State v Ambia [2022] PGNC 95; N9550 (4 February 2022)

N9550

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR NO. 1163 OF 2020

BETWEEN:
THE STATE

AND:
LEO AMBIA

Angoram: Rei, AJ
2021: 15^th & 18^th October
2022: 4^th February

CRIMINAL LAW – SENTENCE – Guilty Plea – Armed Robbery – S.385(1) (2) (a) (b) (c) – Offender in company with others, armed with firearms, robbed a vehicle on highway – sentence of 7 years less time in prison - part of sentence suspended on conditions – logging operators not paying etc.

Cases Cited:

Goli Golu -v- The State [1979] PNGLR 653
Lawrence Simbe -v- The State [1994] PNGLR 38
Lialu -v- The State [1990] PNGLR 487
Public Prosecutor -v- Don Hale [1998] SC 564
The State -v- Aso (2004) N2673
The State -v- Banbam [2004] PNGLR 14 N6917
The State -v- Francis Toure & Henry Bruno [2018] PNGC 481
The State -v- Paimuru [2021] N9101
The State -v- Paul Maima & Dama Teiyei [2004] N2583

Legislation:

Section 385(1)(2)(a)(b)(c) of the Criminal Code Act

Section 19 of the Criminal Code Act

Counsel:

Mr. Solomon Kuku, for the State
Mr. Stanley Parihau, for the Defendant

4^th February, 2022

1. REI, AJ: BACKGROUND: The State presented an indictment through Mr. Popeu on the 15^th of October 2021.

2. The matter was adjourned to the 18^th of October for arraignment.

3. The matter came before the Court in which the charge of armed robbery laid under Section 386(1)(2)(a)(b)(c) of the Criminal Code (“the CC”) was read to the accused.

4. Brief facts of the case were also read out to the accused.

5. The facts are that the accused was not happy with the operations of a logging company then involved in logging operations in Pinang Village and planned to carry out robbery of the Company. On 24^th May 2020 he hired two more men from Suandokum Village, Kubalia District and recruited three (3) boys.

6. On the 25^th of May 2020 the accused and his accomplices held up the Supervisor of Ibab Camp along the road, forced him out of the company car at gun point and took the vehicle. They also took away his wristwatch and a mobile phone and drove away in the company car.

7. He was then in the company of five (5) other men armed with homemade guns.

ARRAIGNMENT

8. The accused was asked to plead to the charge as laid.

9. He entered a plea of guilty which Mr. Parihau confirmed was consistent with his instructions. A perusal of the committal file also confirmed as the prisoner unreservedly admitted the offence. The accused was then convicted as charged.

ANTEC⃰⃰EDENT

10. No prior conviction.

ALLOCUTUS

11. When the prisoner was asked to make a statement in his allocutus he stated that he was very sorry for what he did.

12. He, however, said he is the Chairman of the Amblento ILG and felt that as the members of the landowner of the logging project were not receiving payments and that he was not under pay, he took the law into his own hands.

13. He said sorry to the company and to the person from whom he robbed the properties and sought for leniency in sentence.

MITIGATING FACTORS

14. The mitigating factors are:

• Pleaded guilty
• First-time offender
• No prior convictions
• Surrendered to Police
• No strong intention to steal
• In his allocutus, he expressed remorse
  • (i) he said sorry to the Honourable Court
  • (ii) said sorry to the complainant
  • (iii) said sorry for causing the inconvenience
  • (iv) asked the Honourable Court to place him on probation
    
• His houses and properties were burnt by Police
• The vehicle was retrieved and a Compensation of 1 pig with garden foods estimated at a value of K2,000 was paid to the victim.
  

AGGRAVATING FACTORS

15. The aggravating factors are:

• The victim was unaware
• The victim’s watch and mobile phone were never recovered
• Dangerous weapons were used-Homemade shot guns
• It was a pre-planned job
• More than one person involved
  

SENTENCE

16. Section 386(1),(2)(a)(b) and (c) of the Criminal Code provides for a term of life imprisonment subject always to Section 19 of the Criminal Code.

17. Section 386(1), (2) (a) (b) and (c) provides that:

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

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

18. It has however been decided in Goli Golu -v- The State [1979] PNGLR 653 that the maximum penalty be reserved for the most serious cases and that each case be determined on its own peculiar facts and circumstances.

