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State v Suwi [2024] PGNC 259; N10924 (10 June 2024)

N10924


PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]


CR NO. 1553 OF 2023


BETWEEN:
THE STATE


AND:
REX KAISONGE SUWI
of KASANGARE VILLAGE, WAU/WARIA, MOROBE PROVINCE
Prisoner


Bulolo/Lae: Polume-Kiele J
2023: 2nd, 5th, 13th, 16th & 24th October
2024: 7th February, 30th April, 2nd May, 7th & 10th June


CRIMINAL LAW – Guilty Plea –Criminal Code Act - s 386 (1) (2) (a) & (b), Robbery- Penalty of which is subject to s 19, imprisonment for life – State invoked s 7 (1) (a) (b) (c) – Criminal Code


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


CRIMINAL LAW – Sentenced to 8 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 arrested and charged for one count of armed robbery with actual violence and robbed a store, of money valued at K6,500.00 and properties valued at K4,000.00 the property of Tamana Enterprise Limited whilst armed with an offensive weapon, namely a home-made gun, bush knives, and sling shot. That he also applied personal violence to the victim, actions which contravened s 386 (1), (2) (a) & (b) of the Criminal Code.


The brief facts are that on 26 February 2023, between 12 midday and 1 p.m. the accused, Rex Kaisonge Suwi was in the company of several accomplices, armed himself with an offensive weapon, namely a home-made gun, bush knives, and sling shot. He entered Tamana Enterprise Limited and he also applied personal violence to the victim and robbed the store of money valued at K6,500.00 and properties valued at K4,000.00 the property of Tamana Enterprise Limited.


The prisoner is about 29 years old and comes from Kasangare Village, Wau/Waria LLG. He was married and doing Grade 9 at Grace Memorial Secondary School when he was arrested and charged with the offence.


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
The State v Aaron Lahu [2005] N2798
The State v RG, CR. No. CR (JJ) 69 of 2022 (Unreported judgment, 14 August 2022)
Ure Hane v the State [1984] PNGLR 105.
Lawrence Simbe v The State [1994] PNGLR 38
Public Prosecutor v Hale [1998] SC564
Avia Aihi v the State [1982] PNGLR 92
The State v Justin Komboli (2005) N2891
State v Potenai Ena -CR No. 1222 of 2019 (Unpublished Judgement) 23 February 2022


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


SENTENCE


10th June 2024


  1. POLUME-KIELE J: On 5 October 2023, Ms Tamate of the Office of the Public Prosecutor presented an indictment charging the accused for one count of armed robbery under Section 386 (1)(2)(a)(b) of the Criminal Code Act Chapter No.262 (hereinafter referred to as the Criminal Code).
  2. The State invoked Section 7 (1) (a) (b) (c) of the Criminal Code.
  3. The prisoner pleads guilty to the charge of armed robbery with actual violence contrary to s 386 (1), (2) (a) (b) of the Criminal Code Act (Ch No 262).
  4. 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) (b) of the Criminal Code Act (Ch No 262) was accepted and confirmed.
  5. 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) (b) of the Criminal Code.
  6. 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) –
  1. The State invoked s 7 (1) (a) (b) (c) of the Criminal Code Act.

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) ...

(3) ...

(4) ...

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 Gilbert Malum relating to the offence of armed robbery which occurred on 21 November 2022. The corroborating police officer was Constable Alice Winn. Both officers are attached to the Wau Police Station. In that Record of Interview, the prisoner Rex Kaisonge Suwi admitted to having committed “the offence of armed robbery whilst “armed with a dangerous or offensive weapon or instrument; and that at Tamana Enterprises Limited ...” and stole money and properties valued at K10,500.00 and at the time of stealing it used actual violence to obtain the thing stolen.

(b) The Statement of Emin Hossain undated who is the victim in this matter includes the statements of Nelson Japeth dated 27 February 2023, Roselina Toney dated 27 February 2023. David Sam dated 11 March 2023, Moses Kapli dated 27 February 2023, Gilbert Malum dated 15 March 2023 and Alice Winn dated 11 March 2023. All these statements respectively confirmed the identity of the accused and the circumstances leading to the offending, 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 noting the admissions contained in Questions and Answers No. 15, 17, 18, 19 and 20 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) (b) 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 9 at Grace Memorial Secondary School, Wau. 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. 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.
  2. The Pre-Sentence Report received from the CBC Office, Bulolo is dated 23 October is available to the Court. The overall assessments contained in the report appears favourable to the prisoner. It states that the offender is sorry for what he did. He accepts responsibility for his actions and that he will now have to face the consequences of his actions. The report states that the offender does show a lack of confidence and is unsure of himself and that he can easily be influenced by others. The report also states that the offender’s immediate family live at East Taraka and a brother who is a student at the Balob Teachers College and the offender was staying with relatives in Wau, when he committed the offence. So, given this information, the offender really has no fixed address. 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 its cash and properties valued at K10,500.00 and at the time of stealing it used actual violence in order to obtain the thing stolen. This type of offence is prevalent.

