State v Tongo [2022] PGNC 601; N10349 (2 December 2022)

N10349

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR NO. 1173 OF 2022

THE STATE

V

ALLAN TONGO

Buimo/Bulolo: Polume-Kiele J
2022: 21^st & 25^th October, 1^st, 7^th & 8^th November

CRIMINAL LAW – Guilty Plea –armed robbery - s 386 (1) (2) (a) & (c), Criminal Code Act - Penalty of which is subject to s 19, imprisonment for life.

CRIMINAL LAW- Sentence – Early guilty plea – No prior convictions – Criminal Code, s 19 - Suspension of sentence considered.

CRIMINAL LAW – Sentenced to 10 years imprisonment- less period held in custody- s 3(2) Criminal Justice (Sentences) Act - Sentence partly suspended, s 19, Criminal Code

Brief facts

The prisoner was indicted on 25 October 2022 with one count of armed robbery contrary to s 386(1)(2)(a)(b)(c) of the Criminal Code Act. Upon being indicted, he entered a plea of guilty.

On 1 November 2022, he was arraigned, and his guilty plea was accepted.

Cases Cited.
Goli Golu v The State [1979] PNGLR 653
Avia Aihi v The State (No.3) [1982] PNGLR 92
Ure Hane v The State [1984] PNGLR 105
Simbe v The State [1994] PNGLR 38
Thress Kumbamong v The State (2008) SC1017
Wellington Belawa v The State [1988-89] PNGLR 496
The State v Nancy Leah Uviri [2008] N5468
State v Karai (2009) N3820
State v Fungas (2018) N3037
The State v Miria (2013) N5102
The State v Tio [2002] N2265
The State v Malaisa [2006] N3239
The State v Maurani [2008] N3560
State v Roslyn Paul (2015) N6132
Doreen Liprin v. The State (2001) SC673
The State v. Lukeson Olewale (2004) N2758
The State v. Louise Paraka (2002) N2317
The State v Francis Krufher (No. 2) (2017) N6750
The State v George Kase (CR (FC) No. (2021) and The State v Reva Roy, CR (FC) No. XXX August 2021, Unreported Judgment
State v Waim [1998] PNGLR 360 at 363
Public Prosecutor v Thomas Vola [1981] PNGLR 412
Gimble v The State [1988-89] PNGLR 271
State v Frank Kagai [1987] PNGLR 320
State v Justin Nyama [1991] PNGLR 988
Public Prosecutor v William Bruce Tardrew [1986] PNGLR 91
Public Prosecutor –v- Done Hale (1998) SC564

Counsel
Ms. S Joseph, for the State
Mr. C Boku, for the prisoner

SENTENCE

2nd December, 2022

1. POLUME-KIELE J: On 25 October 2022, you were indicted with one count of armed robbery contrary to s 386 (1) (2) (a)(b) (c) of the Criminal Code. The State invoked s 7 (1) (a) (b) (c) and s 8 of the Criminal Code.
   
2. Section 386 reads:
   

“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.

(b) is in company with one or more other persons

(c) at, immediately before or immediately after, the time of the robbery, wounds or uses any other personal violence to any other person,

He is liable subject to s 19, to imprisonment for life.

Robbery is defined in s 384 as follows:

“A person who steals anything, and, at, immediately before or immediately after, the time of stealing it, uses or threatens to use actual violence to any person, or property in order to obtain the thing stolen or to prevent or overcome resistance to its being stolen is said to be guilty of robbery.

Stealing is defined by s 365 as follows:

(2) Subject to the succeeding provisions of this Code, a person who fraudulently takes anything capable of being stolen, or fraudulently converts to his own use or to the use of another person anything capable of being stolen, is said to steal that thing.

(3) The act of stealing is not complete until the person taking or converting the thing actually moves it or otherwise actually deals with it by some physical act."

3. The maximum sentence is life imprisonment subject to s 19. It is trite law that the maximum penalty be reserved for the most serious instances of an offence: Goli Golu v The State [1979] PNGLR 653.

