State v Punai [2024] PGNC 298; N10968 (20 August 2024)

N10968

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR No. 278 OF 2024

THE STATE

V

JUNIOR PUNAI

Waigani: Miviri J
2024: 07^th & 20^th August

CRIMINAL LAW – PRACTICE AND PROCEDURE – Robbery – Plea – Store Robbery – Pypon Holdings Limited Koki – Armed Robbery – Homemade Firearm & Bush knives – Accompanied by Others – Security Guards Assaulted Injured – Assorted Electronic & Food Items Stolen K7,240 – Immediate Apprehension of Prisoner At Scene – Offences Committed Broad daylight – First Time Offender Prevalent offence – Strong Punitive & Deterrent Sentences.

Facts
Accused was accompanied by four others who were armed with a homemade firearm and bush knives entered the trade store Pypon Holdings Limited at Koki and made off with electronic items including mobile phones and food total value of K7, 240.00.

Held
Armed Robbery.
Guilty plea
First offender
Store Robbery
Prevalent offence
Strong Deterrent & punitive Sentences.
7 years IHL.

Cases Cited:
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
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:
S. Patatie, for the State
K. Watakapura, for the Defendant

SENTENCE

20^th August 2024

1. MIVIRI J: Junior Punai of Kandip village, Bulolo, Morobe Province pleaded guilty to Armed Robbery of the Pypon Holdings Limited at Koki Port Moresby and now appears to be sentenced.
   
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. He pleaded guilty that he on the 06^th day of September 2022 at about 9.30am at Pypon Holdings Limited at Koki Port Moresby, National Capital District, the Accused was accompanied by five (5) others who were armed with two homemade guns and four bush knives entered the supermarket. They stole the mobile phone of the owner of the supermarket, one Sohgg Saidur Rahman valued at K1000. They also stole seven (7) cartoons of Ox & Palm valued at K1540 and ten cartoons of Coca Cola drink valued at K460.00. Accused and accomplices also took two mobile phones of the employees valued at K1, 800. They went to the cashier Cathy Amos and demanded for it to be opened. When it was not opened, they hit her on the head.
   
4. Accused got a bush knife and attacked the security guard Jenny Ambo who stood at the gate while his accomplices escaped. She suffered major injuries from stab wounds on her chest and was taken to the Port Moresby General Hospital where she got medical attention. Accused escaped in a taxi but was recaptured charged and now in court. He was with the five unknown accomplices who were armed with the two guns and four bush knives who stole from Pypon Holdings Limited and in the process the employees were injured. And therefore, contravening section 386.
   
5. These facts depict a very well planned, executed and aggravated armed robbery of a Supermarket at Koki, Port Moresby. It is determined and persisted because the others have escaped but the prisoner who was one of them was determined assaulting the security guard with a bush knife injuring her. He managed to escape using a cab but was captured there. He has pleaded guilty to the offence asking for mercy. And that he is remorseful for committing the offence. He is a married man with a two-year-old daughter. He is aged 25 years old living at Kaugere and is of the SDA Christian faith.
   
6. It is an offence that fortunately did not lead to deaths as a result. But the assaults upon the employees at the scene cannot be ignored. Because they are honest persons who strive to make ends meet by the work that they discharge for that supermarket. Their lives were unnecessarily threatened of death and serious injury at the whim and the greed of the prisoner and accomplices. They must be protected from persons like the prisoner who see nothing but to get the proceeds without any form of consideration. Here they are not deterred even though it was broad day light. And that there were people out and about there. They were intent and did steal. In my view it is not the amount that is stolen, it is the way the robbery has been executed. The seriousness of the offence is evidenced by the imprint of the legislature prescribing 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) SC 1017. 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.
   
7. 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. Yes, a presentence report has been filed to consider a non-custodial term but what are the basis of that imposition of a non-custodial term is not clearly settled. There is a work program a path that the offender takes out under the supervision of the probation officer. It is a learning process or advancement in life with the imparting of skills in life that the probationer will take to settle away from crime and become a productive useful member of society. It is not there. I am also not convinced that materials within the scope of law in Tardrew, Public Prosecutor v [1986] PNGLR 91 are there warranting suspension with conditions attaching to implement. There is no material sufficient to implement section 19 of the Criminal Code Act in this instance. The material filed with the presentence report does not evidence out.
   
8. The aggregate is that 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 firearm accompanied by others with bush knives. 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. Because robbery is by its very nature a serious and aggravated 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. It is one of the most prevalent offences known to the law. Sentences that have been imposed have simply being brushed aside and the offenders have continued to pile up. Therefore, it is incumbent upon the Court to impose serious sentences penalties befitting the crime. Penalty that will send the message loud and clear that the law has now realized that in the way it has sentenced, it has contributed. In this regard it is relevant to look at the execution of the robbery rather than the proceeds of the crime: State v Malo [2006] PGNC 231; N4520 (19 December 2006) a store was robbed of K165,924.17 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 even death, because of the level of violence. 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. And that is the view I adopt here in sentencing the offender.
    
11. He will be accorded leniency being a first offender, but it cannot be ignored that robbery was committed in a publicly frequented area without any fear of being detected or caught. There was real determination and perseverance to commit the offence. If robbers as the prisoner put their lives and pursuit illegal criminal over honest citizens struggling to make ends meet as employees of that shop, as the person who owns and runs that shop, he or she deserves the full protection of the law. The Court must dish that out in the strongest terms upon the robber. His guilty plea is one of the factors that will be contributing to the scale that will end with a proportionate sentence due the prisoner. I do not consider in substance fundamental that he was immediately apprehended and served reprisals by publican who meted punishment for the offence, and because of that fact accord leniency in that sentence. In my view it is part of the risks associated with the determination to commit the offence here. He has taken the risks the sentence will not be effected. In similar vein is State v Boni [2012] PGNC 380; N4626 (28 March 2012) but will not be followed here. Because 2024 and the offence is forever prevalent and ought to be shown what the rule of law is by deterrent sentences. Given all the aggregate is that Junior Punai is sentenced to 7 years imprisonment in hard labour. The time that he has spent in custody will be deducted forwith. He will spend the remainder in hard labour in jail forthwith.
    

Orders Accordingly

__________________________________________________________________

Office of Public Prosecutor: Lawyer for the State

Office of Public Solicitor: Lawyer for the Defendant