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National Court of Papua New Guinea |
PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]
CR. No. 857 of 2000
THE STATE
ABEL AIRI
WAIGANI: KANDAKASI, J.
2000: 9 and 28 NOVEMBER
CRIMINAL LAW – Practice and Procedure – Plea of guilty on arraignment - Depositions disclosing possible defence but accused deciding to forego and raise it in mitigation – Guilty plea confirmed – Criminal Code (Ch 262) SS. 560(a) and 593 (a)
CRIMINAL LAW – Sentence – armed robbery – fist time young offender with good character - Suspended sentence on terms - Criminal Code (Ch 262) SS. 386(2) and 19 (1) (d).
CRIMINAL LAW – Compensation under Criminal Law (Compensation) Act 1991 ordered – Such compensation no substitute for punishment – Relevant only in mitigation.
CASES CITED:
Gimble v. The State [1988-89] PNGLR 271
Public Prosecutor v. Don Hale (1998) SC564
The State v. Morobet Awui Koma and Peter Kevin [1987] PNGLR 262
Kesino Apo v. The State [1988] PNGLR 182
Andrew Uramani & 4 Others v. The State [1996] PNGLR 287
Peter Joss Kinisa v. The State (1998) SC544
Tau Jim Anis & Others v. The State SC642
R v. Davey [1980] FCA 134; [1980] 2 A Crim R 254
The State v. Frank Kagai [1987] PNGLR 320
The State v. Rex Lialu [1988-89] PNGLR 499
Rex Lialu v. The State [1990] PNGLR 487
Counsel:
C. Kupinim, for the State
A. Furigi, for the Accused
9 November, 2000
KANDAKASI, J: On the 9th of November 2000, an indictment was presented against the Defendant charging him with one count of armed robbery. The indictment read:
ABEL AIRI of OROI, BEREINA, CENTRAL PROVINCE stands charged that he on the 11th day of February 2000 at Gordons in Port Moresby in Papua New Guinea stole from one THOMAS GANUPILA with actual violence a motor vehicle namely a Subaru Legacy Sedan, Registration Number JAB 153, the property of the said THOMAS GANUPULA.
AND AT THIS TIME the said ABEL AIRI was armed with a pistol and a shot gun, being dangerous weapons and was in the company of others.
On arraignment, the accused admitted the charge as presented in accordance with the provisions of s. 560(2)(a) of the Criminal Code Act (Ch 262) (hereinafter the Code). A provisional plea of guilty was therefore entered. However, after admitting into evidence the original depositions and upon reading them, I ascertained that the accused in his record of interview denied being armed with a shotgun, a pistol and stealing from Thomas Ganupila, but admitted to driving the vehicle that was stolen from that person upon the order. Learned Counsel for the Defendant, Mr Furigi was thus asked whether he had sought his client’s instructions on those aspects and the possibility of raising a legal defence. Mr. Furigi said, he had sought and received his client’s instructions and had a statement dated 9th November 2000, by his client which he sought leave to tender into evidence. That statement was admitted into evidence with the State’s consent. Mr. Kupmain for the State, also informed the court that the State was accepting the version of facts set out in the statement. The statement was consistent with what the accused told the police during the record of interview.
Mr. Furigi then informed the court that, his client’s instructions were for him to forgo any possible defence and raise them only in mitigation before sentence. He was therefore instructed to maintain his client’s guilty plea. In the light of that, the court confirmed and formerly entered a guilty plea and proceeded to convict the Defendant.
The prosecutor then tendered into evidence an antecedent report on the accused. Thereafter, allocutus was administered in accordance with s. 593(a) of the Code. The accused said he was sorry for what he had done. He asked the court to be lenient with him when deciding what punishment to give and pointed out that he did not intend to commit the offence and that he was not the main offender. He then asked for a non-custodial sentence, which would give him a second chance to become a better law-abiding person. He finished by saying his lawyer will say some more things in addition to what he already told the court.