4. Section 19 of the Criminal Code states:

“19. (1) In the construction of this Code, it is to be taken that, except when it is otherwise expressly provided-

...

...

...

a person convicted on indictment of an offence not punishable with death may –

instead of, or in addition to, any punishment to which he is liable – be ordered to enter into his own recognisance, with or without sureties, in such amount as the court thinks proper, to keep the peace and be of good behaviour for a time fixed by the court; and

comply with such other conditions as the court may, in its discretion, impose.

5. Sections 7 and 8 of the Criminal Code read:

Division 2. – Parties to Offences.

“7. PRINCIPAL OFFENDERS.

(1) When an offence is committed, each of the following persons shall be deemed to have taken part in committing the offence and to be guilty of the offence, and may be charged with actually committing it: –

(a) every person who actually does the act or makes the omission that constitutes the offence.

(b) every person who does or omits to do any act for the purpose of enabling or aiding another person to commit the offence.

(c) every person who aids another person in committing the offence.

(d) any person who counsels or procures any other person to commit the offence.

(2) In Subsection (1)(d), the person may be charged with–

(a) committing the offence; or

(b) counselling or procuring its commission.

(3) A conviction of counselling or procuring the commission of an offence entails the same consequences in all respects as a conviction of committing the offence.

(4) Any person who procures another to do or omit to do any act of such a nature that, if he had himself done the act or made the omission, it would have constituted an offence on his part, is–

(a) guilty of an offence of the same kind; and

(b) liable to the same punishment,

as if he had done the act or made the omission and may be charged with himself doing the act or making the omission.

8. OFFENCES COMMITTED IN PROSECUTION OF COMMON PURPOSE.

Where–

two or more persons form a common intention to prosecute an unlawful purpose in conjunction with one another; and

(b) in the prosecution of such purpose an offence is committed of such a nature that its commission was a probable consequence of the prosecution of the purpose,

each of them shall be deemed to have committed the offence.”

Arraignment:

6. On 1 November 2022, you were arraigned on the charge of armed robbery contrary to s 386 (1) (2) (a) (b) (c) of the Criminal Code Act and a provisional guilty plea was entered against you and subsequently a conviction was entered against you on a charge of armed robbery contrary to s 386 (1) (2) (a) (b) (c) of the Criminal Code Act.

Committal Court Disposition

7. Ms. Joseph for the State formally tendered into evidence the Bulolo District Court deposition. Upon perusal of the deposition and being satisfied of its contents that there is sufficient evidence therein which would result in the Court entering a conviction against the prisoner for the said offence; the prisoner's guilty plea was accepted, and the prisoner was convicted accordingly. The Bulolo District Court Deposition entered into evidence by consent comprised of the following:
   

(1) The Record of interview both the original pidgin dated 27 April 2020 and English Version of the same date. In the record of interview, marked as Exhibit "A", the prisoner did admit to the charge, more particularly, the responses in ‘Questions and Answers No. 12 and 13’ that he took a phone during the armed robbery and that he had sold it.

8. Upon the reading of the Committal Court dispositions and being satisfied that the evidence contained in the dispositions supported the charge, the accused’s guilty plea was accepted. The accused was convicted on the charge of armed robbery under s 3786 (1) (2) (a) (b) (c) of the Criminal Code, Ch 262. These offences carry a prescribed maximum penalty of a term not exceeding life imprisonment subject to s 19.
   

Antecedent Report

9. The Antecedent Report presented by the State, on the prisoner, Allan Tongo disclosed that the prisoner lives at Care Centre, Bulolo, Morobe Province and has no prior convictions.
   

Pre-Trial Detention

10. The prisoner was committed to stand trial for the offence on the 5 September 2022 and remanded in custody and has been in custody for a period of 4 months 3 days.
    

