Kara v The State [2006] PGSC 14; SCRA 51 of 2005 (30 August 2006)

PAPUA NEW GUINEA

[IN THE SUPREME COURT OF JUSTICE]

SCR 51 of 2005

BETWEEN:

KENNEDY KARA
Appellant

AND:

THE STATE
Respondent

Wewak: Kirriwom J,
Batari & Mogish JJ
2006: 28 & 30 August

CRIMINAL LAW— Armed robbery — Appeal against sentence — Category of robbery cases – Street robbery - Sentencing guides – Identifiable error - Erroneous application of sentencing discretion.

CRIMINAL LAW – Armed robbery – Disparity of sentence – Differentiation on age – Child offender aged 16 years – Whether different treatment of co-offenders justified – Principles applied.

FACTS:

The appellant was convicted of street robbery. He appealed against sentence on the grounds of severity and disparity of sentence and that the trial judge did not take into account his cooperation with the police.

Held:

(1) A young offender convicted and sentenced with older offenders in the same crime may be sentenced to lesser term to that of his co-offenders by reason of the young age.

(2) The trial judge erred in applying the wrong principle in applying the sentence that was excessive and outside the guidelines recommended in Gimble -v- The State [1988-89] PNGLR 271 and subsequent Supreme Court cases.

(3) Appeal against sentence upheld and substituted with 7 years imprisonment.

Cases Cited:
Papua New Guinea cases
Gimble -v- The State [1988-89] PNGLR 271
Norris -v- The State [1979] PNGLR 605
Public Prosecutor -v- Don Hale (1998) (unreported Supreme Court judgment) SC564
Tau Jim Anis v. The State (2000) (unreported Supreme Court judgment) No. SC642
Philip Kassman v. The State (2004) (unreported Supreme Court judgment) No. SC759
Hawai John v. The State, (1998) (unnumbered Supreme Court judgment) SCR 9 of 1995
Nelson Ngasele v The State (2003) (unreported Supreme Court judgment) No. SC731
Dudley Henry Gorap v The State (2003) (unreported Supreme Court judgment) No....
Secretary for Law v. Witrasep Binengin [1975] PNGLR 175
Goli Golu v. The State [1979] PNGLR 653

Overseas cases
(R. v. Ball (1951) 35 Cr. App. R 164)
Wurramarbra v. The Queen (1979 -80) 28 ALR 176

Counsel:
Appellant in person
R. Auka, for the respondent

31 August, 2006

1. BY THE COURT: The appellant appeared before his Honour, Kandakasi J on 26 September 2005 and pleaded guilty to one count of armed robbery. He was sentenced to 11 years imprisonment. He now appeals in-person against that sentence on three grounds which can be summarized as; sentence being too excessive; that, the trial judge failed to take into account his cooperation with the police and that, there was disparity between his 11 year term and the 9 year term imposed on his co-accused Moses Tingin. His co-accused has not appealed but the outcome of this appeal is relevant and applicable to his sentence.

2. The appellant and his co-accused had pleaded guilty at trial to an indictment which charged that, on 13th day of May 2005 at Wewak, stole from one, Mark Daure with actual violence, a sum of K30.00 in cash, a pair sandals, a wrist watch, a towel and other personal belongings. And at that time he was armed with a dangerous weapon namely, a bush-knife and was in the company of other persons.

3. The facts supporting the conviction are that, on the evening of 13 May, 2005 about 9.00 pm, the victim Mark Daure was walking home after work along Windjammer beach when the appellant and two other accomplices accosted him at the ESCOW Hall area of the beach. 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 Moses Tingin.

4. The appeal is opposed by the State on the basic contention that there is no error on the part of the trial judge meriting a review of the sentence by the Supreme Court. Mr. Auka relies on the principles to be applied in an appeal against sentence as stated by Kearney, J in Norris v The State [1979] PNGLR 605 at pp 612-613, with whom the Supreme Court agreed in Gimble v The State [1988-89] PNGLR 271 at p.272 and applied in numerous cases that have since followed:

"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?"

