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State v Nabate [2002] PGNC 112; N2216 (18 April 2002)

N2216

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]

CR 1554/2001
CR 1555/2001

THE STATE

-V-

BENJAMIN NABATE
AND:
JEFFERY JAJATA

POPONDETTA : JALINA, J.
16TH & 18TH APRIL 2002

CRIMINAL LAW – Robbery – Sentence – Robbery of victim at dwelling house – No physical harm – Robbery of K538.00 cash and goods – Most goods recovered except for cash – Plea of guilty – First offenders –Prevalence of robberies – Custodial sentence necessary as deterrent – Criminal Code s.386 (2)

Counsel:
Ms. M. Boni for the State

Mr. P. N’dranoh for the Prisoners

18th April 2002

JALINA, J. These prisoners have pleaded guilty to one count of armed robbery of one John Gambo of cash and properties to the total value of K800.00 at Bongoho Compound on the night of 25th February 2001. Cash alone was in the sum of K538.00. Mr. Gambo was in his house on the night in question when he heard his dogs barking. When he opened the door to investigate he was met by the prisoners and their friends who were armed with a gun, a grass knife and a chain from a chainsaw. One of them flashed a torch in his eyes and then was threatened and forced back into the house. While one of them was guarding the victim at gunpoint the others searched the house and stole the items which have been referred to above including a radio with two speakers and 3 highlands bilums (string bags). They then escaped into the night.
The radio and highlands bilums have been returned but the K538.00 cash and some other items are yet to be recovered. No physical violence was employed against the victim. No properties were damaged.
The maximum penalty for armed robbery is life imprisonment under s.386 (2) of the Criminal Code Act subject to the Court’s discretion to impose a lesser sentence under s.19 of the Code. But the practice of the Court has been to impose a term of years. Hence the sentencing guidelines which were set by the Supreme Court in the well known case of Gimble –v- The State [1988-89] PNGLR 271. For the robbery of a dwelling house which was considered to be the most serious of all categories of robberies in view of the breach of a person’s Constitutional rights to privacy and to feel secure in his own home, the Supreme Court suggested a sentence of 7 years in a contested case and a lesser sentence in an uncontested case where there are no aggravating factors such as use of violence against the victims, the amount of money being large and discharge of firearm in the course of the robbery.
Relying on Gimble’s case and their personal antecedents together with other mitigating factors such as the absence of violence, the amount of money being small, their expression of remorse, this being their first offence and their plea of guilty, Defence Counsel, Mr. N’dranoh, has submitted that a more lenient sentence be imposed.
But the subsequent Supreme Court Decision in Don Hale –v- The State [1998] Unreported SC564 has considered the decision in Gimble’s case to be 10 years out of date in view of the prevalence of violent crimes of armed robbery and the community’s concern over those crimes. I was one of the judges who did not agree with Don Hale’s case in Tau Jim Anis –v The State [2000] Unreported SC642 but that was on the basis that the sentence in that case was not for the robbery of a dwelling house and it was considered to be a big jump to impose 10 years as suggested in Don Hale’s case.
The present case being one that involved the robbery of a dwelling house together with the prevalence of crimes of armed robbery, I would consider that 10 years would not be inappropriate.
However, taking into account the mitigating factors put to me by Defence Counsel including the absence of violence and that some of the properties having been returned to the victim, I sentence each of the prisoners to 8 years imprisonment in hard labour. As both prisoners were arrested on different dates, I make deduction for time spent in custody as follows:
BENJAMIN NAMBATE - 8 years in hard labour
LESS - 1 year, 1 month, 1 week and 5 days
TO SERVE - 6 years, 10 months, 2 weeks and 2 days in hard labour.

JEFFERY JAJATA - 8 years in hard labour.

LESS - 1 year, 1 month and 5 days
TO SERVE - 6 years, 10 months, 3 weeks and 2 days in hard labour.
_____________________________________________________________________
Lawyer for the State: Public Prosecutor

Lawyer for the Prisoner: Public Solicitor