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State v Amoko [2002] PGNC 117; N2214 (18 April 2002)

N2214

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]

CR 1415 OF 1999

THE STATE

-V-

COLLIN AMOKO

POPONDETTA : JALINA, J.
17TH & 18TH APRIL 2002

CRIMINAL LAW – Sentence – Armed robbery – Robbery of hotel of K1,332.75 cash – Use of chemical mace against security guards – Discharge of shot gun at security guard – Cash not yet recovered – Prevalence of robbery and other violent crimes – Custodial sentence necessary as deterrent – Criminal Code s.386 (2).

Counsel:

Ms. M. Boni for the State
Mr. P. N’dranoh for the Prisoner

18th April 2002

JALINA, J. This prisoner has pleaded guilty to the armed robbery with actual violence K1,332.75 in cash at about 11 pm on 19th March 1999 at Lamington Lodge here in Popondetta Town.

It appears from the evidence the summary of which was given by the State Prosecutor for purposes of arraignment that the victim, who was employed at the Pokies or Gaming Section of Lamington, was going to the office after taking the money from the Poker Machines. She had the money in a small bag. When she was near the Saloon Bar one of the two boys who were nearby rushed towards her and pulled out the bag from her hand.

In his hand he had a pocketknife. His other friend who was with him had a police issue chemical spray which they sprayed the victim and others who were with her. Security guards who went to her assistance were also sprayed with the chemical spray and they ran towards the main gate and fled. While they were running away they fired shots from a shotgun at security guards who were pursuing them but missed. The money that was stolen in the robbery is yet to be recovered.

As has been stated a while ago in other armed robbery cases such as The State –v- Austin Upena and ors CR 832/2000, the maximum penalty 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 also of the Code. Such lesser sentence has been a term of years. Hence the decision by the Supreme Court in the well known case of Gimble –v The State [1988-89] PNGLR 271. The robbery of a hotel which the present robbery is, falls under the third category. A sentence of 5 years was suggested in a contested case. A sentence of less than 5 years has been suggested for an uncontested case. The Court went over to say however, that if aggravating factors such as use of actual violence against the victim, the amount of money stolen is large then sentence in excess of that suggested can be imposed. Discharge of firearms either before, during or after the robbery with a view to enabling the robbery to take place without resistance or to prevent capture has always been considered to be an aggravating factor.

Mr. N’dranoh, lawyer for this prisoner, has submitted relying on Gimble’s case and this prisoner’s plea of guilty and the lack of serious injuries to the victim that a more lenient sentence be imposed. He also relied on a subsequent Supreme Court decision in Tau Jim Anis –v- The State [2000] Unreported SC642 in which I was a member, disagreed with another Supreme Court in Don Hale –v- The State which was critical of Gimble’s case. But that was on the basis of the place where robbery took place. I still consider the statement by the subsequent Supreme Court that Gimble was 10 years out of date and the offence of violent crimes like robberies using dangerous weapons being on the rise as a valid statement and is still good law. In fact it is now almost 13 years since Gimble was decided in July 1989 and armed robberies have not stopped.

In deciding the length of sentence I should impose I have been taken into account the personal antecedents of this prisoner put to me by Defence Counsel as well the mitigating factor of his pleading guilty.

I am however, concerned in addition to the prevalence of armed robberies in this country as well as this province in view of a large number of robbery cases I have heard this circuit in Popondetta.

I am also concerned that dangerous weapons including chemical spray was sprayed at the victims and security guards. Even a shot was fired at the security guards. I believe that it was by the grace of God that no one sustained any injuries.

The prisoner has indicated during his statement on the allocutus that he did not take part but was only assisting the other two co-accuseds. But the statement of Robert Asa clearly shows that this prisoner was in possession of a shotgun as the robbers were running out of the hotel area. There is no doubt in my mind that he was the one who fired the shot at the security guard. This prisoner therefore played an active part in facilitating their escape. He is equally responsible and is subject to the same punishment as those who actually stole the bag of money.

The sentence I consider appropriate in all the circumstances of this case is a period of 10 years imprisonment in hard labour. It has been submitted by Mr. N’dranoh that the prisoner has been in custody from 3rd August 1999 when he was arrested to now which is a period of 2 years, 8 months and 2 weeks. However, this prisoner’s file at Biru Corrective Institution shows that he escaped during a mass breakout on 12th November 2000. That was after he had been in custody for 1 year, 3 months, 1 week and 2 days.

ON 26th November 2001, he surrendered to police. He was later sentenced to 1 month for escaping. So his period in custody resumed on 27th December 2001. Up to now he would have been in custody awaiting trial for another 3 months and 3 weeks. So the total period in custody would be 1 year, 6 months and 3 weeks which I deduct from the sentence of 10 years. This leaves a period of 8 years, 5 months and 1 week.

For his voluntary surrender and to encourage others to surrender voluntarily so that the long list of cases throughout the country of accuseds on bench warrant can be attended to and reduced, I deduct 2 years, 5 months and 1 week. This leaves 6 years which he will have to serve in hard labour.

As his family is resident in Popondetta, I make no order for him to transfer to Madang his home province.

_____________________________________________________________________
Lawyer for the State: Public Prosecutor

Lawyer for the Prisoner: Public Solicitor