Kukubu v State [2015] PGSC 19; SC1426 (28 April 2015)

SC1426

PAPUA NEW GUINEA
[IN THE SUPREME COURT OF JUSTICE]

SCRA NOs. 09, 10, 11, 12, 13 & 14 OF 2012

BETWEEN:

KEVIN KUKUBU, FRANCIS SASA JOE, HENRY KUPEPE,
TONY OTTO, MARTIN GAULIM & JOE VOLA
Appellants

AND:

THE STATE
Respondent

Kokopo: Gavara-Nanu J., Mogish & Higgins JJ.
2015:27th & 28th April

CRIMINAL LAW – Robbery – Plea of guilty – Sentence – Aggravated and mitigating circumstances – Error demonstrated in the exercise of discretion – Young offenders - Sentence excessive – 7 years substituted for 12 years.

Cases Cited:
Gimble v. The State [1988-89] PNGLR 271
State v. Don Hale [1998] PGSC 26; SC 564
Tau Jim Anis v. The State [2000] PGSC 12; SC 642
The State v. Polpolio [2006] PGNC 194; N4514

Counsel:

R. Auka, for the State
Accused, In Person

SENTENCE

28th April, 2015

1. BY THE COURT: In this matter, the appellants were each charged with armed robbery. Between the 6 of them they had been armed with one firearm and two bush knives.
   
2. They attacked at just after 1am on 10 May 2011 entering a trade store and expelling the occupants. One wounded a security guard, Mr. Kanga, on the legs with a bush knife. Fortunately, the injuries were slight.
   
3. Nevertheless, the robbery was violent and terrifying for the helpless victims. The proceeds included goods from the trade store and cash to the value K2364.50.
   
4. All the property taken was returned after the offenders apparently repented of their crime.
   
5. The offenders also cooperated with police, readily admitting their guilt.
   
6. Indeed they have offered and paid substantial compensation to Mr. Kanga.
   
7. They have apologised to those they have wronged and offered further compensation to the trade store owner but he declined that offer. It may be assumed he was content to have the stolen property back.
   
8. The offenders are also very young men aged 18 to 21 years at the time of the offence.
9. Their reasons for committing these serious offences are not very persuasive.
   
10. It is true, as the prosecution submitted that a previous tariff, if it was that, of 5 years for an armed robbery in company can no longer be regarded as appropriate given the prevalence of this kind of offending. It is an offence that causes great terror and distress going well beyond the deprivation of the property stolen. It is often committed by young men.
    
11. It is for this reason, no doubt, that the penalty for armed robbery with aggravating features now attracts a maximum penalty of life imprisonment.
    
12. That penalty is, as the authorities attest and His Honour noted, reserved for the worst category of offending.
    
13. The prosecution did not submit that this case fell into the worst category but did submit that 8-12 years was the appropriate penalty range. It was not suggested that any offender could be distinguished in terms of aggravation or mitigation from any other of them.
    
14. The authorities cited on each side do suggest that a starting point for robbery in company with weapons should be treated with greater severity than in the past eg. in Polpolio's case and Gimbles' case. We have also considered the principles applied in Don Hale and Tau Jim Anis.
    
15. Nevertheless, as the sentencing judge noted, there were substantial mitigating factors present here.
    
16. The offenders submit with some justification these matters, particularly their guilty pleas, expressions of remorse and contrition and their efforts to make amends, not only by their acts of contrition and apology but also their tender of compensation, do not seem to have been acknowledged with a more lenient sentence than would be justified without those factors being present.
17. We agree with that submission. Whilst absent the mitigation factors the circumstances of the offending behaviour would warrant a sentence of 12 years or even a little higher, the presence of those factors give powerful weight to a plea for a mitigation of such a sentence. Indeed, those factors should be given considerable weight.
    
18. Consequently, we find that the sentence was manifestly excessive. We would reduce it to 7 years which does still reflect a more severe penalty than may have been the case before but allows for these youthful offenders, who are remorseful, to work towards rehabilitation, perhaps earlier release with remissions if earned by good behaviour. It is not appropriate to suspend any part of the sentence. The seriousness of the offending behaviour is such that any further leniency needs to be earned by future good behaviour.

_______________________________________________________________
Public Prosecutor: Lawyers for the State
The Appellants in Person