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National Court of Papua New Guinea |
PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]
CR 896 OF 2005
THE STATE
v
LUKE MERA YAUWE
2005: 9 & 25 February
2006: 19 August
AND:
CR 1011 OF 2005
THE STATE
V
DAVID MARCUS
Lae: Kirriwom J
2006: 20 July
19 August
SENTENCE – Armed Robbery – Armed Gang – Street Robbery – Lone Victim on Suburban Street – Plea of Guilty – Expression of Remorse – Payment of Compensation to Victim – Expression of Remorse – Not a worst case – Sentence to four (4) years imprisonment part suspended – criminal code ss.386 (1) & (2) & 19 (f).
Cases Cited:
Gimble v The State [1988/89] PNGLR 271
Acting Public Prosecutor v Don Hale [1998] SC642
Tau Jim Anis & Ors v. The State [2000] SC642
Counsel:
N. Miviri & J. Wala, for State
A. Raymond, for Luke Mera Yauwe
T. Gene, for David Marcus
DECISION ON SENTENCE
19 August, 2006
CHARGE
1. KIRRIWOM J: The two prisoners pleaded guilty to one count of armed robbery at different times in respect of one and the same charge that each had been individually charged with.
2. Luke Mera Yauwe of Arango, Eastern Highlands appeared before me on the 15 November, 2005 and pleaded guilty and I reserved sentence to a later date while awaiting Pre-sentence Report. In early December, 2005 the report was furnished to the court but the sentence has not yet been delivered when the co-accused was indicted with the same charge and brought before me as a short plea matter. It seems they were committed to stand trial by the District Court at different times. Meanwhile, David Marcus appeared before me on 20 July 2006 and also pleaded guilty to same charge. His case was initially listed as a trial.
3. The charge against the two is that on 28 day of March 2005 at Lae the prisoners in the company of several of their peers were at Girex Street, East Taraka, Lae and stole from the victim Stephen Ila with actual violence foodstuffs of grocery items in a plastic bag and his waist-bag containing K150.00 in cash. They were at the time armed with a homemade gun and bush knives and in company of each other.
4. The Charge is brought under s.386(1) & (2) of the Criminal Code of Papua New Guinea.
FACTS
5. Between 5 and 6 pm on 28 March 2005, the victim Stephen Ila who lives in East Taraka was returning home after work and was carrying a plastic bag of shopping containing grocery and meat from the store he purchased on his way home. The prisoners and their friends confronted him on the street, assaulted him and grabbed his plastic bag and his waist bag containing the money and escaped.
6. Prisoners are mostly east Taraka residents with parents and guardians who have permanent homes there. The incident was witnessed by a bystander who also identified some of the boys involved so tracking down the culprits was easy but a daring one. What turned out to be difficult for the victim and his witness was a strong violent resistance from one of the parents and her son supported by relatives who helped their relative by being abusive and violent thereby obviating all efforts for amicable settlement of the matter but instead assaulted them and one of the witnesses was badly injured and had to be hospitalized.
7. This is an aggravating factor against the co-offender concerned. It does not apply to the present prisoners before me.
LAW AND SENTENCING RANGE
8. Under s.386(2), the prisoners are liable to go to prison for life which is the maximum penalty prescribed by law. But the law says that the maximum must be reserved for the worst case. The court has often been guided by the Supreme Court case of Gimble v The State [1988/89] PNGLR 271 which sets out four categories of robberies and prescribing range of sentences from the most serious to the least serious case.
9. Robbery committed in a dwelling house was considered to be the most serious and a starting sentence of seven years was prescribed, later increased to ten years in Acting Public Prosecutor v Don Hale [1998] SC 564 while robbery on a street was said to be the least serious and recommended a starting sentence of three years but later increased to six years in Tau Jim Anis & Ors v The State [2000] SC 642. The starting sentences were adjusted upwards or downwards where the prisoner pleaded guilty and also based on the mitigating and aggravating features of the case.
10. This case falls in the fourth category which is the least serious one as the offence was committed on a street. It is therefore regarded as street robbery.
11. Unfortunately this type of street robbery is becoming quite prevalent where guns and bush knives are carried in public streets and used on innocent law-abiding citizens minding their own business. Some places in Lae like East and West Taraka have become notoriously famous as the city’s no-go-zone for rest of the city dwellers for sight-seeing or visiting friends and relatives because of this kind of criminal activities taking place in full view of everyone.
