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State v Malara [2002] PGNC 135; N2188 (20 February 2002)

N2188

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]

CR. NO. 58 of 2002

THE STATE

-V-

VINCENT MALARA

WEWAK: KANDAKASI, J.
2002: 14th, 20th February

CRIMINAL LAW – PRACTICE & PROCEDURE – Sentencing – Sentencing need to be guided by the purposes of sentencing – The sentence must reflect the seriousness of the offence and the effects of past sentences – Allegations or pleas in the prisoner’s allocutus must be considered and if not consistent with evidence they can be rejected.

CRIMINAL LAW – SENTENCING – Armed robbery – By gang of about 12 men - Wilful damage to property to execute the robbery – Actual and threats of violence used against victims of offence - Large sums of money and property of substantial value stolen – No evidence of any of the stolen items recovered expect for a very small portion – Prisoner with prior conviction and not a young first time offender – Criminal Code section 386(1).

Facts:

The prisoner pleaded guilty to one count of armed 12 men gang robbery contrary to s.306(1) and (2) of the Criminal Code. A gun, crow bar, a pinch bar and other weapons were used to execute the robbery. The crow and the pinch bars were used to break down the doors to a supermarket and its office. Total of all that was stolen in cash, cheques and goods added to over K26,000.00. Save for only K500.00, none of the items stolen were recovered.

The prisoner had a prior conviction for arson. As such he was not a first time offender. His claims in allocutus of circumstances forcing him to commit the offence was in conflict with evidence in Court.

Held:

1. The crime of robbery has taken a quantum leap and as such sentences must also take a quantum leap.
2. A sentencing judge should not be restricted by principles such as "no quantum leaps" but must be guided by he purposes of criminal sentencing.
3. A sentence must be responsive to the wishes or calls for stiffer sentences for the kind of offence under consideration in the exercise of the people’s judicial power under our constitutional framework but within the limits of the law.
4. Robbery by such a large number of 12 men and being armed with heavy tools like crow bars and pinch bars and guns is indicative of robbers getting more sophisticated, so sentences must be one that is considered to serve as a personal and general deterrence.
5. Parliament has prescribed the maximum of life imprisonment but having regard to sentencing tariff and the prisoner’s guilty plea, a sentence of 15 years is appropriate. The prisoner is therefore sentenced to 15 years in hard labour less time spent awaiting his trial.
   

Cases cited:

The State v. Jimmy Yasasa Lep (unreported judgement) N1495.

The State v. Abel Airi (unreported judgement delivered 28/11/00) N2007

Gimble v. The State [1988-89] PNGLR 27

Tau Jim Anis & Others v. The State SC642

The State v. Nickson Pari (No.2) (unreported judgement 10/01/01) N2033

The State v. Eddie Peter (unreported judgement delivered 12/10/01) CR 1446 of 1998

The State v. Foxsy Awonipa (unreported judgement 30/07/99) N1910

Andrew Uramani & 4 Others v. The State [1996] PNGLR 287
Thomas Waim v. The State (unreported judgement SC519
The State v. Don Hale (unreported judgement) SC564

The State v. Mitige Neheya [1988-89] PNGLR 174

Counsel

M. Ruari for the State
M. Mwawesi for the Accused

20th February 2002

DECISION ON SENTENCE

KANDAKASI, J: You pleaded guilty to one charge of armed robbery contrary to s.386 (1) and (2) of the Criminal Code, on the 14th of this month here in Wewak. I reserved a ruling on you sentence to carefully consider your reasons for committing the offence, the facts and the law on sentencing in this type of cases.

In your address before sentence, you said you were forced to commit the offence by circumstances you were placed in. You blamed the prison system for failing to send you back to your home province of Manus, after you completed serving a sentence of fours years given by the National Court for arson at the Boystown here in Wewak. You claimed having gone and seen the relevant office and officers for assistance back to your home province without success. You said, being from Manus, you had no friends or wantoks to turn to here in Wewak for assistance. You therefore, turned to committing the offence to get some money to go back to your home province. In the circumstances, you asked this Court to exercise mercy in your favour and give a lighter sentence.

I am required as a matter of law to consider what you say in the light of the circumstances surrounding the commission of the offence to which you have pleaded guilty and the relevant law on sentencing in this type of cases. I will therefore first consider the facts then discuss the law on point and finally apply the law to the facts of your case and arrive at a sentence which the facts and the law dictate.

