Home | Databases | WorldLII | Search | Feedback National Court of Papua New Guinea

State v Negol [2005] PGNC 148; N2801 (25 February 2005)

N2801

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]

CR NO 971 0F 2001

THE STATE

V

JAMES NEGOL

KIMBE: CANNINGS J
10, 25 FEBRUARY 2005

SENTENCE

CRIMINAL LAW – indictable offence – Criminal Code, Subdivision VI.1.D (stealing with violence: extortion by threats) – Section 386 (the offence of robbery) – sentence – sentencing guidelines – home invasion – gang of robbers – use of firearms – starting point for head sentence – identification of relevant considerations – application of relevant considerations – whether appropriate to suspend whole or part of sentence – need for properly documented pre-sentence report – sentence.

Cases cited:
Gimble v The State [1988-89] PNGLR 271
Phillip Kassman v The State (2004) SC759
Public Prosecutor v Don Hale (1998) SC564
Tau Jim Anis v The State (2000) SC642
The State v Edward Toude and Others (2001) N2299

F Popeu for the State
O Oiveka for the accused

CANNINGS J:

INTRODUCTION

This is a decision on the sentence for a man who pleaded guilty to armed robbery.

BACKGROUND

The incident giving rise to the charge took place at Gigo in Kimbe, West New Britain, on the night of Monday 24 July 2000. It is alleged that the accused, James Negol, and three other persons armed themselves with a factory-made shotgun and bush-knives and forcibly entered the family home of the Kimbe branch manager of Lae Biscuit Company.

The accused’s gang used bolt-cutters to cut through the fence and then broke into the house and held up the manager and his family. They pointed the gun at the manager. The gang demanded money, whilst threatening to take away the manager’s young daughter. The manager acceded to the gang’s demands and handed over a company moneybag with K5,000.00 cash in it and his wallet, which contained another K300.00. The gang then fled without causing further harm to the family.

In October 2000 the accused was arrested and charged. He co-operated with the police and made a confessional statement.

In May 2001 he was brought before the District Court at Kimbe and remanded in custody. In July 2001 he was committed to stand trial in the National Court. He was in custody for some time and then escaped. On 12 March 2003 Batari J issued a warrant for his arrest. On 28 January 2005 he was again remanded.

On 10 February 2005 he was brought before the National Court and faced the following indictment:

James Negol of Tuam, Siassi, Morobe Province, stands charged that he on the 24th day of July 2000 at Kimbe in Papua New Guinea stole from one Hugh Rorigo with threats of actual violence K5,000.00 in cash and personal properties valued at K300.00 belonging to the said Hugh Rorigo.

And at this time the said James Negol was armed with a factory made shotgun, three bolt cutters, a bush knife and a pocket knife being dangerous and offensive weapons and was in company with three other persons.

The indictment was presented under Section 386 of the Criminal Code. The accused pleaded guilty. I entered a provisional plea of guilty and then, after reading the District Court depositions, confirmed the plea and convicted the accused. He is now referred to as the prisoner.

Mr Popeu tendered an antecedents report, which indicates whether the prisoner has any prior convictions. I administered the allocutus, ie the prisoner was given the chance to tell the court anything relevant to the penalty to be imposed. He told his story. Submissions were made by defence counsel and the prosecutor and then I adjourned to consider sentence.

RELEVANT LAW

Section 386 of the Criminal Code states:

(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.

Mr Popeu indicated that the State was relying on Sections 386(2)(a) and 386(2)(b). I was satisfied that the elements of those provisions were adequately set out in the indictment, that the prisoner was aware of their significance and that the summary of the facts pleaded to by the prisoner supported those elements.

The prisoner is therefore liable to a penalty of imprisonment for life.

That is the maximum penalty. The court has a considerable discretion whether to impose the maximum penalty by virtue of Section 19 of the Criminal Code. For example:

• a shorter term of imprisonment may be imposed (Section 19(1)(a)); or
  
• a fine up to K2,000.00 may be imposed instead of or in addition to a term of imprisonment and the prisoner can be imprisoned until the fine is paid (Sections 19(1)(b), 19(1)(c)); or
  
• the prisoner may be given a ‘good behaviour bond’ (Section 19(1)(d)); or
  
• the prisoner can be discharged and the sentence postponed (Section 19(1)(f)); or
  
• the court can suspend all or any portion of the sentence imposed, subject to conditions (Section 19(6)).
  