Allocutus

11. In his allocutus, the prisoner said that he is really sorry for what he did and asked the Court to have mercy on him. He expressed genuine remorse for breaking the law and said sorry to the victims and his own family for making them suffer for his offence. He also said sorry to the Department of Justice and the Court for what he did. He also vowed that he will not reoffend. He asked for leniency and said that he has suffered greatly from their actions and intend to stay out of trouble and ask this Court to be lenient in its consideration of a penalty. He has a young family to take care.

Pre-Sentence Report

12. I have read the pre-sentence report prepared by the Community Corrections Officer (CBC). The report is generally favourable to the prisoner. I have perused the comments of the persons who were consulted for purposes of compiling this report and noted their respective comments. The pre-sentence report recommend that the prisoner is a suitable candidate for probationary supervision and orders if the court were minded to place him on a set of probation orders, which he had pledges that he will comply with.
    

Mitigating Factors

13. In order to determine the severity of sentence, the court took into consideration factors relevant to this case such as:
    
    • (i) the prisoner’s early guilty plea, which greatly assisted this court in arriving at this early outcome
    • (ii) the prisoner is a first-time offender,
    • (iii) the prisoner was very remorseful.
      
14. The prisoner also asked for leniency. He is young and wishes to continue with his education if allowed to. I also noted his explanation as to how he committed the offence in the Record of Interview.

Aggravating Factors

15. The aggravating factors against the prisoner are:
    
    • (i) the prevalence of the offence,
    • (ii) the offender gained entry into the premises of the family with the aid of his friends under circumstances of aggravation.
    • (iii) dangerous weapons were used in commission of the offence
    • (iv) the offence was committed in the company of other persons.
    • (v) personal violence used was against a member of the staff of the club
    • (vi) cash money not recovered
      

Elements of the Offence - s 386(1) (2) (a) (b) (c) Criminal Code

16. In your case, you have admitted to committing the offence and thus the State did not call any oral evidence to corroborate the evidence contained in the various witnesses’ statements. This meant that the elements of offence of armed robbery under s 386(1) (2) (a) (b) (c) of the Criminal Code is proved. In that on 26 November 2016, between 8 p.m. and 9 p.m., you and your three co-accused were at Baiyune Lutheran High School and that you went to Reverend Christopher Elap’s house (the complainant) armed with three homemade guns and you threatened the complainant, demanded the keys to his vehicle, a Toyota Land Cruiser, Blue in colour, Registration No. LBB 635 and stole money in the sum of K1,570.00. You also forced the complainant and his family into the car, tied up their hands and legs and drove out of the school area and then release them. The robbery was perpetrated by you and three other persons. You were arrested and charged for the offence. For purposes of this charge, money is capable of being stolen and the commission of this robbery was carried out with the use of three homemade guns which is a dangerous and offensive weapon. Furthermore, personal violence was used to commit the robbery whereby the victims were threatened with a homemade gun and tied up and were subjected to personal violence.
    

