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State v Suwari [2001] PGNC 43; N2173 (24 December 2001)

N2173

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]

CR NO. 1602 of 2001

THE STATE

-V-

FRANK SUWARI

VANIMO: KANDAKASI, J.
2001: 21st and 24th December

CRIMINAL LAW & PRACTICE – Sentencing a co-accused of one already convicted – Need to avoid disparity of sentence unless exceptional circumstances exist – Co-accused already sentenced to 6 and 7 years on plea of guilty – Not clear whether co-accused had any prior convictions – 6 years sentence given.

CRIMINAL LAW - Sentence – Armed gang robbery – Armed with one shot gun – Value of property stolen exceeding K1, 500 cash and unspecified amounts of foreign currencies and other items - Guilty plea – No prior conviction – expression of remorse – Robbery in show of frustration and retaliation over damage allegedly caused to accused land due to victims saw-milling operations – 6 years imprisonment imposed – Criminal Code ss. 386 (1) and (2) (a) and (b) and 19.

Cases cited:
Gimble v The State [1988-89] PNGLR 271

Public Prosecutor v. Don Hale (1998) SC564
Tau Jim Anis & Others v. The State SC642
The State v. Abel Airi (20/11/00) N2007
The State v. Lawrie Patrick & Ors [1995] PNGLR 195
The State v. Edward Toude & Ors (unreported and unnumbered judgement) CR 964 of 2001
The State v. Danny Pakai (unreported and unnumbered judgement)

Counsel:

M. Ruarri for the State
G. Korei for the Accused

24th December, 2001

DECISION ON SENTENCE

KANDAKASI J: You pleaded guilty on Friday last week to one count of armed gang robbery contrary to section 386 (1) and (2) of the Criminal Code.

The Facts

The facts on which you pleaded guilty are these. On the 16th of February 2001, between 12:00 noon and 1:00pm, you went with 5 other men and robbed from a Parol Wan and others at the Vanimo Forest Products ("VFP") camp at Bewani. The total value of items stolen included K1, 500.00 in cash and other items, which included foreign currencies in Indonesian Rupia, US Dollars and PNG Kina. You and your friends were armed with a shotgun, which you used to scare of a lone security guard, Mr. Parol Wan by firing a shot at him.

Upon being shot at, Mr. Parol Wan fled for his life. In the process, he left his bag behind. In the bag was K1, 500 in cash, which you and your accomplishes stole. You then broke into VFP’s canteen and stole from there a number of items such as canned food items, rice, soft drinks, batteries and other items. The total estimate of these items is said to be K3, 183.60.

Your robbery was reported to police the same day. Following good police work, most of your accomplices were arrested and were eventually sentenced to 6 and 7 years imprisonment in hard labour.

The Law

The offence of armed robbery is prescribe by section 386(1) and (2) of the Criminal Code in these terms:

"386. The offence of robbery.

(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)—

(a) is armed with a dangerous or offensive weapon or instrument; or

(b) is in company with one or more other persons; or

(c) at, immediately before or immediately after, the time of the robbery, wounds or uses any other personal violence to any person,

he is liable subject to Section 19, to imprisonment for life."

As can be seen from this section, the offence of armed gang robbery carries a maximum penalty of life imprisonment. That is however subject to section 19 of the Criminal Code, which gives a discretion to the Courts to impose sentences lower than life if the circumstances in which such a crime is committed warrant it.

The Supreme Court in the much celebrated case of Gimble v The State [1988-89] PNGLR 271 at pp. 274 – 275, set out the guidelines for sentencing in armed robbery cases in this way:

1. Robbery of a dwelling house with a starting point of seven years imprisonment;
2. Robbery of a bank with a starting point of six years imprisonment;
3. Robbery of a store, hotel, club, vehicle on the road or the like with a starting point of five years imprisonment; and
4. Robbery of a person on the street with a starting point of three years imprisonment.
   

Those guidelines were set more than ten years ago. They were for uncontested or guilty plea cases. The Court left open the discretion to impose sentences both below and above those guidelines in appropriate cases. In its own words, the Supreme Court said at page 275:

"In suggesting sentencing tariffs in the above four categories of robbery, we have been considering young first offenders, eighteen years and above, and in those cases we do not consider that a 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. If the offender has a prior conviction, then the suggested tariffs may be exceeded and suspension of any part would rarely be appropriate."

In the case before it, the Supreme Court found that, the case fell into the third category where the victim was knocked unconscious and the case was contested. There was no evidence of the victims suffering any permanent injuries. In the circumstances, the Court was of the view that, seven years imprisonment was appropriate. Accordingly, it reduced a sentence of nine years imprisonment by the National Court to seven years.