ANTECEDENTS

The prisoner has one prior conviction. In 1998 he was convicted by the District Court at Kimbe of being in possession of dangerous drugs.

ALLOCUTUS

The prisoner was given the opportunity to say what matters the Court should take into account when deciding on punishment. A paraphrased summary of his response follows:

I have pleaded guilty. I live at home. Most of my family are unemployed. My mother sells betel-nut and provides for us and pays school fees. I was going to school but can no longer afford to pay school fees. While I was at home, the other boys involved in this crime approached me and I thought that this was the only way I could get money to pay for school fees. I committed the offence when I was young. I am now married, with an 18-month old girl. When I am in custody I worry about my wife and child. They are living in an urban area and life is very hard for them. I apologise to everyone in the courtroom for committing this offence. I ask the court to give me a good behaviour bond and put me on probation. I ask for mercy. Thank you.

SUBMISSIONS BY DEFENCE COUNSEL

Mitigating factors

Mr Oiveka referred to a number of mitigating factors. The prisoner has pleaded guilty, saving the trouble and expense of a trial. He admitted to the police at the outset what he had done. He accepts responsibility for his actions. He committed the offence at a tender age. He was only 17. He is the only person to have been charged.

Personal particulars

He is now 22 with a family to look after. He still lives in Kimbe, Section 10. He is a member of the Lutheran Church. His parents are alive. He is the oldest of five children.

Precedents

Mr Oiveka asked me to consider three Supreme Court decisions:

• Gimble v The State [1988-89] PNGLR 271, Bredmeyer J, Los J, Hinchliffe J. The court suggested sentencing guidelines for cases of aggravated armed robbery on a plea of not guilty by a young first offender carrying weapons and threatening violence. The court considered that a family home, when compared to other places such as a bank, a store or a street, was the most serious place in which an armed robbery can occur. The following starting points were suggested:
  
  • ➢ robbery of a house – seven years;
    
  • ➢ robbery of a bank – six years;
    
  • ➢ robbery of a store, hotel, club, vehicle, on the road etc – five years;
    
  • ➢ robbery of a person on the street – three years.
    
• Public Prosecutor v Don Hale (1998) SC564, Amet CJ, Woods J, Kirriwom J. The court upheld an appeal by the Public Prosecutor against a sentence of five years imposed on a man who was part of a gang, which broke into a house at Nine Mile, Lae, and threatened the family with a shotgun and fired shots. The court stated:
  

We feel that the starting point to an appropriate sentence involving the robbery of home owners at night with the use of firearms to threaten victims should be ten years.

• Tau Jim Anis v The State (2000) SC642, Sheehan J, Jalina J, Kirriwom J. The court upheld an appeal against a sentence of 10 years imposed by Injia J. The offenders robbed a coffee factory of K20,000.00. They were young (aged 15) first offenders, there was little physical violence and they pleaded guilty. The Supreme Court felt that the sentence imposed by the trial judge had involved too big a jump in the applicable tariffs. The court felt that the Gimble categories (which set different starting points depending on where the robbery took place) were still valid. As this robbery happened at a factory, it fell into the third category. The Gimble starting point was five years. But the court said it should now be eight. The court felt that the trial judge had not given sufficient consideration to mitigating factors, eg the age of the offenders and their guilty plea. It substituted a sentence of 7 years.
  

Mr Oiveka submitted that though the present robbery occurred in a dwelling house and this made it a serious case, there was no aggravated violence and, in view of the youthful age of the prisoner, a low-range custodial sentence should be considered.

SUBMISSIONS BY THE STATE

Mr Popeu, for the State, submitted that the prisoner was guilty of a serious offence. The trend is now towards severe penalties for this type of offence. Firearms were involved. The court must consider the prevalence of such crimes and impose a penalty that provides a deterrent against this sort of thing becoming widespread.

DECISION MAKING PROCESS

I have adopted the following decision making process for purposes of determining an appropriate penalty in the present case.

• step 1: what is the appropriate head sentence, in terms of years?
  
• step 2: should all or part of the sentence be suspended?
  
• step 3: if all or part of the sentence is suspended, what conditions should be imposed?
  

STEP 1 - WHAT IS THE APPROPRIATE HEAD SENTENCE?

Approach

In setting an appropriate head sentence I will take this approach:

• first, I will identify an appropriate starting point;
  
• secondly, I will set out the considerations that should be taken into account in deciding whether to impose a sentence equal to, lesser or greater than the starting point;
  
• thirdly, I will apply those considerations to the facts of the present case.
  

