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State v Ata [2024] PGNC 155; N10806 (30 April 2024)

N10806


PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]


CR NO. 665 OF 2023


STATE

V

CYLDE ATA
Prisoner


Bulolo/Lae: Polume-Kiele J
2023: 5th, 9th, 16th & 23rd October
2024: 7th February, 19th March, 3rd & 30th April


CRIMINAL LAW – Guilty Plea –Criminal Code Act - s 386 (1) (2) (a) & (c), Robbery- 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 4 years imprisonment- less period held in custody- s 3(2) Criminal Justice (Sentences) Act - Sentence partly suspended, s19, Criminal Code


Brief facts


The prisoner was arrested and charged for one count of armed robbery with actual violence a sum of K240 cash and properties valued at a sum of K290.00, the property of Emma Ronald whilst armed with an offensive weapon, namely a bush knife and that he also applied personal violence to the victim, actions which contravened s 386 (1), (2) (a) (c) of the Criminal Code.


The brief facts are that on Monday, 21 November 2022, between 8 a.m. and 9 a.m., the complainant, Emma Ronald and her son were walking along the main road at Water Supply Compound, Bulolo, when she was held up by the accused, Clyde Ata who was armed with a knife, a dangerous weapon. The accused then grabbed the complainant’s bilum which contained cash money in the sum of K240 and two mobile phones, a Vodafone Touch screen valued at a sum of K240.00 and a Huawei button phone valued at a sum of K50.00. At, immediately before or immediately after, the time of the robbery, the prisoner during the struggle to get the bilum then swung the bush knife at the victim, Emma Ronald and cut her on the wrist and head.
The prisoner is about 21 years old and comes from Akumbara Village, Angoram District, East Sepik Province. He is single and has no formal education and is unemployed. Prior to and at the time of the commission of the offence, the prisoner was living with his family at the Water Supply, Bulolo, Morobe Province. He supports himself and his family financially through panning for gold.


Cases Cited.

Goli Golu v The State [1979] PNGLR 653
Thress Kumbamong v The State (2008) SC1017
Saperus Yalibakut v The State (2006) SC890
The State v Nelson [2005] N2844
Gimble v The State [1988] PNGLR 271
The State v Liliura [2014] N5785
State v Gobe [2011] N4547
Ure Hane v the State [1984] PNGLR 105
Public Prosecutor v Hale [1998] PGSC 26; SC564
State v Nigel Kopper Kingsley (2011) N4465
State v Tingin [2005] PGNC 5; N2956
State v Knox [2008] PGNC 79; N3339
State v RG (CR (JJ) NO. 69 OF 2022) (Unreported judgment, 14 August 2023)


Counsel


Ms. S. Joseph, for the State
Mr. C. Boku, for the Prisoner


SENTENCE


30th April 2024


  1. POLUME-KIELE J. The prisoner was indicted on 5 October 2023 for one count of armed robbery with actual violence contrary to s 386 (1), (2) (a) (c) of the Criminal Code Act (Ch No 262). This offence attracts a penalty subject to s 19, imprisonment for life.
  2. The prisoner pleads guilty to the charge of armed robbery with actual violence contrary to s 386 (1), (2) (a) (c) of the Criminal Code Act (Ch No 262). The State invoked s 7 (1) (a) (b) (c) of the Criminal Code Act.
  3. On 16 October 2023, he was arraigned and his guilty plea to the charge of one count of armed robbery with actual violence contrary to s 386 (1), (2) (a) (c) of the Criminal Code Act (Ch No 262) was accepted and confirmed.
  4. The Court then entered a conviction against the accused on the charge of one count of armed robbery with aggravation contrary to s “386 (1) (2) (a) (c) of the Criminal Code.
  5. The Offence of Robbery is provided for under Section 386 of the Criminal Code.

