Gorop v The State [2003] PGSC 1; SC732 (3 October 2003)

SC732

PAPUA NEW GUINEA

[IN THE SUPREME COURT OF JUSTICE]

SCRA 35 of 2002

DADLY HENRY GOROP

-V-

THE STATE

KOKOPO: KIRRIWOM, KANDAKASI, BATARI JJ.
2003: 30th September
3rd October

APPEAL – PRACTICE & PROCEDURE - Appeal against sentence – Supreme Court can not interfere unless a clear case of error is demonstrated – Sentence outside current range of sentences – Identifiable error amounting to an error vitiating the trial judges’ exercise of discretion – Appeal upheld and sentence reduced.

CRIMINAL LAW – Appeal against sentence – Armed robbery with threats and actual violence with one of two victims almost dying – Prisoner armed with and used an hockey stick to execute the robbery – Offence committed in breach of a de facto trust – Value of items stolen not substantial and not recovered - Guilty plea by first time offender – Sentence above current tariff - Sentence 20 years reduced to 18 years – Criminal Code s. 386.

Facts:

The Appellant was convicted and sentenced to 20 years imprisonment in hard labour on his guilty plea for robbery of a tourist couple with physical violence in breach of a de facto trust. He seriously and severely attacked the couple with an hockey stick, knocking down both of them unconscious. The male victim almost died save for timely medical intervention. He suffered brain damage and his long-term prognosis was not good. His wife suffered serious injuries as well including fracture injuries resulting in residual disabilities. None of the goods stolen were returned or recovered. On appeal, the appellant claimed that the learned trial judge failed to take into account that the police failed to carry out a proper investigation, his guilty plea and that his parents were old.

Held:

1. The issue of failure by police to properly investigate the offence was not raised before the learned trial judge. As such, the appellant was precluded from raising the issue as a ground of his appeal for grounds of appeal can only be restricted to matters properly raised before the trial Court.
   
2. The Supreme Court on appeal can not readily interfere with a trial judge’s decision on sentence unless an identifiable error vitiating the exercise of the trial judge’s discretion on sentence is demonstrated. Applied Norris v. The State [1979] PNGLR 605 and Ian Setep Napoleon v. The State (SC666).
   
3. Although the learned trial judge correctly treated this as a serous case of armed robbery with actual violence and serious aggravating factors, which out weighed the factors in the appellant’s mitigation, he however, erred in failing to have any regard to the sentencing trend and or tariff in similar cases. Consequently, the learned trial judge erroneously imposed the sentence of 20 years in hard labour, which was above the current tariffs. The appeal was therefore allowed only on this ground with the sentence reduced to 18 years in hard labour.
   

Cases cited:
Wanosa & Ors v The Queen [1971-72] PNGLR 90.
Norris v The State [1979] PNGLR 605.
Ian Setep Napoleon v The State (Unreported judgment delivered on 18/05/0) SC666.
Gimble v. The State [1988-89] PNGLR 27.
Tau Jim Anis & Ors v. The State (Unreported judgement delivered 25/05/00) SC642.
Acting Public Prosecutor v. Don Hale (unreported judgement delivered on (27/08/98) SC564.
Hawai John v. The State (Unreported judgement delivered on 02/04/98) SCR 09 of 1995.
The State v. Vincent Malara (Unreported judgement delivered on 20/02/02) N2188.
In The State v. Edward Toude, & Ors (No 2), (Unreported judgement delivered on 18/10/01) N2299.

Counsel:
Appellant in Person.
Mr. R. Auka for the Respondent.

3rd October, 2003

BY THE COURT: Dadly Henry Gorop, you are appealing against a sentence of 20 years less the time you had already spent in custody awaiting your trial. That was on a guilty plea to armed robbery with violence. The decision on sentence was delivered on 10th April 2002. On the 15th of April 2002, you lodged your appeal. However, the Supreme Court Registry decided to treat this as a Supreme Court Review matter. That was an error on the part of the registry. Accordingly, we note your appeal is within time and we proceed to deal with it on its merits.

Grounds of Appeal

In your notice of appeal you set out three grounds as follows:

"(1) Against sentence too excessive.