Starting point

The Supreme Court in Gimble used the terminology ‘starting point’ to describe the head sentence around which the courts should work in armed robbery cases. The term has since been employed in numerous cases, both in the Supreme Court and the National Court. Though a number of judges (eg Kandakasi J in The State v Edward Toude and Others (2001) N2299, National Court) have expressed the view that the Gimble starting points are now too low, no great issue has been taken with the concept and its usefulness. So I will identify a starting point for this case.

As to what it should be, I have considered a recent Supreme Court decision on the subject, Phillip Kassman v The State (2004) SC759. The court heard an appeal against sentence by a man involved in an armed robbery of an ANZ Bank customer, in the bank car park, at Waigani, National Capital District. The prisoner was in a gang of four who robbed the victim at gunpoint of more than K120,000.00 cash, the takings of a company he worked for. The trial judge imposed a sentence of ten years. The Supreme Court noted that if the Gimble categories were used the starting point would be (for an armed robbery of or near a bank) five years. But times have changed. The court considered the previous Supreme Court decisions in Hale and Anis and agreed that a "three year increase denominator" should be applied. That meant the starting point was eight years. The court said that the trial judge had properly considered the aggravating factors. The robbery was committed in broad daylight at the doorsteps of the bank at a time and location where many people would be expected to be present. There was a high risk of injury to innocent bystanders. The Court did not disturb the ten years sentence.

The present case involved an armed robbery of a family in their house. It was a home invasion by a gang armed with a firearm and other weapons. It falls into the most serious of the Gimble categories. Applying the plus-three denominator sanctioned by Hale, Anis and Kassman, the starting point for the present case is ten years.

Relevant considerations

The things I consider should be taken into account when determining whether to increase or decrease the head sentence or leave it at the starting point are:

1. Did the offender and other members of his gang not commit actual violence during the course of the robbery?
   
2. Did the offender and other members of his gang not threaten the victims of the robbery with violence?
   
3. Did the offender and other members of his gang not put the victims or innocent bystanders in real danger of being injured or killed?
   
4. Did the offender and other members of his gang ensure that especially vulnerable victims such as children, women or older people were not threatened or treated badly?
   
5. Did the offender and other members of his gang steal money or property of a relatively small value?
   
6. Did the offender play a relatively minor role in the robbery?
   
7. Did the offender give himself up after the robbery?
   
8. Did the offender cooperate with the police in their investigations?
   
9. Has the offender done anything tangible towards repairing his wrong, eg offering compensation to the victims, repaying what he has stolen, personally or publicly apologising for what he did?
   
10. Has the offender pleaded guilty?
    
11. Has the offender genuinely expressed remorse?
    
12. Is this his first offence?
    
13. Can the offender be regarded as a youthful offender or are his personal circumstances such that they should mitigate the sentence?
    
14. Are there any other circumstances of the robbery or the offender that warrant mitigation of the head sentence?
    

The above considerations have been drafted so that an affirmative (yes) answer to any one can be regarded as a mitigating factor, a negative (no) answer will be an aggravating factor and a neutral answer will be a neutral factor. The more mitigating factors that are present, the more likely it is that the head sentence will be reduced. The more aggravating factors present, the more likely it is that the head sentence will be lifted above the starting point. However, sentencing is not an exact science. It is a discretionary process. When a factor is marked as mitigating or aggravating it does not mean necessarily that it is given the same weight as another mitigating or aggravating factor. Some mitigating factors may be ‘strongly mitigating’. Others may be ‘mildly mitigating’. The same goes for aggravating factors.

Another thing to note is that there are, in general, three sorts of considerations listed.

Numbers 1 to 6 focus on the circumstances of the robbery. All armed robberies are bad and their effect on the victims can be traumatic, devastating and long-lasting. But the gravity and the circumstances of each robbery are different. Some are worse than others. These considerations are intended to capture the circumstances of the incident.

Numbers 7 to 11 focus on what the offender has done since the robbery and how he has conducted himself.

Numbers 12 to 14 look at the personal circumstances of the offender and take account other factors not previously considered.

Application of considerations

I apply the above considerations as follows:

1. Yes there was no actual physical violence committed during the course of the robbery. Once the gang got what they were after (a money bag) they fled and caused no further trouble.
   
2. No there were threats of violence. The gang threatened to shoot the father of the household and then threatened to take away his daughter.
   
