State v Nibare [2025] PGNC 275; N11363 (3 July 2025)

N11363

PAPUA NEW GUINEA
[NATIONAL COURT OF JUSTICE]

CR NO 1467 OF 2024

BETWEEN:
THE STATE

AND:
KAGAI NIBARE

GOROKA: WAWUN-KUVI J
3 JUNE, 3 JULY 2025

CRIMINAL LAW-SENTENCE-Guilty Plea- Armed Robbery, s386(1)(2)(b), Criminal Code-Robbery of person on street- Personal items were stolen from the victims - Use of Firearm and in company-Sentence of 7 years imprisonment

Cases cited
Pori v State [2007] PGSC 39; SC912
Stuard Kepu v The State, Unreported Judgment, SCR 21 of 2007
Kara v The State [2006] PGSC 14; SCRA 51 of 2005
Gorop v The State [2003] PGSC 1; SC732
Allan Peter Utieng v The State (2000) SCR No 15 of 2000
Tau Jim Anis v. The State [2000] SC642
Public Prosecutor v. Don Hale [1998] SC564
Lialu v The State [1990] PGSC 16; [1990] PNGLR 487
Gimble v The State [1988-89] PNGLR 271
The Public Prosecutor v Vangu’u Ame [1983] PNGLR 424
Goli Golu v The State [1979] PNGLR 653
State v Tardrew [1986] PNGLR 91
Public Prosecutor v Thomas Vola [1981] PNGLR 412
State v Paul [2022] PGNC 278; N9747
State v Sabas [2018] PGNC 151; N7248
State v Thaddeus [2014] PGNC 234; N5795
State v Willie [2014] PGNC 231; N5786
State v Kingsley [2011] PGNC 187; N4465
State v Knox [2008] PGNC 79; N3339
State v Tingin [2005] PGNC 5; N2956

Counsel
E Nema-Kale for the State
C Bomai, for the offender

DECISION SENTENCE

1. WAWUN-KUVI, J: On 3 April 2024, between 7 and 8 p.m., the victim and his family members were making their way home to Ginipauka in Kama Village. They chose the familiar route through Guava Street via Red Kona junction. Unfortunately, their journey took a terrifying turn in front of the Kama SDA Church. To their surprise the offender and his accomplices emerged. The offender brandishing a homemade gun while his accomplices wielded bush knives. The offender pointed the gun at the victim's chest and ordered him to give up his property. Fearing for his life, the victim reluctantly surrendered his possession: a Samsung mobile phone, a Del laptop computer, a Bank of South Pacific debit card, two flash drives and a bag- all valued at K3,650.00. With their ill-gotten gains, the offender and his accomplices fled the scene.
2. On 12 April 2024, at around 8 am, the offender was spotted by the victim at Chuave market. With the assistance of bystanders, he apprehended the offender. The police arrested the offender.
3. He has now pleaded guilty to these facts on the charge of Armed Robbery under s 386(1)(2)(a) and (b).
4. I must now decide the appropriate penalty.

Penalty

5. The maximum penalty is life imprisonment.
6. The maximum penalty is reserved for the most serious case: Goli Golu v The State [1979] PNGLR 653.

Guidelines on Robbery cases

7. Sentencing guidelines are necessary to ensure parity in sentencing. They do not curtail sentencing discretion. Ultimately, each case's peculiar circumstances determine the sentence: Lialu v The State [1990] PGSC 16; [1990] PNGLR 487
8. The facts show that this is a robbery of a person on the street.
9. The starting point for robbery of a person on the street was set at 3 years in Gimble v The State [1988-89] PNGLR 271. The Supreme Court in Kara v The State [2006] PGSC 14; SCRA 51 of 2005 discussed the application of the 3-year increase and found that a three-year increase in the Gimble guidelines was appropriate. The starting point, therefore, for a street robbery would be 6 years.

Range submitted by counsel

10. The State submits for a sentence between the range of 6 and 7 years. Counsel for the offender submits for a range between 5 and 7 years.