(2) Parents very old.
(3) Investigations not properly done."

It is clear to us that your appeal is against the severity of sentence. You also appear to raise an argument that the learned trial judge did not take into account your family background, which includes your parents being very old. Also, you are concerned with the manner in which the investigations leading to your arrest were carried out and eventually convicted upon and sentenced. From your submissions, it is clear that, you have this concern because you claim that there was another person who initiated the idea and caused you to commit the offence and he is still at large.

The State is opposing your appeal and is arguing for a dismissal on the basis that, the sentence is not excessive. As for your personal background, the State submits that, the learned trial did take that into account before arriving at the 20 years sentence against you.

With regard to the issue on investigations, the State submits and we accept without further or do that, this is not a proper ground of appeal. The reason for this is simple. This Court’s power on appeal is limited to a review of a decision of the National Court on the basis of what took place before it. Complaints about the way in which police might have carried out their investigations that were not in fairness, raised with the trial court can not be raised on appeal after a decision. For this Court’s power is limited to what transpired in the Court below and forming the records of such proceedings. Accordingly, we dismiss this ground of the appeal.

This leaves for us to consider your two remaining grounds of appeal. They are in fact one because, the question of whether a sentence is excessive or not requires an examination and the effect each of the factors both in aggravation and mitigation of an offender to determine whether or not a sentence by a trial judge is excessive. So we will deal with these grounds as one.

But before we do so, we remind ourselves of the settled law that, a sentence imposed by a trial judge should not be readily disturbed unless it is shown to be manifestly excessive. A sentence could be manifestly excessive because, for example, the trial judge has acted on a wrong principle or has clearly overlooked, undervalued, overestimated or misunderstood some salient features of the evidence.[1] That means this Court must be satisfied that the learned trial judge fell into some demonstrable error, which has the effect of vitiating the trial judge's discretion on sentence before it can interfere with a sentence imposed by the National Court.[2]

The question of whether or not a sentence is manifestly excessive is dependant on the relevant facts and the circumstance in which an offence is committed, the factors in aggravation and in mitigation of the prisoner and the relevant sentencing tariff and trend. We will now consider each of these aspects, starting with the relevant facts.

The Facts

An expatriate couple had been travelling the world in their own yacht in 2001. They called into Rabaul for repairs to their yacht and for sight seeing. They stayed in Rabaul for about a week, whilst waiting for the repairs to their yacht. On the 11th of December 2001, the couple decides to do some sight seeing and were walking up the Namanula Hill. That was sometime around midday. As they were walking up the hill, you followed them.

The couple had seen you at the foot of the hill and you appeared friendly and normal to them. It also seemed to them that you were going to go up the hill as well. You walked side by side with them chatting as you went along. This went on for about an hour and you all reached the top of the hill. Whilst there, the couple took some photographs of the view and were looking around, when you suddenly attacked them with the hockey stick repeatedly until they fell to the ground knocked out unconscious. Once they were on the ground, you proceeded to steal from them, a camera, a bag containing their business cards and K150.00 in cash. You then left them to fight for their lives and left the scene.

Other people in the locality went to the victims help. They were assisted to the New Britain Lodge. From there, the lodge assisted the couple by taking them to the Nonga Base Hospital. Then on 14th of December 2001, "Medivac" flew them out to Cairns. They stayed overnight in the Cairns Base Hospital and were flown to the Townsville General Hospital the following day.

The couple sustained multiple injuries, including fractures of some of their bones particularly in the head and facial area affecting the sight for one of the victims and the brain of the other. The male victim sustained a severe head injury, which would have proven fatal had it not been for the timely medical intervention. They both recovered from these injuries but require ongoing rehabilitation particularly for the male victim. The medical doctors were not able to rule out long-term residual disabilities.

As soon as they were able to, the couple was flown out to their home country, Canada. Their children had flown over to Townsville to be with them and take them back home to Canada.

The only reason you give for attacking the couple in such a brutal manner, is a difference you claim to have had with the East New Britain Tourism Board.

