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State v Yogol [2004] PGNC 186; N2583 (21 May 2004)

N2583

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]

CR. NO. 1676 AND 1791 of 2003

THE STATE

-V-

PAUL MAIMA YOGOL
AND
DAMA TEIYE

GOROKA: KANDAKASI, J.
2004: 11th and 21st May

DECISION ON SENTENCE

CRIMINAL LAW – SENTENCING – Armed gang robbery of vehicle on a road – Use of firearms and other weapons, and threats and actual violence – Property stolen partly recovered – Estimate value of cash and goods stolen totaling K1,300.00 - First time offender – Guilty plea - Sentence of 12 years, less time spent in custody awaiting trial imposed - Criminal Code section 386(1) and (2) and 19.

Cases cited:
Gimble v. The State [1988-89] PNGLR 27.
Hawai John v. The State (Unreported judgement delivered on 02/04/98) SCR 09 of 1995.
Tau Jim Anis & Ors v. The State (Unreported judgment delivered 25/05/00) SC642.
Acting Public Prosecutor v. Don Hale (Unreported judgement delivered on (27/08/98) SC564.
Dadly Henry Gorop v. The State. (Unreported judgment delivered on 03/10/03) SC732.
The State v. Vincent Malara (Unreported judgment delivered on 20/02/02) N2188.

The State v. Edward Toude & Ors, (No. 2) (Unreported judgment delivered on 18/10/01) N2299.

Norbert Maing v. The State (Unreported judgment delivered on 02/10/03) SCRA 29 of 2002.
Nelson Ngasale v. The State (Unreported judgment delivered on 02/10/03) SC731.
Ala Peter Utieng v. The State (unreported and unnumbered judgment of the Supreme Court delivered in Wewak on the 23rd of November 2000) SCRA 15 of 2000.
The State v. James Gatana & 3 Ors (Unreported judgment delivered on 19/04/01) N2127.

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

The State v. Tony Pandua Huahahori (N0.2) (Unreported judgment delivered on 21/02/02) N2186.
The State v. Fabian Kenny (Unreported judgement delivered 16/05/02) N2237.
The State v. Terence Ago (Unreported judgment delivered yesterday) CR 1649 of 2003.

Counsel:

N. Miviri for the State
M. Apie’e for the Accused

20th May, 2004

KANDAKASI, J: You both pleaded guilty to one charge of armed robbery contrary to s.386 (1) and (2) of the Criminal Code.

In both of your respective addresses before sentence, Paul Maima Yogol, you said sorry for what you have done. You then asked the Court to exercise mercy toward you because you were not the one leading the robbery. Additionally, you said you returned the items you stole to the victims the next day. For you, Dama Teiye, you also said sorry for what you did. You then said you were a villager who came to see the Goroka Show when you got involved in this trouble. Additionally, you said you also returned the items you stole.

In view of what you told the Court, your lawyer asked for a sentence starting at 8 to 14 years, given the sentencing trends in this kind of offences. The law requires a sentencing judge to carefully consider the circumstances in which an offence has been committed as well as the effect of that on the victim and the community. The sentence must reflect the particular facts of the case as well as the competing interest of the community to punish offenders and the interest of an offender to be fairly treated and opportunity given to him to reform.

Hence, to determine an appropriate sentence for you in this case, I need to first consider the circumstances surrounding the commission of the offence. I must also consider the prevalence of the offence and the effect of that on the community. Further, I must have regard to the sentencing trends and the effect of that on this kind of offences, particularly as to whether it has deterred people like you from committing this kind of offences. I start that process by considering the relevant facts.

