State v Fingu [2022] PGNC 429; N9768 (17 June 2022)

N9768

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR No. 506 OF 2018

THE STATE

V

JESSICA FINGU

Wewak: Miviri J
2022: 08^th & 17^th June

CRIMINAL LAW – PRACTICE AND PROCEDURE – Robbery – Plea – store robbery – Section 7 & 8 CCA – Procured Commission – Secured Vehicle to Commit Robbery – First Offender – PSR MAR Favourable – Prevalent Offence – Strong Deterrent Sentence – 7 years IHL.

Facts
Accused posed as a genuine person in need of hire of vehicle. She hired the vehicle that was used in the robbery of the Victims of K 37, 000.00. She was caught as she tried to escape to Madang.

Held
Plea
First time Offender
Favourable PSR MAR
Strong Deterrent Sentence
Prevalent Offence
7 years IHL.

Cases Cited:
Acting Public Prosecutor v Don Hale [1998] PGSC 26; SC564
State v Moripi [2017] PGNC 202; N6867
Tardrew, Public Prosecutor [1986] PNGLR 91
Gimble v The State [1988-89] PNGLR 271
Golu v The State [1979] PNGLR 653
Kukubu v State [2015] PGSC 19; SC1426
State v Malo [2006] PGNC 231; N4520
Gorop v The State [2003] PGSC 1; SC732
Anis v The State [2000] PGSC 12; SC642
Nimagi v State [2004] PGSC 31; SC741

Counsel:

F.K Popeu, for the State
A. Kana, for the Defendant

SENTENCE

17^th June, 2022

1. MIVIRI J: This is the sentence of Jessica Fingu of Niakombi, Kubalia, East Sepik Province who pleaded guilty to armed robbery.
   
2. On the 16^th November 2017 at the Beats and Pieces Hire Cars Limited office, Accused posed as an alias one Loretta Mala and advised that she needed to hire a vehicle. It was urgent so she was given a Toyota Land Cruiser blue 5 door registered number WAE 171. At that time, she was accompanied by another person identified as Simon Harry. That vehicle was used in the robbery at about 5.00pm that day 16^th November 2017, when it was driven into the premises of the Summit Agriculture Limited also known as Turubu Oil Palm Limited by three men who robbed the Accountant of Summit Agriculture Limited of K 37, 000.00 in cash the property of that Company. At the same time after the robbery, the Accused attempted to flee to Madang but was captured by Police after a tip off. She was involved in securing the blue Toyota Landcruiser five door registered number WAE 171 for the robbery that day. And she aided and abetted in the commission of that robbery and was a person within the ambit of section 7 and 8 of the Code and therefore guilty of the crime of armed robbery pursuant to section 386 (1) (2) (a) (b) of the Criminal Code Act.
   
3. She was indicted with aggravated armed robbery contrary to section 386, “(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,

4. She is liable subject to Section 19, to imprisonment for life.” [Criminal Code (Amendment) Act 2022(certified 12 April 2022)]
   
5. The Accused made detailed admission to Police in the record of interview on the 13^th December 2017. She maintained that admission today 08^th June 2022 when arraigned. The depositions confirmed her plea and she was convicted accordingly. It was confirmed by the evidence of the hire car company, that she had deposited K1000 for the hire of the subject vehicle. The vehicle was abandoned after the robbery and recovered by Police. Her admissions in the record of interview was consistent with the account of the witnesses. In allocutus when given an opportunity to address on sentence she stated, “I say sorry to God and to the court. Sorry to the Company we committed the trouble against. I am married with two (2) Children. My husband left me after the trouble. I market and look after my two children. I ask the mercy of the court to serve my time outside Court.”
   
6. On that basis defence counsel applied and was granted an order for presentence and means assessment reports to be compiled to deliberate on an appropriate sentence for the prisoner. That is now before the Court filed of the 15^th June 2022 dated 09^th June 2022. Including the Means Assessment Report also filed and dated on the same dates. Relevant particulars in the PSR states that She is from Niakombi village, Numbo Sausia Kubalia District East Sepik Province. And is aged 30 years old now. Her husband has left her since the robbery. She is now remarried with a daughter who is a year old. And has no formal employment but does informal marketing to sustain herself with her child. And is resident at Yawasoro road besides the Yawasoro Police Barracks. She lives with her father and other siblings. The father raised her as a single parent but she succumbed to peer pressure in the commission of the offence. But She supports him in doing the house chores and also looking after the three other siblings by marketing and feeding the family. She was educated to the Yarapos Mercy Secondary School but did not complete because she became pregnant. But she continued with her education 2015 to 2016 at Leakum Technical School in Wabag and graduated with certificate in Welding and Fabrication. And in 2016 from June to August she worked as a casual with the PNG Ports. She is of the SDA Christian Faith.
   
7. From the Presentence report she has a reference from the one Hon. Fidelis Narik Ward member ward 16 of the Yawasoro Government Compound. He states that she is pleasant and outspoken humble and of sober habits. And has contributed to the development of the youth in that regard. And has never been in any illegal activities before me for the consideration and determination of this sentence upon the prisoner. Another referee one Pastor John Wamane founder director of the Save Mission says that if given the right environment she will find her terms to sustain her life with her family. In terms of Job opportunities, she would find her rightful place. That is morality but as to the physical existence with opportunities from her education there is no evidence to sustain that fact favourable for her.
   
8. Because the determination whether some time of the sentence imposed would be suspended is not out in the air. There is material warranting the suspension of alternatives to imprisonment. And in this regard material are the observation of this court in Acting Public Prosecutor v Don Hale [1998] PGSC 26; SC564 (27 August 1998). Justice is served not on emotions but on the basis of the facts led not otherwise. The facts here do not sway that is appropriate given. Nor on the basis of restitution as that has not been demonstrated here. It would be an error of law to so act without. Because this is repeated in State v Moripi [2017] PGNC 202; N6867 (31 July 2017).
   