“Section 386 reads:


(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) –

Committal Court Disposition


  1. The State relied on documentary evidence which comprised mainly of statements from the witnesses including the victims and the Police Record of Interview dated 9 March 2023. All these documents were contained in the Bulolo District Court Deposition and tendered into evidence by consent.
(a) The Record of Interview comprised both the original Pidgin and English Version dated 9 March 2023 conducted between the prisoner and the Investigating Officer, Constable Yansai Bana relating to the offence of armed robbery which occurred on 21 November 2022. The corroborating police officer was Constable Henry Kowa. Both officers are attached to the Bulolo Police Station. In that Record of Interview, the prisoner Clyde Ata admitted to having committed “the offence of armed robbery whilst “armed with a dangerous or offensive weapon or instrument; and that at, immediately before or immediately after, the time of the robbery, wounds or uses any other personal violence to a person, namely Emma Ronald...”

(b) The Statement of Emma Ronald dated 2 March 2023 who is the victim in this matter including the statements of Susan Nawi, her sister in-law dated 3 March 2023, Health Extension Officer, Gershom Guambelek dated 13 March 2023 and the statements of Constable Yansai Bana, (Investigating Officer), dated 10 March 2023, Constable Henry Kowa (Corroborator) dated 12 March 2023 and Constable Teddy Sangi dated 7 March 2023 of Bulolo Police Station. All these statements respectively confirmed the identity of the accused and the circumstances and his demeanour at the time of the commission of the offence including the interrogation and record of interview relating to the laying of the charge against the prisoner.
  1. Upon the reading of the Committal Court dispositions and being satisfied that the evidence contained in the dispositions supported the charge and also having noted the admissions contained in Questions and Answers No. 13 to 41 of the Record of Interview dated 9 March 2023; I accepted the prisoner’s guilty plea. I then entered a conviction against the prisoner on the charge of robbery with actual violence under s 386 (1), (2) (a) & (c) of the Criminal Code Act (Ch No 262).

Antecedent Report


  1. The antecedent report tendered into evidence by the State disclosed that the prisoner is a young adult male aged about 20 years old. He is unemployed. He did complete Grade 5 at St Stephen Primary School. The prisoner has no prior convictions and is a first-time offender.

Allocutus


  1. In administering the allocutus, the prisoner was asked if he had anything to say on the issue of penalty. He replied, yes. He was then given the opportunity to speak. In his statement on penalty, he said that he was sorry for what he did. He said sorry for breaking God’s 10 commandments. Sorry for breaking the Constitution. He also said sorry to the victims for what he did. He says sorry to the Police, CS officers, the court and those who are in Court for what he did. In addition, he asked for God’s mercy and the mercy of the Court when determining penalty. He also asked for leniency from the Court and request that he be placed on probation. Furthermore, he said sorry to his family, the community and church leaders of his area.

Pre-Sentence Report


  1. Because he had asked to be placed on probation, his lawyer, Mr Boku requested that this Court direct the Community Based Corrections (CBC) Office to prepare a Pre-Sentence Report to be complied on the prisoner and have it filed for purposes of assisting this Court determine the issue of penalty.
  2. This process is a necessary component of the Court process where prisoners have exercised their right to ask the Court to be placed on probation. To facilitate this process, this Court had directed the Probations Officer, (Bulolo) to prepare and file a Pre-Sentence Report on for purposes of determining your suitability as a candidate for probationary orders and also issued orders that these reports be filed prior by 23 October 2023.
  3. The Pre-Sentence Report received from the CBC Office, Bulolo on 6 November 2023 is available to the Court. The overall assessments contained in the report appears favourable to the prisoner. It indicated that some form of compensation in the sum of K1,200.00 in cash and food items valued at a sum of K200 were made as an offer of restitution to the victim and her family. His mother, Mrs Cathy Ata expresses sorrow that her son was involved in such an offending but is hopefully that her son who is a likeable person, hardworking and pans for gold to support the family will have learnt from his mistake and not reoffend. Similarly, a community leader, Mr. Phillip Rudolph also speaks well of the prisoner and says that the prisoner is a well-liked person and someone who engages in panning for gold most of his free time. Whilst Mr. Rudolph is surprised at what happened on that date, he understands that the victim had stated that she had been compensated for the wrong done to her and that she wants to put the matter to rest. However, noted that the matter has progressed this far and thus could not do much about it. Her letter dated 6 June 2023 of the withdrawal of the complaint and photograph of the compensation payment ceremony is attached to the pre-sentence report. The pre-sentence report also in its conclusion recommended that the prisoner is a suitable candidate for a non-custodial sentence for a period of 2 to 3 years and that he be placed on probationary supervisory orders on terms.