Submission on Sentence

17. To determine severity of penalty, the issue before the court is whether the prisoner should be sentenced according to the penalties prescribed under s 386 (1), (2) (a) & (c) of the Criminal Code Act (Ch No 262)? The case of Gimble v the State [1988-89] PNGLR 271 and the more recent decision of The State v Liliura [2014] N5785 are useful guide in determining the severity of sentence in armed robbery with actual violence cases. Matters taken into account in the determination of sentence therefore will involve the amount of money stolen, the weapons used to commit the offence, and the effects on the victims. This is a case of robbery that occurred with some pre-planning and consciously carried out in broad daylight.
18. Your lawyer, Mr. Boku submitted that the maximum sentence of life imprisonment is not applicable for a number of reasons: Firstly, the facts of the case are peculiar and different thus this court should consider imposing sentence on a case-by-case basis; Secondly by operation of s 19 of the Criminal Code, this exercise of powers gives this Court wide discretion in making the maximum sentence discretionary; thirdly, this case does not fall into the worst-case scenario and thus does not attract the maximum sentence prescribed under s 386 (1) (2) (a) (b) & (c).
19. Mr. Boku further submitted that the offender has admitted to the offence, there is no evidence of how he benefited from the armed robbery and or that he personally applied personal violence and threatened one of the victims during the commission of the offence. For these reasons, Mr. Boku submitted that this present case does not warrant the imposition of the maximum penalty: He submits that the imposition of the maximum penalty should be reserved for the very worst types of cases of armed robbery: Goli Golu v The State [1979] PNGLR 653. Further, the Court has unfettered sentencing discretion and is not necessarily bound by the maximum and minimum tariffs suggested by the Supreme Court: Thress Kumbamong v The State (2008) SC1017. A number of case authorities were also referred to in support of his submission on sentence and these case authorities are noted.
20. Mr. Boku on behalf of the prisoner submitted that although the prisoner has pleaded guilty upon indictment on the charge of one count of armed robbery under s 3786 (1) (2) (a) (b) (c) of the Criminal Code, Ch 262, an offence which carries a prescribed maximum penalty of life imprisonment subject to s 19, he urged this Court to take into account that the established principle in our jurisdiction is that the maximum penalty should not be readily imposed. It be reserved only for the worst type of offence under consideration. It is trite law that the maximum penalty prescribed for an offence is reserved for the worst form or category of offending for that particular offence: Goli Golu v The State [1979] PNGLR 653, including the cases of Avia Aihi v The State (No.3) [1982] 92 and Ure Hane v The State [1984] PNGLR 105. Further, that the Court take into consideration the fact that each and every case be decided on its own its own peculiar facts and circumstances: Simbe v The State [1994] PNGLR 38. and off course, taking into consideration, the Court’s wide discretionary sentencing powers under s 19 of the Criminal Code Act. Section 19 gives the Court unfettered sentencing discretion. Hence, the Court is not necessarily bound by the maximum and minimum tariffs suggested by the Supreme Court: Thress Kumbamong v The State (2008) SC1017.
21. A number of case authorities were cited in support of his submission. Such case authorities include The State v Lucas Soroken, Bob Alois Wafu & Raphael Lawrence Mandul (2006) N280, however, I must say that these case authorities do not apply to offences involving armed robbery with aggravated violence and therefore are irrelevant to the case in issue.
22. Overall, Mr. Boku submitted that a prison term of 3 years is appropriate and that this Court allow a wholly suspended sentence in your case; especially; when there is no evidence as whether you benefited from the money stolen or caused injury to the victim.
23. Ms. Joseph for the State on the other hand, submitted that this is a case where you, GR robbed the victim of their cash of K5, 000.00 and properties to the value of K13,350.00. You applied physical violence on their persons (employees). Ms. Joseph submitted that you; at, immediately and during the commission of the offence were armed with a homemade gun, a factory-made firearm and a bush knife and applied personal violence on one of the victims. Therefore, an appropriate custodial sentence is necessary, as a deterrent factor, both personal and generally, this is so that others who are tempted to carry out such activities are deterred from doing so. Ms. Joseph also submitted that these sort of offending is a serious crime as it attacks the very essence of the Constitutional guarantees accorded to every men, women, and child of this nation, who should be allowed the freedom to live, move around and go about their lawful business anywhere and at any time of the day, without fear and or unwarranted attacks.
    
