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State v Lausi [2001] PGNC 124; N2073 (27 March 2001)

N2073


PAPUA NEW GUINEA


[IN THE NATIONAL COURT OF JUSTICE]


CR. 125 of 1999


THE STATE


v.


MICKY JOHN LAUSI


WAIGANI: KANDAKASI, J.
2001 : February 16
: March 7, 12 and 27th


CRIMINAL LAW – Particular offence – Armed gang robbery on a street and Unlawful use of motor vehicle – Motor vehicle and other properties stolen at gun point – Admission of charges after trial and conviction – Pre-sentencing report called for and considered – Young first offender with no prior convictions – Good character reference and community support for rehabilitation and reformation of offender – Compensation considered appropriate and ordered – Prisoner released under strict terms and sentence deferred – Criminal Code (Ch. 262), Ss. 386, 383, s. 7 and s. 19.


Cases Cited:
The State –v- Abel Airi (2000) N2007
The State –v- Morobet Awui Koma & Peter Kevin [1987] PNGLR 262,
Joe Foe Leslie Leslie v. The State (1998) SC 561
Gimble v. The State [1998-99] PNGLR 271

Tau Jim Anis & Others v. The State, SC642

State v. James Gurave Guba (2000) N2020
R. v. Davey [1980] FCA 134; [1980] 2 A Crim. R 254

The State v. Frank Kagi [1987] PNGLR 320

The State v. Nyama [1991] PNGLR 127
Public Prosecutor v. Don Hale (1998) SC564


Counsel:
M. Zurenuoc, for the State
O. Oiveka and P. Kore, for the Defendant


27th March 2001


DECISION ON SENTENCE


KANDAKASI, J: In the written judgement delivered by this Court on the 16th of February 2001, you were found guilty of one count of armed robbery under s.386, and one count of unlawful use of motor vehicle under s.383 of the Criminal Code (Chp. 262) (hereinafter "the Code").


The relevant facts are set out at pages 4 – 6 of the judgement on verdict, which I need not repeat for the purposes of sentencing.


After hearing submissions on sentence, I call for a pre-sentencing report from the Probation Services. That report was furnished on the 2nd of March 2001, and I had further arguments arising from the report from both the prosecution and your lawyer on the 7th March 2001. A decision on sentence was thereafter reserved and this is the decision on sentence.


In the pre-sentencing report and at the hearing of further submissions on the 7th of March 2001, you admitted to having committed the offences. At that stage, I pointed out that, that admission was a little too late as the State has been put to the trouble and expenses of conducting a trial and establishing your guilt. Consequently, your belated admission will not have any favourable effect for you in relation to your sentence.


The Offences


The offence of armed robbery is prescribed by s.386 of the Code in the following terms:-


(1) A person who commits robbery is guilty of a crime.

Penalty: Subject to subsection (2), imprisonment for a term not exceeding 14 years.


(2) If a person charged with an offence against subsection (1)

he is liable subject to section 19 to imprisonment for life.


The offence of unlawful use of a motor vehicle is prescribed by section 383 of the Code. That provision reads:-


(1) In this section, "unlawfully uses" includes the unlawful possession by any person of any motor vehicle or aircraft –

(2) A person who unlawfully uses a motor vehicle or aircraft without the consent of the owner or of the person in lawful possession of the vehicle or aircraft is guilty of a crime.

Penalty: Imprisonment for a term not exceeding five years.


(3) This section applies without prejudice to any provision relating to the unlawful use of motor vehicles or aircraft of any other law, but an offender is not liable to be convicted under both these sections and such a provision in respect of anyone and the same unlawful use.

The offence of armed robbery and unlawful use of a motor vehicle in this case were committed out of the same transaction. Accordingly if a term of imprisonment is to be imposed it has to be made concurrent and not cumulative: see The State v. James Gurave Guba (19/1200) N2020 at pages 9 to 10 and the cases referred to there.


Culpability


The driver of the motor vehicle, a Nissan Sunny registration Number LAM 093 namely Paul Egep who was held up at gunpoint. He lost to you and your accomplices his wallet with some cash and the vehicle. The vehicle was driven away by you and your accomplices and was subsequently recovered through excellent police work. You were found guilty of having committed the offence in the company of others. After you were tried and found guilty and convicted of the charges, you admitted to committing those offences. For the purposes of committing the offences, guns and threats of violence were used.