Mitigating Factors


  1. In determining the severity of sentence, the Court took into consideration mitigating factors relevant to your case, such as your early guilty plea, which greatly assisted this Court in arriving at this early outcome. In addition, this Court also noted that you are a first-time offender, your co-operation with the police and explanation as to how you committed the offence in the Record of Interview and recommendations contained in the pre-sentence report. These are factors in your favour.

Aggravating Factors


  1. The aggravating factors against you are however that although the sum of money stolen is not very substantial, it should be pointed out that this Court does not condone your actions including acts of actual violence on the victim. You robbed the victim of her cash of K240.00 and properties valued at K250.00. During the robbery you also applied physical violence on her persons by pulling her bilum, cutting her on her wrist and head with a bush knife, immediately and/or during the commission of this robbery. This type of offence is prevalent.

Application of the law to the facts


  1. In order to substantiate the charge of armed robbery, the elements of the offence must be established by evidence under section 386(1) (2) (a) (c) of the Criminal Code; the State must prove the following:
  2. In your case, the State did not call any oral evidence to corroborate the evidence contained in the various witnesses’ statements but relied on these oral statements which had been tendered into evidence by consent to substantiate the allegations. These witnesses’ statements clearly showed that a robbery had occurred along the Water Supply Compound Road, Bulolo Town. The robbery occurred within the surroundings of the Water Supply Compound Road on 21 November 2022. The cash amount of K240 and properties valued at K250 were not recovered by police. You were arrested on 3 March 2023 and charged for the offence.
  3. For purposes of this charge, money is capable of being stolen and the commission of this robbery was carried out with the use of a bush knife which is a dangerous and offensive weapon. In addition, personal violence was used to commit the robbery whereby the victims were threatened with a bush knife and the victim, Emma Ronald sustained a cut on her wrist, and a cut on the head with a bush knife.

Submission on Sentence


  1. Mr. Boku in his submission on your behalf submitted that although you pleaded guilty upon indictment to the charge of one count of armed robbery with actual violence contrary to the Criminal Code Act; for which the maximum penalty prescribed under s 386 (1), (2) (a) & (c) of the Criminal Code Act (Ch No 262) is subject to s 19, life imprisonment. Mr Boku reiterated that the courts have wide discretion under s 19 of the Criminal Code to impose a lesser penalty. Thus, the issue before the court is whether you should be sentenced according to the penalties prescribed under s 386 (1), (2) (a) & (c) of the Criminal Code Act (Ch No 262), which is subject to Section 19, to imprisonment for life.
  2. Mr. Boku submitted that whilst you had used force or used a lethal weapon, namely a bush knife to apply personal violence and cut the victim, Emma Ronald on the right wrist and head, during the commission of the offence, Mr. Boku submitted that your present case does not warrant the imposition of the maximum penalty. He submitted therefore submitted that the imposition of the maximum penalty should be reserved for the worst of category offence under consideration: Goli Golu v The State [1979] PNGLR 653, further, the Courts have unfettered sentencing discretion and are not necessarily bound by the Supreme tariffs when considering sentence: Thress Kumbamong v The State (2008) SC1017; and where in plea cases, “... the offender must be given the benefit of any reasonable doubt and if there are contentious facts in which there is no agreement, the Court should act on the version of the facts which, within the bounds of possibility, is most favourable to the accused: Saperus Yalibakut v The State (2006) SC890. Mr Boku further submitted that since the prisoner had pleaded guilty early, the prisoner has gained considerable benefit by his early plea by saving the Court’s time and expenses in running a trial of the matter. He relied on the case of The State v Nelson [2005] N2844 which is a rape case to support his submission on leniency.