In Public Prosecutor v. Don Hale (1998) SC564, the Supreme Court was concerned with a robbery of a dwelling house, which was on the top of the categories, or worse type of robbery cases. The National Court imposed a five years suspended sentence on the condition that the offender pays a fine of K1, 000.00 and return to his home area in Tari in the Southern Highlands Province. The Public Prosecutor appealed against that decision. The Supreme Court upheld the appeal and found amongst others, that the learned trial judge erred in not starting with a term of seven years in line with the guidelines set in the Gimble case (supra). The Court also found that no pre-sentencing report was asked for and considered before imposing the sentence it imposed. Further, the Supreme Court acknowledge that, the guidelines set by the Gimble case (supra) was outdated and that it was not serving its intended purpose of deterring would be offenders from committing armed robberies. It therefore, considered it was time to increase the tariffs set in that case. It then expressed the view that, armed robberies of dwelling houses should be increased from seven years to ten years.

Subsequently, in Tau Jim Anis & Others v. The State SC642, the Supreme Court increased the tariffs for armed robbery cases in the third category per Gimble’s case (supra), to eight years. In that case, the offenders were first time young offenders and they pleaded guilty to robbery of a factory. The offence involved actual violence and money just over K20, 000.00, which were recovered.

Before arriving at that decision, the Supreme Court at p. 6 to 7 of the judgment said these:

"What we are concerned about is that ten years for an armed robbery of a factory or shop by young first offenders with substantial mitigating circumstances without any indication as to whether any concession was made for the plea of guilty, full restitution and good character does not leave much incentive for any one to plead guilty to robbery, let alone the big jump. We quite agree that there needs to be an increase in the tariffs generally for all categories of armed robberies in Gimble's sense but it must be done progressively rather than by leaps and bounds. It seems to us that eight years could be more appropriate sentence in this case."

(Emphasis mine)

As I said in The State v. Abel Airi (20/11/00) N2007,

"... [T]he exercising of a sentencing judge or court’s discretion is not a matter of mathematics but rather an application of that discretion judicially having regard to the particular circumstances of the case, noting that a case as to be determine on its own facts. Exercising that discretion may well defer from judge to judge and that they may well be differences in the number of years imposed for similar offences depending on the nature and circumstances in which the offence is committed."

Your Case

In your case, I note that there was no injury although a shotgun was shot at one of the victims of your offence. You were therefore, armed with a dangerous weapon and were in the company of 5 others. You have no prior conviction. There is no pre-sentencing report favourable to you.

Your counsel urges me to impose a lenient sentence because, you have pleaded guilty which has saved the State the costs of running a trial, you are a young man of about 19 years old married with one child and that this is your first ever offence. You have not gone to any higher level of education and that you have not found any meaningful employment in the formal employment sector except for casual employment with the VFP. He also asked me to note that your accomplishes have been given 6 years and 7 years imprisonment terms in hard labour also on a plea of guilty. I take these factors into account in you favour especially given your guilty plea and that you are a first time offender and the need to avoid a disparity of sentence.

You lawyer has also asked me to consider in your favour based on your own telling this Court that, the operations of the VFP (one of your victims) has caused a lot of damage to your land. You have repeatedly demanded compensation for the damage, without much luck. You also claim to have taken VFP to Court and the Vanimo District Court has made an order for it to pay but it has not and has refused to entertain your claim. You handed up a number of documents, in a bid to support your argument.

I have now closely examined the documents you handed up to the Court and find that there is no court order. There is only a notice of a complaint from the District Court to VFP and other documents. Hence, your claim of having obtained a court order against VFP can not be sustained. The same goes for your arguments based on the premise that you have obtained a court order.

Even if you did have a court order and VFP was failing to comply, that would not have made your conduct legal and therefore acceptable. There are legally accepted legal avenues to enforce a claim such as the one you had against the VFP. Having such a claim does not authorise or permit a person to take the law into his own hands. Instead the authorities such as the courts are there to hear such complaints and make appropriate orders. Once orders are made and are not complied with, there is further provision for enforcing such orders. Such enforcement can include orders for a wind up in the case of a company such as VFP for not satisfying a court order. Having the kind of complaint and concern you had did not provide you with a legal excuse. I also note with interest that, you have not provided me with any explanation as to way you could not exhaust these legal avenues.

In your allocutus you referred me the book of Romans 13:1-7 in the Holy Bible. This text speaks of respecting State authorities such as the Courts because God has put them there. There are other texts also in the Holy Bible such as Mathew 5: 39, which is a record of what Jesus Christ taught when he was on this earth. He said in clear language that, if someone hits you on one side of your cheek, give that person the other side for him to hit also. The idea is that, you do not retaliate but look for other means of peacefully and amicably resolving the damage done to you. Clearly therefore it is against the word of God to retaliate for whatever reason.

