, and the court recorder. I want to say sorry for the wrong that I committed against Istana company. I say sorry for cutting the bag which was bad. I say sorry to my family, friends who looked after me. I say sorry for spoiling their good name and the Community and family. I did not benefit from taking the money. I left the knife and police got me empty handed. I surrendered to the Police. They tied me and drove past the Police station and slowed down, and another vehicle came and ordered take them to the Cemetery. I realized that we were at Mt Kiss. I was told to come out and one by one we came out. I was told to sleep on the ground. Shot in my left leg. Food and family problem I left for Goroka 2019. Corona Vires came, I found it hard to go back and lost contact with family. I wanted to get an airline ticket with the proceeds and make my way back to my mother. I did not benefit but got injured. I ask for cut in my time and I go back to my village and look after my mother. I learnt my lesson and will teach my wantoks, my brothers not to do what I did.”
    
22. He too has a presentence and a means assessment report filed in his case as of the 20^th May 2022. Niavi Lomo is 29 years old is originally from Kagi, Kairuku Hiri, Central Province. He is of the SDA Christian faith. A single man he was resident at Koiufa village Goroka Eastern Highlands Province. He does not have the means to settle if compensation is ordered. And he does not have fixed abode in Goroka as he is moving and staying with friends. He was a tour guide at the Kokoda trail 2006 to 2017 and aspires to return there. He is a grade 10 leaver from the Laloki Secondary School in Port Moresby since 2002. He too was shot in the ankle by Police when they were caught. And has problems walking but uses crutches to walk. He is supported by friends he made here. He acknowledges the wrong and now looks ahead to be a good person. His reports leaves the matter of sentencing to the discretion of the Court.
    
23. And the next was Eka Patrick who had the following to say; “I want to say sorry to God for what wrong I did. I want to say sorry to the Court, the Judge, Associate, Public Solicitor, the State, Interpreter, and the court recorder. All officers of the Court, the CIS police for holding up time in deciding the case. I say sorry to Christian Lai for what I did to her and also to Mr & Mrs Wong. When this trouble happened, I did not benefit from it. I am married with three children, 13, 08, and 5 years old. In 2017 my wife was involved in car accident paralysed in wheelchair. I used to care for her. I look after the children. On the 30^th March 2021 Justice Gora granted me bail. Whilst out on Bail my family was not living well. I paid project fee and uniform for my three children who are in grades 4, 2 and 1 in primary school. Our house was burnt down in 2016. I built a permanent three-bedroom house. Extra money needed so I worked for it. I leave with my elder brother. This is my first time in Court. I am sorry to hold the courts time. I promise to court and God I will not commit another offence and come before court. Mercy on me and give me probation or a fine.”
    
24. Eka Patrick also had a presentence and means assessment report filed as of the 20^th May 2022. He was 44 years old married with 3 children aged 13-, 8- and 5-year-old. And his wife was disabled since 2017 as a result of a car accident. She was dependent on him. He completed grade 10 at the Goroka Secondary School and was working as a cargo officer with Airlines PNG from 1997 to 2004. And prior to the offence he was working as a security guard for the Towers of Digicel and Bmobile earning K300 and K500 monthly. He was also receiving K1000 to K2000 in a good coffee season from his family plantation. He is of the Christian Life Centre. Community leader from his area Vincent Masi says that the prisoner is honest and takes lead in sports encouraging youth where he lives. That view is echoed by Bala Leko village court Magistrate there. Who states prisoner is obedient and humble. Immediate family, his own father Patrick Jowapo states the same including another relative Miriam Kitene and another Brian Ilo uncle of the prisoner. His report leaves the sentencing to the discretion of the court.
    
25. In allocutus Oiza Kumitakere had the following to say; “I want to say sorry before God. It is wrong before God I say sorry to Court, the Associate, the State, Public Solicitor, and the recorder. And also, the interpreter. I also say sorry to the Istana Group of Companies for what I did it was wrong. I say sorry to Christian Lai who took the money and the boys took it. I say sorry to the police and the CIS officers. True I got the money my share I did not use it. All were taken back by the Police at Seigu when they held me. We surrendered came out and laid face down to the ground. They tied us with cable and got the money. They got me drive to Town past the police Station to the graveyard to Mt Kiss where there was total darkness, pull me out, put me face down gun to my right leg at close range and shot me. Then they took me to the Police Station and beat me. After that remanded to Bihute. I do not have proper medical report because I am in custody. CIS officers help us to take medication. Medical Report I gave it to my lawyer. I am sorry to hold the Court’s time. Have mercy on me and give me probation.”
    