5. In the same vein, Kearney J went on to describe the nature of error that may be found in the trial judge’s sentencing discretion:

"Such an error may be identifiable; thus, the trial judge may have made a mistake as to the facts; or acted on a wrong principle of law; or taken into account matters which he should not have taken into account; or failed to take into account matters he should have taken into account; or clearly given not enough weight or too much weight in a matter he properly took into account. And .. if a sentence is out of reasonable proportion to the circumstances of the crime, even though no particular error can be identified, this Court will infer that some error must have occurred in the exercise of the sentencing discretion."

6. In his written submissions the appellant advanced a number of matters in support of each of his three grounds of appeal. We will deal first with his complaint of disparity of sentence between his term of 11 years and the 9 year term imposed on his co-accused Moses Tingin.

7. The appellant and Moses Tingin were indicted and dealt with together on the same count of armed robbery in question. He argued that, on the basis of their same involvement in the robbery, it is unfair that his sentence is much higher then that of his accomplice. It is accepted that, the sentencing authority should take into account, the sentence of one co-offender where the same offence is proved against offenders and there is no real comparisons as between the offenders and irrespective of whether they were tried before the same judge or different judges. See, Wurramarbra v. The Queen (1979-80) 28 ALR 176; Secretary for Law v. Witrasep Binengin [1975] PNGLR 175; Goli Golu v. The State [1979] PNGLR 653. In such cases as armed robbery which are invariably committed by two or more persons acting together aiding and abetting each other, the role of one offender is just as important as the other in the outcome of their evil venture so that, they must be treated equally on punishment: Gimble v The State (supra).

8. There are however instances where differentiation in the treatment of the co-offenders in the same crime may be justified as in the case where one co-accused had not acted in any greater degree of participation than the others but received a higher sentence due to a prior conviction on a very serious case of wilful murder; (R. v. Ball (1951) 35 Cr. App. R 164) or as in a case of the co-offender being of a very young age.

9. In the case before us, Moses Tingin was 16 years old. He was given a term two years lesser to that of the appellant’s term. The rationale, as the trial judge averted to was that, Moses Tingin was a young boy who was led and encouraged into committing the offence by older men.

10. We consider that the course taken by the trial judge to differentiate the treatment of the appellant and his co-accused is justified by the vast difference in their characters and antecedents. In particular, Moses Tingin was a very young first offender and on the basis of that together with his plea of guilty, he deserved the differentiation which has been reflected in the terms imposed. The disparity in our conclusion was justified. We therefore, reject the appellant’s contentions on this issue.

11. The first ground of appeal against severity of sentence in essence is premised on the contention that the trial judge having concluded the appellant’s case fall into the category of street robbery, failed to properly assess and impose a term of sentence that applied in that category. The second ground of appeal against a failure to take into account the appellant’s cooperation with the police is inter-related with issues pertaining to severity of sentence. We will deal with that together with the first ground of appeal as there is some merit on what the appellant says are errors on the part of the trial judge.

12. The Criminal Code in s. 386 (2) prescribes penal servitude of life imprisonment for robbery. That maximum term of course is not mandatory by operation of s. 19 which gives the court discretion to impose a term of years. Such discretion must however be guided by proper principles of sentencing and guidelines as to range of sentences that apply to the facts of each case. The Supreme Court in Gimble v The State [1988-89] PNGLR 271 first enunciated the proper approach to sentencing robbery cases and suggested some guidelines that should apply. In that case, the Supreme Court categorized robbery into: robbery of a house; robbery of a bank; robbery of a store, club, factory, vehicle on the road or the like, and street robbery. The court suggested starting points of 7 years, 6 years, 5 years and 3 years respectively for each of those four categories in a contested case involving young first offenders carrying weapons and threatening violence.