The facts from the evidence on file are this: On the 26th of August 2001, you and your accomplishes numbering about 12 men planned a robbery of Tang Mow Supermarket by arming yourselves with a gun, bush knives, a crow bar, and a pinch bar. The gun came from a cousin brother of yours, namely Junior who lives at number 10 Street. The next day, the 27th of August 2001, in the early morning hours you and your armed gang went to the Tang Mow Supermarket and held up the security guards that were there. One of the guards was cut on the head twice to get him to comply with your orders. You and your accomplishes then forced open the supermarket’s door and gained entry using the crow bar and the pinch bar. You also entered the office of the supermarket using the same technique to gain entry. You then stole K18,228.80 in cash, K2,660.46 in cheques and K5,831.08 in cigarettes and made off with them.

According to the evidence of one of your accomplices, Mr. Benny Nambak, you carried the gun and used it against the security guards. Also after having stolen the money and the goods you, a Sebastian Kami and Robin Dambui took them to the latter’s house and had them shared. In your submissions, you claim to have received only K500.00, which was eventually recovered. However, according to the statement of Philo Robert he saw "plenty of money" inside your bag. Out of that, you counted K500.00 and gave it to him. Other evidence on file, also shows that you went to a local club and bought a lot of alcoholic drinks for yourself and others and openly talked about the robbery, particularly the way in which the proceeds were distributed.

Clearly on these facts, I immediately reject your claim of circumstances forcing you to commit the offence. You said you got involved in the offence to get some money so you could go back to your home province of Manus. You also said you have no relatives or wantoks in Wewak and were therefore, moving from place to place before committing the offence. The facts show however that, you had a cousin brother, Junior from whom came the gun used in the robbery. Further, after the successful robbery of the supermarket, you received "plenty of money" and even gave away K500.00 apart from buying a lot of alcoholic drinks for you and others. I therefore proceed to consider sentence for you as another armed robbery case on its own facts.

The offence of armed robbery carries a maximum of life imprisonment. In the much-celebrated case of Gimble v. The State [1988-89] PNGLR 27, the Supreme Court set out the sentencing guidelines for armed robbery cases. On a plea of not guilty by a young first offender carrying weapons and threatening violence the starting sentence for the robbery of a:

(a) dwelling house is 7 years;
(b) bank is 6 years;
(c) store, hotel, club, vehicle on the road or the like is 5 years, and
(d) person on the street is 3 years.

Where there are features of aggravation such as actual violence, the amount stolen or its value is large, or where the robber is in a position of trust towards the victim, may justify a higher sentence. Of course, a plea of guilty may justify a lower sentence.

It is now accepted that these guidelines especially the tariffs are considered well out dated: see The State v. Jimmy Yasasa Lep (unreported judgement) N1495. In The State v. Abel Airi (unreported judgement delivered 28/11/00) N2007, I examined the sentencing trends in armed robbery cases on a guilty plea starting with the Gimble (supra) case and ended up with the Supreme Court decision in Tau Jim Anis & Others v. The State SC642. In that case, the Supreme Court increased the guidelines set by the Gimble (supra) case for armed robbery cases falling in the third category to 8 years on an appeal against a sentence of 10 years by the National Court. That was a case of planned robbery of a factory with actual violence involving just over K20,000.00. There were mitigating factors like young first offenders and a guilty plea.

In nearly all of the cases to date, the Courts have expressed hope or considered either expressly or by implication that the sentences they were imposing would deter the offenders or other would be offenders from committing such offences. Unfortunately, as nearly all judgements to date on this kind of offences acknowledge, the kinds of sentences that have been imposed to date have failed to meet that hope. The effect of that is as I said in The State v. Nickson Pari (No.2) (unreported judgement 10/01/01) N2033, offences such as "armed robberies are on the increase." They are every day occurrences throughout the country. As of this circuit, the total number of pending armed robbery cases here on the Wewak circuit alone is over 116. That is just a little under half the total number of matters pending, inclusive of those under bench warrants. As I have already noted, in some of my recent judgements as in The State v. Edward Toude & Ors CR 964 of 2000 (unreported judgement delivered in Alotau on 18th October 2001) the Courts to date have failed in my view, to also increase sentences to correspond with the increase in the offences. A good and recent example of that, in my view with the greatest respect is the case of The State v. Foxsy Awonipa (unreported judgement 30/07/99) N1910, where the following is relevant:

"This is a very serious case of armed robbery. It is not a case of this prisoner and his accomplices holding the victims and stealing from them some monies amounting to K80.70. Its is far worse than that. This is a case of stealing a motor vehicle (although in law this is a separable offence both in the Code and under the Summary Offences Act) and furthermore crashing that vehicle. The vehicle owner therefore not only sustained personal injuries but also suffered huge financial loss as the result. And this is a further aggravating factor that this Court must bear in mind. Sentence in this case must therefore be sufficiently firm to show the community’s condemnation these attacks apart from both personal and general deterrence.