Facts
The relevant facts are in the Defendant’s Statement admitted into evidence with the consent of the State. In the morning of 11th February 2000, the Defendant repeatedly asked his mother to use her car but the mother refused. He got angry and decided to go to Gordons to ask his grandparent’s car. On the way, he met a Paul Kove, Simon (whose surname the Defendant did not know), and John Koivi. He then went with these men to Gordons Liquor Barn and bought two large bottles of whisky bourbon. They took the whisky to Paul Kove’s residence and drank them with two additional ones of the same kind. About 6.00pm, they were all intoxicated. Paul with the agreement of Simon and John, then suggest that they get into a car and go for a joy ride. The Defendant on his part said, "if you know how to get one, I’ll do the driving." Paul and Simon left for a brief 5 – 10 minutes and returned with a home-made shotgun and a toy pistol.
They left the place at which they were drinking and walked to Dunlin Street also in Gordons. At that street, a vehicle drove up and stopped about 5-10 metres away from where the Defendant and his friends were. As they got closer, Paul with the help of Simon and John, suddenly approached the vehicle, held up its driver and its other occupants and forced them out of the vehicle. At that stage, Paul discharge a warning shot into the air from the shotgun. As soon as the occupants of the vehicle were out, Paul ordered the Defendant to get into the driver’s seat and drive and he did. John and Simon took the backseat, while Paul took the seat beside the driver’s seat. As soon as the Defendant and his friends got into the vehicle, the Defendant drove the vehicle off and was continuing to drive the vehicle aimless around the Gordons area until the police caught up with them at Dunlin Street.
On seeing the police, the Defendant immediately stopped the vehicle and got into the yard of one of the nearby residences from where he was apprehended while his other friends had escaped. The Defendant neither laid his hands on the driver of the vehicle that was stolen or any of its occupants, either to steal or hurt them nor did he take anything from the vehicle that belonged to the victims. Upon his arrest, the police did not find or recover from him any of the things allegedly stolen from the driver or any of the occupants of the vehicle that was stolen.
The Defendant
The Defendant was about 19 years old at the time of the commission of the offence, Paul, Simon and John were aged between 24 and 26 years. The Defendant was therefore the youngest amongst them. He revealed the identity of his friends tot he police. He also took and showed the police the place at which he and his friends had been drinking. He admitted being involved in the commission of the offence initially to the police and then this court.
The Defendant’s parents have been separated for about 11 years now. He has two younger brothers’ aged 18 and 10 years old. The Islander Travelodge Hotel employs his mother as its Executive Secretary while Dunlop PNG Ltd employs his father as its Sales Manager. The father supports the family from time to time. The former Prime Minister, Hon. Bill Skate, employed the Defendant as a clerk Grade 8 for a period of 2 years. He left that employment to pursue further education. He has planned with his mother for him to go on to university matriculation studies but for the fees. He has therefore, decided to find some employment to find the money required to undertake such studies. Stop and Shop currently employs him as a merchandiser, a position that has been confirmed since the start of November, 2000. He has been and continues to support himself and his younger brothers from his salaries or wages.
Nearly all of the Defendant’s references speak highly of the Defendant has an honest, quiet, friendly, reliable, helpful, well-mannered and disciplined person from a strong Catholic background. The commission of the offence was a one-off character incident. He expressed his remorse. With the assistance of his relatives he is prepared to pay a compensation of up to K3,000.00 to the victims. During arraignment and the administration of allocutus I got the impression that the Defendant was the kind of person describe by his referees and I also got the impression that his expression of remorse was genuine.
Learned Counsel for the Defendant, for his address on sentence, handed up a written submission and took the court through it in his oral arguments. The defendant through his counsel, mainly argued for a non-custodial sentence whilst accepting at the same time that, the offence his client admittedly committed was a serious one.
On the other hand, the State argues that the offence was a serious one. It therefore, requires a custodial sentence of 7 years. The Court was referred to the Supreme Court decisions in Gimble v. The State [1988-89] PNGLR 271 and Public Prosecutor v. Don Hale [1998] SC564.