Further the Ten Commandments or the laws of God, recorded in book of Exodus 20:1-17 prohibit stealing. Jesus Christ himself said in Mathew 5: 17, 18 and 19 that he came into the world to reinforce or strengthen the commandments or God’s law. Therefore, if any one breaks even a smaller part of God’s law, that person will be least in the kingdom of heaven. That means it also against God’s law to steal for whatever reason.

The Holy Bible also makes it clear in the book you referred me to in the sixth chapter verse 23 that the pay or the wages of sin (the breaking of God’s law) is death. But the gift of God is eternal life through Jesus Christ. This does not mean that, the law has been done away with. Instead it is saying that all who break God’s law face the penalty of death. But if we accept Jesus Christ’s death on the cross of Calvary, we will have eternal life. This requires a real change of heart, attitude and life. We need to give up all forms of bad conduct such as stealing for whatever reason, and must be ready and willing to accept whatever harm or damage or danger others may bring upon us in order to inherit the Kingdom of God, heaven.

Now returning to your case, it is against our society or our country to allow people, whenever they have a problem or a claim for compensation has in your, case to help themselves. The reason for this is simple. Everybody would be helping himself or herself. This would guarantee no law and order and we would not exist as a nation and a people called Papua New Guineans. This is why the law says that there is no excuse for people to take the law or matters into their own hands. It therefore, encourages and allows for people to resolve their problems regardless of how big or small they may be through the established court system if they themselves can not resolve them peacefully. What this means for you is this. It does not matter what reason you had to commit the offence. It is an offence to be armed and to be in the company of others, use the arms and execute a robbery. It was not only against the law of Papua New Guinea but it was also against God’s law.

Papua New Guinea’s law requires you to be punished for this offence regardless of what reasons you had for the commission of the offence. One the other hand God’s law says death is the penalty unless you become a changed person and accept Jesus Christ as your personal saviour and live a life that is God fearing and law abiding Papua New Guinean.

As noted, the Gimble case (supra) set out the guidelines for sentencing in this kind of cases under the laws of the country. Also as already noted, authorities such as the Supreme Court decision in Tau Jim Anis v. The State (supra), suggest that the kind of sentences suggested in the Gimble case (supra) are out dated. Therefore, the sentences ought to be increased to correspond with the increase in the kind offence you have committed. Bearing these in mind, I have recently in Alotau imposed a term of 20 years and 17 years in the case of The State v. Edward Toude & Ors (CR 964 of 2001). I delivered that judgement on the 16th of October 2001 for armed robbery without any violence on a ship after a trial.

In this case, if it were not for your guilty plea, I would have imposed a sentence closure to the case mentioned above because of the prevalence of the crime of armed robbery and past sentences appearing not to deter would be offenders like you. In addition to your guilty plea, I note also that, your accomplices were given 6 and 7 years sentences respectively all on a guilty plea. Where such is the case, the law requires me to give you a similar sentence: see Andrew Uramani & 4 Others v. The State [1996] PNGLR 287. The only exception to that is where there a strong either mitigating or aggravating factors such as a trial or prior convictions exist. I do not have much information on the sentences of your co-accused. As a result, I do not know whether the sentences they received reflected any prior convictions. In any case, I am not satisfied that your case falls under the exception to the rule to ensure no disparity of sentences.

Apply this principle, I have on the 21st of this month in Wewak, in the case of The State v. Danny Pakai CR 765 of 200, imposed a term of 8 years. That was in the light of the prisoner’s co-accused receiving 8 years, although it was not clear, whether the sentence received by the co-accused was on a guilty plea and whether or not they had any prior convictions.

In your case, considering all of the factors both in your favour and those against you, I am obliged to give a term of 6 years which is what one of your accomplished received also on a guilty plea. I therefore sentence you to a term of 6 years in hard labour to be served here at the Vanimo CIS.

You are fortunate for the reasons already given that your are receiving such a sentence. If it were not for your guilty plea, you being a first time offender and expressing your remorse for the offence you have committed and you accomplished already receiving 6 years and 7 years, you would have been looking at a sentence of more than 6 years. The constant increase in these kinds of offences warrants an increase in the severity of the sentences to reflect that increase in line with the calls of the public for stern penalties to be imposed to help deter other would be offenders from offending.

In the end result I order that you serve a term of 6 years in hard labour at the Vanimo CIS, less the time you may have already spent in custody awaiting your trial.

As to what you wish to do with your God, depending on whether you wish to go to heaven or not is a matter for you personally. I would suggest however, that given the risks of the death penalty, you change your live, accept Jesus Christ as your personal saviour and become a God fearing and law abiding citizen.
___________________________________________________________________
Lawyer for the State: Public Prosecutor
Lawyer for the Accused: The Public Solicitor