As I said in The State –v- Abel Airi (2000) N2007, going by the authority of The State –v- Morobet Awui Koma & Peter Kevin [1987] PNGLR 262, at page 263 per Wilson, J., "the essential starting point in determining punishment is to fix the culpability or blame worthiness of the prisoner".


In line with that principle, the relevant question is what is the extent of your culpability in the commission of these offences. This is where ss.7 and 8 of the Code come into play. Unlike in the Abel Airi case, the State has alleged and asked for the application of those provisions against you. Section 7 stipulates that: -


(1) When an offence is committed, each of the following persons shall be deemed to have taken part in committing the offence and to be guilty of the offence and may be charged with actually committing it –

(2) In subsection (1)(d), the person may be charged with –

(3) A conviction of counselling or procuring the commission of an offence entails the same consequences in all respects as a conviction of committing the offence.

(4) Any person who procures another to do or omit to do any act of such a nature that, if he had himself done the act or made the omission it would have constituted an offence on his part, his –

as if he had done the act or made the omission and may be charged with himself doing the act or making the omission.


Then section 8 provides in these terms:


Where –


(a) two or more persons form a common intention to prosecute an unlawful purpose in conjunction with another, and

(b) in the prosecution of such purposes and offences committed of such a nature that each commission was a probable consequence of the prosecution of the purpose, each of them shall be deemed to have committed the offence.

It is now a well settled principle of law that, by virtue of an offenders association and common purpose for the commission of an offence in the company of others within the meaning of these provisions, every person involved in the commission of the offence in question is a principle. See Joe Foe Leslie Leslie v. The State (1998) SC561. Accordingly, any offender who commits an offence in the association of or in the company of others pursuing a common purpose is by virtue of that, a principle and a sentencing court as to proceed on that basis. I allow myself to be guided by that principle.


Sentencing Principles


The offence of armed robbery and unlawful use of motor vehicles following a robbery is a common everyday occurrence in the country. The Supreme Court in Gimble v. The State [1998-99] PNGLR 271 has set out the guidelines for sentencing in armed robbery cases. In respect of a robbery of a motor vehicle on a street or a robbery of a store, a starting sentence of five years is appropriate. It then went on to further say that "a lesser sentence should be imposed in an uncontested case". More recently, the Supreme Court in Tau Jim Anis & Others v. The State, SC 642, varied the guideline set in Gimble’s case especially in the area of number of years to be imposed and increased the previous five years to eight years in the context of a robbery of a factory with actual violence and involving cash over K20,000.00.


As for unlawful use of a motor vehicle, I said in the State v. James Gurave Guba (supra) at pages 7 to 8 of the judgement that, offences under s. 383 of the Code has its own categories and I specified without in anyway exhausting the list said the following:-


(a) The offence is committed under serious aggravating circumstances such as serious injuries to the owner of the vehicle, the vehicle itself or other properties and is being committed in the course of or in the furtherance of a serious crime such as armed robbery;

(b) The offence is committed under circumstances in which not all of the factors under (a) exist but only some of them exist. An example of that would be say the vehicle is being taken by force but without injuring the owner or its lawful driver, driven off and is recovered with minor damages to the vehicle or any other property;

(c) The offence is being committed in situations where say a single factor under (a) exist. An example of that would be a case in which say, the owner or legal driver leaves the vehicle unlocked and the offender gains entry and drives off and damages the vehicle;

(d) The offence does not fall under (a), (b) or (c) but is still an offence under s.383. An example of that would be a case in which say an owner/employer authorizes his employee to use a vehicle for a specified purpose within a specified period but he simply exceeds the authorized purpose and time for the employee’s own purpose or interest without advancing his employers interest in any way.

In my view, an offence which falls under category (a) should attract sentences between 4 and 5 years. Then those falling under category (b) should attract sentences between 3 and 4 years while those under (c) and (d) should respectively attract sentence between 1 to 3 years and a number of months to 1 year. Of course, from what is suggested, the actual sentences in any one given case can be substantially or fractionally reduced depending on the particular facts of the case and mitigating factors such as a guilty plea, young first offender, no prior convictions and an expression of genuine remorse.