3. No the gang had a firearm and other weapons, so there was a real danger that someone would be killed or injured.
   
4. No no attempt was made to guard vulnerable victims against the trauma created by the gang’s actions. This was a robbery of a family home, with a mother and children present. Those people have to live with the memory of this incident for the rest of their lives. It is reasonably to be expected that they cannot forget it and when they go to sleep at night they will be haunted by this experience.
   
5. No the amount of money stolen was not small. It was more than K5,000.00.
   
6. It is not clear what role the prisoner, James Negol, played in the robbery.
   
7. No the prisoner did not give himself up to the police.
   
8. Yes he did co-operate with the police throughout their investigations.
   
9. No there is no evidence that the prisoner has done anything tangible towards repairing his wrongs: no compensation, no repayment, no apology.
   
10. Yes he pleaded guilty, thus saving the State the trouble and expense of mounting a trial and relieving the victims of the inconvenience and trauma associated with coming to court to give evidence.
    
11. Yes he has shown a moderate degree of remorse, through his allocutus.
    
12. No this is not his first offence. He has a previous conviction for possession of dangerous drugs.
    
13. Yes he was a youthful offender. The robbery took place almost five years ago. It apparently has taken some time to get the matter to trial as the prisoner escaped after he was remanded in custody. I do not take that into account in the sentencing process. He is presently aged 22 years, which makes him about 17 years of age when he took part in the robbery.
    
14. No there are no other aspects of the robbery or the prisoner’s personal circumstances that warrant mitigating the head sentence. As to his claims that he needed money for school fees and he is the oldest in a large and relatively poor family and that he is now married with a wife and young child to care for, I can accept them as truthful. But I do not regard them as mitigating factors. There are thousands of young men in similar situations in Papua New Guinea, who do not resort to violence and robbery to try to make ends meet. It is not right to allow those particular factors to lessen the sentence.
    

Conclusion

Taking all the above considerations into account and comparing this case with the sentences in Hale, Anis and Kassman, the head sentence in this case is seven years.

STEP 2 - SHOULD ALL OR PART OF THE HEAD SENTENCE BE SUSPENDED?

This is a case where it was appropriate to consider suspending part of the sentence, given the age of the prisoner and the fact that there was no actual serious violence committed during the course of the robbery. I therefore requested a pre-sentence report under Section 13(2) of the Probation Act.

The report, prepared by a local Community Corrections Officer, set out the prisoner’s background, highlighting the fact that he was young when he committed the offence. He is still young, with a wife and child to support. However the report points out that after his conviction for possessing dangerous drugs by the District Court in 1998 be was placed on two years probation but absconded from supervision. The report justifiably concludes that there is a risk he might do the same thing again if he is given a non-custodial sentence. Very strict conditions would need to be imposed. The report does not recommend a non-custodial sentence.

In light of that report, in particular the prisoner’s unsatisfactory probation record, I do not think it is appropriate at this stage to suspend any part of the head sentence. However, the question of suspending a part of the sentence can be considered later. The prisoner can have time to think about and propose some very strict conditions in support of an application to suspend the remainder of the sentence. He might also think about how he might attempt to repair the damage that he has done to the lives of the people whose home he invaded.

I will impose a minimum term of the head sentence that must be served; the remainder will also be served unless an application for suspension of the remainder is granted.

Step 3 of the sentencing process, referred to above, will not be considered at this stage.

REMARKS

The invasion of a family home by an armed gang is a very serious crime. In this case the incident happened at night as the family – a husband and wife and their daughter – were going about their daily lives peacefully. The prisoner was a member of the gang and therefore contributed to an event that will very likely mar the lives of this family forever. The prisoner must dwell on what he has done and understand the gravity of his crime. The best place to do that, for the time being, is in gaol.

SENTENCE

The Court makes the following order:

1. James Negol, having been convicted of the crime of armed robbery, is sentenced to 7 years imprisonment in hard labour, 2 years of which must be served and 5 years of which may be suspended by order of the National Court if and when an application for suspension is granted.
   

2 For the avoidance of doubt:

(a) Suspension of any part of the above sentence will only come into effect if and when ordered by the National Court.

(b) There shall be deducted from the term of imprisonment the period in custody that the prisoner has already spent in relation to this offence.

Sentenced accordingly.
___________________________________________________

Lawyers for the State : Public Prosecutor
Lawyers for the accused : Public Solicitor