The Facts

The facts are that on Sunday the 24th of August 2003, you with 10 other young men executed a planed robbery by conducting an illegal armed roadblock at about 11:00pm at Five Mile Goroka, along the Vanima dead road leading to the main Okuk Highway. At that time, a vehicle loaded with passengers was heading for Goroka town from Vanima village when you held it up. You armed yourselves with three homemade shotguns and bush knives. When this vehicle arrived at the scene, the members of your gang dropped a log across the road and blocked the vehicle’s way. This made the driver to stop the vehicle. When he did, you all jumped in front of the vehicle from your respective places of hiding, pointing the guns and the bush knives you had with you, at the driver and his passengers.

You ordered the driver and his passengers to get out of the vehicle and lay face down whilst you checked all their string bags and pockets and stole whatever you could put your hands on. Two of your accomplishes lifted the driver up and threw him at the back of the vehicle and got his wallet containing K100.00 cash with two save cards. You also removed and stole from him, his pair of shoes. The total of what you stole was about K372.00 in cash and other personal properties of the driver, his crew and others. The total estimated value of the properties and cash stolen stands at about K1,300.00.

You were disturbed as you were carrying on with the removing of the victims’ properties both on and off from them. You therefore, fled from the scene taking the items you had already removed or stolen from the victims. The next day after the robbery, you returned the properties you stole from the victims when the victims identified you as part of the gang that robbed them.

The victims identified the two of you during the robbery. The next day, they came to you and took you to the police station. The police acted on that, by carrying out their investigations and based on the results of their investigations, they had you arrested and charged Paul Maima Yogol on 25th and Dama Teiye on 27th August 2003.

The Offence and Sentencing Trend

The offence of armed robbery carries a maximum penalty of life imprisonment. In the much celebrated case of Gimble v. The State,[1] the Supreme Court however, set sentencing guidelines for armed robbery cases lower than that in the exercise of its discretion under s.19 of the Criminal Code. Higher up on the sentences it recommends is 7 years for robbery of a dwelling house and robbery of a person on the street at the lower end of the scale at 3 years.

At the same time, these guidelines provide for an increase or decrease from these starting points depending on the factors in aggravation and mitigation. 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, a higher sentence may be justified. On the other hand, a plea of guilty and an absence of any of these aggravating factors may justify a lower sentence.

Subsequent judgements of the Supreme Court have held that, these guidelines particularly the recommended sentences, are outdated and have increased them. This started on 2nd April 1998, in Hawai John v. The State.[2] There, the appellant pleaded guilty and was given a sentence of life imprisonment. The Supreme Court reduced the sentence to 15 years. The reduction was because of a huge disparity between the appellant and his co-offender who received 8 years also on a guilty plea. Otherwise, the Court found that, the offence was most serious because it was a planned robbery carried out with reckless disregard for others, using firearms resulting in one of the victims of the offence being rendered blind. In the Court’s own words, it said at pages 2 to 3:

"We agree that this was a most serious offence – a planned robbery carried out with reckless disregard of others. The carrying of firearms is always seen as serious aggravation of an offence because of the danger to life. As this offence shows that danger was realised with the blinding of the company driver. It was the appellant who fired the shot.

We are of the view that in such a case as this the imposition of a life sentence might well have been open to the Court. Despite there being no loss of life, the blinding of a young man-breadwinner of his family has effectively imprisoned him for life in a world of darkness.

... while the sentence viewed in isolation may not be said to be manifestly excessive on its own, the Court on the occasion was dealing with the second of two co-offenders."

That was a case of robbery on a street, which falls in the last category under the Gimble v. The State,[3] guidelines. The victim was transporting bags of money in cash totaling K1,798.00 and cheques totaling K215,000. 00 in a company vehicle. The appellant and his accomplishes followed the victim and shot into the screen of the vehicle on the driver side. That injured the driver rendering him fully blind. The money was stolen with the cash distributed and the cheques destroyed. Therefore, the company lost financially.

