State v Tuku (No. 2) [2024] PGNC 197; N10847 (22 May 2024)

N10847

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR NO. 49 OF 2023

THE STATE

V

SOLOMON TUKU
(No 2)

Kokopo: Miviri J
2024: 20^th & 22^nd May

CRIMINAL LAW – PRACTICE AND PROCEDURE – Aggravated Armed Robbery Section 386 CCA – Trial – Home robbery – Aggravated Armed Robbery Not Denied – Identification – Victims Attacked In Home One Cut – Prevalent Offence – First Offender – Deterrent & Strong Sentence.

Facts
Accused was part of a group of men who were armed with bush knives and went to the dwelling house of John Rusiat assaulted his in law broke down the door entered assaulted another in law and stole a chainsaw and assorted personal items to the value of K 5, 726.50 all belonging to John Rusiat, and escaped.

Held
Aggravated Armed Robbery of a home.
Prevalent Offence.
First Offender
Strong Deterrent Sentence.

Cases Cited:
Anis v The State [2000] PGSC 12; SC642
Gimble v The State [1988-89] PNGLR 271
Wani v The State [1979] PNGLR 593
Public Prosecutor v Hale [1998] PGSC 26; SC564
Lahui, Hetau, Noho, and Eki, The State v [1992] PNGLR 325
Simbago v The State [2006] PGSC 23; SC849
State v Herman Eliakim Sai & Mori Joe Simbu [2018] N7309
State v Malo [2006] PGNC 231; N4520
Marase v The State [1994] PNGLR 415
Gorop v The State [2003] PGSC 1; SC732

Counsel:
J. Sausoruo & D. Mark, for the State
N. Loloma, for the Defendant

SENTENCE

22^ndMay 2024

1. MIVIRI J: This is now the sentence after trial of Solomon Tuku of Tindomi village, Nipa District, Southern Highlands who was convicted with Aggravated Armed Robbery of the dwelling house of John Rusiat. In that he accompanied others armed with bush knives at nighttime on the 4^th October, 2022 at Gunanur, East New Britain Province assaulted John Rusiat and others using actual violence stole a 070 steel Chainsaw and assorted personal properties including clothes bag valued altogether at K5, 726. 50 all the property of John Rusiat and escaped.
   
2. The section is in the following terms: -
   

“(1) A person who commits robbery is guilty of a crime.
Penalty: Subject to subsection (2), imprisonment for a term not exceeding 14 years.
(2) If a person charged with an offence against subsection (1)—
(a) is armed with a dangerous or offensive weapon or instrument; or
(b) is in company with one or more other persons; or

(c) at, immediately before or immediately after, the time of the robbery,

wounds or uses any other personal violence to any person,

he is liable subject to Section 19, to imprisonment for life.” [Criminal Code (Amendment) Act 2022(certified 12 April 2022)]

3. He could be sentenced to a maximum of life imprisonment given that there was personal violence exerted upon the complainants in this matter. Because here personal violence is used with the use of offensive, but that would be subject to the discretion of the Court. Which would be exercised after consideration of all relevant mitigating aggravating features including extenuating circumstances. The facts and circumstances here depict that a determinate term will be imposed upon the prisoner.
   
4. In this regard Anis v The State [2000] PGSC 12; SC642 (25 May 2000) is relevant in the determination of a tariff and range of sentences. Notably that would be starting at 10 years here because this is dwelling house that was the subject of the robbery. And it is aggravated by the fact that violence was used against the victims one was cut but that is not the subject of further evidence to determine the extent of the injuries. The witness Noel Palina did not demonstrate any residual injuries because of that attack. And it is before the Court also that the subject chain saw was recovered.
   