Application of the law to the facts


  1. The State must prove by calling or adducing evidence under section 386(1) (2) (a) (b) of the Criminal Code that to show the following elements of the offence. These elements are that:
  2. As you pleaded guilty, the State did not call any oral evidence to corroborate the evidence contained in the various witnesses’ statements. The State 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 at Tamana Enterprise Limited, Wau Town. The robbery occurred within the surroundings of Tamana Enterprise Limited, on 26 February 2023. The cash and properties valued at K10,500.00, the properties of Tamana Enterprises Limited were not recovered by police. You were arrested and charged for the offence on 9 March 2023.
  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 homemade guns, slingshot and bush knives which are a dangerous and offensive weapon. In addition, personal violence was used to commit the robbery whereby the victims were threatened with homemade guns, slingshot and bush knives.

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) & (b) 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.
  2. Thus, the issue before the court is whether you should be sentenced according to the penalties prescribed under s 386 (1), (2) (a) (b) of the Criminal Code Act (Ch No 262), subject to Section 19, to imprisonment for life.
  3. In this present case, you used force or used a lethal weapon, namely homemade guns, slingshot and bush knives, to apply personal violence on the store manager and his staff, during the commission of the offence. However, Mr. Boku submitted that your 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 worst of category offence under consideration: Goli Golu v The State [1979] PNGLR 653. Furthermore, 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. In the situation where you have entered a plea of guilty, “... the offender (you) 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. In addition, Mr Boku further submitted that since you (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. The sentencing guidelines enunciated in the case of Gimble v The State [1988] PNGLR 271 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. These sentencing guidelines were reviewed by the Court in the case of The State v Liliura [2014] N5785 and in its review, the Court were of the view that the sentencing guidelines set out in Gimble v The State (supra) is outdated. In The State v Liliura (supra), the Court increased the sentencing guidelines. The current sentencing guidelines for the offence of robbery are 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. For your case, Mr. Boku 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. However, he conceded that due to the increase in the sentencing trends for armed robbery, he submits that the starting point be of 8 years imprisonment.

Comparable cases


  1. Several comparable cases involving armed robbery of a store or supermarket for purposes of parity in determining sentence were cited by Mr. Boku. However, I am minded to refer to only one which I consider relevant and that is the case of The State v Aaron Lahu [2005] N2798, [per Canning J]. In that case, ), the offender entered a guilty plea for armed robbery. The offender and others, armed with a gun and bush knives, robbed a Hoskins Mart Store in Hoskins, West New Britain, on the night of 5 March 2004. The Court imposed a sentence of 4 years imprisonment with probationary conditions with the suspension of the whole sentence after deducting the pre-sentence period.

Submission from the State


  1. In reply, Ms Joseph for the State submitted that this is a case where you robbed the victim of their cash and properties worth a sum of K10,500.00 at the store. She further 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 the Store manager and his staff of Tamana Enterprise Limited. In addition, to date, no attempts have been made to reconcile or to pay compensation to the victims and your statement on allocutus did not disclose that there was any genuine attempt or efforts made to do so.
  2. On 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.
  3. Overall, the Court exercise discretion to impose a custodial sentence. The maximum penalty prescribed for an offence is reserved for the worst form or category or offending for that particular offence: Ure Hane v the State [1984] PNGLR 105. The principle in determining sentence, is that each and every case should be decided on its own peculiar facts and circumstances: Lawrence Simbe v The State [1994] PNGLR 38,
  4. In determining what would be an appropriate sentence to impose, I will be guided by the case authorities of Gimble v The State (supra) and The State v Liliura (supra) including the sentencing trends relating to robbery cases.
  5. In Public Prosecutor v Hale [1998] 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. This case shows that the Court is really concerned about the penalties that are imposed for offences involving robbery. It indicates that the Court sentences imposed are not having a deterrent effect.
  6. For your case, Ms Joseph submitted that the starting point should be set at 8 years imprisonment given the admission to the charge.