Subsequent judgments of the Supreme Court did not consider this judgment, perhaps due to it not being numbered and circulated amongst the judges. A judgment that does not take into account that judgment is Tau Jim Anis & Ors v. The State[4] citing Acting Public Prosecutor v. Don Hale.[5] Neither of these cases cited Hawai John v. The State.[6] In the first of these two cases, the Supreme Court increased the range of sentences. It did so by a factor of 3 years going by the judgment in the Acting Public Prosecutor v. Don Hale.[7] That saw an increase of the previous highest recommended sentence of 7 years to 10 years for robbery of a dwelling house and other categories also increased by the same factor with the last category of robbery on a street increased to 6 years.

In my view, if the Court in these cases were aware of the judgment in Hawai John v. The State,[8] there would have been a greater increase in the sentence than the ones recommended in the Tau Jim Anis & Ors v. The State.[9] The Supreme Court recently confirmed this in Dadly Henry Gorop v. The State.[10] There the Court said:

"... we are of the view that if that was done [considered the judgement in the Hawai John’s case] the sentence ranges recommended in the subsequent judgements could have been beyond what the Court was prepared to settle at. But because that has not happened everyone has been proceeding on the basis of the judgements in Tau Jim Anis & Ors v. The State ...and Acting Public Prosecutor v. Don Hale.... This has resulted in sentences after a trial reaching as high has 20 years as demonstrated by The State v. Edward Toude, & Ors (No 2)..."

The Supreme Court has taken this position because of the prevalence of this offence and the past sentences appearing not to deter other would offenders from committing armed robberies.

In recent years, the National Court has been imposing sentences of up 15 years on a guilty plea. An example of that is the sentence I imposed in The State v. Vincent Malara.[11] In that case, the prisoner who had a prior conviction for arson pleaded guilty to one count of armed gang robbery. The arms included a gun, bush knives, a crow bar and a pinch bar. The gang used these weapons to execute the robbery of a store. In the process, they cut one of the security guards on his head twice. The total amount and value of goods or property stolen was about K18,228.80 in cash, K2,660.46 in cheques and K5,831.08 in cigarettes.

In other cases, I imposed sentences beyond 15 years but these were after a trial. An example of that is my judgement in The State v. Edward Toude & Ors (No 2), [12] which was cited in the Dadly Henry Gorop v. The State[13] where I imposed a sentence of 20 years against a prisoner whom I found was the leader. That was in a case of an armed robbery on a ship, which I placed in the same category as a robbery of a dwelling house, because a ship often serves as a house. Additionally, it involved the breach of an employer/employee trust relationship by an employee who was the leader of the armed gang robbers.

Having regard to this sentencing trend, the Supreme Court in the Dadly Henry Gorop v. The State[14], reduced a sentence of 20 years to 18 years. In that case, the prisoner pleaded guilty to one charge of armed robbery. The amount of property stolen was not substantial, but the injuries occasioned to the victims were very serious. The victims were a Canadian couple, touring the country at the time. The prisoner acting alone beat up the victims very severely with a hockey stick. This resulted in fracture head injuries to both victims. The prisoner also knocked them down unconscious, with one of them almost dying but for swift medical intervention.

In arriving at that decision, the Supreme Court said:

"Given these, the sentence of 20 years in your case would appear not to be manifestly excessive going by the guidance of the judgement in Hawai John’s ... case. At the same time however, given the kind of sentence the offenders have received in cases like that of The State v. Vincent Malara ...following a guilty plea in the particular circumstances in those cases with a sentence after a trial as in The State v. Edward Toude, & Ors (No 2), ... reaching 20 years, we are of the view that you would have a justified feeling of the sentence being excessive. We are therefore of the view that your sentence should be reduced to 18 years."

If anything is clearer from these judgments is the fact that sentences in armed robbery cases have increased since the guidelines in Gimble v. The State.[15] The prevalence of the offence is the main contributing factor for the increase in the sentences. The lowest starting point for a simple robbery of a dwelling house is now 10 years. This may than be increased or decreased depending on the factors in aggravation as well as those in mitigation. However, if this is reconsidered in the light of the judgment in Hawai John v. The State,[16] the sentence could well start at 13 to 15 years at the top end of the range, with a starting point of 10 to 13 years for robbery on a street. The Supreme Court judgments in, Dadly Henry Gorop v. The State;[17]Norbert Maing v. The State[18] and Nelson Ngasale v. The State,[19] make this clear.