Armed robbery along road is becoming prevalent. Not long ago I sentenced two young men who held up a motor vehicle near the Bena bridge which resulted in one village being raided by another village in search for the robbers. That raid successfully turned out the culprits who got their due desserts from this court following their convictions.

Emergence of vigilante groups amongst concerned people of the general law abiding people clearly demonstrates just how much innocent people are getting sick and tired and fed up of today’s youngsters turning to crime and bringing evil and pain upon others who are quietly living their own lives and minding their own business.

In all the circumstances of the case before me and taking into account those factors both for and against the prisoner, I sentence him to eight years imprisonment in hard labour. I deduct pre-trial custody period of ten and half months (custody since 23/10/98) and he will now serve the balance of seven years, one month and two weeks in hard labour."

After having correctly described how bad the crime is, the sentence in my view with respect, does not reflect the seriousness of the offence and the need to impose sentences that best reflect the seriousness of the crime. What I am unable to comprehend easily is, how does 8 years compare to the suffering and the loss a robbery brings upon the victims specifically or the society at large as described in that case or even Tau Jim Anis v. The State (supra). This in, my view, does not compare and or reflect easily to the pain and suffering both physically and psychologically such frightening experiences and loss, offences like armed robbery or rape brings upon, the immediate victims and the society at large. Logically, if all it would take is a few short years, one could afford to commit such serious crimes because the offender would know that, they would get away lightly. This in my view is partly contributing to the increase in this kind of offences.

Parliament after having considered all things prescribed the maximum penalty of life imprisonment. It is the Courts that have started with sentences such as 5 years per Gimble’s guidelines and 6 years with 2 years suspended as in Andrew Uramani & 4 Others v. The State [1996] PNGLR 287, by the Supreme Court because of the principle of no disparity of sentences between co-accused.

In my view the Courts have been unnecessarily restricted in the proper exercise of their sentencing discretion by principles such as no "disparity of sentence between co-accused" as is shown by Andrew Uramani & 4 Others v. The State (supra) and "quantum leap" as in the Tau Jim Anis v. The State (supra) and Thomas Waim v. The State (unreported judgement) SC519. Such concepts as these, as I also said in, The State v. Edward Toude & Ors (supra) have no statutory prohibition against say a judge imposing a sentence that represents a "quantum leap" or disparity of sentences. It is the courts that have come up with these concepts in the exercise of their sentencing discretion. I also observed that the application of such principles do not reflect the particular circumstances or the particular facts of a case. This inevitably allows for ignorance or paying lip service to the purpose of sentencing in criminal cases such as, deterrence and retribution.

Offenders have taken advantage of such principles, which as far as they are concerned, means a shorter term of years regardless of the many calls for stiffer penalties to correspond with the particular circumstances of the offences they commit. Offenders are now becoming more sophisticated as the more recent cases will show including what as become known as the "failed millennium robbery" in Port Moresby just before the turn of the millennium. This in my view, calls for the Courts to be prepared to depart from the traditional methods of sentencing with a view to substantially increasing sentences to send stronger messages from the Courts to offenders that they now stand the risk of much higher or severe sentences.

Your case is an example of offenders becoming more organised and are carrying out robberies in ways almost unheard of before. The mere number of persons involved in the planning and the execution of the robbery in this case in it self is in my view, indicative of the sophistication. Added to that is the use of heavy tools like crow bars and pinch bars to tear or breakdown doors to gain access to premises like supermarkets. Further still, is your pride and boasting demonstrated in the purchasing of a lot of beer and openly talking about the robbery. This is a clear indication of contempt or if not disrespect offenders like you have for the system of law and order in our country. Even ending up in prison serving time for another serious offence has failed to reform you. Instead, it seems to have given you a determination to commit other crimes in a big way.

When this is the case, a much stiffer sentence is called for, for the protection of the society and serves both as a personal and general deterrence of other persons from committing such offences in the way you have.

