State v Raka [2023] PGNC 118; N10244 (19 April 2023)

N10244

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR NOS. 522 AND 523 OF 2018

THE STATE

V

TONY RAKA
JUNIOR JOSHUA YAKO

Kimbe: Numapo J
2022: 17^th November
2023: 19^th April

CRIMINAL LAW – Particular Offence – Armed Robbery – Armed with Dangerous Weapons and In Company of Others – Aggravating and Mitigating factors – Extenuating circumstances - Sentencing Tariffs – Maximum penalty – Sentencing Discretion - Sections 386 & 19 of Criminal Code.

Held:

(i) Sentencing tariffs for armed robbery such as the ‘Gimble Guidelines’ developed by the Courts through relevant case laws provides a useful guide.

(ii) Sentence imposed by the Court must reflect the purposes of sentencing such as deterrence, rehabilitation, restitution and retribution.

(iii) The appropriate sentence will be determined from factual circumstances of the case being; the aggravating and mitigating factors and the extenuating circumstances.

(iv) Offenders’ young age is a consideration that favours a lesser sentence including non-custodial sentence but this is no longer the case given the rise in youth offending which calls for a deterrent sentence.

(v) Offenders sentenced to three (3) years and seven (7) months in light labour.

Cases Cited:

Goli Golu v The State [1979] PNGLR 653
Gimble v The State [1988-1989] PNGLR 271, SC369
Public Prosecutor v Don Hale (1998) SC564
State v Benedict [2014] PGNC 106; N5645
State v Amon John Kintau & Augustine Felix CR. Nos. 617 & 618 of 2012
State v Keith Larry & Ors CR. No. 336 – 338 of 2018 N7432
The State v Iori Veraga (2005) N2921
The Acting Public Prosecutor v Aumane & Others [1980] PNGLR 501
Tau Jim Anis and Others v The State (2000) SC546
The State v Vincent Malara [2002] PNGC 135; N2188

Counsel:

A. Bray, for the State
D. Kari, for the Defence

SENTENCE

19^th April, 2023

1. NUMAPO J: This is a decision on sentence. The accused persons TONY RAKA and JUNIOR JOSHUA YAKO each and severally pleaded guilty to one count of Armed Robbery contrary to Section 386 (1) (2) (a) (b) of the Criminal Code and were convicted accordingly.
   

1. BRIEF FACTS
   

2. The facts to which the prisoners pleaded guilty to were that; on 24 October 2021 at around 2:30am they both went to the Executive Residential area of Kapiura Oil Palm Plantation and entered the house belonging to Mathew Mali and held up Jason Kum and stole from him 1 x Samsung 9A phone valued at K500; a bilum worth K100 and a calculator worth K30. The total value of property stolen is K630.00. Prisoners then proceeded on to steal from Mathew Mali the following; 1 x mini tablet phone valued at K500, a1 x Computer Note Book valued at K2000; 1 x Hp Computer Note Book valued at K3,100.00 and Samsung Galaxy S21 phone valued at K2000. The total value of the items stolen was valued at K7,700 properties belonging to Mathew Mali and his family.
   
3. The prisoners were armed with dangerous and offensive weapons namely, firearms and bushknives. They threatened the victims and stole from them.
   
4. The State also invoked section 7 of the Criminal Code.
   

2. LAW
   

Section 386 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; or
(b) is in company with one or more other persons; or
(c) at, immediately before or immediately after the time of robbery, wounds or uses any other personal violence to any other person,

He is liable to be sentenced to Life Imprisonment.

100. APPROPRIATE SENTENCE
     

5. Every case is determined by its own set of peculiar facts and circumstances being the aggravating and mitigating factors and the extenuating circumstances in deciding what would be an appropriate sentence. The prevalence of the particular offence is also a consideration that is taken into account. All these have to be properly weighed up in deciding the appropriate sentence, (The State v Iori Veraga (2005) N2921).
   
6. The common law principles on sentencing provides a useful guide on sentencing particularly, that the sentence imposed is aimed at achieving certain outcomes such as deterrence, rehabilitation, restitution and retribution. The Courts have, over the years, being guided by these principles in imposing sentences that are aimed at achieving those specific outcomes. These principles are well adopted in this jurisdiction, (see: The Acting Public Prosecutor v Aumane & Others [1980] PNGLR 501.
   