Comparable cases

11. Counsels have submitted the following comparable cases:
12. State v Kingsley [2011] PGNC 187; N4465, Cannings J: The offender was 18 years old. He pleaded guilty to one count of armed robbery. The robbery took place at 7.00 pm. The victim was walking by himself on the footpath when the offender and one other person held him up, threatening him with what appeared to be a home-made gun. The weapon was, in fact, a hammer, partly hidden by a bilum. The victim did not know that, however and he was put in fear of his life. His bilum, containing two mobile phones and other personal property, was stolen from him. The offender and his accomplice fled the scene and were arrested later that night by the police, and the stolen property was returned to the victim. The offender’s mother had paid compensation to the victim. He was sentenced to 3 years imprisonment. No part of his sentence was suspended as the offender had absconded while he was on bail.
13. State v Knox [2008] PGNC 79; N3339, David J: The offenders pleaded guilty. They were armed and in company with others. They robbed a patron of the golf club and took his property worth K16, 320. They were sentenced to 6 and 7 years. Time spent in custody was deducted and the balance was suspended.
14. State v Tingin [2005] PGNC 5; N2956, Kandakasi J (as he then was): The offenders pleaded guilty. About 9.00 p.m., the victim was walking home after work when the offender and two other accomplices accosted him. The appellant grabbed the victim and pointed a bush-knife at his neck while his friends searched him. In the ensuing struggles, the victim was overpowered and all that he had stolen from him. The robbers fled the scene, but the appellant was detained shortly after with his co-accused. Kennedy Kara was 22 and Moses Tingin was 17 years old. They were sentenced to 9 and 11 years.
15. Kennedy Kara appealed his sentence in Kara v The State [2006] PGSC 14; SCRA 51 of 2005, Kirriwom J, Batari J and Mogish J: The Supreme Court in reviewing the authorities reduced the sentence of 11 years to 7 years
16. The cases of State v Vutnamur [2005] PGNC 193; N2919, State v Komboli [2005] PGNC 61; N2891, State v Negol [2005] PGNC 148; N2801, State v Lahu [2005] PGNC 161; N2798 and State v A Juvenile, "Taa" [2006] PGNC 237; N3017 submitted by counsel for the offender all involve robberies of homes or shops and are not comparable to the present case.
17. I have found comparable street robbery cases which went on appeal or review to the Supreme Court.
18. Pori v State [2007] PGSC 39; SC912, Davani J, Mogish J and David J: The offender pleaded guilty and was sentenced to 8 years imprisonment. He and others held up the victim with a homemade gun and two bush knives. The offender pointed the gun the victim while his accomplices searched the victim. As they were running away, they discharged firearms to prevent the public from chasing them. They stole cash and properties valued at K3,096.80. The Supreme Court dismissed the appeal.
19. In Stuard Kepu v The State, Unreported Judgment, SCR 21 of 2007, The applicant pleaded guilty to robbery a shop manager at the shop car park. He and his accomplices parked the vehicle and waited for the shop manager. When he arrived, they pointed a home-made gun at him and threatened to shoot him. In fear of his life, he handed them the money bag. They drove away. They stole K79, 750.00 cash. The Supreme Court dismissed the application for review and confirmed the sentence of 10 years.
20. Gorop v The State [2003] PGSC 1; SC732, Kirriwom J, Kandakasi, J (as he then was), Batari, J: The appellant pleaded guilty and was sentenced to 20 years imprisonment. A tourist couple were sight seeing when the offender approached them and pretending to be friendly. Upon reaching a more schedule location, the offender used a hockey street and attacked them. He stole a camera bag containing all their cards and K150 cash. They suffered life threatening injuries with permanent disabilities. The Supreme Court after reviewing the authorities reduced the sentence to 18 years imprisonment. It was still viewed as a serious case of street robbery.
21. On review of the above Supreme Court authorities, it is noted that sentences for street robberies over the years have increased past the 3 years denominator in Gimble and 6 years in Public Prosecutor v. Don Hale [1998] SC564 which was subsequently reaffirmed by Tau Jim Anis v. The State [2000] SC642. The position that has been reaffirm in Gimble has remained and is inconsistent with the approach taken by the cases cited that while there is a starting point, sentences are increased or decreased according to the peculiar circumstances of each case which are not limited to actual violence, the amount of money taken, a guilty plea, the offender is a first time offender and many more fact.
22. Other comparable National Court cases involving street robberies are:
23. State v Paul [2022] PGNC 278; N9747, Miviri J: Three offenders pleaded guilty and two were convicted following a trial. A shop employee was robbed on the street of the shop takings. K163, 400.00 was taken. Violence was used when one of the robbers swung a knife at the victim and two others pointed firearms. The offenders that pleaded guilty were sentenced to 10 years imprisonment and those convicted on trial were sentenced to 12 years imprisonment. Time spent in custody was deducted and no part of the sentence was suspended.
24. State v Sabas [2018] PGNC 151; N7248, Miviri, AJ (as he then was): The offenders pleaded guilty. They were armed with slingshots and homemade firearms which they used to threaten the victims to steal a chain saw. The offenders were sentenced to 8 years imprisonment. Four years of the sentence was suspended.
25. State v Thaddeus [2014] PGNC 234; N5795, Cannings J: The offender pleaded guilty to armed robbery of a company employee on a public street in an urban setting. The offender approached the employee who was waiting on the road to catch a bus, he threatened her with a bush knife, stole a bilum containing K9,064.00 cash and K6,814.00 cheques totalling K15,878.00. He was sentenced to 5 years imprisonment. Time spent in custody was deducted. No part of the sentence was suspended.
26. State v Willie [2014] PGNC 231; N5786, Cannings J: The offender was convicted following a trial. The offender and two other men held up the victim and his wife at knifepoint, as they were walking along the road. He stole a boom box worth K180.00, a bilum and Save-Card and K300.00 cash. The total value of the stolen property was K530.00. The offender was sentenced to 5 years imprisonment. The sentence was partially suspended as the victims were the offender’s neighbours and were willing to accept compensation.
27. The comparable cases demonstrate that the sentencing trend for guilty plea of street robberies is between 5 and 10 years for guilty pleas for first time offenders. The more aggravating the case, especially where the victims have suffered serious injuries the sentences have been higher than 10 years imprisonment.