With these facts in mind, we now turn to examine the judgement of the learned trial judge. At pages 19 to 20 of the appeal book, the learned trial noted your personal and family backgrounds, the fact that you pleaded guilty to the charge and that you are a first time offender with no prior convictions. Then the learned trial judge found[3] that:

"The Court finds that the facts of your case are quite serious. The reason why the Court says it is serious is because one of the two expatriates was a male person, McNeil, almost died from the blows and effects that you administered to him on his head as well as the lady victim... The Court must say this is one of the most serous cases this Court has come across"

With these findings we agree. The factors that render this case "most serious" are these:

• The victims of your offence were very seriously injured to the point of one of them nearly dying and now left with an uncertain future;
• Both victims are left with physical, mental and psychological injuries due to the brutal attack on them;
• Your attack was in breach of a defector trust the victims had in you, which was built up in the course of accompanying and chatting with them all the way up to the hill top;
• A dangerous weapon was used against two unarmed and defenceless elderly couple;
• The attack was so sudden and taking the victims by surprise and unexpectedly;
• You left the victims to struggle for their lives in pain;
• The victims were put to substantial unnecessary and unexpected expenditure in terms of the medical and associated expenses;
• The couple’s plans for the rest of their lives were shattered;
• This was an attack on tourists at a time when the nation needs the tourist Kina or the dollar more to help build our economy and hence our country;
• The attack and robbery of the victims sent a wrong signal and impression of what PNG really is;
  

The Offence and Sentence

The offence of arm robbery is defined and its sentence is prescribed by s. 386 (2) of the Criminal Code. It carries a maximum of life imprisonment. But this Court prescribed some guidelines for sentences in armed robbery cases in Gimble v. The State.[4] These guidelines allow for sentences of up to 7 years at the top end for robbery of a dwelling house and 3 years for a robbery on a street at the lower end. These are for cases of guilty pleas by first time young offenders with no aggravating features. The actual sentence in anyone case may be over or below those recommended depending on the circumstances, particularly the factors in aggravation and those in mitigation of an offender.

Subsequently, these guidelines have been varied by this Court in Tau Jim Anis & Ors v. The State[5] particularly, in the recommended sentences for each of the categories. This has seen an increase in the sentences from 7 years to 10 years for robbery of a dwelling house, by factor of three years and the same applying to the other categories with the result that robbery on a street at the lower end, being increased to 6 years. This was influenced by the Court’s earlier judgement in Acting Public Prosecutor v. Don Hale.[6]

But a month earlier, on the 2nd of April 1998, this Court in Hawai John v. The State,[7] considered a sentence of 8 years on a guilty plea was too lenient. That was on appeal by his accomplish who also pleaded guilty and was given a sentence of life imprisonment. That sentence was reduced to 15 years on appeal. The reduction was on the basis of a huge disparity between the appellant and his co-offender. Otherwise, the Court found that the offence was most serious because it was a planned robbery carried out with reckless disregard for others using firearms resulting in one of the victims of the offence being rendered blind. In the Court’s own words, it said at pages 2 to 3:

"We agree that this was a most serious offence – a planned robbery carried out with reckless disregard of others. The carrying of firearms is always seen as serious aggravation of an offence because of the danger to life. As this offence shows that danger was realised with the blinding of the company driver. It was the appellant who fired the shot.

We are of the view that in such a case as this the imposition of a life sentence might well have been open to the Court. Despite there being no loss of life, the blinding of a young man-breadwinner of his family has effectively imprisoned him for life in a world of darkness.

... while the sentence viewed in isolation may not be said to be manifestly excessive on its own, the Court on the occasion was dealing with the second of two co-offenders."

The case was a robbery on the street, which falls in the last category under the Gimble v. The State,[8] guidelines. In Hawai John’s case, the victim was transporting in a company vehicle, bags of money in cash totalling K1798 and cheques K215,000.00 in cheques. The appellant and his accomplishes followed the victim and shot into the screen of the vehicle on the driver side. That injured the driver rendering him totally blind. The money was stolen with the cash distributed and the cheques destroyed. So the company lost financially due to the lost of the large sums of money.

