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State v Bandi and Wi [1984] PGNC 6; N462 (17 April 1984)

Unreported National Court Decisions

N462

PAPUA NEW GUINEA

[NATIONAL COURT OF JUSTICE]
THE STATE
V.
PETER SAMAK BANDI OF IANGEN, E.S.P.
AND
GIBSON WI OF JAPANDAI, E.S.P.

Wewak ESP

Kaputin J
17 April 1984

SENTENCE

KAPUTIN J: The two of you been indictndicted together on a charge that on the 16th day of January, 1984 at Wewak, in Papua New Guinea you both stole from da Oraidi, with actual violence, a sum of money namely K68.60, and that at the time you weru were armed with a dangerous weapon, namely a knife. You have pleaded guilty to the charge and I have convicted each of you of it accordingly. The charge is laid under s.386 of the Criminal Code, which section reads:

“The offence of Robbery:

(1) Aoperso whmitomrobb ry isry is guilty of a crime.

Penalty: Subject to Subsection (2), imprisonment for a term not exceedi year>

160;&ـ If a person charged with an offence againsgainst Subt Subsectisection (1on (1) -

(a) is armeh witana douserr ofor offensive weapon or instrument; or

(b) ـ&#1s in c in companympany with one or othesons,p>

he is liable, subject to section 19, to imprisonment for lior life.&#fe.”

However, the penalty for the offence under this provision has recently been amended by the Criminal Code (Amendment) Act (1983) (No.29 of 1983). The amendment s.5 reads:

“S.5 Thence ob Rob(Ary (Amendmeendment of section 386)

Section 386 of the Criminal Code is amended -

(a) In Subsnctio b(1)epe ring ling the penalty provisio subsing tllowingowing:

&

‘Penalty: Imprisonment for a term not less than seven years and not exceeding 14 years.’; p>

‘to imprisonment for a term not less than tean ten yean years anrs and not exceeding life imprisonment.’ ”

Subsection (b) applies in your case. This means that you are liable to the minimum sentence of ten years’ imprisonment.

The facts of the case are that you are both aged 17 years and unemployed. Bandi you originally came from Iangen Village Pagwi, E.S.P. and Gibson Wi you are from Japandai, also in Pagwi, E.S.P. You both now live at Kreer Compound, Wewak, Bandi with your parents and Gibson with your sister. It was while you were both living at Kreer Compound that you committed this crime. On the day in question the two of you had had nothing to eat for the whole day so you decided to rob the Bernard Moses Trade Store for money. Your plan was that Bandi would walk into the store first and pretend to buy something. Gibson would then enter the store looking fierce and pretend to stab Bandi with a knife and at the same time Bandi would appear frightened and would eventually walk backwards towards the cashbox with his back to the shopkeeper and ask for assistance. As soon as he reached the cashbox you would both grab the money and flee.

You had worked out this plan just beforehand and then set out to execute it. At 6.30p.m. you went and sat outside waiting for darkness and studying the movement of people in and out of the store. At about 7.00p.m. Bandi, you came into the store first and Gibson came in later, looking fierce and asked you, “Are you the one who fought me in town?” You pretended to look frightened and walked backwards with your back towards the shopkeeper. Gibson took out a knife and pointed it at you while at the same time looking fierce. As you reached the place where the cashbox was kept you grabbed some money from the box and Gibson also grabbed some money and both of you ran out of the store. During the entire event the shopkeeper and his assistant were very scared about what was going on and had in fact attempted to do something to save you, Bandi, from being stabbed, but only to find that it was all a fake. They realised that it was all planned to rob them. As you both fled the scene you lost the stolen money.

It also turned out that the knife you used at the time was just a toy one. It was a rubber knife with the handle painted black and the blade white. However, as far as the shopkeeper was concerned he thought that it was a real knife and it created real fear in his mind. Your criminal enterprise was well thought out, and I am sure you must have picked up such cowboy style ideas from seeing films depicting such techniques. Of course, the idea could have been thought up by yourselves but I feel films of such nature can form the ideas in the minds of youths who can adopt them for criminal purposes.