13. Sentencing in the first category of robbery of a house cases came under review in Public Prosecutor v Don Hale (1998) (unreported Supreme Court judgment) No. SC564 where the Supreme Court, having considered the ranges of sentences in Gimble’s case as outdated and no longer applicable, suggested a term of 10 years for robbery of a home in the night by young first offenders armed with firearm.

14. The 3 year increase factor in Don Hale’s case was adopted and applied in Tau Jim Anis v. The State (2000) (unreported Supreme Court judgment) No. SC642 in a case involving robbery of a factory which is the third category of robbery in Gimble’s case. In Philip Kassman v. The State (2004) (unreported Supreme Court judgment) No. SC759, the Supreme Court espoused and applied the 3 year denominator in Hale and Anis in a suggested starting point of 8 years for contested cases in the second category of robbery of a bank. In that case, the appellant together with others in a planned robbery held up a businessman with firearm outside the bank cark-park and robbed him of the weekend’s takings as he was attending the bank to transact. The Supreme Court in noting it was a serious case of robbery of a vehicle which would attract a sentence of 8 years, viewed the incident as akin to robbery of a bank with the starting point of 9 years applying the 3 factor increase. The Supreme Court dismissed the appeal and confirmed the term of 10 years imposed by the National Court.

15. The 3 year factor has been generally accepted and applied consistently to all categories of cases of robbery. We affirm therefore that, the suggested guide in Gimble’s case for each category of robbery has increased by 3 years so that, the starting point in sentencing robbery cases in the fourth category of robbery namely, street robbery in a contested case is 6 years. The sentence imposed may be lower where there are substantial mitigating factors in an uncontested case or more where circumstances of aggravation are present.

16. The trial Judge had quite correctly averted to the current guidelines and acknowledged that, the 3 year factor, when applied to all the categories of robbery makes 6 years as the starting point for the last category of street robbery. He also referred to the prevalence of robbery and cited a number of National Court cases which, with the greatest respect to his Honour, were his own cases that have had exceptionally high sentences imposed outside the accepted starting point for street robbery in what he proposed as, "indicating preparedness to increase sentences from 10 years to 13 years for armed robberies on the street on a plea of guilty." (pp 35-36 Appeal Book).

17. His Honour also referred to three Supreme Court cases on the basis of which he had proceeded to impose the sentence in question within the purported increased range for street robbery. The first of those cases, Hawai John v. The State, (1998) (unnumbered Supreme Court judgment) SCR 9 of 1995 involved a planned robbery to intercept monies on transit in a company vehicle. The appellant and his accomplices followed the victim and shot into the windscreen of the vehicle on the driver side. The driver was rendered totally blind from the injury to his eyes. The appellant on a plea of guilty was sentenced to life imprisonment while his co-accused was sentenced to 8 years. In considering the sentence of eight (8) years as being far too lenient for robbery of the most serious type, the Supreme Court nevertheless commuted the life sentence to 15 years on the basis of the huge disparity in the sentence between the appellant and his co-accused.

18. In relying on that case, his Honour, with respect made two erroneous assumptions namely that; the court was reviewing the guidelines in Gimble’s case and its opinion would have affected the out - come of the suggested guideline in Tau Anis had the Court been referred to that preceding Supreme Court case.

19. In our view the court in the case of Hawain John had correctly treated the robbery as falling into the worst type case deserving the highest penalty that was warranted on the particular facts of robbery of a vehicle on the road. It was a planned robbery involving firearms and discharging of firearms with total disregard for others, resulting in one of the victims of the offence being rendered blind. The court applied the same guidelines in Gimble’s case and substituted a sentence that was proportionate to the particular circumstances of the case on appeal without reviewing the sentencing guidelines.

20. The second erroneous assumption was that, the case involved a street robbery. That type of robbery however, comes within the third category involving robbery of a vehicle on the road or the like. It was the worst robbery of its kind.