Determination of sentencing criteria


  1. There are four elements to the offence of armed robbery under s 386(1) (2) (a)(b) of the Criminal Code, it follows that the following elements must be established by evidence or its existence to be inferred. In your case, you have admitted to the charge. In any case, the elements are that:
  2. Documentary evidence tendered into evidence by consent also confirmed the charge. These documents include various statements relied upon by the State, which clearly show that a robbery occurred on 26 February 2023 at the Tamana Enterprise Limited store at Wau Town. The robbery occurred within the surroundings of the Tamana Enterprise Limited store. The cash amount of K10, 500.00 was not stolen which was not recovered by the police.
  3. You were arrested and charged for the offence on 9 March 2023.
  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 robbery whereby the victims were threatened with homemade guns, slingshot and bush knives.
  5. Regarding sentencing guidelines, the principle applied in Gimble v State (supra), was decided more than 25 years ago, and outdated. This led to a review of the sentence guidelines in the case of The State v Liliura (supra), the sentence range has now increased to 8 eight imprisonment.
  6. 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: Goli Golu v The State (supra) 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 (supra) and Ure Hane v the State (supra) and invited the Court to determine the facts and circumstances of each case on its own peculiar facts and circumstances: Lawrence Simbe v The State (supra) to determine an appropriate penalty.
  7. 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. You were on a lunch break and were in the wrong company at the time.
  8. In my deliberations on penalty, I am assisted with citation of a number of case law referred by both counsels and I refer to these accordingly in determining penalty.
  9. In State v Aaron Lahu (supra), the offender entered a guilty plea for armed robbery. In that case, the offender and others, armed with a gun and bush knives, robbed a Hoskins Mart Store in Hoskins, West New Britain, on the night of 5 March 2004.
  10. In State v Justin Komboli (2005) N2891, the offender was found guilty and sentenced to 4 years imprisonment on a charge of armed robbery of a trade store at Kavui, near Hoskins. He was the sole offender.
  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 with no prior convictions. 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 lost K10, 500.00 which have not been recovered. You were in the company of several other persons, you used offensive weapons such as homemade guns, bush knives, there were threats of violence in order to obtain the money and properties stolen. Furthermore, the offence was carried out in broad daylight of recklessness to the health and safety of the general public. A substantial amount of money stolen, and properties have not been recovered. Prevalence of the offence of aggravated armed robberies in Bulolo, rendering people to live in fear.
  13. I am minded saying that the starting point for sentence in your case should be set at 8 years as per the category of sentence held in The State v Liliura (supra) with movements up and down based on the peculiar facts and circumstances of the case. Further, the aggravating factors outweigh the factors in mitigation, thus I am inclined to accept the State’s submission and set the starting point of sentence at 8 years as submitted by the State. Consequently, I set the head sentence at 8 years imprisonment less the pre-sentence period to be imposed on you.
  14. Regarding the issue of whether a suspended sentence be considered, I note that the Pre-Sentence Report provided by the Probation Officer has recommended that you are a suitable candidate for a suspended sentence. This is supported by the case of the Public Prosecutor -v- Don Hale (1998) SC564 where the prisoner has requested for a suspended sentence. Whilst accepting the report as it stands, I must however have to say that the report is not sufficiently detailed to warrant, at this stage, granting the recommendation for a suspended sentence on probationary supervisory terms. As it is, there are no firm conditions being recommended and there is also no guarantee that if the prisoner (you) were released into the community, that you would have the support of the community, as your own family are not very supportive of you.
  15. At the same time, the Court has taken into consideration, 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 your own admission pleaded guilty to the charge. This has reduced the time and costs of having this matter tried if he had denied it. You have also apologised to the Court and the victims involved. You are a first offender as 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.
  16. Furthermore, this Court is mindful of the fact that the prisoner (you) were involved in a serious armed robbery with aggravation.

Pre-Trial Detention


  1. The prisoner was remanded to stand trial on the charge of robbery with actual violence under s 386 (1), (2) (a) (b) of the Criminal Code Act (Ch No 262) on the 31 July 2023 and had been in remand for a period of 10 months 10 day 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 you (prisoner) to 8 years imprisonment with hard labour less the period of 10 months 10 days that you have 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 year of the sentence is suspended.
  4. You (the prisoner) are to serve the balance of the term of sentence of 5 years 1 month 20 days imprisonment at CIS, Buimo

Sentence


  1. Having convicted you, Rex Kaisonge Suwi on one count of robbery contrary to Section 386 (1) (2) (a) and (b) of the Criminal Code, you are now sentenced as follows:
Length of sentence imposed:
8 years.
Pre-sentence period deducted:
10 months 10 days
Balance of term of sentence to be served:
7 years 1 month 20 days
Amount of sentence suspended:
2 year
Time to be served in custody:
5 years 1 month 20 days

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

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