PRISONERS BACKGROUND AND PERSONAL PARTICULARS
12. Luke Mera Yauwe was said to be 15 years old at the time of his committal on 27 June 2005. He comes from Arongo Village, Unggai, Eastern Highlands province. He is a product of a broken home who came to Lae about two or three years before this trouble to be with an uncle who lived in Lae only to find that he too had left his family and was living apart from them. He came to Lae when his parents split up. His father who comes from Mt. Hagen and his mother returned to her village at Arongo, Unggai, Eastern Highlands where she too got remarried and lives her own life. He comes from a family of two brothers and three sisters and he is the fourth born in the family. His primary education ended at Grade 5.
13. David Marcus was estimated to be 20 years at the time of his committal on 24 June 2005. He comes from Mapos village, Mumeng, Morobe Province. He was residing with his parents at Girex Street, East Taraka at the time of this offence. He was educated to Grade 8 at Taraka Community School in 2001.
14. He has a prior conviction for being unlawfully on premises at the age of 13 in 1998 at Lae where he was fined K50.00.
SUBMISSIONS
15. Counsel for the prisoner Luke Mera Yauwe urged upon the court to consider the youthful age of the prisoner. He was only 15 and a juvenile. He was a first offender, expressed remorse and he was not armed. He was merely a follower.
16. It was submitted that the case fell under the fourth category in Gimble’s case which attracted penalty of three years and proposed a suspended sentence between 4-6 years in the light of Tau Jim Anis & Ors v The State.
17. Both counsels have asked for non-custodial sentence on behalf of their respective client.
RELEVANT CONSIDERATION
18. In favour of both prisoners, I take into account their pleas of guilty. Except for David Marcus, Luke Mera Yauwe has no priors and appears as a first offender. Both expressed remorse for their actions. David Marcus told the court that reconciliation with the victim was made by his parents in our Melanesian way by shaking hands and payment of K200.00 in compensation.
19. I note from the depositions that they cooperated fully with the police in their investigation as is now reflected in their pleas of guilty.
20. I am of the view that restoring relations is the main objective of sentencing in this case give the fact that all the parties live together in the same area of East Taraka. The objective of the criminal law is to punish the offender for his wrong against the society. But society’s interest is interwoven into the people’s way of life and their daily intercourse and interaction with each other. That is the interest that is been aimed at protecting. Punishment for an offence must fit the crime within the social circle in which the offence took place and in which the parties live. Continued peace and harmony between them is of paramount consideration. That must be fostered and preserved.
21. In saying this I do not overlook the aggravating factors from a wider perspective such as the prevalence of the offence in the area and the country as a whole. I am mindful of the young age of the prisoner especially Luke Mera Yauwe without parental care and support or guidance. I am mindful of the good gesture of the parents of David Marcus in reconciling with the victim of their son’s crime, It is good that parents are taking part in the process of dealing with their son’s erratic behaviour which the court must pay due regard to and commend it.
22. I do not pay much attention to David Marcus’ prior conviction in the District Court in 1998 as it is not relied upon by the State as the first reason and secondly, the prisoner was then only a juvenile. There is a passage of seven years between that offence and the current one which shows that he made good effort to lead a good straight life. I bear in mind too that often one’s effort can be overcome by factors beyond his control such as the location he lives in is not conducive to him staying out of trouble.
SENTENCE
Luke Mera Yauwe is sentenced to four years imprisonment in hard labour. I deduct one year four months and three weeks as time spent in custody which now leaves him with two years seven months and one week remaining. I suspend two years and six months and he shall serve only the remaining one month and one week on the following condition:
David Marcus is sentenced to four years imprisonment in hard labour. He too was arrested on the same day of the offence and had been in custody for one year, four months and three weeks. He is left with two years and seven months and one week to serve. I suspend two years and six months which means he too will serve one month and one week but subject to the following conditions:
ORDERS
24. Both prisoners are sentenced to four years imprisonment in hard labour. One year four months and three weeks of pre-trial custody deducted. Two years and six months of the balance of two years and seven months and one week are suspended on these conditions:
Upon their discharge after serving one month and one week each respectively:
_______________________________________
Public Prosecutor: Lawyer for the State
Paul Paraka Lawyers: Lawyer for the Defence
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