Culpability
As was said by Wilson, J. in The State v. Morobet Awui Koma and Peter Kevin [1987] PNGLR 262, at page 263 "[t]he essential starting point in determining punishment is to fix the culpability or blameworthiness of the prisoner."
In the present case, the defendant was not the main actor. He was at the control of his other older accomplices. He did not cause any physical injury to any of the victims. He did not personally carry any of the dangerous weapons and used them. He did not personally steal from any of the victims. The role the Defendant played in my view, in the commission of the offence was thus not substantial. Nevertheless, he was in the company of others who carried dangerous weapons, used them injured the victims and stole from them. The Defendant therefore, has to bear his share of the responsibility or culpability for his part in the commission of the offence.
Section 7 of the Code may be relevant. But the State has not raised and argued for its application. I will therefore have no regard to that provision.
A special mention needs to be made on the Defendant saying he was intoxicated by alcohol at the time of the offence. Although not argued, the Defendant says he was intoxicated and therefore, tacitly argues or creates the impression that, if he was not intoxicated, he could not have committed the offence. Intoxication does not reduce the Defendant’s culpability except in the limited settings under Section 29 of the Criminal Code Act, which has not been raised in this case in Section 29 of the Criminal Code Act, which has not been raised in the case in any meaningful way. The words of Kapi DCJ, in Kesino Apo v. The State [1988] PNGLR 182 at pp.182 and 183 are worth quoting:
The relevance of intoxication goes to the question of culpability. The rationale is that if an offender offends while under the influence of alcohol, his self control is affected and therefore his culpability may be diminished ...
....
I hold the opinion that anyone who voluntarily gets himself drunk, must know that his capacity to control himself will be impaired and it is no reasonable explanation by him after the event that his self-control was affected. On its own, it ought not to be taken as mitigating factor.
Accordingly, intoxication will not mitigate the Defendant.
Other Considerations
The Defendant has freely pleaded guilty even when the court raised the possibility of a legal defence being available to him. This has save the State and the Court a lot of time and expense, which could have otherwise, been incurred if there was a not guilty plea and a trial followed.
In Gimble v. The State (supra) the Supreme Court at p. 274 after setting the starting point for robbery of a store, a vehicle etcetera under which the present case falls, at 5 years said: "a lesser sentence should be imposed in an uncontested case." That is to say in a case of guilty plea.
A court must always have regard to sentences given in other similar cases to avoid disparity in sentences, before deciding on the appropriate sentence to impose in any case. In the Gimble case, it was a case of armed robbery falling into the third category with actual violence. The matter was contested and the Appellant was found guilty and sentenced after a trial. The Supreme Court held in that case that, a sentence of 7 years was appropriate.
In The State v. Morobet Awui Koma and Peter Kevin [1987] PNGLR 262, the National Court imposed a 3 years sentence and suspended 18 months of that on the defendant entering into a 5 years good behaviour bond. That was a case in which the defendant’s pleaded guilty to a manslaughter charge at the close of the prosecution case. The offence was committed in the cause of a planned robbery of a dwelling house at night. Going by the Gimble’s guidelines that case was on the higher category of robbery cases. I must however, remind myself that, that case was decided before the Gimble case.
On the 2nd of August 1996, the Supreme Court in Andrew Uramani & 4 Others v. The State [1996] PNGLR 287, on an appeal against disparity of sentence, their respective sentences of 8, 7 and 6 years imprisonment were reduced to 6 years and 2 years suspended on condition of the appellants entering into good behaviour bonds for 12 months upon their releases. In that case, the appellants were part of an armed gang of nine. They were armed with a machine gun, a home-made gun and a bush knife. They held up a Department of Works bus and stole K41,533.63. The driver was assaulted in the process. The gang leader according to the appellants’ admitted to a charge of armed robbery and was convicted and a 2 years suspended sentence was given on him entering into a good behaviour bond for 2 years and placed him on probation to do community work for 12 months.