24. Regarding sentence, Ms. Joseph submitted that this Court has wide discretion under s 19 of the Criminal Code to impose an appropriate penalty; including discretion to also suspend wholly or partly a sentence and impose supervisory conditions on terms. A number of case authorities were cited in support of her submission. Such case authorities include State v Malara [2002] N2188, where the prisoner had pleaded guilty to the charge of armed robbery of a supermarket and stole cash and cheques and goods to a value of K26,000.00 in company of others. They were armed with gun, pinch bar, and other weapons. They broke down the doors to the supermarket. He was sentenced to 15 years imprisonment; pre-trial custody period was deducted, and the balance of prison term served in custody. In the case of The State v Patrick Puppy Kaikara Loavi [2006] N3384 per Kandakasi, J, the offender pleaded guilty to one count of armed robbery pursuant to section 386(1) and (2) of the Criminal Code. The offender on the 1 April 2005, at Kerema town, armed with a homemade pistol went into the Kerema Traders Store, held up two employees of the trade store and stole cash of K39.00 and fled. He was subsequently apprehended by police, arrested, and charged. Only, K17.00 was recovered. In determining sentence, the mitigating factors in his favour were: he pleaded guilty, and this saved the State expense in running a trial. He was a first-time offender, co-operated with Police and showed genuine remorse. The amount of money stolen was not substantial. Stole K39.00 and K17.00 was recovered. He acted alone and had family problems that caused the offender to commit the offence. The aggravating factors on the other hand, were that armed robbery was a serious and prevalent offence, the offender was armed with a homemade gun. He was a mature adult and should have known that what he had done was wrong. The Court held that the factors in aggravation outweighed the factors in mitigation. The Court also held that the sentence should be immediate custodial sentence going beyond 15 years. The Court however imposed a sentence of 10 years and deducted the pre-custody period of 1 year, 6 months and 14 days. The balance sentence of 8 years, 5 months and 14 days was to be served in hard labour at Bomana Correctional Institution.
    
25. In relation to the charge against you, Ms. Joseph submitted that the matters in aggravation outweigh the matters in mitigation. She submits further that armed robbery has now become the most prevalent offence and crime of violence confronting citizens and businesses every day and attacks the very essence of the Constitutional guarantees for every men, women, and children of this country to have freedom to live, move around and go about with his or her lawful business anywhere and at any time of the day without fear of unwarranted attacks: see The State v Magani (2011) N4555.
    
26. I agree with and accept the submission of the State on the seriousness of the crime of violence confronting citizens and businesses throughout this nation of ours. I reiterate that crime of violence is repugnant to the fabric of a society and that such behaviour must be denounced in the strongest terms and to that I add and adopt the statement expressed by the Court in Public Prosecutor v Michael Wunap Ngudomp, [1982] PNGLR 357 where the Court stated that crimes of violence are occurring frequently in this country and only recently this Court expressed great concern in the case of The Public Prosecutor v. Kwalimu Goina, John Vele, Norman Leva and Tom Wari (Unreported Supreme Court judgment No. SC230 dated 27th July, 1982). At pp. 3-4 of that judgment, the court said as follows:

“...

...

The deterrent aspect of punishment is of primary importance in cases of this kind. Sentence should demonstrate to others tempted to engage in such lawlessness involving violence that the punishment to be imposed will be calculated to protect society from the deliberate attack made on it.

We are mindful of the increase of crimes of violence and the widespread public concern about such offence. Such conduct will be met by firmness on the part of courts, and we give a warning that sentences would increase substantially. This is particularly so when such crimes are committed by gangs”

Determination of sentencing criteria

27. Having stated the above, I now consider the sentencing guidelines as established in the case of Gimble v the State [1988-89] PNGLR 271 which sets out the sentencing tariff at that relevant period where several indicators were used to determine the severity of sentence, and these were:
    
    • (i) robbery of a house – starting point of seven years imposed.
    • (ii) robbery of a bank – starting point of six years.
    • (iii) robbery of a store, hotel, club, vehicle on the road or the like – starting point of five years; and
    • (iv) robbery of a person on the street – starting point of three years.
      
28. On hindsight, the principle applied in the case of Gimble v State (supra), was decided more than 25 years ago. Since then, there has been an increase in the range of sentence terms imposed by the Courts due to the prevalence of such offences. In The Public Prosecutor v Don Hale (1998) SC564, the Supreme Court introduced the following starting point:
    
    • (i) robbery of a house – ten years.
    • (ii) robbery of a bank – nine years.
    • (iii) robbery of a store, hotel, club, vehicle on the road etc – eight years.
    • (iv) robbery of a person on the street – six years.
      
