Kinisa v The State [1998] PGSC 5; SC544 (3 March 1998)

Unreported Supreme Court Decisions

SC544

PAPUA NEW GUINEA

[SUPREME COURT OF JUSTICE]
SCR 47 OF 1995
BETWEEN: PETER JOSS KINISA
APPELLANT
AND: THE STATE
RESPONDENT

Waigani

Los Hinchliffe Sevua JJ
2-3 March 1998

CRIMINAL LAW - Armed robbery - Application for leave to appeal against sentence - Warrant of Commitment unclear.

Facts

The appellant applied for leave to appeal against sentence and also that the trial Judge did not deduct from the sentence the time the appellant spent in custody waiting trial.

Held

(1) The sentence was not excessive and was inside the guidelines recommended in Gimble -v- The State [1988-89] PNGLR 271.

(2) The trial Judge did take into account the time the appellant spent in custody prior to trial but it was not clear on the Warrant of Commitment.

(3) Application for leave to appeal against sentence refused.

Cases Cited

Gimble -v- The State [1988 - 89] PNGLR 271

Morris -v- The State [1979] PNGLR 605

Counsel

Appellant in person

C. Manek for the respondent

3 March 1998

LOS HINCHLIFFE SEVUA JJ: This is an application for leave to appeal against a sentence of five years imprisonment for robbery imposed on the appellant on the 25th September, 1995. The appellant also appeals against the sentence in that the trial Judge did not deduct from the said five year term, the period of six months for the time spent in custody awaiting trial.

The appellant had pleaded guilty at trial to an indictment which reads as follows:

“Peter Joss Kinisa of Aro stands charged that he on 3rd day of April, 1995 at Badili, Port Moresby in Papua New Guinea, stole from one Thereisia Nete with threats of actual violence a sum of six hundred kina (K600.00) the property of the said Thereisia Nete. And at that time was armed with dangerous weapons namely a gun and a pistol and was in company with other persons.”

The facts of the case are that on the morning of 3rd April, 1995, Thereisia Nete together with two other employees of the Badili Mobil Service Station at Badili had prepared the service station takings to go and do the company’s banking. Mrs Nete had in her possession K600.00 of her own money. The money belonging to the company was with another employee. She got into a waiting company vehicle to go to the bank with the other employees and before they could leave, the appellant and three of his friends, accomplices, drove in a stolen vehicle and held up Mrs Nete and the employees of the service station and robbed her of K600.00.

The appellant and his friends used a gun and a pistol when robbing her of the money. They then got away in the stolen car.

The Supreme Court in Gimble -v- The State [1988 - 89] PNGLR 271 at p.272 agreed with Kearney, J in Morris -v- The State [1979] PNGLR 605 at pp 612-613 on the relevant principles considering an appeal.

“So the question in practice on a sentence appeal is usually this - has the Appellant shown that an error occurred which has the effect of vitiating the trial judge’s discretion on sentencing?”

The appellant has submitted in writing that the trial judge did not consider various matters when assessing penalty, such as the fact that there was no violence involved and that the sum stolen was only K600.00. That the robbery was not planned and that the appellant was not a principle offender. The appellant went on to say that the trial judge did not take into account that he (the appellant) cooperated fully with the police and admitted driving the vehicle involved in the robbery.

It is correct to say that the trial judge did concentrate mainly on the point that the appellant pleaded guilty to the charge and also that he showed remorse for his wrong doings. It may well be that he did not specifically mention those matters now raised by the appellant but are of the view that even if he had done so the sentence imposed by the trial judge was still correct. He has not fallen into error. His Honour correctly referred to the prevalence of robbery and that it is time that sentences in this type of offence were increased. the case of Gimble -v- The State (Supra) sets out guidelines in sentencing people convicted of robbery and it is clear that His Honour did not go outside the guidelines. In fact it would seem to us that the trial judge was quite lenient when dealing with the appellant.

We are also satisfied that the trial judge did in fact take into account the time that the appellant had spent in custody awaiting trial when he said, at p.16 of the Appeal Book, “Taking into account the time you have spent in custody, I sentence you to five years imprisonment with hard labour.”

Some confusion has arisen here in the mind of the appellant because we note on the Warrant of Commitment that there is no figure recorded against the words, “Length of period deducted.” That is because that figure (six months) was taken into account when fixing the said five year term and there was no need to mention it on the Warrant of Commitment. Probably a more satisfactory way of expressing the sentence would have been to sentence the appellant to five years and six months imprisonment in hard labour, less six months for the time spent in custody awaiting trial, leaving five years to serve of the five years six months term. Such a sentencing procedure would make it quite clear on the Warrant of Commitment thereby not causing confusion at a later date.

We are therefore of the view that the trial judge did not fall into any identifiable for unidentifiable error in the exercise of his discretion. The application for leave to appeal is refused.

Order accordingly.

Appellant in person

Lawyer for the respondent: Public Prosecutor