Sentencing guidelines


  1. In his overall submission on sentence, Mr. Boku refer the Court to the sentencing guidelines enunciated in the case of Gimble v The State [1988] PNGLR 271 which case sets out the category of robbery and the term of sentence imposed which are useful guides in sentencing. These are:

(i) Category 1 – Robbery of a house 7 years
(ii) Category 2 - Robbery of a bank 5 years
(iii) Category 3 - Robbery of a store and vehicle 5 years
(iv) Category 4 - Robbery of a person on a street 3 years


  1. Another case authority cited by Mr. Boku is the case of The State v Liliura [2014] N5785. In that case, the Court had reviewed the sentencing guidelines set out in Gimble v The State (supra) which the Court viewed as outdated. The Court increased the sentencing guidelines, and this is set out as follows:

(i) Category 1 – Robbery of a house 10 years
(ii) Category 2 - Robbery of a bank 9 years
(iii) Category 3 - Robbery of a store and vehicle 8 years
(iv) Category 4 - Robbery of a person on a street 8 years


Starting point of sentence


  1. Mr. Boku in his submissions submitted that this Court should follow the guidelines set out in Gimble v The State (supra) he proposed that a sentence of 3 years be imposed but due to the increase in the sentencing trends for armed robbery, he submits that the starting point of sentence be of 6 years imprisonment.

Comparable cases


  1. The court was referred to a case of similar circumstances which involved another street offending in the case of State v Gobe [2011] N4547 where his Honour Yagi J imposed a sentence of 4 years imprisonment with probationary conditions with the suspension of the whole sentence after deducting the pre-sentence period. In that case, the offender was a juvenile aged about 17 years old. Sometime in August 2009, he and his accomplices were standing at Minogore Police Barracks in Piswara Settlement, Goroka, EHP. His accomplices were older in age. They were armed with dangerous weapons. The prisoner was armed with a bayonet whilst his accomplices were armed with a pistol and bush knives. They held up two females as they disembarked at the bus stop and robbed them of K300.00 and 2 Nokia mobile phones. Later, the mother of the prisoner returned the items and refunded the K300.00 to the victims.
  2. In adopting and applying findings of the trial judge in State v Gobe (supra), Mr. Boku submitted that the head sentence to be imposed in this present case should be set at 3 years less the pre-sentence custody period applied in the case of The State v RG, CR. No. (Unreported judgment, 2022) as per s 3 (2) of the Criminal Justice (Sentence) Act and the balance of the prison term wholly suspended given the youthfulness of the offender.
  3. Whilst I accept that this case is a street offending cash of K240.00 and a mobile phone valued at K540.00 were not returned to the victim, Emma Ronald. It was never recovered.

Submission from the State.