29. Since then, the sentencing guidelines in Don Hale (supra) has been adopted and applied in the most recent case is that of The State v Liliura [2014] N5785 which has highlighted the increase in sentences. These are:
    
    • (i) robbery of a house – starting point of ten years imposed.
    • (ii) robbery of a bank – starting point of nine years.
    • (iii) robbery of a store, hotel, club, vehicle on the road or the like – starting point of eight; and
    • (iv) robbery of a person on the street – starting point of six years.
      
30. So, in determining sentence and taking into account the whole of the circumstances of the case and your participation in the offending, I am invited to consider the type of punishment that should be imposed on you, I am left with the opinion that the sentencing tariff of 10 years in relation to crime involving home invasion in hard labour is adequate deterrent: Public Prosecutor v Don Hale (supra) and State v Liliura (supra) applied.
    
31. Your case attracts a penalty of 10 years imprisonment. The State in their submission, submits that adherence to these tariffs will not adequately reflect the prevalence of this offence and has asked this Court to consider other case authorities which have dealt with similar offending and make a finding accordingly.
    
32. Whilst acknowledging the submission from the State, I also note that it is settled law in this jurisdiction that the maximum penalty for an offence should ordinarily be reserved for the very worst types of cases and thus the question then arises as to whether this present case is such a case and I make references to the following cases; SCR No. 1 of 1984; Re Maximum Penalty [1984] PNGLR 418, Avia Aihi v the State [1982] PNGLR 92 and Ure Hane v the State [1984] PNGLR 105 to assist the Court arrive at a determination based on the facts and circumstances of each case on its own set of facts in order to determine an appropriate penalty. For your case, you have admitted to the commission of the offence. The armed robbery was consciously carried out by you in the company of other persons who are still at large.
    
33. In addition, this Court is given wide discretionary powers under s 19 of the Criminal Code to determine penalty. This also includes the exercise of discretion to suspend the minimum sentence is provided for under s 19 (1) (d) of the Code. (State v Waim [1998] PNGLR 360 at 363 per Injia J (as he was then) is also available to the Court and must be based on some proper basis: Public Prosecutor v Thomas Vola [1981] PNGLR 412, for instance, a first time young offenders; 18 years or below; Gimble v The State [1988-89] PNGLR 271 at 275; and is of good character and good family background; State v Frank Kagai [1987] PNGLR 320 and State v Justin Nyama [1991] PNGLR at 127 or on medical grounds; Public Prosecutor v William Bruce Tardrew [1986] PNGLR 91.
    
34. Given the foregoing, I am also required to weigh the consequences of sending offenders to prison for “non-violent crimes” and those which have been categorised as “violent crimes”: Doreen Liprin v. The State (supra) and off course, the established principle of law which states that the maximum penalty should be reserved for the worst type cases: Goli Golu v The State (supra). The Court has taken into account all that you have said in your allocutus and have considered the address by their lawyer on mitigation. Whilst I consider that the case is serious, it cannot be categorised as the worst type of offence. In light of your guilty plea and no prior conviction, I am of the view that the show of your remorse as expressed in Court shows how badly, your actions have affected you individually as a person.
    
35. Given the foregoing, I have arrived at a conclusion that the circumstances of the case does not warrant the imposition of the maximum years of jail sentence. I consider that a lesser sentence be imposed based on the sentencing guidelines in The Public Prosecutor v Don Hale (1998) SC564 with a starting point of sentence of 10 years with movements up and down based on the factual circumstances of the case. I also note that the prisoners did use force or used other forms of weapons to threaten the victims during the commission of the offence. Further, I have also considered the prosecution and the defence counsels address on sentence.

Sentence

36. In consideration of an appropriate sentence, I note that you have by your own admission pleaded guilty to the charge. This has reduced the time and costs of having this matter tried if you had denied it. You have also apologised to the Court and the victims through this Court. I note that you are a first time offender and this is confirmed by the antecedent report presented by the State. These matters are taken into consideration because they support the submission presented for and on your behalf by your lawyer. I also note your request for a wholly suspended sentence. In your cases, as earlier stated, a Pre-Sentence Report has been presented by the CBC Office as requested by your lawyers. Whilst I noted that submission by your lawyer, I find that the CBC Report does recommend a suspended sentence with supervisory conditions. These are important considerations and have been taken into account including this Court wide discretionary powers under s 19 of the Criminal Code Act.
    
