N10960

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR NO. 229 OF 2024

THE STATE

V

HAGAYO MICHAEL

Waigani: Miviri J
2024: 12th & 14th August

CRIMINAL LAW – PRACTICE AND PROCEDURE – Robbery – Plea – House Robbery – Poroman Dormitory University of Papua New Guinea – Armed Robbery – Homemade Pistol & Knife – Alone – Unlocked door 3.00am Entry – Laptop K3290 Stolen – Immediate Recovery – Offences Committed at Night –Immediately Pursued – Apprehended – First Offender – Strong Punitive & Deterrent Sentences.

Facts
Accused entered room A13 Poroman Dormitory UPNG stole a laptop valued at K3290 of the victim. Was pursued immediately Accused pointed homemade pistol to stop the victim and those pursuing unsuccessfully as it was empty. Accused apprehended given to police and laptop retrieved.

Held
Armed Robbery.
Guilty plea
First offender
Home invasion at night-time.
Prevalent offence
Strong Deterrent & punitive Sentences.
8 years IHL.

Cases Cited: 
Public Prosecutor v Hale [1998] PGSC 26; SC564 
Thress Kumbamong v The State (2008) SC1017
Simbe v The State [1994] PNGLR 38
Anis v The State [2000] PGSC 12; SC642
Tardrew, Public Prosecutor v [1986] PNGLR 91
Aubuku v The State [1987] PNGLR 267
State v Malo [2006] PGNC 231; N4520
Marase v The State [1994] PNGLR 415 
Gorop v The State [2003] PGSC 1; SC732
CR No. 1304 OF 2020 The State v Samuel Simon Petrus. 
Kama v The State [2004] PGSC 32; SC740
 State v Hahuahoru (No 2) [2002] PGNC 136; N2186 
Lahui, Hetau, Noho, and Eki, The State v [1992] PNGLR 325
 Simbago v The State [2006] PGSC 23; SC849
State v Boni [2012] PGNC 380; N4626

Counsel:
D. Aruru with L. Jack, for the State
K. Watakapura, for the Defendant
		
SENTENCE

14th August 2024

1.	MIVIRI J: This is the sentence upon Hagayo Michael of Kisivero village, Lufa, Eastern Highlands Province who pleaded guilty to Armed Robbery of a University student within the Dormitory. 

2.	The offence is defined under Section 386 The Offence of 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 the robbery, wounds or uses any other personal violence to any person,
he is liable subject to Section 19, to imprisonment for life.

3.	The facts to which he pleaded guilty are that he on the 13th day of September 2023 at 3.30am walked into the University of Papua New Guinea Campus armed with a homemade pistol and a kitchen knife. He went into room A13 of Poroman Dormitory and took the Toshiba Laptop of Junior Itaki and walked out. He was armed with a homemade pistol and a kitchen knife. The complainant was asleep when he went in and walked out with the laptop. But when he was about to walk out of the room, the room mate of the complainant, Boma Mond woke up the complainant and both pursued the accused. And as they were closing in on the accused, he took out his homemade pistol and pointed it at the students to scare them off. And the students were scared and took cover. But upon realizing that the pistol was not loaded with live ammunition they ran after him and eventually apprehended him with the help of Uniforce Security. He was disarmed of the homemade pistol and the knife he held and taken into custody. And the laptop was retrieved and returned to Junior Itaki.

4.	It is therefore an armed robbery not simplicitor without the aggravating features set out under subsection (2) drawing minimum sentence of 14 years imprisonment. Because there are circumstances of aggravation here therefore it will draw the maximum sentence of life imprisonment upon the prisoner. He is armed with a homemade pistol and uses and threatens to use personal violence against Junior Itaki when he is pursued to get the laptop that he has stolen. It means that the maximum sentence due the prisoner here is life imprisonment in jail. It is not the worst offence of armed robbery and so will secure a determinate term of years.

5.	Particularly given that he has pleaded guilty to the offence and affirmed in the allocutus that the allegation is true. He did go into the room A13 of Poroman pick up the laptop but was pursued by the owner with the others. And that the laptop was retrieved and that he did produce the pistol which was without any ammunition. Which is not so in the record of interview conducted by Police. He accepts that he has committed a wrong and that on trial it would not have gone his way given he was immediately pursued and apprehended. A first offender he is originally from Kisivero, Lufa, Eastern Highlands Province. He was born on the 10th January 1962 which is clearly not correct having seen him in Court. He is aged in his late 30s and not in his 60s if deduced from this birthday. And unmarried resident at the time of the offence at Morata here in Port Moresby. He does not demonstrate any evidence of formal employment. Of the seventh day Adventist Church he has been in custody on remand for eleven (11) months and nine (9) days. That will be deducted from any time to be imposed upon him.