Antecedent

28. The offender is a first-time offender with no prior convictions recorded against him.

Allocutus

29. The offender statement in allocutus reads:

“It’s true I did the thing, and I won’t to do it again and I am sorry in the eyes of God.”

Personal Particulars

30. The offender is 19 years old and hails from Gunangi, Sinesine, Chimbu Province. He resides at Asoroufa, Goroka, Eastern Highlands Province. He is married and has a nine-month-old daughter. His wife has relocated to Chimbu.
31. His father is deceased, and his mother is remarried. She resides in Lae, Morobe Province. He has five other siblings.
32. He left formal education in grade 9 at Reintebe High School.
33. He supports himself by selling vegetables.

Culpability

34. The offence was planned and carried out by the offender and his accomplices. While I accept that he was initially encouraged by his friends to join in the robbery, he was the person armed with the gun and pointed it at the victim’s chest. He played an active role in the commission of the offence. This indicates a higher degree of culpability.

Harm

35. The State has provided a Victim Impact Statement. The victim lost his personal property. He was traumatized by the experience. He thought that he would lose his life.

Aggravating Factors

36. I have considered the submissions by counsel and find the following to be aggravating:
    1. Weapons were used.
    2. The offender was armed with a firearm.
    3. The offender was in the company of two others.
    4. He played an active role.
    5. The victim and his family were held up at night.
    6. Robbery is a prevalent offence in Papua New Guinea. It is a very prevalent offence in Eastern Highlands Province.

Mitigating Factors

37. In mitigation:
    1. The offender has no prior convictions.
    2. He pleaded guilty
    3. None of the victims were physically assaulted or hurt during the commission of the offence.
    4. I accept that he has expressed remorse for his actions.