7. The offence of Aggravated Armed Robbery carries the maximum penalty of death under the new Criminal Code (Amendment No. 6) of 2013. The death penalty however, has since been abolished. The Court has the discretion to decide in each given case what might be the appropriate sentence without having to impose the maximum penalty which is usually reserved for worst type offence. The Court’s discretionary power on sentencing is founded in both the substantive law and case laws. Firstly, the Court has a wider sentencing discretion under section 19 of the Criminal Code to impose a lesser sentence than the prescribed maximum penalty. Secondly, the Supreme Court in the famous case of Goli Golu v The State [1979] PNGLR 653, held that maximum penalty should be reserved only for worst type offence. This is now a trite law in our jurisdiction and applies to all offences. And thirdly, sentencing tariffs for armed robbery developed over the years by the Courts through the relevant case laws such as the ‘Gimble Guidelines’ provides a useful guide to assist the Court in deciding the appropriate sentence between the lower end and the upper end of the sentencing scale. I refer to them below.
   

4. SENTENCING GUIDELINES
   

8. In Gimble v The State [1988-1989] PNGLR 271, SC369 the following tariffs were set for armed robbery:
   
   1. On a plea of guilty by first time offenders carrying dangerous or offensive weapons and threatening violence for:
      
   • (a) Robbery of a house – a starting point of 7 years.
     
   • (b) Robbery of a bank – a starting point of 6 years.
     
   • (c) Robbery of a store, hotel, club, vehicle on the road or the like – starting point of 5 years.
     
   • (d) Robbery of a person on the street – a starting point of 3 years.
     
   2. Features of aggravation such as actual violence, a large amount of money stolen or where the robber is in a position of trust towards the victim may justify a higher sentence.
      
   3. A plea of guilty may justify a lower sentence.
      
9. The sentencing tariffs were further increased by an additional three (3) years by the Supreme Court in the subsequent case of Public Prosecutor v Don Hale (1998) SC564. The increase was reaffirmed in a later case of Tau Jim Anis and Others v The State (2000) SC546 when the Appellants appealed against a sentence of ten (10) years imposed for robbery of a factory. The Supreme Court noted that the ‘Gimble Guidelines’ (supra) was still good law.
   
10. The rationale behind the two (2) subsequent decisions of the Supreme Court is that given the high incidences of armed robbery cases in recent times, it was necessary to increase the sentence by another three (3) years. The new tariffs were as follows:
    
    • (a) Robbery of a house – a starting point of 10 years.
      
    • (b) Robbery of a bank – a starting point of 9 years.
      
    • (c) Robbery of a store, hotel, club, vehicle on the road and like – starting point of 8 years.
      
11. In The State v Vincent Malara [2002] PNGC 135; N2188, Kandakasi J in sentencing an offender to fifteen (15) years in hard labour made the following remarks regarding the high prevalence of armed robbery cases:
    

“...this in my view, calls for the Courts to be prepared to depart from the traditional methods of sentencing with a view to substantially increasing sentences to send a stronger message from the Courts to offenders that they now stand the risk of much higher or severe sentences...”

12. Applying the new tariffs, the present case falls under the third category and therefore, the starting point is ten (10) years as this was a robbery committed in a dwelling house.
    

4. PRESENT CASE
   

13. The facts of this case showed that this was a planned robbery. This was an armed hold-up with threats of actual violence. Dangerous and offensive weapons namely, firearms and bushknives were used to commit robbery. Properties stolen were worth substantial amount of money. The stolen properties were never recovered.
    
14. Mr Bray for the State submitted that the Court should impose a sentence ranging between 5 – 7 years given that the offence of armed robbery has become so too prevalent in recent years here in the province. A stiff sentence will send a clear message that those engaged in such activities will be severely punished. Breaking into a dwelling house is a serious matter in the sense the occupant will no longer feel safe and secure in his own home.
    
15. Mr Kari for the Defence on the other hand, urged the Court to take a rehabilitative approach and consider a suspended sentence for the prisoners as they both are young first time offenders. They were aged 11 and 16 years old respectively when they came into conflict with the law. Both were students doing grades 5 and 6 respectively when they committed the offence. Both were raised solely by their mothers as both their fathers passed away. They now suffered the consequences of their actions and realized that. They regretted it very much as this has not only destroyed their education but also their future as well.
    

5. AGGRAVATING CIRCUMSTANCES & MITIGATING FACTORS
   

(i) Aggravating Circumstances

• (a) Armed with dangerous and offensive weapons.
• (b) Robbery carried out in a dwelling house – home invasion.
• (c) Threats of actual violence.
• (d) Substantial value of properties stolen.
• (e) Stolen properties have not been recovered.
• (f) Psychological effect and trauma suffered by the victims.
• (g) Prevalence of the offence.
  