26. Oiza Kumitakere also has a presentence as well as a means assessment reports filed of the 24^th May 2022. He is 32 years old from Komu village Daulo District Goroka Eastern Highlands Province. He is the second born of two and is married with a 5-year-old girl. And is educated to grade 10 at Rintebe Lutheran Secondary School but did not continue as he did not have the fees to complete. He has no formal work experience as he has not been employed. He was shot by Police on his knee smashing the bone of his right leg. He received a permanent injury as a result. He is not able to walk properly or perform heavy work. And feels weak and does not have strength to do work in the prison. He says he will go back to his village and live there after service of any time relating. And bringing up his daughter responsibly in school and life.
    
27. Community Leader from the area where he lives one Robbie Tamuna gives a very good reference on the prisoner. The prisoner is hard working and may have been drawn out by bad influence to commit the offence. He is a first offender with no bad record. He is of the SDA Christian Faith. He confirms that all money in their possession in the sum of K163, 400.00 was retrieved and taken back by the police. His report recommends part custodial and part suspension on probation.
    
28. In each of the antecedents by the presentence and means assessment reports there is nothing that is outstanding or extenuating to affect the sentencing discretion. All are everyday concern for life in the face of a very serious conviction drawing a very long prison sentence in jail. And the will to make amends now that life has been ruined with the commission of the offence. Personal consequences as a result of the voluntary participation in crime should have deterred at the outset. Not after commission where it is put up to avoid the impact of conviction and sentence flowing. And this views are affirmed by the Supreme Court in Allan Peter Utieng v. The State Unreported judgment delivered in Wewak on 23/11/00) SCR 15 of 2000, were it stated: “It is now settled law that, an offender should consider his or her personal and family backgrounds and needs before committing an offence. It follows therefore that, once a person is found guilty of committing an offence, it is a little too late for the offenders to raise their personal and family backgrounds and needs with a view to getting a more lenient sentence. This has been so which has been followed in a long list of National Court judgments .
    
29. What is considered in the sentence exceptional and extenuating to affect the sentence is observed set out above, but not what is consequently invited by their own discretion in committing this offence. They bear responsibility for these not in law to effect sentence passed. Primarily these facts establish the planning that was mastered to come out with the successful heist of the lot. It would have gone well had they not come back here to Goroka. And Each Prisoner played a material part in the success of the crime. Each has been detailed out in the role that they play set out by the evidence depicted out above. It is no light matter because natural as demonstrated by Christian Lai, there would be resistance to it. She pulled back on the bag but was outnumbered outplayed by the defendants. The strap was cut off with that knife he held in the case of Niavi Lomo. It was there facing Christian Lai who could have been easily stabbed or shot with the guns that the defendants held at the time of the robbery. It was by grace that she suffered no major injury as a result of it.
    
30. But it remained a very serious and aggravated armed robbery. It was committed in the heart of Goroka within a walk from the Police Station and the Administrative nerve centre of the province, the Provincial Headquarters, Yanepa Building. It was within the commercial hub of the Town and left no room for any deterrence despite. Or fear of being shot or discovered in its commission. Prisoners were not deterred that they were within reach of the Police station from where they committed the robbery. And could be caught for what they were doing. They did not respect and were contemptuous against the rule of law in the way that they executed it. There was planning for its success evident by the successful taking away of the money from the victim. And getaway was successful and would have been successful had it not been for Police vigilance. Dangerous weapons were used against her to obtain the money. Determined with the tying up of Philip Korul Mone, who was placed in the back of the vehicle used as the getaway car. He was likened to a pig to slaughter tied up at the back with no regard as to his fate. What mattered was his vehicle used as a getaway vehicle.
    
31. It is a robbery of a person on the street attracting 3 years as the Starting point for the offence set out by Gimble v The State [1988] PGSC 15; [1988-89] PNGLR 271 (27 July 1989). Which decision was made in 1988 now 34 years old. It is clear classification to proportion penalty sentence has not seen justice for the law abiding. The staggering arm of this crime can be seen out by its tentacles in armed security guards, in the grills and bars that are put up in business establishments drawing kina in millions, that is undoubtedly passed to the consumers in the public domain. Discretion of the Court is stifled by this domain of tariff range and classification of robberies and all other crimes that have become the subject of categories as they are referred. The theme is good but the spirit is not since there are distinct roles one by the Legislature, the Peoples will and the interpretation by the Court. Armed robbery has not desisted by any measure of hope given the length and breadth of that decision. It has become even more daring as can be seen in this commission. It is also canvassed in Anis v The State [2000] PGSC 12; SC642 (25 May 2000), which saw the reduction of the sentence of 10 years IHL for armed robbery of a factory by youthful offenders. Their age was the basis of the reduction in their respective sentences of 10 years imprisonment.
    