19. In the case of Lialu -v- The State [1990] PNGLR 487 the Supreme Court per Kapi: DCJ held that:

“This exercise of the sentencing discretion must be guided by proper principles. These include the characteristics of the offence or the offender which may aggravate or mitigate the seriousness of the crime taken together with all other relevant considerations. In this regard, it is desirable that the courts must be consistent in the application of these principles. These principles of sentence do not necessarily resolve the difficult task of fixing a particular term of sentence for any one particular case. The reason is clear and it has been pointed out in previous cases that there is no mathematical or scientific formula for arriving at a particular specific sentence from the general principles.”

20. The Supreme Court set out sentencing guidelines in armed robbery cases in Public Prosecutor -v- Don Hale [1998] SC 564 as follows:

Robbery of a house - 10 years

Robbery of a bank - 9 years

Robbery of a hotel, store, club, vehicle on the road

- 8 years

Robbery of a person on the Street - 6 years

21. This armed robbery involves a vehicle been held up at gun point on a highway.

22. The prisoner and his accomplices took the wristwatch and mobile telephone of the driver then chased him out of the vehicle and took the vehicle with them.

23. According to the PSR the motor vehicle was returned with no apparent damages. The wristwatch and mobile phone were not recovered.

24. According to the decision in the case of Don Hale -v- The State (Supra), this case attracts a sentence of 8 years imprisonment for the robbery of a vehicle.

25. The peculiar facts giving rise to the commission of this offence are that, as the Chairman of the LLG, the prisoner took it upon his own shoulders to show the frustrations of the landowners to the logging company for not paying them enough money as salaries or royalties. He took the law into his own hands not for his personal greed, aggrandizement or gain or as a miser. But for the group of people who had formed themselves into a landowner group under the Land Groups Incorporation Act to pursue their landowner interests in the logging operations of the foreign logging company. But the prisoner says in the PSR:

“There are no educated persons in the village to guide him. He knows that what he did was very wrong, and he is very sorry. He promises he will not do it again, never again in life ...”

26. But as I said during allocutus, there are better and proper ways available to landowners to raise their concerns rather than resorting to crime which include instructing lawyers to advise their concerns or to go to the Office of the Forest Authority to seek assistance.

27. The prisoner chose not to pursue his claims using proper means but instead resorted to violence, perhaps due to unavailability of educated people in his village to help seek assistance.

28. Furthermore, in his allocutus he stressed that the logging company was involved in bringing infrastructural developments to the area by constructing roads, clinics and schools.

29. His such behaviour may have affected the genuine efforts of the company.

PRE-SENTENCE REPORT (“PSR”)

30. The PSR reports that the reason why the prisoner was forced to commit the offence is because the logging company has been harvesting round logs from his area without paying “a single toea as premium to landowners”.

31. He was and still is the Chairman of the Amblento ILG of Pinang Village and not the Council President as noted in the brief facts.

SENTENCE IN THIS CASE

32. The PSR has recommended strongly that the prisoner is a proper candidate for probation because he is not a habitually violent person and that he has not robbed previously.

33. He committed the offence because of the frustrations of the landowners caused by the logging operators.

34. The PSR also reports that as a result of this case the prisoner and his two (2) brothers Bill Bunat and Greg Tobby and the village people paid K2,000.00 compensation and a pig worth K800 to the logging company to make peace.

35. But a few days later, the Angoram Police entered the Nangar hamlet where the prisoner lives and burnt down 9 houses. I cannot comment any further on this because the facts are not properly before the Court.

36. In my considered view the prisoner has shown genuine remorse.

37. I observed him in Court and concluded that he truly regretted what he did.

38. The peculiarity of this case is that he did not commit the crime for reasons to gain for himself. He sacrificed his freedom for the sake of the landowners so that the logging company reviews its attitude towards payment of royalties or premiums to the landowners.

39. I consider that this crime was committed by the prisoner not because he wanted to gain anything for himself but for the benefit of the people: the landowners of the ILG in which he is the Chairman. Should he be imprisoned for a term?

40. Sentences for armed robbery of vehicles on public highway range from as low as 7 years to a maximum of 15 years rather than the prescribed penalty of life year imprisonment.

41. The offence of armed robbery of a motor vehicle on a highway has become prevalent in this Country.

42. Mr. Parihau referred me to the case of The State -v- Paimuru [2021] N9101 per Berrigan J. in which a term of 9 years imprisonment was imposed.