37. At the same time, I also take note of the fact that armed robbery is a serious crime. Sentences entered for the crime of armed robbery have increased considerably. The reason for the increase is due to the prevalence of this crime. This trend is reflected in a number of cases since the case of The Public Prosecutor v Don Hale (1998) SC 564 where the Supreme Court said: “the sentencing guidelines set in the case of Gimble v The State [1988-89] PNGLR.271 are not having any deterrent effect on offenders”.
    
38. I take note of comments made in the case of Public Prosecutor v Don Hale (1998) (supra) where the Supreme Court said, sentences imposed for armed robbery cases are not having any effect on offenders who commit the crime of robbery. What is clear is that now a days, the offence of armed robbery is freely and frequently committed invariably by young people. I also note that the aggravating factors against you far outweighs the mitigating factor. Whilst I do note that you have expressed remorse for what you have done, I refer to and reiterate the statement made by his Honour Lenalia J in the case of The State v Richard Saku (No.3) (2006) N3284 where he referred to the comments made by the Court in the case of Gimble v The State (supra) in which the Court stated: “that where an offence of armed robbery is committed with features of aggravations such as actual violence or where a robbery involves a large amount of money may justify a higher sentence. A plea of guilty should justify a lower sentence.” I adopt that proposition and agree that since you have pleaded guilty, consideration be given to a lower sentence.
    
39. However, having arrived at that proposition, I am of the view that as a matter of deterrence; the community’s perspective ought to be taken into account on deciding sentences for armed robbery cases and because of the prevalent nature with which robbery is being committed sentences must reflect the communities’ concern and I refer to the case of Phillip Kasman v The State (2004) SC759 where the appellant was a member of a gang which robbed the staff at the door step into the ANZ Bank in Waigani where they stole an unspecified sum of money. The trial judge imposed a sentence of ten (10) years. He appealed but the Supreme Court did not want to disturb the sentence as it was a public place, and more injuries could have been caused if the plan went wrong.
    
40. In your case, the robbery took place in town inside a family home. It was a public place. You and your accomplices exhibited some bold approach to committing this serious crime without any fear for the law and respect for a private family in their home. might I say even ordinary people cannot be treated in the way you and your accomplices had treated the good Reverend and his family members in that relevant period. I also find that you did not display any respect for people who have worked hard and earned their living lawfully. Ordinary citizens should not suffer unnecessarily from the hands of cruel minority who have no respect for the law.
    
41. Reiterating and adopting the statement by Lenalia in The State v Richard Saku (supra) where he stated, and I quote:

“the legislative intent of prescribing the maximum penalty of 14 years for ordinary armed robbery and life imprisonment for those cases aggravated by the use of violence or threatened violence by those who act in concert carrying dangerous offensive weapons must meet the consequences of high penalties to reflect the community’s view on how serious the crime of armed robbery is” (end of quote).

42. Having considered all the above mitigations and aggravations, I would adopt and apply the reasoning applied in the case of The State v Alus Tamagi and Paija Teke (supra). In that case two offenders pleaded guilty to the offence of armed robbery. In determining an appropriate sentence, the Court noted that the sentences that have been imposed for the offence of armed robbery has not served its purpose in deterring likeminded offenders. Therefore, the sentence the Court must impose must deter the offenders and other likeminded offenders. The Court considered a sentence between 8 years and 16 years and imposed a sentence of 15 years against the offenders, of which 1 year 7 months pre-custody period was deducted, and the balance of 13 years, 11 months and 3 weeks was to be served in hard labour at Ningerum Correctional Service.
    