Your Case

Having discussed the law and the sentencing trend and tariffs, let me now turn to considering an appropriate sentence for you in the context of the particular facts in your case.

I note in your favour that, both of you are first time offenders with no prior convictions. Additionally, both of you pleaded guilty to the charge; consistent with a position you took following your arrest by police. Your guilty plea has of course meant less expense for the State and less time for the Court to deal with your case.

Following on from that, both of you said sorry to this Court and said you returned the goods you stole from the victims and you are good citizens who live in the village. This return was possible, because the victims caught you the next day. Apart from the return of part of the goods you stole, there is no evidence of you having said sorry and paying compensation or something like that to show how sorry you are to the victims. They are the ones who suffered directly from your unlawful acts. As the Supreme Court said in Ala Peter Utieng v. The State,[20] an offenders’:

"... [U]tterance of sorry must be accompanied by something tangible which befits the wrong he has brought upon the victim, her family and relatives, if such utterances are to be of any value and meaning. In the present case, there is no evidence of the Appellant paying any compensation or has taken any step to correct the wrong he has perpetrated. This Court or any other court for that matter should be slow to act on such meaningless and or valueless pleas for mercy or leniency."

Given, this, I take your utterances of sorry without anything more meaningless.

I also note that Paul Maima Yogol, you are 20 years old and Dama Teiye, you are 21 years old. You were therefore, in a position to know that, what you set out to do with your friends was wrong but carried it out anyway. You had no useful purpose or need in mind when you committed the offence. This was therefore a completely inexcusable criminal act on you and your friends’ part. Accordingly, there can be no exercise of mercy or leniency in these circumstances.

Finally, I note that, you are both unemployed and live subsistence style livings in the village. In your allocutus, Dama Teiye, you said you just came into Goroka to witness the show. I note your father is deceased and you are the only person supporting your mother and other members of your immediate family. You had a PMV crew job at one stage and that you are not a resident of Goroka.

As for Paul Maima, you are also a villager. You said you witnessed this armed hold up and decided to join in as it was being committed. I do not accept that because this does not usually happen and in any case, the robbers could not have easily allowed you to interfere with their hold up.

Turning now to the factors against you, I note a number of them. Firstly, you committed the offence in the company of others. It is clear now that acting in the company of another and more seriously, a group provides more strength and encouragement. This makes the commission of an offence by a group more serious than a case in which only one person is the offender. As such, those who act in a group deserve a higher penalty.[21]

Next, you used dangerous weapons namely, guns and bush knives to commit the offence. In the process, you caused your victims to lay down on the ground with their faces down. As the Supreme Court said in Hawai John v. The State,[22] the involvement of firearms and the use of it is a serious aggravating factor, because it has the serious risk of claiming human life.

Another factor against you is as I said in a judgment I delivered yesterday, the crime of armed gang robbery on our highways, roads, streets and in towns as in this case is on the rise. That is why in nearly all of the cases that have gone before the Courts, the Courts have expressed hope or considered either, expressly or by implication that the sentences they were imposing would deter the offenders themselves and other would be offenders from committing such offences. Unfortunately, as nearly all judgments to date on this kind of offences acknowledge, the kinds of sentences 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),[23] the offence is on the increase. They are every day occurrences throughout the country.

As I observed elsewhere and again yesterday, despite correctly describing how bad the crime is the sentence imposed do not compare with the suffering and the loss a robbery brings upon the victims specifically or the society as described in the various judgments such as Tau Jim Anis v. The State.[24] On the long term, if we allow this to continue by imposing lenient sentences, services provided by law-abiding people might shut down and the entire community could suffer the consequences of such criminal conducts. Logically, if all it would take is a few 5 to 8 years, one could afford to commit such serious crimes because offenders would know that, they would get away lightly. This, in my view, is partly contributing to the increase in this kind of offences.