43. The prisoner was in the company of others armed with firearms. The term of 9 years was reduced by 2 years 6 months 8 days for time spent in custody for pretrial and leaving a balance of 7 years 5 months 12 days, out of that balance, 3 years was suspended on conditions.

44. In The State -v- Francis Toure & Henry Bruno [2018] PNGC 481 Susame AJ held that the accused who held up a PMV with his gang members be sentenced to 8 years imprisonment.

45. The State -v- Banbam [2004] PNGLR 14 N6917 Manuhu J. held that the two prisoners who held up Benny Gawa and others in their vehicle with actual violence and stole from them were sent to 8 years without suspension.

46. Similar cases of The State -v- Aso (2004) N2673 in which Kandakasi J. imposed 13 years imprisonment and The State -v- Paul Maima & Dama Teiyei [2004] N2583 Kandakasi imposed a term of 12 years. These cases involved cash of K9,400 and K1,300 respectively.

47. The above cases dealt with prisoners who committed the offences to enrich themselves out of greed as opposed to the actions of the prisoner in this case.

48. The prisoner in this case committed the offence out of frustration as the benefits derived from the logging operations had not been accorded to the landowners and NOT himself. This is what is peculiar about this.

CONCLUSION

49. The prisoner must be reminded that the offence he committed is armed robbery which carries a sentence of life imprisonment under Sec.386 (1) (2) (a) (b) and (c) of the Crimnal Code Act.

50. The prisoner must also be reminded that this offence is prevalent in most parts of the country.

51. While I appreciate the remorse he expressed in his allocutus which involves the people of his ILG, I do not think that should go to excuse his criminal intent and the resultant effect of robbing someone at gun point in the public highway.

52. If he is to be put on probation by reason of him being the Chairman of the Executive Committee of the Amblento ILG of Pinang Village and that what he did was to benefit the landowners of the logging project, a spate of crimes will be committed by people like him and claim immunity from incarceration using their positions in ILGs as shields so that they are not given higher sentences.

53. Berrigan J. said in recent case of The State -v- Paimuru: (supra).

“Having regard to Gimble, Tau Jim Anis and Kassman (supra), this case falls into category three and that the appropriate starting point is eight years. In my view, however, the penalties set out in Gimble, Tau Jim Anis and Kassman must be regarded as out of date not only because of the prevalence of aggravated robbery but having regard to the 2013 amendment.”

“Section 19 of the Criminal Code provides the Court with broad discretion on sentence. I remind myself when considering the guidelines and comparative cases that whilst they are relevant, every sentence must be determined according to its own facts and circumstances: Lawrence Simbe -v- The State [1994] PNGLR 38.”

54. Having identified the starting point and also the aggravating and mitigation factors, I impose a sentence of 7 years imprisonment less the time spent in remand.

55. The offender is 36 years of age from Pinang Village in Yangoru District, East Sepik Province. He is married. He was educated to Grade 6.

56. In mitigation this is the offender’s first offence. He co-operated with police and made early and full admissions. He was about 21 or 22 years of age at the time of the offence and may properly be regarded as youthful.

57. The offender pleaded guilty at the National Court. I take that into account as reflecting his genuine remorse, as well as for the fact that it has saved the Court, State and its witnesses the time, inconvenience and trauma of reliving the offence during trial.

58. I adopt the views of Berrigan J. in the same case, “the impact of the offence on the offender has been and will continue to live with him for the rest of his life. I accept his statements, which are supported on the depositions.” In this case the prisoner sacrificed himself for the benefit of the landowners of Ablento ILG. In my view this is of paramount consideration.

59. Applying the provisions of Section 19 of the Criminal Code, I impose a sentence of 7 years imprisonment but suspend the total of 3 years on the following conditions:

• he shall be on probation for 2 years;
• he shall obtain the services of a lawyer to receive appropriate legal advice and shall report on this to the Probation Officer within 3 months from today and the Probation Officer to file a report on this within 6 months from today;
• not to take liquor;
• shall be of good behaviour throughout the term of suspension;
• should the prisoner breach any of the conditions, he shall serve the full sentence of 3 years;
• time spent in remand is to be deducted.
  

60. The time spent in prison whilst awaiting his trial shall be deducted from the head sentence.
____________________________________________________________
Public Prosecutor: Lawyer for the State

Public Solicitor: Lawyer for the Defendant