  1. In reply, Ms Joseph for the State submitted that this is a case where you, had robbed the victim of her cash of K240.00 and property valued at K540.00. You applied physical violence on her whilst out on the street, walking with her son.
  2. Ms Joseph submitted that you; at, immediately and during the commission of the offence used force or used a lethal weapon, namely a bush knife to apply personal violence by cutting Emma on the wrist and head. Ms Joseph further submitted that to date, no attempts have been made to reconcile or to pay compensation to the victims. In addition, your statement on allocutus did not disclose that there was any genuine attempt or efforts made to do so.
  3. However, by perusing the pre-sentence report filed on 6 November 2023, I note that there is mention of some payment of K1,200 cash and K200 worth of food items being made to the victim as compensation.
  4. With regard to 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 impose conditions as to the payment of compensation and to reconcile and make peace with the victims and their family. Overall, Ms Joseph submitted that the Court exercise discretion to impose a custodial sentence.
  5. Furthermore, the maximum penalty prescribed for an offence is reserved for the worst form or category or offending for that particular offence as stated in the case of Ure Hane v the State [1984] PNGLR 105. In addition, in Lawrence Simbe v The State [1994] PNGLR 38, the Supreme Court held that the principle in determining sentence, is that each and every case should be decided on its own peculiar facts and circumstances. Furthermore, this court was referred to several comparable case authorities by Ms Joseph in her address on sentence which were very useful in my deliberations. These cases are that of Gimble v The State (supra) which had been ably covered by Mr. Boku in his address on sentence. In that case, the starting point for robbery of a person on the street is 3 years. That category of sentence I note has since increased to 8 years as held in The State v Liliura (supra).
  6. This Court was also referred to the case of Public Prosecutor v Hale [1998] PGSC 26; SC564, which is a robbery case involving threats against a family in their home at night and robbery of a television set. A sentence of 5 years which was wholly suspended on probationary conditions with a fine of K1000.00 was quashed by the Supreme. The prisoner was re-arrested to serve a custodial sentence of 5 years imprisonment.
  7. In this present case, Ms Joseph submitted that the starting point should be set at 6 years imprisonment given that you have admitted to the offence.

Determination of sentencing criteria


  1. In applying the sentencing criteria prescribed under s 386(1) (2) (a)(c) of the Criminal Code, it follows that the following elements must be established by evidence or its existence to be inferred. These elements are that:
  2. According to the various statement relied upon by the State, they clearly show that a robbery occurred on 21 November 2022. The oral evidence to corroborate the allegations are contained in the various witnesses’ statements tendered into evidence by consent to substantiate the allegations. These witnesses’ statements clearly showed that a robbery had occurred along the Water Supply Compound Road, Bulolo Town. The robbery occurred within the surrounding of the Water Supply Compound Road on 21 November 2022. The cash amount of K240 and properties valued at K540 were not recovered by police.
  3. You were arrested on 3 March 2023 and charged for the offence.
  4. For purposes of this charge, money is capable of being stolen and the commission of this robbery was carried out with the use of a bush knife which is a dangerous and offensive weapon. Furthermore, personal violence was used to commit the robbery whereby the victims were threatened with a bush knife and the victim, Emma Ronald sustained a cut on his right wrist and cut on the head with a bush knife.
  5. The sentencing guidelines in the case of Gimble v the State [1988-89] PNGLR 271 is relevant in this case where several indicators were used to determine the severity of sentence, and these were:
  6. The principle applied in the case of Gimble v State (supra), was decided more than 25 years ago, and outdated as the range of sentence terms imposed by the Courts has since increased due to the prevalence of such offences.
  7. Whilst I acknowledge that Mr Boku on your behalf submitted 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 referred this Court to the following cases; Avia Aihi v the State [1982] PNGLR 92 and Ure Hane v the State [1984] PNGLR 105 and invited the Court to determine the facts and circumstances of each case on its own merits in order to determine an appropriate penalty.
  8. Mr. Boku submitted further that for this case, you did not plan to rob the victim, it was a spur of the moment to rob the victim as she walked by on the road to visit relatives at Water Supply, Bulolo. The victim Emma Ronald sustained injury to her right hand.
  9. This Court is assisted with citation of a number of case law, and I refer to these accordingly in determining penalty. In the case of State v Nigel Kopper Kingsley (2011) N4465, the offender had pleaded guilty to taking part with another person in a holdup of a victim on the street whereby the victim was threatened with a hammer which had been disguised as a home-made gun and stealing his bilum containing his personal items including two mobile phones. Whilst there was no actual physical violence occasioned on the victim, the victim was nevertheless traumatized by the incident. The offender was subsequently sentence to three years imprisonment.
  10. In State v Tingin [2005] PGNC 5; N2956 (26 September 2005) and State v Knox [2008] PGNC 79; N3339 (15 May 2008), the respective offenders were part of a group that had planned a holdup and robbery of persons walking their way and at a Golf Course. Items of value stolen included cash, wristwatches, shoes, golf club, bush knife, tools, and other personal items. The Court in determining sentence imposed a sentence of 11 and 9 years. In the case of the State v Tingin case (supra), the offenders were sentenced to imprisonment for a term of 7 and 6 years respectively with three years of the sentence suspended on terms.
  11. Equally, matters that are taken into account in determining an appropriate penalty are your mitigating and aggravating factors. Whilst this Court noted that you have pleaded early in your indictment which has led to the Court saving time and expenses. This also included your cooperation with the police and that you are a first-time offender. It is also noted that the value of the money stolen is not substantial and that the prisoner acted alone. You have also expressed remorse for your wrongs and apologised to the Court for your actions.
  12. The aggravating factors against the prisoner however are that your actions had affected the victim who has loss her valuables which have not been recovered.