Then on the 3rd March 1998, in Peter Joss Kinisa v. The State (1998) SC544, the Supreme Court upheld the imposition of a sentence of 5 years although, it was of the view that the sentence was quite lenient. That was a case in which the offender pleaded guilty to a charge of armed robbery with threats of violence and using a stolen vehicle to commit the offence and get away.
Later, on the 27th of August 1998, the Supreme Court in Public Prosecutor v. Don Hale (supra) reviewed on appeal a decision of the National Court. The National Court impose a sentence of 5 years and a fine of K1, 000.00 and suspended the whole of the 5 years sentence upon payment of the fine and placed the Respondent on a bond to return to his home area at Tari in the Southern Highlands Province. That was in a case of armed robbery at night of a dwelling house which falls in the in the first or worse category of armed robbery case per the Gimble case. In upholding the appeal against sentence the Court said:
Whilst we agree that a judge has a discretion in sentencing convicted persons such a discretion must be exercised according to normal principles. We agree that there are circumstances which should be applied in the consideration of an appropriate punishment for a particular offender and a judge should refer to these circumstances. These are first of all a number of circumstances of aggravation such as the amount of violence used in a robbery, and the amount of damage done and the property taken and whether victims were further injured apart from the fear of the threats. Then there are matters that may be considered in mitigation of the punishment. Of course the first factor in mitigation is whether there have been any admissions of guilt however in this case before us to-day the appellant pleaded not guilty so the State and the Court was put to the time and expense of a trial with the calling of witnesses. So any mitigation for admissions and remorse have limited application.
...
If a judge is to consider some leniency on sentence because of age it is incumbent on him to obtain the relevant report such as pre-sentence report, especially around the age of 17 to 19. Age considerations may of course be more obvious to a judge if an offender is under the age of 16 years. Then for such a drastic suspension of sentence a further help to the court would be a report from the community to which the offender belongs and whether the community is prepared to assist with the management of any bond period. The Courts are bound under the philosophy of the Constitution to be in touch with the aspirations and attitudes of the people of PNG and the punishment of criminals definitely has an effect on the ordinary people. So community involvement with the punishment of offenders should be considered especially if the court wishes to return an offender to the community instead of imposing imprisonment. And we note here the relevance of the Criminal Law (Compensation) Act 1991. A return to should mean an appropriate report of the attitude of the community and whether the community is prepared to take some responsibility for their own offending members and supervise any alternate punishment.
In that case, no pre-sentencing report was requested and considered by the trial judge before sentencing. The Supreme Court therefore, found that the trial judge erred. The Court also found that, the trial judge did not have the appropriate material to support any of the factors he took considered in mitigation.
More recently, on the 25th May 2000, the Supreme Court in Tau Jim Anis & Others v. The State SC642 increase the guidelines set by the Gimble case for armed robbery cases in the third category to 8 years on an appeal against sentence of 10 years by the National Court. That was a case of planned robbery a factory with actual violence involving just over K20,000.00. There were mitigating factors like young first offenders and pleading guilty.
Apart from considering the sentencing trends, a Court is also duty bound to consider the purpose of sentencing and all of the alternatives in sentencing and settle on one that best fits the particular facts and or circumstances of the case. It is useful to quote the words of Muirhead J., who delivered the leading judgement in the case of R v. Davey [1980] FCA 134; [1980] 2 A Crim R 254, in the Australian Federal Court in relation to an appeal by the Crown, against a sentence of 3 years for manslaughter which had been suspended on various conditions, at pages 260 – 263:
The prospects of rehabilitation, the likelihood of re-offending, the probable reactions of the prisoner to probation orders and the like are important issues. The judge at first instance has a peculiar advantage in deciding them, an advantage which in the past the law had recognised ...