It is now a well established practice and a principle of law that, before imposing a sentence against an offender after having found him guilty of an offence, all the factors both going for and against him have to be considered first. Then upon a careful consideration of those factors an appropriate sentence or punishment should be arrived at. Going by that principle, I find a number of factors going against you. First, you denied the charges and that necessitated a trial which meant incurrence of costs and the expenses for the State to secure the verdict of guilty and the conviction thereupon. Only after you were found guilty through that process, you admitted to having committed the offences in the context of the pre-sentencing report and further submissions following the pre-sentencing report. Secondly, this was a case of armed robbery using dangerous weapons namely guns to threaten and force the victim out of his vehicle and take his vehicle and his wallet and its contents away. Thirdly, the vehicle was recovered but with some damage. Fourthly, the victim had a child with him and the offence took place at a busy market place. It therefore, put at risk the lives of a large number of people not to mention the policemen who had to pursue and eventually arrest you. Finally, these types of offences are on the increase and the Courts have expressed the view that, the range of sentences have to be seriously reviewed and increased to reflect the society’s disapproval of these kind of offences.


In your favour, I note that you are a first time offender and was under the age of 19 years. You have also started to get on with life by entering into a self-help business scheme in which you were printing "T" shirts and laplaps and such other products. You have received assistance in terms of appropriate training from the Cross-road shelter workshop at Taikone. Steps have been instituted by your father to see you get into business and make a living for yourself. Your father is a self-employed Papua New Guinean businessman and he is a dedicated Christian. Members and leaders of the SDA church in Taikone have all come forward and have given good character references for you. They say that you ended up committing the offences due to peer pressure. They also say that, they are now ready and willing to see to your rehabilitation and reformation and become a better law abiding citizen. Most of the character referees, including your parents have come to court and have given their undertakings to the court. They told the Court that, they would personally see to you complying with any terms the court might impose with a view to helping you to rehabilitate and become a useful member of the community. Not all the referees are members of your family. Instead, they are from different parts of the country. The only common factor is that, they are of the same faith, namely the teachings of the Seventh Day Adventist Church as you and your parents are. A senior pastor and an elder of that church have given their undertakings to provide you with appropriate counselling and see to your rehabilitation.


As I have said in the Abel Airi case at page 10 of the judgement: -


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.


I then quoted 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. That was in the Australian Federal Court in relation to an appeal by the Crown, against a sentence of 3 years for manslaughter, which was suspended on various conditions. I quoted a passage from pages 260–263 from which a number of principles become apparent. Firstly, there are two equally important but competing interests. The first of the two interests is the interest of the community to punish offenders and the second is for the offender to be given the opportunity to be rehabilitated.


The concept of the pertinent prisoner emerging from the penitentiary is rarely valid. A sentencing judge has to bear in mind the realities of prisons, of what is learnt there, of the association there formed, of the effect on many people. At the same time, we should not loose sight of the fact that the main problem of police and the community is the costs of re-arresting and punishing the offender.


In the light of the equally and important conflicting interests it would be proper exercise of the discretion vested in a sentencing judge if he devices a sentence which minimises the risks of an offender re-offending and to that extent, the society is protected. It is erroneous to treat the suspension of sentence for imprisonment as merely an exercise in leniency. Because such 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 as an obvious incentive not to re-offend. Therefore, there should be no misconceptions as to what will occur if he does. From time to time, persons charged with more serious offences may be death 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 a particular offender will be positively damaged by immediate incarceration. Those principles have been accepted and applied in The State v. Morobet Auwe, and Peter Kevin (supra) at pages 264-265 as well as The State v. Frank Kagi [1987] PNGLR 320 and The State v. Nyama [1991] PNGLR 127.


In the Abel Airi judgement I referred to the Gimble’s case at page 270 where the Supreme Court said:-


In suggesting sentencing tariffs in the above 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 are appropriate. If, however the offender is very young or there are special circumstances, a suspended sentence may be considered.


Having regard to the above principles, I imposed a non-custodial sentence of six years in the Abel Airi’s case and suspended all of them on terms.


Present Case


The Abel Airi case has to be distinguished from your case to the extent that, that was a case of guilty plea as opposed to a trial in your case. Also, ss. 7 and 8 of the Code were not raised and therefore did not apply. Further, it was not a planned robbery and unlawful use of a motor vehicle but a case of acting in a spare of the moment under the influence of alcohol.


