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State v Moi [2006] PGNC 12; CR 546 of 2005 (22 May 2006)

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]

CR NO. 546 OF 2005

THE STATE

V

DICK JOHN MOI

Alotau: Jalina J
2006: 8 & 22 May

CRIMINAL LAW- robbery -sentence- robbery of dwelling house whilst armed with shot gun and in company – No physical violence employed to effect robbery- plea of guilty- young first offender- expressed remorse- prevalence of crime of robbery –custodial sentence necessary as deterrent- Criminal Code Act, s.386 (1 ) & (2)(a)& (b).

Cases Cited:
Gimble v The State [1988-89] PNGLR 271
Public Prosecutor v Don Hale (1998), SC564
Tau Jim Anis v The State (2000), SC642

Counsel:
Mr. A. Kupmain, for the State
Mr. J. Mesa, for the Offender

22 May, 2006

1. JALINA J. You have pleaded guilty to a charge of armed robbery with threats of actual physical violence contrary to s. 386 (1) & (2) (a) & (b) of the Criminal Code Act.

2. It was alleged that between 3 and 4 am on 14 August, 2004 you went with two others to the Dalai Heights flats at Top Town here in Alotau. You forced the gate open and entered the yard where you held up security guard Mani Ome by threatening him with a gun, a dangerous weapon. You then ordered him to accompany you and your friends to the residence of Mr. Tim Neville. At Mr. Neville's residence you and your friends cut the fly wire with a grass knife which you took earlier from Bani Ome. You then forced open the door, went inside, and stole a cassette recorder valued at K400.00. The cassette recorder was the property of Mr. Tim Neville.

3. The maximum penalty for armed robbery of a dwelling house is life imprisonment pursuant to the above provision of the Code; subject to the discretionary power of the Court under s.19 (of the Code). The Supreme Court has however; set sentencing guidelines for this crime through the oft cited case of Gimble v The State [1988-89] PNGLR 271. They are that:

1. on a plea of not guilty by young first offenders carrying weapons and threatening violence:-

(a) robbery of a house – a starting point of seven years;
(b) robbery of a bank – a starting point of six years;
(c) robbery of a store, hotel, club, vehicle on a road or the like – a starting point of five years; and
(d) robbery of a person on the street – a starting point of three years.

2. A plea of guilty may justify a lower sentence.

3. Features of aggravation such as actual violence, large amount stolen or where the robber is in a position of trust towards the victim may justify a higher sentence.

4. The Supreme Court has had differing views on the application of Gimble's case. In Public Prosecutor v Don Hale (1998) SC564, the three- member bench in that Court when dealing with an appeal by the Public Prosecutor against inadequacy of sentence of less than seven years for robbery of a dwelling house and increasing that sentence to ten years, said that in view of the prevalence of violent crime involving the use of guns, the ranges of sentences recommended in Gimble's case were having no effect and were no longer relevant. It went on to say that Gimble's case was out of date and crimes of violence have increased and the community was calling for heavier punishments as deterrence; hence its view that the starting point for robbery of a dwelling house should be ten years.

5. Another three-member bench of which I was a member, said subsequently in Tau Jim Anis v The State (2000) SC642, that the principles in Gimble's case were evolved over many years and were still good law. It should be noted however; that the Court in Tau Jim Anis distinguished Don Hale on the basis that it was concerned with robbery of a dwelling house but did not expressly disagree that violent crimes involving use of fire arms and other dangerous weapons were prevalent and higher sentences need to be imposed as deterrence. That is the view I have of Don Hale and Tau Jim Anis, with respect.

6. The present case was a robbery of a dwelling house without physical violence so the starting point under the Gimble guidelines would be 7 years as modified by Don Hale which takes the starting point up to 10 years. Other factors of aggravation which I will mention shortly may well take the sentence up to a period in excess of 10 years.

7. In deciding the length of sentence I should impose on you, I have taken into account your statement on the allocutus as well as your lawyer's submission on your behalf in mitigation of sentence. I have also taken into account the submissions of Mr. Kupmain on behalf of the State. This is not a spur of the moment robbery but a pre- planned one as you and your colleagues knew where you wanted Bani Ome to take you to which was to Mr. Tim Neville's residence. He complied and having arrived there, he was kept under guard by one of your colleagues thus enabling you to gain entry into the house and stealing the cassette recorder the subject of the charge. You had no respect for the fact that it was a residence. In this regard I endorse, with respect, what the Supreme Court said in Gimble's case (supra) at p.274:

"We consider that the robbery of the occupant of a house is more serious than the robbery of a store or business because it is an invasion of privacy and family life. One of the basic rights enshrined in the Constitution is "protection for the privacy of their homes". A man's home, whether it is a mansion or a shack, is his castle and we think the punishment for robbery of a home should reflect those community values".

8. Your lawyer, Mr. Mesa, has submitted that the motive for the robbery was your frustration over being repeatedly told to return later to collect your "finish" pay. That is also what you told police during the record of interview. But avenging your anger and frustration through means that are prohibited by law is not the right way. As correctly pointed out by Mr. Kupmain for the State, there are means or avenues recognized by law such as the courts that you could have recourse to. Here, you were not denied payment but you were merely told to return later to collect your "finish" pay, so there was no justification at all for what you did.

9. As regards your concern over the welfare of you mother since your father was dead and that there was no one to take care of her, let me repeat what I have said in a number of cases previously, that those who set out to commit serious crimes must consider the welfare of their families before they do so. They must realize that if they are arrested they may spend a long time in jail thus exposing their loved ones to hardship.

10. In all the circumstances of this case, considering the aggravating factors that I have alluded to which outweigh the mitigating factors, a punitive custodial sentence should be imposed as a deterrent not only to yourself but to others who may contemplate committing similar crimes in future. The period I consider appropriate is therefore one of 12 years in hard labour. I deduct from that sentence the 1 year 8 months and 3 weeks you have spent in custody awaiting trial which leaves a sentence of 10 years, 3 months and 1 week in hard labour.

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Public Prosecutor: Lawyer for the State
Public Solicitor: Lawyer for the Offender