Consideration

38. Robbery is a prevalent offence, and street robberies both in towns and villages are common. Once, when people could walk freely at night, people now rush home before the cover of darkness. That has taken a different turn also. Even during the day, people are not safe to walk alone in isolated areas. While the starting point was 3 years in 1988 and 1989, and later 6 years in 2005, robberies show no sign of decreasing.
39. The maximum for robbery is life imprisonment. To impose a sentence less than the maximum requires an exercise of discretion. The discretion must be exercised on a proper basis.
40. The Supreme Court authorities reflect that sentencing trends for street robberies have increased beyond the 3-year denominator in Gimble and 6 years in Public Prosecutor v Don Hale [1998] SC564 and Tau Jim Anis v The State [2000] SC642.
41. The Supreme Court authorities and the comparable cases discussed in the preceding paragraphs reflect the principle in Gimble. The principle demonstrates that while there may be a baseline for sentencing, each case is unique; Sentences are adjusted based on specific circumstances or facts. These factors include but are not limited to the level of violence used during the robbery, whether the offender acted alone or was in company, the use of weapons, the amount stolen and other aspects such as guilty pleas and whether the offender is a first-time offender.
42. The Supreme Court in Pori v State [2007] said:

“We reaffirm the sentencing guidelines in Gimble, Don Hale and Tau Jim Anis and note that it is within the sentencing Judge’s discretion to increase or decrease from the suggested starting point depending on the facts of each case: see John Peter Arua, Philip Kassman, Bobolan Mebu Peter and Stuard Kepu.”

43. Applying my mind to the relevant sentencing principles, the Supreme Court decisions, the range submitted by counsels, the comparable cases, the offender’s antecedents, his statement in allocutus, his culpability, the harm caused, the mitigating and the aggravating factors,I find that a sentence of 7 years imprisonment is appropriate and so impose it.
44. The offender was apprehended on 12 April 2024. He has been in custody for 1 year, 2 months and 3 weeks. Pursuant to section 3 of the Criminal Justice (Sentences) Act 1986, that period is deducted. The offender shall serve the balance of 5 years, 9 months, 1 week.
45. The next question I ask is whether any part of the sentence be suspended?
46. There is very little before me that supports suspension. I am reminded that the same factors that were used to mitigate the sentence cannot be used to suspend the sentence as it amounts to a double discount: see Public Prosecutor v Thomas Vola [1981] PNGLR 412.
47. There is suggestion that the offender’s young family will suffer. The impacts on families as a result of imprisonment whilst grave is not a relevant consideration in sentencing except in the rarest occasion: Mikoro v State [2015] PGSC 12; SC1424 (1 May 2015), Allan Peter Utieng v The State (2000) SCR No 15 of 2000; The Public Prosecutor v Vangu’u Ame [1983] PNGLR 424.
48. The Pre-Sentence Report is not favourable to the offender; the views expressed by his family and the members of his community demonstrate that he did not possess good character. He has not contributed to the community and has been a menace instead.
49. While community members may express their opinion and hold the offender in a negative light, it is particularly telling of his character when his family members implore the Court to impose imprisonment.
50. While I may consider suspension based on restitution since it is something that the victim seeks, the offender simply has no means. The offence which he committed demonstrated that he does not have any source funds. While he has informed the Probation Officer that his uncle will assist him, his uncle has said that he will not.
51. Having considered the principles in State v Tardrew [1986] PNGLR 91, I find that the offender’s case does not fall within the three broad categories that favour suspension.
52. Suspension is therefore not appropriate.

The offender shall serve the balance of 5 years, 9 months, 1 week.

Orders

53. The Orders of the Court are as follows:
    1. The Offender is sentenced to 7 years imprisonment.
    2. Pursuant to section 3 of the Criminal Justice (Sentences) Act 1986 Time spent in custody of 1 year, 2 months and 3 weeks deducted.
    3. The offender shall serve 5 years, 9 months, 1 week at Bihute Correctional Institution in light labour.
    4. The CR File and BA are closed.
       

Lawyer the State: The Public Prosecutor
Lawyer for the defence: The Public Solicitor