Again as I noted yesterday and before, the crime of armed hold up and robbery is now a common occurrence almost every day. It is happening not only here in the Eastern Highlands Province but throughout the country. In some cases, there are even deaths both in successful and unsuccessful robberies as in the case of The State v. Tony Pandua Huahahori (N0.2).[25]

I started to respond to this serious and prevalent crime against society by imposing sentences beyond those recommended by the earlier Supreme Court judgments. An example of my doing that is in the case of The State v. Fabian Kenny.[26] That was a case of robbery on a highway in Wewak. The prisoner was a first time young offender. I imposed a sentence of 9 years.

The Supreme Court implicitly approved the sentence in the above case and several others in three of its recent decisions. The decisions in question are those of in Norbert Maing v. The State,[27] Nelson Ngasale v. The State [28] and Dadly Henry Gorop v. The State.[29]

Against these is your guilty plea and not having any prior conviction as noted already. The particular circumstances of your case do not warrant an imposition of the prescribed maximum of life imprisonment. It will therefore have to be a determinate term of years. Having regard to the above discussions particularly in relation to the offence, its effect on the society and the victims of the offence and the sentencing trend which is one of progressive increase in the sentence to respond to an ever increase in the crime, I consider a sentence of 12 years against the both of you appropriate. This is one year less than the one I imposed yesterday in the cases of The State v. Terence Ago.[30] This is because the amount of money involved in that case was far more than in the present case.

Of that sentence of 12 years, I order a deduction of the period you have spent in custody which calculates to 8 months, 3 weeks and 3 days for Paul Maima Yogol and 8 months, 3 weeks and 6 days for Dama Teiya. This leaves you with the balance of 11 years, 3 months and 4 days for Paul Maima and 11 years 3 months 1 day for Dama Teiya. I order that you serve that term in hard labour at the Bihute CS.
_____________________________________________________________________
Lawyer for the State: Public Prosecutor

Lawyer for the Accused: The Public Solicitor

^[1] [1988-89] PNGLR 27.

^[2] (unreported judgement delivered on 02/04/98) SCR 09 of 1995.
^[3] Op cit 1.
^[4] (Unreported judgement delivered 25/05/00) SC642.
^[5] (Unreported judgment delivered on (27/08/98) SC564.
^[6] Op cit n 2.
^[7]Op cit n 5.
^[8] Op cit n 3.
^[9] Op cit n 4.
^[10] (unreported judgment delivered on 03/10/03) SC732.
^[11](Unreported judgment delivered on 20/02/02) N2188,cited in Dadly Henry Gorop v. The State ( Ibid).
^[12] (Unreported judgment delivered on 18/10/01) N2299.
^[13] Supra note 10.
^[14] Op cit n 10.
^[15] Op cit n 1.
^[16] Op cit n 2.
^[17] Op cit n 10.
^[18] (Unreported judgment delivered on 02/10/03) SCRA 29 of 2002.
^[19] (Unreported judgment delivered on 02/10/03) SC731.
^[20] (unreported and unnumbered judgement of the Supreme Court delivered in Wewak on the 23rd of November 2000) SCRA 15 of 2000 at page 5
^[21] See The State v. James Gatana & 3 Ors (Unreported judgement delivered on 19/04/01) N2127 for example of a case formerly stating that.
^[22] Op cit n 2.
^[23] (Unreported judgment delivered on 10/01/01) N2033.
^[24] Supra note 4.
^[25] (Unreported judgment delivered on 21/02/02) N2186.

^[26] (Unreported judgement delivered 16/05/02) N2237.
^[27] Op cit 18.
^[28] Op cit 19.
^[29] Op cit 10.
^[30] (Unreported judgment delivered yesterday) CR 1649 of 2003.