(ii) Mitigating Factors

• (a) Offenders pleaded guilty early.
• (b) Both are juvenile and first time young offenders.
• (c) Both are students currently attending school.
• (d) They expressed remorse.
  

6. COMPARABLE CASE LAWS
   

16. A number of comparable case laws were cited by the Counsels to assist the Court in deciding the appropriate sentence to impose. I consider them useful and refer to some of them below:
    
    1. State v Benedict [2014] PGNC 106; N5645
       
17. The offender in that case pleaded guilty to one count of Armed Robbery in that he held up a company employee and stole cheques and cash valued at K35, 436.16. He was sentenced to 5 years. None of his sentence was suspended.
    
    2. State v Amon John Kintau & Augustine Felix CR. Nos. 617 & 618 of 2012
       
18. The offenders aged between 17 and 20 years respectively pleaded guilty to robbing from another person K15, 300.00 in cash. At the time they were in company of others and armed with dangerous weapons namely, knives. The offenders paid K7, 582.00 as compensation to the victim and his relatives. They were sentenced to 5 years which was wholly suspended.
    
    3. State v Keith Larry & Ors CR. No. 336 – 338 of 2018 N7432
       
19. The offenders held up the Able Computing shop in Lae and stole electronic equipment namely; laptops, digital cameras, tablet mobile phones, portable boom box speakers, flash drives, computer keyboards, external hard drives, micro SD cards and head phones to the total value of K95, 155.74 being the properties of Able Computing Limited. They later escaped in the getaway vehicle. They were armed with bush knives, kitchen knives and homemade shotguns at the time of the robbery. They were sentenced to 5 years which was partially suspended and placed on good behaviour bond with strict conditions. The Court took into account the fact that the offenders were young and first time offenders and some were students attending school at the time the offence was committed.
    
    7. FACTORS FOR CONSIDERATION IN SENTENCING
       
20. I take the following factors into consideration in deciding the appropriate sentence:
    
    • (i) Prisoners are young and first time offenders. Both pleaded guilty early and have no prior convictions.
      
    • (ii) Family members of the prisoners and community leaders in their Pre-Sentence Report (PSR) urged the Court to consider giving the young offenders another chance and impose a non-custodial sentences.
      
    • (iii) The Probation Officer compiling the PSR also considered the offenders as suitable for probation and recommended that their sentences be partially suspended and they be placed on probation with strict conditions.
      
21. Principles of law on suspended sentence is found in the Supreme Court case of Public Prosecutor v William Bruce Tardrew [1986] PNGLR 91. In that case the Supreme Court sets out three (3) broad categories on suspended sentence. The categories are not exhaustive and are as follows:
    
    • (i) Where suspension will promote personal deterrence, reformation or rehabilitation of the offender.
      
    • (ii) Where suspension will promote repayment or restitution of stolen money or goods; and
      
    • (iii) Where imprisonment would cause an excessive degree of suffering to

a particular offender, for example because of his bad physical or mental condition.

22. I do not find any one of these categories (above) appropriate for the present case. I say this because I do not think the suspension will promote personnel deterrence, reformation or rehabilitation of the offenders. The environment of their respective upbringing is not conducive for any tangible changes to their lifestyle or livelihood at least, in the short to medium term. They both do not have a father figure to be their guide and mentor. This could change when they grow older and become more matured.
    
23. Secondly, given their backgrounds, I do not think both have the capacity and/or the ability to make good any repayment or restitution for the properties stolen hence, suspension of sentence will not promote that category.
    
24. Thirdly, whilst I agree and infact has been, at one stage, a strong advocate on giving young offenders second chance in life by emphasizing rehabilitation, that view unfortunately, is gradually dying away because of the escalation and prevalence of the offence of armed robbery committed by young offenders in recent times. It has reached a new height and is becoming a concern to everyone. The Court must stay relevant and take a strong stance on offences that are becoming too common and prevalent and punish severely the perpetrators involved regardless of their age or background. In particular, West New Britain Province has seen and experienced a lot of armed robbery cases involving young people in recent months and years. Custodial sentence will be a strong deterrence and I intend to consider it for the present case.
    

8. SENTENCE
   

25. I make the following orders:
    
    • (i) I sentence the Prisoners each and severally to Five (5) years imprisonment with light labour.
      
    • (ii) I order that One (1) year and 5 Months be deducted for their pre-trial custody period.
      
    • (iii) I further order that the prisoners be sentenced to serve their remaining balance of Three (3) years and Seven (7) Months in light labour.
      

Orders Accordingly
__________________________________________________________________
Public Prosecutor: Lawyers for the State
Public Solicitor: Lawyers for the Defence