"One finds in the cases referred to, references to ‘moral sense of the community’, to ‘condign punishment’ and references which appear to draw a contrast between ‘rehabilitation’ of an offender and ‘deterrence’. There are references derived from R v. Radich [1954] NZLR 86 to sentences which are ‘weakly merciful’. There has, of course, been much debate academic and judicial as to the purposes of punishment, the effectiveness or otherwise of deterrence, the necessity for punishment, the concept of retribution. One would again glean from some sources that there are two conflicting responsibilities vested in a sentencing judge – one owed to the prisoner, to rehabilitate him, to treat him gently as it were – the other owed to society, to punish, to levy retribution, to deter. And the cases I have referred to suggest that error was demonstrated because of the emphasis on rehabilitation rather than punishment or deterrence. It is important that the law does not become confused in its objective. The purpose of the criminal law is to bring wrongdoers to justice for the protection of the community. First and foremost, it is the protection of the community a sentencing judge must bear in mind (R v Cuthbert (1967) 86 WN (Pt 1) NSW 272, per Herron CJ at 274). There are occasions when a judge determines he can only extend that protection by severe punishment; there are other situations when he will reach the view that probation, suspension of sentence or community work orders are appropriate, not because they will be less unpleasant for the prisoner but because they may be productive of reformation which offers the greatest protection to society. I am afraid, and I speak for myself, that the concept of the penitent prisoner emerging from the penitentiary has rare validity. A sentencing judge has to bear in mind the realities of prisons, of what is learned there, of the associations there formed, of the effect on many people. Nor should he lose sight of the fact that the main problem of the police and the community is himself re-arrested to recidivist. If in the proper exercise of his discretion he can devise a sentence which will minimise the risk that an individual will re-offend then to that extent society is protected. And I would add that there is no person so likely to become, not only bewildered, but embittered, as a person who has been sent back to his work and his family under probation by the judge he has seen considering his case, only to find serve a custodial sentence imposed elsewhere, a sentence he will not regard as just. Respect for the law is very much at risk under such circumstances.
Where the issues are not only the protection of the community but the liberty of the subject it seems to me that the assessment of the trial judge who has seen and so often heard the prisoner, who has had the opportunity of determining his probable responses in the future should be set aside only when manifest error is well demonstrated. It must not be forgotten that in this area judicial reviews on the appropriate sentence are almost bound to be a variance in any event.
In R v Kear (1978) 2 Crim LJ 40, Wells J, a judge of considerable experience in criminal matters, dealt in detail with the principles of sentencing and his remarks were then obviously addressed to an anxious public. But he referred in so doing to the remarks of Napier CJ in Webb v O’Sullivan [1952] SASR 65 at 66 which he stated represented the true position in law:
‘The courts should endeavour to make the punishment fit the crime, and the circumstances of the offender, as nearly as may be. Our first concern is the protection of the public, but, subject to that, the court should lean towards mercy. We ought not to award the maximum which the offence will warrant, but rather the minimum which is consistent with a due regard for the public interest.’
In my view it is erroneous to treat the suspension of a sentence of imprisonment as merely an exercise in leniency. Such an order is made in the community interest and is generally designed to prevent re-offending – which a prison sentence, standing alone, seldom does ... A person so released has an obvious incentive not to re-offend and should have no misconceptions as to what will occur if he does ... From time to time persons charged with most serious offences may be dealt with in this manner by reason of good character, the court’s view that there will be no re-offending, that treatment is required outside prison and, at times, by reason of the fact that the court believes that the particular individual will be positively damaged by immediate incarceration ...
In conclusion I respectfully agree with the remarks of Murphy J in Griffiths v The Queen (1977) 137 CLR 293 at 330:
‘Emphasis on and adherence more or less to a scale of penalties for various offences (the tariff system) exerts pressure on the primary judges to impose more severe sentences than they would sometimes wish and in practice inhibits desirable experimentation and exploration of alternative courses contemplated by the legislature.’"
(Underlining mine)
In The State v. Morobet Awui Koma and Peter Kevin (supra), at pages 264-265, Wilson, J. was in complete agreement with those words and adopt and applied those words in the case of The State v. Frank Kagai [1987] PNGLR 320 and decided to impose a sentence of 6 years suspended with 3 years good behaviour bond in a case of armed robbery on a road. Factors favouring that sentence were inter alia, the offender surrendered to police, admitted to the commission of the offence and he was actively involved in a prison fellowship.