Further, as I have expressed the view else where, the effect a crime such as robbery has, on the immediate victims and the community or the country as a whole should always be borne in mind by a sentencing judge. That as of necessity requires a consideration of how the people would have dealt with an offender. Under our Constitutional framework the people’s judicial power is vested in the National Judicial system which is exercised by the Courts. The Courts are therefore, under an obligation to consider and determine sentences for criminal offenders as near as possible as to what the people could administer to the offenders, but within the constraints of the law.

The effect of crimes such as armed gang robbery is very obvious and very devastating for the victims and the community at large. The victims may be left with physical loss of the function of a part or parts of their body where actual physical harm has been occasioned. And in any case, psychological trauma and pain may be suffered over a period of time or for the rest of their lives depending upon the circumstances and the way in which they may have been treated. The Community is forced to suffer in terms of lack of service and progress in their areas for fear of robbers. This is in turn partly discouraging both local and international investors from investing in the country. That is denying the country of much needed in flow of foreign currencies and investments generally to form a solid foundation for employment of more citizens and internal income revenue base for the country.

The Sepiks are well known world wide for what it can offer to the outside world. They featured well in term of in the Second World War, her carvings, her other cultures and traditions and even expeditions up the Sepik River. However, after more than 27 years of independence, the Province and the country as a whole has not progress but has gone backwards partly because of the level of such violent crimes as armed robbery, rape and murder. Many people are reluctant to come into the Province and the country with their money and skills to help develop us.

Realising these bad effects of crime on the community as a whole and the victims of such crimes generally, there are repeated calls for stiffer penalties by Society. As noted earlier, whilst the courts are talking about no "quantum leaps" the level of crime has taken a quantum leap. Society is hence calling upon the Courts even today to exercise the peoples judicial power vested in them by giving stiffer penalties by offenders.

In your case there is only one factor in your mitigation. That is the fact of your guilty plea. That has saved the State substantial money and time that could have been incurred in running a trial if you pleaded not guilty. As noted, your claim of circumstances forcing you to commit the offence is not supported by the evidence. You therefore, deliberately set out to plan and execute the robbery. It was thus a pure criminal act, an act you prided yourself in executing.

Of course, I note and sympathize with your family of mixed Kerema and Manus being broken. However, it is not sufficient to excuse you from the punishment Parliament has prescribed for you for having committed the offence. You chose to participate in the planning and execution of the robbery in the company of 12 other men.

You have a prior conviction for robbery and that you are not a first time young offender. A security guard was injured in the course or to facilitate the robbery. A large sum of money in cash, cheques and goods totalling just over K26,000.00, was stolen and as not been recover with the exception of only K500.00. There were wilful damage to property in terms of the supermarket door and its office door. You were armed with dangerous weapons and or tools which included a gun and some heavy metal tools to execute you robbery plan.

Supermarkets provide a useful service to the community. They bring goods from the manufactures to the ultimate end consumer who would otherwise not have the means to reach the manufacturer to buy what they want to buy. The sights of most towns and cities in the country are very ugly with all kinds of fences and security wires. Every ordinary citizen is being treated like criminals because of the level and frequency of robberies by persons like you. People are made to imprison themselves behind security fences for fear of people like you. Our country may be a free and a democratic society but the actions of a few people like you are causing the nation and the ordinary people to suffer and are giving the country a very bad name. You are becoming the rulers at the expenses of the people. This is why the community is calling for stiffer penalties.

In these circumstances, I consider a sentence of 15 years appropriate to serve as a personal and general deterrence and to show the societies’ disapproval of your kind of peoples behaviour. This may appear to be a quantum leap when compared to the last given sentences of 10 or 12 years. I have already set out reasons why I should not be restricted by such principles as "no quantum leaps," mainly because the level of this kind of crime has taken a quantum leap as is evidence by about 116 pending robbery cases here in the Wewak circuit list alone. It is also to positively respond to the people’s call for stiffer penalties to be imposed against people like you. Since the courts are exercising the people’s judicial power, this Court is in my view obliged to give a sentence the people themselves would give, which is expressed in their calls of stiffer sentences in the light of Parliament having prescribed life imprisonment.

Ultimately, therefore, I sentence you to a term of 15 years to be served in hard labour at the Boram CIS or if you wish, at the CIS institution in Manus if the Commissioner of CIS is agreeable to that. Of course, the time you may have already spent awaiting your trial shall be deducted from the sentence of 15 years.
________________________________________________________________________
Lawyer for the State: Public Prosecutor

Lawyer for the Accused': The Public Solicitor