21. The case of Nelson Ngasele v The State (2003) (unreported Supreme Court judgment) No. SC731 (Kirriwom J, Kandakasi & Batari JJ) his Honour also made reference to was a case involving two robberies of houses, one of which was a canteen by an armed gang in the night. Actual violence with damages and injury to persons and property were occasioned during the robbery. Cash and goods of substantial value were also stolen. The appellant pleaded guilty and sentenced to 5 years. The Supreme Court in dismissing the appeal against severity of sentence considered that the appellant was fortunate to have been leniently dealt with in light of the increased range of sentences pronounced in the cases of Hale and Anis. The Court also made reference to a number of National Court robbery cases to illustrate a general tendency towards higher sentences in aggravated robbery.

22. His Honour again made two erroneous assumptions first, in his statement while sentencing the appellant in this case that, Ngasale’s case "endorsed a number of judgments increasing sentences most of them mine by indicating a preparedness to increase sentences from 10 years to 13 years for armed robberies on the street on a plea of guilty."

23. We do not understand the Supreme Court in Ngasele to be endorsing a dissipation or a departure from the increased ranges suggested in Hale and Anis. Instead, those National Court sentences were cited to demonstrate a tendency to impose increased sentences. Further, those cases had limited validity and application as a guide because they do not represent the wider judicial opinion and sentencing trend outside the guidelines set by the Supreme Court.

24. Second, Ngasele’s case was not a street robbery and its circumstances not only fall within the third category of robbery of a store etc., but it was also a robbery of the most serious type in that category.

25. The case of Dudley Henry Gorap v The State (2003) (unreported Supreme Court judgment) also relied on by the trial judge involved robbery of a tourist Canadian couple. The appellant escorted them as their guide to Namanula Hill over looking the remains of Rabaul town but then turned suddenly violent against them. He beat the couple into unconsciousness with a hockey stick, rendering the husband to the point of death, before stealing from them. That was a street robbery in which the appellant was sentenced to 20 years. In reducing the sentence to 18 years, on the basis of the 20 years being too excessive, the appellate court considered the case as the worst type of its kind of street robbery which warranted a much higher penalty.

26. We have also considered the number of National Court judgments cited by the trial judge and they relate mostly to the third category of robbery of a vehicle.

27. In arriving at the sentence the trial judge did in the case before us, it is apparent that his Honour was guided by the most serious cases of armed robberies that had no relativity to the facts of the case before him. Second, having correctly identified the case as a street robbery, his Honour proceeded to sentence the appellant applying a purported higher sentencing range for street robbery while he in fact was applying the sentencing range in the third category for robbery of a store, club, vehicle etc.

28. It is correct to say that the trial judge treated robbery of store, club, motor vehicles etc. as street robbery which formed the basis for the appellant’s sentence. In so doing, the trial judge did not only err in his categorization of robbery cases but more significantly his Honour acted on a wrong principle of law. He applied cases for the most serious category that are distinguished on the facts which in turn affected his sentencing discretion.

29. It is also clear that the trial judge concentrated on and gave too much weight to the seriousness of the offence and the retributive aspect of sentencing while clearly not giving enough weight in matters he properly took into account. These are the appellant’s plea of guilty, his prior good record, his cooperation in his early admission to the police and his expression of remorse which followed his early admission to the police and plea of guilty.

30. We conclude that the trial judge was incorrect on the sentence imposed. He fell into identifiable errors in the exercise of his discretion when he went outside the guidelines. In fact it would seem to us that the trial judge was quite harsh when dealing with the appellant.

31. The appeal against sentence is upheld. The sentence of 11 years is quashed and substituted with a sentence of 7 years.

32. The consequence of this decision, in our observation, means that the sentence of Moses Tingin who, by virtue of his young age was sentence to 9 years to Boys Town, ought to be reviewed. As he has not appealed his sentence, we suggest that he does so immediately so that his sentence can be reviewed and adjusted accordingly. It is our view that, to allow it to remain without being reviewed would result in gross miscarriage of justice.

Orders accordingly.
_____________________________________________

Appellant in person
Public Prosecutor: Lawyer for the Respondent