In The State v. Nyama [1991] PNGLR 127, Hinchliffe, J. also adopted and applied those principles and arrived at a similar decision. There the Defendant was a first time offender and pleaded guilty to a charge of armed robbery on the road. He had a good character and had a good supportive family. A sentence of 4 years all suspended on a number of conditions was imposed.
In the Gimble case itself, the Supreme Court at page 275 said:
In suggesting sentence tariffs in the above four categories of robbery, we have been considering young first offenders, 18 years or above, and in those cases we do not consider that suspension of any part of those sentences is appropriate. If, however, the offender is very young or there are special circumstances, a suspended sentence may be considered.
From all the above, it is very clear that the imposition of a suspended sentence is open to a sentencing court to be exercised in appropriate cases. If the court decides to impose such a sentence, it is not an exercise of leniency toward the offender but it is a form of punishment aimed at rehabilitating the offender. In so doing the court is fulfilling one of the purposes of sentencing.
Present Case
In the present case, I requested and received a pre-sentencing report which has assisted me. The report covers the Defendant’s family, educational, and employment backgrounds, which are described, has good and stable. It also covers his position in the community and preparedness to pay compensation. The report restates the circumstances in which the offence was committed and more importantly, the steps the Defendant and his family have taken to address and correct what caused the Defendant to commit the offence and the harm the offence has brought upon the victim. The report significantly states that the Defendant has now completely given up drinking any alcohol and wishes not to take any alcohol in the future and he has relocated to a different part of the city to avoid per pressure and coming into contact with his accomplices. He and his relatives are prepared to pay K3,000.00 in compensation to the victim. In its assessment, the report states that the Defendant is not a threat to the community. It then concludes that the Defendant is a suitable candidate for Probation Supervision on terms, inter alia that he be home bound after hours, refrain from taking alcohol and being in the company of his accomplices or persons of his peer group.
The report acknowledges that the Defendant is a young first time offender who truly regrets what he has done. The report confirms my own impression that the Defendant has shown genuine remorse and regret over what he has done. I also get the impression that what the Defendant has done is taken as a wrong against himself and his family which though broken, is hard working and disciplined with no record of any prior conviction or trouble with the law. The Defendant has the support of his mother, aunty and grandmother. He has set his priorities in life, which is to pursue his education through part time studies from 4:30 to 10:30pm with the International Training Institute located at Ori Lavi haus from next year. He plans to maintain his current employment with Stop and Shop to pay for his education and support himself and his younger brothers. With the help of his supportive family, he is prepared to pay K3,000.00 to the victim of the offence. That brings into play the concept of restitution, which is also, one of the objectives of punishment in criminal law.
Parliament in recognition of that enacted the Criminal Law (Compensation) Act 1991. The Act by section 2 obliges the courts to considering ordering compensation to be paid. The factors that should be taken into account when deciding whether or not compensation should be ordered are set out in section 3. Before making a decision on it, the Chief Probation Officer should be requested to provide a report as to the means and manner of payment (see s. 4). Once a report is received, the court may make an order for compensation up to a maximum of K5,000.00 in cash or kind (see s.5). The terms of an order for compensation should specify the nature and amount of compensation, default penalty, the person to whom it should be paid and a time or times when the offender should report to the Chief Probation Officer (see ss. 6 and 7). Such order may be varied on the application of the Chief Probation Officer (see s. 8).
An order for compensation however does not substitute a penalty or punishment for the commission of an offence. It operates as a factor in mitigation only. If it was otherwise, people with means to pay compensation would easily get away from bearing their criminal responsibilities. In The State v. Rex Lialu [1988-89] PNGLR 499, Amet CJ., expressed the view that, customary compensation may be effective in restoring broken relations but is no basis to exonerate the criminal responsibilities of offenders, except only to operate as a factor in the offenders mitigation. The case went on appeal to the Supreme Court as Rex Lialu v. The State [1990] PNGLR 487. The Supreme Court did not overturn the principles enunciated by the National Court regarding compensation.