Pre-Sentence Report


  1. I also note that the Probation Officer has indicated that you are a suitable candidate for a suspended sentence would be an appropriate penalty. Although the Pre-Sentence Report acknowledges that, the offence is serious in nature, in that you have applied actual physical violence on the victim. The PSR also indicated that the prisoner had paid compensation and reconcile with the victim and their family.
  2. In applying the guideline established in the Gimble case (supra), it is therefore relevant that Category (4) above which set the starting point of sentence of three years for robbing a person on a street to be used in determining penalty.
  3. Also taken into account are the requirements of s 19 of the Criminal Code which empowers the Courts to exercise discretion in determining the severity of sentence. This court also noted that you have by his own admission pleaded guilty to the charge. This has reduced the time and costs of having this matter tried if he had denied it and the prisoner had also apologised and is a first offender which is confirmed by the antecedent report presented by the State. These matters are taken into consideration because they support the consideration as to whether or not to exercise discretion with regard to a suspended sentence.
  4. The Pre-Sentence Report provided by the Probation Officer has also recommended that you are a suitable candidate for a suspended sentence and this is supported by the case of the Public Prosecutor -v- Don Hale (1998) SC564 and where the prisoner has requested for a suspended sentence. In the light of the matters discussed above, I am satisfied a partly suspended sentence is appropriate.

Pre-Trial Detention


  1. You were remanded to stand trial on the charge of robbery with actual violence under s 386 (1), (2) (a) & (c) of the Criminal Code Act (Ch No 262) on the 31 July 2023 and had been in remand for a period of 9 months to the date of this ruling on sentence.
  2. In the circumstances and upon consideration of the above factors outlined in this ruling, I hereby sentence the prisoner to 4 years imprisonment with hard labour less the period of 9 months that the prisoner has been held in custody pursuant to s 3 (2) of the Criminal Justice (Sentences) Act 1986.
  3. In the exercise of discretion under s 19 of the Criminal Code, 2 years of the sentence is suspended.
  4. The prisoner is to serve the balance of the term of sentence of 1 years 3 months imprisonment at CIS, Buimo

Order of the Court


  1. Having convicted you, Clyde Ata on one count of robbery with actual violence contrary to Section 386 (1) (2) (a) (b) and (c) of the Criminal Code, you are now sentenced as follows:

Length of sentence imposed: 4 years.
Pre-sentence period deducted: 9 months.
Balance of term of sentence to be served: 3 years 3 months.
Amount of sentence suspended: 2 years.
Time to be served in custody: 1 years 3 months.


Sentenced accordingly.
__________________________________________________________________
Public Prosecutor: Lawyer for the State
Public Solicitor: Lawyer for the Prisoner


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