Pitaro v State [2006] PGSC 10; SC846 (30 June 2006)

SC846

PAPUA NEW GUINEA

[IN THE SUPREME COURT OF JUSTICE]

SCRA 51 OF 2004

BETWEEN:

RAMSEY LESTER PITARO

AND:

THE STATE

Lae: Hinchliffe, Gavara-Nanu & Lenalia JJ
2006: 26 & 30 June

SUPREME COURT - Appeal Against Sentence - Eight (8) years Imprisonment for Armed Robbery - Appellant had a Prior Conviction of Similar Offence - No Error by the Trial Judge - Appeal Dismissed

Cases Cited:
William Norris v The State [1979] PNGLR 605
Gimble v The State [1988-89] PNGLR 271
Public Prosecutor v Don Hale (1998) N1836
The State v Jonathan Wellington (1999) N1837
John Arua Peter v The State (2000) SC638
The State v Steward Pariwan (1999) N1834

Counsel:
Appellant in Person
J.Pambel, for the State

DECISION

30 June, 2006

1. BY THE COURT: This is an appeal against sentence of eight (8) years imprisonment in hard labour imposed by the National Court on the 19 May, 2004. The appellant had been indicted on one count of armed robbery pursuant to s. 386(1)(2(a)(b) of the Criminal Code Act < Chapter No 262.

2. The indictment reads as follows:

"RAMSEY LESTER PITARO of BOVIRA, IOMA, ORO PROVINCE stands charged that he on the 13th day of June, 2003, at Malaita Street (Papuan Compound) in Papua New Guinea stole from one MAHARA AUHI with threats of violence a Toyota Hilux, white in colour with registration number LAN 255, the property of Neptune Fisheries Limited.

AND at this time, the said RAMSEY LESTER PITARO was armed with a dangerous weapon namely homemade gun and was in the company of other person".

3. The brief facts are that Mahara Auhi, an employee of Neptune Fisheries Limited, was dropping off another employee of the said company at his home at Papuan Compound and had arrived at the front gate of the house and the motor vehicle had come to a halt. Soon after, the appellant and three(3) others appeared on the scene armed with a homemade gun. They made threats with the gun and ordered the two men out of the car and to leave the keys in the ignition. The order was obeyed and the accused and his accomplices drove off in the motor vehicle.

4. The appellant pleaded guilty to the charges and the trial Judge dealt with the appellant and one of his co-accused (in absentia as he had escaped) and sentenced the appellant to eight (8) years imprisonment and the co-accused to seven (7) years imprisonment. Both in hard labour.

5. In his Notice of Appeal the appellant states his reason for appeal as follows:

1. "I am appealing against the sentence of eight (8) years imposed by the presiding judge.
2. Any other relevant grounds that may arise during the hearing of the appeal."
   

6. On the face of it, the reasons for appealing are incompetent but as this is a "prisoner’s appeal", we are prepared to accept that the appellant is appealing on the ground that the said sentence of eight (8) years imprisonment is excessive.

7. The appellant and the state lawyer have provided written submissions and it would seem to us that after reading the appellant’s said submissions that it is quite clear that he does not understand or appreciate the change in penalty when there is a prior conviction recorded. The appellant barely mentions the fact that he had a prior conviction for armed robbery but he had much to say about his change of life and the character references that were presented to the trial Judge. He was of the view that His Honour did not place enough emphasis on the said references and oral submissions when assessing penalty. We do not agree.

8. The legal principle on appeals against sentence is settled in this jurisdiction as expressed by Kearney J in William Norris v The State [1979] PNGLR 605 at p.612. (See also Gimble v The State [1988-89] PNGLR 271 at 277):

"......the principle applicable is that the sentence imposed by the trial judge should not be disturbed when the appellant can show that an error had occurred which has the effect of vitiating the trial Judge’s discretion on sentencing."

9. After reading such cases as Gimble v The State (supra), Public Prosecutor v Don Hale (1998) SC564, The State v Steward Pariwan (1999) N1834, The State v Paul Wagira and Alphonse Mause (1999) N1836, The State v Jonathan Wellington (1999) N1837 and John Arua Peter v The State (2000) SC638, we are well satisfied that it was open to the trial judges to fix a sentence of eight (8) years imprisonment. The trial judge did not fall into any identifiable or unidentifiable error and he did take into account the character references presented to him. At p.25 of the Appeal Book, His Honour said, inter alia, the following:

".............you have pleaded guilty. That is a factor in your favour. .....I accept that you have pleaded guilty, that you have apologised to the victim company and which apology has been accepted, but have a prior conviction for aggravated robbery. Your record shows that you were convicted and sentenced for aggravated robbery in 1996. It seems to me that you have not learned a lesson from that. You have in your written statement promised to do many good things. Your sister has also written a given a good character reference about your past character. But your previous conviction has an impact on those, and so to my mind it is clear that you have not learnt a lesson. Your sentence will therefore reflect the prior conviction for aggravated robbery because that is an aggravating factor."

10. We are quite satisfied that the trial judge did consider, properly, everything that was put to him and it is abundantly clear that one of the co-accused received a sentence one year less than the appellant because he was a first offender. That is, he did not have any prior convictions.

11. Finally, we say this, that we think that the trial judge clearly did place considerable weight on your character references in sentencing you to eight (8) years imprisonment as we are of the view that a term well in excess of eight (8) years would have been warranted because of your prior conviction for armed robbery. Your character references saved you from that. The sentence was little more than the Court would hand out to a first offender.

12. We therefore dismiss the appeal and confirm the sentence of the national Court.

Order accordingly
________________________________________________________________________
Appellant in Person
Public Prosecutor: Lawyer for the Respondent