I remind myself that, the duty of this court is to consider the interest of the community to punish offenders like the Defendant by imposing a custodial sentences for the community’s protection. This court is also duty bound to consider the interest of the Defendant. The court then has to weigh those differing interests and decide on a sentence that can best accommodate those differing interests. The court notes however that, it is in the interest of the community to rehabilitate offenders from re-offending where possible to achieve the main objective of keeping the community free of offenders. Courts have in the passed, as demonstrated in the cases referred to above, where appropriate imposed non-custodial sentences, be it in the form of suspended sentence or otherwise.
As Muirhead, J. said in R v. Davey (supra), imposing such sentence is:
Not because they will be less unpleasant for the prisoner but because they may be productive of reformation which offers the greatest protection to society. ... it is erroneous to treat the suspension of a sentence of imprisonment as merely an exercise in leniency. Such an order is made in the community interest and is generally designed to prevent re-offending – which a prison sentence, standing alone, seldom does ... A person so released has an obvious incentive not to re-offend and should have no misconceptions as to what will occur if he does .... From time to time persons charged with most serious offences may be dealt with in this manner by reason of good character, the court’s view that there will be no re-offending, that treatment is required outside prison and, at times, by reason of the fact that the court believes that the particular individual will be positively damaged by immediate incarceration.
Upon a careful consideration of all of the above, I do not consider a custodial sentence is called for in the particular circumstances of this case. This is more so especially when there are risks of such a sentence turning the Defendant into a worse offender. A custodial sentence will not guarantee or give him the opportunity to further his education and keep his employment. When he is able to finish his time in custody, he would have missed out his further educational opportunity and will most probably not have an employment. That will in my view, turn him into a criminal, which should be avoided if at all possible. A court should be slow to imposing a custodial sentence if to impose such a sentence will not advance the course and interest of the community to rehabilitate offenders so that they can become useful members of the community rather than further engage in crime and become a threat to society.
I note that all of the cases cited above do not say there should be no suspended or a non-custodial sentence. Instead, they say almost with unison that, such sentences should be considered and in appropriate cases, they should be employed as a means of punishment. Besides, I note that the various sentences that have been imposed in armed robbery cases range from 2 years suspended sentence for a guilty plea in a planned armed robbery and involving amounts slightly over K40,000.00 as in the Andrew Uramani & 4 Others v. The State (supra) case and 8 years imprisonment, as in Tau Jim Anis & Others v. The State (supra), which was a case of planned robbery and involved amounts just over K20,000.00. The latter case did not consider the issue of suspended or a non-custodial sentences so it is of no application in so far as that issue is concerned. If anything, I take these cases including, Gimble’s case only as guidelines which need not be strictly followed in the interest of doing justice to the varying interests of the community to punish offenders and the interests of offenders to be treated fairly and be given the chance to rehabilitate.
Taking into account all of the above factors, I repeat that a non-custodial sentence in accordance with the pre-sentencing report is appropriate in this case. However, that has to be on strict terms to reflect the community’s interests of punishing offenders as well has giving the Defendant to use his own words, "a second chance", to become a better law abiding citizen. I will impose a head sentence of six years. Of that, I will deduct the 3 months and 7 days spend in custody until bail on 17th of May, 2000. A further 2 years will be deducted upon the payment of K3,000.00 cash in compensation to the victim Mr. Thomas Ganupila within six months through the Registrar of the National Court and in default serve the term of two years in hard labour at Bomana CIS. The balance of 3 years 8 months 23 days shall be suspended on the Defendant entering into a good behaviour bond with K500.00 surety and meeting the following conditions for and within that period:
The formal orders of the court will thus be:
_______________________________________________________________
Lawyer for the State: Public Prosecutor
Lawyer for the Accused: Maladina Lawyers
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