6.	I determine and hold that this is an armed robbery of a dwelling house because the dormitory, Poroman is where Junior Itaki a student at the university of Papua New Guinea live with his roommate Boma Mond. This is a very serious case of armed robbery. And in my view the remarks of the supreme Court are relevant in determining appropriate sentence against the prisoner.  “We find that with the prevalence of violent crime involving the use of guns the ranges of sentences recommended in Gimble’ case are having no effect and are no longer relevant.  Gimble’s case was decided in 1989 and crimes of violence have definitely increased with the use of guns being more prevalent and the community is calling for heavier punishments as a deterrence.  We feel that the starting point to an appropriate sentence involving the robbery of homeowners at night with the use of firearms to threaten victims should be 10 years,” Public Prosecutor v Hale [1998] PGSC 26; SC564 (27 August 1998).

7.	What comes out of the Supreme Court is putting a starting point in sentencing of the robbery of a home. It is a guide to ensure consistency because the ultimate discretion of the national court set out by the legislature is a minimum of 14 years and a maximum of life imprisonment. Each offence will come with its own facts circumstances peculiar to it. And sentence will follow suit accordingly taking account Thress Kumbamong v The State (2008) SC1017. Not all will be the same and will draw out the 10 years that is proposed as the starting point set out above. Because the Courts domain is not legislating but application of the law. As such the views in Simbe v The State [1994] PNGLR 38 set this out well. And in my view applicable here to determine appropriate penalty deduced from the facts and circumstances posed here by the evidence.

8.	I do not consider that ten (10) years is appropriate here given all I have set out above. Nor would it be appropriate and follow similar as in Anis v The State [2000] PGSC 12; SC642 (25 May 2000). I am not considering a youthful first offender. Nor am I considering a case where a presentence report has been filed to consider a non-custodial term as non has been sought out by the prisoner. But I remind myself of the law in Tardrew, Public Prosecutor v [1986] PNGLR 91 on the basis of which I consider that there is no material here warranting a suspension of the term due the prisoner. There will be no suspension of the sentence imposed here. Prisoner was prepared to do what he did because he was armed with a knife and a homemade pistol. It may have been empty, but the fact of the matter is it scared the complainant and students who pursued him to retrieve. It had the desired effect to make it possible for the prisoner to commit the offence. A gun, be it a factory made, or homemade, has the real propensity to kill at the squeeze of a trigger. In my view as with Aubuku v The State [1987] PNGLR 267 where there is aggravation that increases the sentence. In my view robbery is a crime of violence as is rape and therefore it would be not erroneous to take account of serious aggravation that would increase the sentence due an offender. Some of which are highlighted here which need not be repeated.

9.	Armed Robbery is a very prevalent offence. And it is incumbent upon the Court to impose penalty befitting the crime. In this regard it is relevant to look at the execution of the robbery rather than the proceeds of the it: 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 Marase v The State [1994] PNGLR 415 the appeal was dismissed and the 19 and half year IHL was confirmed for rape and robbery. In Gorop v The State [2003] PGSC 1; SC732 (3 October 2003) 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. These are very serious compared to the facts and the circumstances of the present.
10.	But it must not be swept aside that there is real prospect and propensity lurking that serious injury will result or death, CR No. 1304 OF 2020 The State v Samuel Simon Petrus turned violent and serious to the extreme of a murder. And reported cases Kama v The State [2004] PGSC 32; SC740 (1 April 2004); State v Hahuahoru (No 2) [2002] PGNC 136; N2186 (21 February 2002) and Lahui, Hetau, Noho, and Eki, The State v [1992] PNGLR 325; Simbago v The State [2006] PGSC 23; SC849 (31 August 2006) evidence the run that a robbery will more than probable run into homicide and very serious injuries to the victims and robbers alike. It is therefore not a light matter that will be dictated by a tariff or range set. It must draw from its own facts and circumstances. 
11.	Prisoner must be accorded leniency because he is a first offender who has pleaded guilty to a very serious offence of armed robbery where he was immediately apprehended, and the laptop retrieved off him and returned to the complainant. He must be punished for the offence but at the same time must be accorded leniency in that sentence. His facts do not par out with State v Boni [2012] PGNC 380; N4626 (28 March 2012). It is now 2024 and the offence is forever prevalent and ought to be prevented by deterrent sentences. Given all the aggregate is that Hagayo Michael is sentenced to 8 imprisonments in hard labour. The time that he has spent in custody will be deducted forthwith. 

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