5. At the outset there is no extenuating circumstance depicted out by the finding of facts in the trial. In that it was held as a fact that the accused Solomon Tuku was part and partial of the aggravated armed robbery upon John Rusiat. His identification has been established beyond all reasonable doubt at this location on the 04^th October 2022. He was part and partial of that robbery. Because he is a principal offender by read of Gimble v The State [1988-89] PNGLR 271 at 273, “The general rule is that all active participants in the crime shall be sentenced on the same basis The Court does not normally stop to consider whether a particular prisoner actually held up the victim, or held the gun, or the iron bar, or was a watchman outside, or was the driver of the get-away vehicle. All are equally guilty because without each playing his part the crime could not be perpetrated.” He was an active participant in accordance with Wani v The State [1979] PNGLR 593. His sentence will entail the role that he played in the offence.
   
6. He is a first offender aged 27 years old originally from Mendi in the Southern Highlands. And is married with a child and has been in remand now for 1 year 7 months since October 2022. That time will be deducted forthwith from the head sentence imposed forthwith. He has apologised on allocutus when given that opportunity.
   
7. Homes dwelling houses must be protected and crimes of violence that visit a home as here must be deterred by strong deterrent and punitive sentences. Sentencing discretion must properly take account of that fact Public Prosecutor v Hale [1998] PGSC 26; SC564 (27 August 1998). Every home whether built as a castle or shack must be protected, because a human being is resident within. It is a basic need that there is a home, shelter that one goes to after the toil of the day. And sentences must protect the human from intruders who exert violence as here. It is a very prevalent offence and should not be treated as lightly, by going as they did prisoner and those who were with him put the lives of both those who were there at risk. And it does not need to be looked far to see the grave result of robbery: Lahui, Hetau, Noho, and Eki, The State v [1992] PNGLR 325; Simbago v The State [2006] PGSC 23; SC849 (31 August 2006).
   
8. There are many others reported of such magnitude to state fundamentally that it is not the proceeds of the robbery, but the manner in which the crime is perpetrated. Guns are lethal and dangerous weapons and have in many instances killed in the course of robberies State v Herman Eliakim Sai & Mori Joe Simbu [2018] N7309 (20 June 2018). Including bush knives. It is even more lethal with homemade guns that do not have safety in the weapons as in the case of factory-made ones. The production is with anticipation that there will be resistance it is therefore well planned to time to execute with as little resistance and in the event of to have weapons ready as demonstrated here. And the role of the prisoner is important in this regard.
   
9. Lawlessness in this way has no place and must be stopped with strong deterrent denouncing and punitive sentences. This is the intent of parliament with the prescription of the maximum penalty of this offence to life years IHL. Because it is a very prevalent offence, human life must be protected from harm. It is immaterial whether or not the prisoner benefitted or not. He has a life that he will not doubt go back to, but it must be drawn to him that crime has no place in orderly society. He must therefore pay his dues for the wrong committed.
   
10. In State v Malo [2006] PGNC 231; N4520 (19 December 2006) a store was robbed of K 165,924.17 with use of guns and firearms a vehicle was also stolen in that robbery. Police pursued and apprehended the prisoner who was slashed with a knife when apprehended. He pleaded guilty and was sentenced to 8 years IHL. In my view the amount stolen does not weigh heavily in the sentence that is determined it is more to do with the way that the robbery is carried out. And this view is consistent with Marase v The State [1994] PNGLR 415 where the appeal was dismissed and the 19 and half year IHL was confirmed for rape and robbery.
    
11. The converse is Gorop v The State [2003] PGSC 1; SC732 (3 October 2003) where the 20 years sentence for robbery was reduced to 18 years because the National court did not accede to current sentencing trend and tariff. Appellant had badly assaulted a tourist couple with a hockey Stick injuring both seriously and then stealing their properties. Consistent in all cases is the fact that it is a serious and violent offence which must be sternly punished. The facts here are a lot less serious and do not warrant going above 10 years imprisonment IHL. He is a first offender no doubt he will learn from today that it does not pay to commit a crime.
    
12. He is sentenced to 9 years imprisonment in hard labour given all the aggregate of all I set out above. Time in custody of one (1) year seven (7) months since October 2022 will be deducted from that 9 years IHL. He will serve the balance in jail 7 years 5 months IHL in jail forthwith.
    

Orders Accordingly
__________________________________________________________________
Public Prosecutor: Lawyer for the State
Public Solicitor : Lawyer for the Defendant