In other respects, there is some commonalties between that case and your case. Both you and Abel Airi have no prior convictions and are relatively young. You have made good starts in your lives and take your respective productive positions as useful members of the society. You both have excellent or good character references, which show amongst others that, the offences were committed due to peer pressure. You are both committed members of your respective churches, Roman Catholic in Abel Airi’s case and SDA in your case. Both your parents and church leaders have come forward and provided undertakings to personally see to you reforming or rehabilitating. Further, the pre-sentencing reports recommend a non-custodial sentence on terms. Both you and Abel Airi have indicated your preparedness to pay compensation to the victims of the offences you have committed.


In your case, you and your relatives and parents are prepared to compensate the victim of the offences. However, you need time to raise the necessary funds to pay towards compensation. Like the prisoner in Abel Airi’s case you have a source of income. You just required time to work at that, to raise funds to pay compensation. Your parents are ready and willing to assist you in that regard. I have not been placed with any evidence to show that reformation will in fact take place if you are sent to prison. Instead I am aware that sending you to prison will hardly bring you back to society a reformed man. If sent to prison and if you so decide, you could undergo a system of reformation out of your own violation. To this extent I note that the Crossroad shelter workshop at Taikone has been established and indeed helps former prisoners to get training sufficiently to equip them to make new starts in life and earn a living. Sending you to prison may jeopardise the chances of you becoming a better citizen in society and therefore meaningfully contribute to the development of the country. Concerned members of your family as well as the community and the church you belong to have come to court and have given their undertakings to see you being reformed or rehabilitated. To this end I refer to the words of the Supreme Court in Public Prosecutor v. Don Hale (1998) SC564 at page 5 of the judgement: -


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 a pre-sentencing 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 community report from the community to which the offender belongs and whether the community seeing that the incident happened within that community, has any views on an appropriate punishment or whether the community is prepared to assist with any community 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 for criminals definitely as an effect on the ordinary people. So community involvement with the punishment of offenders should be considered as firstly if the court wishes to return an offender to the community instead of imposing imprisonment. And we note here that the relevance of Criminal Law (Compensation) Act 1991. A return to the community should mean an appropriate report of the attitude of the community and whether the community is prepared to make some responsibility for their own offending members and supervise any alternate punishment.


In the case before me, members of the community including your parents have come forward and have undertaken before this Court that they will see to you comply with any terms that may be imposed for returning you to the society. I agree that sentencing or punishing offenders is a community business and where the community comes forward as they have done in your case asking for a prisoner to be returned to the society under their care, the Court should if considered appropriate follow that request. Deciding to proceed in that way, is not, to use the words of Muirhead, J., in R. v. Davey (supra):-


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 -... A person so released as an obvious incentive not to re-offend and should have no misconceptions as to what will occur if it does ... From time to time persons charged with more serious offences may be dealt with in this manner by reason of good character. The courts 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 an immediate incarceration.


Considering all of the above and in view of the fact that you are a young first time offender who has made a good start in life to become a useful member of society to engage in a self-help project after undergoing project trainings and who has the support of his parents to advance further in his business and perhaps take over from his father, I do not consider it appropriate that you should be immediately sent to prison. I note with particular interest that, the arrest and charging of you and keeping you in custody before bail has taught you to feel the consequence of breaking the law and you have made a determined effort to live a good life. Rather than imposing a sentence right now, I consider it appropriate that sentencing should be deferred and you should be placed under probation pursuant to s.16(2)(b) of the Probation Act (Ch. 381).


Accordingly, I order pursuant to s.16(2)(b) of the Probation Act that:


  1. Your sentencing be deferred for a period of two years commencing today on the following terms and conditions pursuant to s.17 of the Probation Act that:-
  2. Your Sentencing is deferred to the end of the probation period.
  3. Any breach of the above probation terms shall forfeit probation and you shall be liable for immediate imprisonment which shall give the police or other law enforcement agencies the power to arrest and send you to the Bomana prison or CIS.
  4. Your cash bail of K500.00 shall be refunded.

________________________________________________________________________
Lawyer for the State: PUBLIC PROSECUTOR
Lawyer for the Accused: PUBLIC SOLICITOR

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