9. This court can under section 19 (6) of the Criminal Code upon three broad categories consider suspension of 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. Here prisoner does not have any medical condition warranting that some time of the sentence be suspended. Or that she has paid some of the K 37, 000.00 back to the Company. She does not have the means to pay back that money to the company victim. Nor does she demonstrate any substance as to reformation or rehabilitation or for the same deterrence. There ought and must be activities that will hold her meaningfully down in life. She is not employed but sustains by marketing informally.
   
10. Obviously deducing from her role in the robbery, it was a well-planned robbery. Her role was an important one because without the transport secured the robbery would not have been successfully carried out. She cleverly posed that she was one Loreta Mala and she needed the vehicle to go to Maprik to visit her sick mother with her husband who showed his driving licence as Simon Harry. And after the robbery the vehicle was abandoned at the beach front and the robbers made their getaway by sea. None of the cash stolen has been recovered. It was a successful robbery. She is a first offender and has pleaded guilty to the charge saving the Court time to run a trial on the matter. But it is a prevalent offence and the large sum of money K 37, 000.00 was stolen from that office has since not been recovered. The men were all armed when they rushed at me pointing guns at me asking for money is the evidence of Thomas Binson, Personal officer of the company who was the victim from whom accomplices of the prisoner went into the office of the Company and stole the money. One had a pistol and two also were armed with a pistol and a pump action shotgun all dangerous weapons. It is a terrifying act knowing that the weapons are deadly, at the squeeze of a trigger the victim could have been easily shot. All facilitated by the vehicle that the Prisoner helped to hire. Her role is therefore very serious and could draw like penalty upon, and this is clear from Gimble v The State [1988-89] PNGLR 271, that there would be no difference between the gunmen at the scene and her role. All actively played their roles to give the success of the robbery. Therefore, in sentence all would be treated the same. I treat as I would the gunmen at the scene in this sentence.
    
11. Definitely she would not be imposed the maximum penalty of life imprisonment, Golu v The State [1979] PNGLR 653. But a determinate term of imprisonment would be drawn given her facts aggravating and mitigating including any extenuating circumstances. She has pleaded guilty and that is to her credit in the sentence that would be served. She is a first-time offender and given her background set out by the Presentence and the means assessment report that would call for some leniency. But as to how that is measured against the aggravating features will draw out her appropriate penalty to the crime. The Supreme Court reduced 12 years IHL imposed upon young first offenders who had pleaded guilty to a robbery of a store wounding the security guard in the leg. The National Court imposed 12 years IHL that was reduced by the Supreme Court to seven years. Because it was not considered that the proceeds of the robbery were returned including compensation was paid. The guilty plea was weighed out by these facts. Hence the appeal allowed and reduction to 7 years IHL Kukubu v State [2015] PGSC 19; SC1426 (28 April 2015).
    
12. Here that is not the case, none of the K 37, 000.00 stolen was recovered nor was there compensation paid in addition to the guilty plea by the prisoner. Some leniency is in order where the robbers are immediately apprehended, most of the money stolen is recovered, the offender is slashed with a knife at apprehension immediately, the National Court on a guilty plea imposed 8 years IHL for the robbery of a Store, State v Malo [2006] PGNC 231; N4520 (19 December 2006). This is not a store but an office likened to a bank because money is kept there. It is the company accountant’s office. The extreme scenario is where the victim of the robbery suffers very serious and aggravating life-threatening injuries that would call for very stiff penalties such as seen in Gorop v The State [2003] PGSC 1; SC732 (3 October 2003), where 18 to 20 years was imposed upon the robbers because their assault with a hockey stick left the victims in a very serious and life-threatening injuries coupled. That is not the case here none of the victims are injured in any way. But it is an offence that must be punished for the role that the Prisoner played that gave legs to the robbery, so that it was efficiently executed and get away made was successful, together with the money stolen. She has pleaded guilty and therefore would be favourably acquainted in the sentence due. But the aggravating feature is the role she played which features prominence aggravating despite the admittance.
    
13. She is not a youthful offender as in Anis v The State [2000] PGSC 12; SC642 (25 May 2000). She is a mature person of 25 years at the time of the offence, now at date of sentencing 30 years old. And is a mother of two young children. The converse is that age does not necessarily mitigate as seen in Nimagi v State [2004] PGSC 31; SC741(1^st April 2004). Violent criminal offences are committed by those who are young and youthful. The office the scene of the robbery is in the view of Gimble (supra) likened to a bank because that was where the money of the company was handled by that staff member. His position in the duties he discharges is in similar position as a teller in the bank. The sentence needed to be protective of persons in his role in life. Hence the tariff of six (6) years in hard labour was appropriate considering the facts set out above. Life is not static given that with the years robbery has not succumb to the sentences passed but have become prevalent as ever. Here its prevalence can be seen in the participation of a female amongst male dominated members to commit this offence. It must be reflected that the spread of this evil will not be tolerated by the Courts. And there will be no difference in the penalty meted out. Because reading section 386 robbery simplicitor is imprisonment for a term not exceeding 14 years the aggregate with all that is set out above.
    
14. Accordingly, it would not be erroneous to impose seven years imprisonment for armed robbery considering the role that she played and the fact that She has pleaded guilty to the charge. And time in custody will be deducted forthwith and she will serve the remaining term in jail.
    
15. Seven (7) Years IHL for aggravated armed robbery. Time in custody is deducted forthwith. Remainder will be served in jail. Bail is refunded forthwith.
    

Orders Accordingly,

__________________________________________________________________

Public Prosecutor: Lawyer for the State

Public Solicitor : Lawyer for the Defendant