Police were able to have you identified straightaway that night but could not arrest you both because you did not sleep at your homes. You were apprehended the next morning.

This is a very serious offence because it is a violent offence; it was committed in company and at the time you were armed with a dangerous weapon. It is also a very prevalent offence now and therefore requires severe public deterrence. With the increase of crimes today, Parliament has seen fit to enact the new Minimum Penalties legislation, to provide substantial penalties for crimes of violence clearly to ensure that the people will come to learn that violence cannot be tolerated in any organised society and that those who offend will be dealt with sternly. The fact that punishment does not entirely prevent all similar crimes should not obscure the cogent fact that the fear of severe punishment does and will prevent the commission of many that would have been committed if it was thought that the offender could escape without punishment or with only a light punishment. Of course, the amount of money you stole may not be great, but the trade store you robbed belonged to a Papua New Guinean and by Papua New Guinea standards that amount of money was a lot of money. While the Government is working hard to promote indigenous businesses as such, criminal activities such as the present one can stifle the Government’s efforts. The law, therefore, must play its part vigorously in the maintenance of law and order so that the people can go about their business in peace.

On the other hand justice and humanity require that I should take into account in mitigation of sentence all that your counsel has urged me to consider in your favour. You are both 17 years old. Bandi, you only attained primary education up to Grade 6, and have been without a job since leaving school in 1979: you have no prior convictions. Gibson, you have had the benefit of High School education, but have one prior conviction for a charge of receiving stolen property and you were sentenced to six months’ imprisonment by the Wewak District Court, so you do not have a clean record at all. However, you were both unemployed, and at the time both of you had had no food for the whole day which, of course, mainly compelled you to commit the crime.

Allowance for mitigation is, of course, seen as a matter for the discretion of the court, which the court might not consider significant according to the nature of a particular case, if it sees fit, in order to emphasise some penal object, usually deterrence. However, it cannot be denied that the most effective mitigating factor is of course, the youth of the offender. However, with the new Minimum Penalties legislation this mitigation will be of no effect at all. It might be of some relevance only if a sentence above the minimum penalty is being envisaged.

All the avenues previously available to the court under s.19 of the Criminal Code which the court could exercise under its discretion to apply in appropriate cases, have been removed. The powers of the Children’s Court under s.32(5) of the Child Welfare Act for this court to exercise will not apply here either. Section 32(5) reads:

“Where a court other than a Children’s Court deals with an offence (other than a homicide or rape, or any other offence punishable by death or imprisonment for life) committed by a person over the age of 16 years but under the age of 21 years, the court may, where it thinks it for any reason desirable -

(a) ҈& treat teat the pere person as a child for the purposes of this Act, and

(b) ;&#16ercise in r in relatiolation to him, the powers of a Children’s Court underectio,

and an o an order rder made in the exercise of those powers has effect as if it were an order of the Children’s Court.”

This Act has been amended, however, by the Child Welfare (Amendment) Act (1983) which reads:

“Powers of Children’s Courts (Amendment of Section 32).

Section 32 of the Principal Act is amended by adding the following new subsection:

‘(6) A children’s court is not bound by a minimum penalty prescribed for an offence dealt with by it and may disregard the minimum penalty prescribed in imposing a penalty.’”

This will e of ssistto you becaubecause byse by virt virtue of s.32(5) the offence of which you have been convicted attracts the maximum penalty of life imprisonment, which the Children’s Court or this court exercising the powers of the Children’s Court could not deal with. This means that I have to deal with you as any other case under the criminal law. It follows, therefore, that you have to face the full wrath of the law. This is the effect of that new Minimum Penalties legislation. The court’s duty is merely to apply that law. That law commands that you shall be sentenced to a minimum of ten years’ imprisonment. I sentence each of you, therefore, to a term of ten (10) years’ imprisonment with hard labour.

Lawyer for the State: L. Gavara-Nanu, Public Prosecutor

Counsel: Mr Ian Brown.

Lawyer for the two Accused: Mr N. Kirriwom, Public Solicitor

Counsel: Mr Simon Liosi