43. Applying this principle to the case against you, the offence of armed robbery is serious as it involved the use of dangerous weapons namely homemade guns. You had stolen an amount of money which belongs to a family. I have taken into account the mitigating factors submitted in your favour and out of other mitigations, the only mitigating circumstance is that the court can consider is that you pleaded guilty, saving time and expenses and what you have said in allocutus together with what your lawyer submitted in your favour. However, I view that the aggravating factors far outweighs the mitigating factors, and these include the fact that, you committed the offence with threat of violence. Whilst I consider the offending not the worst type of armed robbery, I must say that you have committed the offence of armed robbery in aggravating circumstances, an offence for which you must be punished as a deterrent to likeminded offenders and others tempted to engage in such lawlessness involving violence.
    
44. Consequently, I consider that a custodial term of sentence is warranted. In your case, the State has suggested a term of imprisonment between the range of 8 years to 12 years is warranted.
    
45. Your lawyer on the other hand has suggested that a head sentence of 3 years be imposed less the 10 months that you have been remanded in custody and the balance of the sentence term be suspended on terms on the rising of the Court as you have already suffered enough punishment through wounds inflicted by police.

Conclusion

46. This then leads me to the question as to what the starting point in relation to sentence in your case should be. In order to deter such behaviour, it is proper that a custodial sentence of appropriate proportion be imposed on you. I also noted that you have already been in detention for 10 months 27 days and thus will deduct the period of 10 months 27 days from the term of your sentence under s 3 (2) Criminal Justice (Sentences) Act.
    
47. The next issue is to consider whether the balance of your sentence be suspended. Firstly, suspension of a sentence is at the discretion of the Court, to be exercised on proper principles and if it is recommended by a Pre-Sentence Report (Public Prosecutor –v- Done Hale (1998) SC 564). Secondly, suspension may also be appropriate if it encourages reconciliation and restoration of damaged relationships. (Public Prosecutor –v- Tardrew [1986] PNGLR 91).
    
48. For your case, the PSR does recommend suspension of the sentence. I note that there is feedback from the community on this aspect of consultation from community views overall. For your case, whilst the Pre-Sentence Report did recommend suspension of sentence and placement on probationary orders, noting that you are not a dangerous person.
    
49. Whilst I note the recommendation expressed by the CBC Report, I however expressed reservations due to the lack of a permanent address which will cause difficulties for purposes of assessment.
    
50. With regard to the prisoner’s pleas for leniency and being a first time offender in court, this case can be distinguished from the case of Paulus Mandatitip and Anor -v- The State [1978] PNGLR 128 where youth was considered as a mitigating factor or the case of Kuri Willie v The State (1987) PNGLR 298 Hinchliffe, J (as he was then) discussed the need for courts to investigate alternatives to imprisonment when dealing with youthful first time offenders and the need to consider alternative mode of punishment to imprisonment. However although you are a first time offender and young man, the crime of armed robbery which is committed with such impunity must carry with it some serious penalties as a deterrent factor and I therefore adopt the principle applied by Hartshorn J in the State v Taulaola Pakai (2010) N4125, where he stated that “Court’s should not lose sight of its duty to impose what is a just and fair punishment on an offender." A plea for leniency to avoid the suffering of one's family should have little or no weight when an appropriate sentence is being considered."
    
51. In these circumstances, I consider that incarceration is an appropriate penalty and sentence you to 10 years imprisonment with hard labour. I deduct a period of 10 months 9 days being the period that you have been held in custody pursuant to s 3(2) of the Criminal Justice (Sentences) Act. Further and in addition, in the exercise of discretion under s 19 of the Criminal Code, I suspend 2 years of the sentence term. This means that you will now serve the balance of the term of sentence of 7 years 2 months 3 days in custody, to be served at CIS, Buimo.

Sentence

52. Having been convicted you, Allan Tongo, of one count of armed robbery, you are now sentenced as follows:

Length of sentence imposed: 10 years

Pre-sentence period deducted: 10 months 27 days

Balance of term of sentence to be served: 9 years 2 months 3 days

Amount of sentence suspended: 2 years

Time to be served in custody: 7 years 2 months 3 days
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Public Prosecutor: Lawyer for the State
Public Solicitor: Lawyer for the offender