32. But with the greatest respect, age is not a barrier to the commission of serious criminal offences, Nimagi v State [2004] PGSC 31; SC741 (1 April 2004). The Supreme Court was not swayed that the offender was a youthful offender. And rejected disparity excessiveness of the sentence on that base confirming the sentence at first instance of 50 years for murder committed in the course of an armed robbery. Remarking that the offence was one of wilful murder drawing the death penalty and it was lenient for the State to indict as they did. There also was no cross appeal against.
    
33. The prevalence of this offence has drawn stern views expressed relevant here in the determination of an appropriate sentence upon the prisoners:
    

“It is a crime of violence wherein the prisoner accompanied others who were armed with homemade guns and bush knives all dangerous weapons. His accompaniment of the group gave it numbers to be able to commit the crime. It is not a light matter to say that he simply stood watch outside holding a bush knife. He played a very important part in the robbery because his eyes and ears gave his accomplices comfort to do what they did go in threaten and to steal the money. And to do it successfully dependent on the role that he played.

The immediate area of the robbery is a canteen at New Britain Palm Oil Sapuri Compound at Ismin. It is an area frequented by people who live there together with the victim who was intent on trying to make a living. By going as they did prisoner and those who were with him put the lives of both those who were there at risk including the workers of the compound. And it does not need to be looked far to see the grave result of robbery: Lahui, Hetau, Noho, and Eki, The State v [1992] PNGLR 325 (August 1992); Simbago v The State [2006] PGSC 23; SC849 (31 August 2006). There are many others reported of such magnitude to state fundamentally that it is not the proceeds of the robbery, but the manner in which the crime is perpetrated. Guns are lethal and dangerous weapons and have in many instances killed in the course of robberies: State v Herman Eliakim Sai & Mori Joe Simbu [2018] N7309 (20 June 2018). Including bush knives as was the case of the prisoner. It is even more lethal with homemade guns that do not have safety in the weapons as in the case of factory-made ones. The production are with anticipation that there will be resistance it is therefore well planned to time to execute with as little resistance and in the event of to have weapons ready as demonstrated here. And the role of the prisoner is important in this regard.

Lawlessness in this way has no place and must be stopped with strong deterrent, denouncing and punitive sentences. This is the intent of parliament when it amended the maximum penalty of this offence from life years to the death penalty, Criminal Code amendment No. 6 of 2013.

The offence is also a very prevalent offence human life must be protected from harm. It is immaterial whether or not the prisoner benefitted. But it must also be commended that the people at Sapuri Compound did not stand back and watch but took active participation to apprehend those who were involved leading eventually to the apprehension and arrest of the prisoner,” State v Ere [2018] PGNC 370; N7484 (27 September 2018).

34. These observations by this court are relevant and applicable in all fours to the facts and circumstances of the present case. Because each is drawn sentence due and proportionate to its own facts and circumstances not without, Kumbamong v State [2008] PGSC 51; SC1017 (29 September 2008). And the circumstances do not warrant suspension of their respective prison terms on the basis of section 19 (6) of the Criminal Code. Because coupled with three broad categories there summarized upon which suspension can be considered in sentence, (1) where suspension will promote personal deterrence or reformation or rehabilitation of the offender; (2) where suspension will promote the repayment or restitution of the stolen money; (3) where imprisonment will cause excessive degree of suffering to the particular offender; for example, because of his bad health, Tardrew, Public Prosecutor [1986] PNGLR 91 (2 April 1986). I have taken due account and have canvased respectively given their individual facts and circumstances. To suspend further will be disproportionate to the facts and circumstance in aggregate.
    
35. I differentiate respective terms due on the basis of the fact that; Robert Paul, Anthon Gapo and Niavi Lomo all pleaded guilty, Yalibakut v State [2006] PGSC 27; SC890 (27 April 2006). The aggregate is I sentence them Robert Paul, Anthon Gapo and Niavi Lomo on that basis of their guilty pleas to the crime of Aggravated armed robbery pursuant to section 386 (1) (2) (a) (b) of the Criminal Code Act upon the Indictment laid dated the 03^rd of May 2022 to 10 years imprisonment IHL. I deduct from each of their sentences 6 years IHL because of the fact that each was shot by police leaving 4 years imprisonment IHL. They will each serve that 4 years remaining IHL. Time on remand will be deducted further from their respective sentences. They will serve remaining term in Jail IHL.
    
36. In respect of the prisoner Oiza Kumitakere and Eka Patrick because a trial was run in their cases, I sentence both defendants to 12 years imprisonment IHL. Oiza Kumitakere because he was shot by Police particulars set out above, like the others who were also shot by Police, 6 years imprisonment will be deducted forthwith. He will serve the remainder of 6 years imprisonment IHL in jail minus his remand period.
    
37. In respect of the prisoner Eka Patrick from the 12 years’ time on remand will be deducted, he will serve the remainder IHL in jail.
    

Orders Accordingly.

Public Prosecutor: Lawyer for the State

Public Solicitor: Lawyer for the Defendant