That case was a robbery on a street, which falls in the last category under the Gimble v. The State.[9] In that case, the victim was transporting in a company vehicle bags of money in cash totalling K1798 and cheques totalling K215,000. The appellant and his accomplishes followed the victim and shot into the windscreen of the vehicle on the driver side. That injured the driver rendering him totally blind. The cash money that was stolen was distributed and the cheques destroyed.

In recent years the National Court has been imposing sentences of up 15 years on a guilty plea. A case on point is the judgement of Kandakasi J in The State v. Vincent Malara.[10] In that case, the prisoner who had a prior conviction for arson pleaded guilty to one count of armed robbery by a gang. The gang was armed with a gun, bush knives, a crow bar and a pinch bar. These weapons were used to execute the robbery of a store. In the process, one of the security guards was cut on the head twice. The total amount and value of goods or property stolen was about K18,228.80 in cash, K2,660.46 in cheques and K5,831.08 in cigarettes.

There are of course other cases in which sentences beyond 15 years have been given. However, these were after a trial. In The State v. Edward Toude, & Ors (No 2), [11] Kandakasi J imposed a sentence of 20 years against a prisoner who His Honour found to be the ringleader. That was in a case of an armed robbery on a ship, which His Honour equated it to the same category as a robbery of a dwelling house, as a ship is often used for accommodation too. There was also, an element of a breach of an employer/employee relationship by the employee who was the ringleader.

By reason of the judgement in Hawai John’s[12] case not being published and in circulation no consideration was given to that judgement in the above judgements. Perhaps also do to the lack of publication and circulation, the Supreme Court did not have regard to that judgement in its subsequent judgements in Tau Jim Anis & Ors v. The State[13] and Acting Public Prosecutor v. Don Hale.[14] In the circumstances we are of the view that, if that was done, the sentence ranges recommended in the subsequent judgements could have been beyond what the Court was prepared to settle at. But because that has not happened, everyone has been proceeding on the basis of the judgement in Tau Jim Anis & Ors v. The State[15] and Acting Public Prosecutor v. Don Hale.[16] This has resulted in sentences after a trial reaching as high has 20 years as demonstrated by The State v. Edward Toude, & Ors (No 2).[17]

Given these, the sentence of 20 years in your case would appear not to be manifestly excessive going by the guidance of the judgement in Hawai John’s[18] case. At the same time however, given the kind of sentences the offenders have received in cases like that of The State v. Vincent Malara,[19] following a guilty plea in the particular circumstances in those cases with a sentence after a trial as in The State v. Edward Toude, & Ors (No 2),[20] reaching 20 years, it would appear that the sentence of 20 years was excessive. Otherwise, we are of the view that this was a serious case of armed robbery with violence and the sentence the learned trial decided to impose was called for. The only problem was that trial judge with respect did not have any regard to the sentencing tariff. If he did have any regard to the sentencing tariffs, he could have imposed a sentence lower than 20 years. For this reason alone, we are of the view that, your sentence should be reduced to 18 years. Hence, we uphold your appeal and set aside the sentence of 20 years and substitute it with a term of 18 years less the time you already spent in custody awaiting trial.
________________________________________________________________________
Lawyers for the Appellant : Appellant in Person.
Lawyers for the Respondent : The Public Prosecutor

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^[1] See Wanosa & Ors v. The Queen [1971-72] PNGLR 90.
^[2] See Norris v. The State [1979] PNGLR 605 and also Ian Setep Napoleon v. The State (unreported judgement delivered on 18/05/0) SC666.

^[3] at page 20 of the appeal book.
^[4] [1988 – 89] PNGLR 27.
^[5] (Unreported judgement delivered 25/05/00) SC642.
^[6] (unreported judgement delivered on (27/08/98) SC564.
^[7] (unreported judgement delivered on 02/04/98) SCR 09 of 1995.
^[8] Supra note 4.
^[9] Ibid.
^[10] (unreported judgement delivered on 20/02/02) N2188.

^[11] (unreported judgement delivered on 18/10/01) N2299.
^[12] Supra note 7
^[13] Supra note 5.
^[14] Supra note 6.
^[15] Supra note 5.
^[16] Supra note 6.
^[17] Supra note 11.
^[18] Supra note 7
^[19] Supra note 10.
^[20] Supra note 11.