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

State v A Juvenile, "Taa" [2006] PGNC 237; 2006-3-23 (23 March 2006)

N3017

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR NOS 1585 OF 2005 AND 156 OF 2006

THE STATE

V

A JUVENILE, “TAA”

Kimbe: Cannings J
2006: 13 February, 23 March

SENTENCE

CRIMINAL LAW – sentences – indictable offence – Criminal Code, Subdivision VI.1.D (stealing with violence: extortion by threats) – Section 386 (the offence of robbery) – robbery of a store – armed gang – nobody physically injured – guilty plea – head sentence of 3 years imprisonment.

CRIMINAL LAW – sentencing – indictable offence – Criminal Code, Division III.6 (escapes: rescues: obstructing officers of courts) – Section 139 (escape by offender) – sentence on plea of guilty – escape from correctional institution – offender surrendered soon after escape – identification of relevant considerations – application of relevant considerations – sentence of 5 years – offender must serve minimum sentence of one year – balance of four years suspended on conditions.

A juvenile pleaded guilty to two charges: (a) armed gang robbery of a storekeeper who had just left his store and was on his way to the bank with the store’s takings; and (b) escape from custody while in remand in connection with the armed robbery charge. The two charges were tried together.

Held:

The offender was sentenced to four years imprisonment on the armed robbery charge and five years on the escape charge, a total of nine years. The sentences were expressed to be served cumulatively but when the totality principle was applied the total sentence was reduced to five years, with a minimum of two years to be served after which the prisoner will be eligible for early release.

Cases Cited

The following cases are cited in the judgment:

Edmund Gima and Siune Arnold v The State (2003) SC730
Gimble v The State [1988-89] PNGLR 271
Phillip Kassman v The State (2004) SC759
Public Prosecutor v Don Hale (1998) SC564
SCR No 1 of 1994; The State v Aruve Waiba 04.04.96, unreported
Tau Jim Anis v The State (2000) SC642
The State v Aaron Lahu (2005) N2798
The State v Jacky Vutnamur and Kaki Kialo (No 3) (2005) N2919
The State v Mark Kanupio and Others (2005) N2800

Abbreviations

The following abbreviations appear in the judgment:

CS – Correctional Service
J – Justice
K – Kina
N – National Court judgment
No – number
PNG – Papua New Guinea
PNGLR – Papua New Guinea Law Reports
SC – Supreme Court judgment
SCR – Supreme Court Review
WNB – West New Britain

PLEA

The accused pleaded guilty to armed robbery and escape from lawful custody and the reasons for sentence are given below.

Counsel

F Popeu, for the State
O Oiveka, for the Accused

23^rd March, 2006
1. CANNINGS J: INTRODUCTION: This is a decision on the sentences for a male juvenile who pleaded guilty to armed robbery and escape from lawful custody.

STATUS AS A JUVENILE

Jurisdiction of National Court

2. The accused is aged 17. He is therefore a “juvenile”, being aged not less than seven years and less than 18 years, as defined by Section 2 of the Juvenile Courts Act 1991. That Act provides for appointment of Juvenile Court Magistrates for particular areas and for establishment of Juvenile Courts and prescribes special procedures for dealing with criminal charges against juveniles.

3. This matter was dealt with by the National Court rather than a Juvenile Court as one of the charges (armed robbery) carries a maximum penalty of life imprisonment and Section 15 of the Juvenile Courts Act provides that in such situations the matter should be tried in the National Court, which is a court of unlimited jurisdiction (see Constitution, Sections 163(2), 155(3)(a), 155(4), 166(1)). In any event there is no Juvenile Court in West New Britain.

Special procedures

4. In exercising jurisdiction I applied special rules and procedures under the Juvenile Courts Act, in particular the following:

• in proceedings and actions under the Act the interests of a juvenile shall be the paramount consideration (Section 4);
  
• a court exercising jurisdiction under Section 17(1) shall so far as is practicable, sit and conduct proceedings in accordance with the Act (Section 17(2));
  
• the proceedings are to be conducted in camera (Section 23);
  
• the court is not bound by the strict rules of evidence (Section 25);
  
• special procedures apply when taking a plea (Section 27);
  
• publication of the proceedings is restricted (Section 28).
  

Restriction of publication of proceedings

5. I expressly authorise the publication of this judgment as a report of these proceedings, pursuant to Section 28(1)(a). I do that as it is important that there be a record of these proceedings and that people understand the special status given by the law to juveniles and how their cases are dealt with. However, consistent with Section 28(2), I cannot and do not authorise the publication of the juvenile’s name or the name of the school, if any, that he is attending or the name of his village or any other particulars which are likely to lead to identification of those matters. That is why the accused is referred to as ‘a juvenile, TAA’.

BACKGROUND

Incidents

6. The armed robbery incident took place on the morning of 19 July 2004 in Kimbe. The escape occurred at Lakiemata Gaol near Kimbe on 14 August 2005.

Indictments

7. On 13 February 2006 the accused was brought before the National Court and faced two indictments.

8. The indictment regarding the armed robbery charge was presented under Sections 386(1), (2)(a) and (2)(b) of the Criminal Code. It stated:

TAA of ... WNB Province stands charged that he on the 19^th day of July 2004 at Kimbe ... stole from one Richard Aung with threats of actual violence K47,970.00 in cash the property of Shoppers Choice, Kimbe.

And at the same time [he] was armed with one factory-made pistol and one homemade gun, being dangerous and offensive weapons and was in company with five other persons.

9. The indictment regarding the escape charge was presented under Section 139 of the Criminal Code. It stated:

TAA of ...WNB Province, stands charged that he on the 14^th day of August 2005 at Lakiemata ... whilst being a offender in lawful custody of the Correctional Service Commander escaped from such custody.

FACTS

Allegations

10. The following allegations were put to the accused for the purpose of obtaining his pleas.

Armed robbery

11. The accused was a member of a gang of six men who held up a storekeeper at the back of the Shoppers Choice store in Kisore, Kimbe. The gang was armed with a factory-made pistol and a home-made gun. When the manager of the store, Richard Aung, came out of the store to do the banking, the accused and his companions approached him, pointed the pistol at the manager and his off-sider, ordered them out of the vehicle, then got into the vehicle and drove away. The accused and his companions drove towards Section 10 bush camp and went into the mountains with the money.

Escape

12. In August 2005 the accused was being held in remand (‘wait-court’) at Lakiemata Gaol awaiting trial on the armed robbery charge. On Sunday 14 August 2005 a number of Correctional Service personnel were on escort duty, taking a number of detainees to the sittings of the National Court at Bialla. The accused knew that the gaol did not have enough manpower, so he and eight other detainees cut the security wire fencing and dashed into the nearby bush. The accused and two others were caught in the process of escaping and one of them was shot dead.

CONVICTIONS

13. The accused stated that the allegations were true. I entered provisional pleas of guilty and then, after reading the District Court depositions, confirmed the pleas and convicted the accused of both charges. He is now referred to as the offender.

ANTECEDENTS

14. The offender has no prior convictions.

ALLOCUTUS

15. I administered the allocutus, ie the offender 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.

16. On the armed robbery he stated:

I did not know about the original plan – they forced me to go with them – to look out for police vehicle – I was not armed. When they got into the vehicle we drove away – they gave me K2,000.00 – I bought clothes and food.

I am very sorry for what I have done and apologise to the court. I ask God to forgive me. I ask for probation.

17. On the escape he stated:

It was my first time to be in Lakiemata. I was treated like a slave. I was put in the main compound even though I was a juvenile. I had to wash other boys’ blankets and plates. Other people took my biscuits. My parents had no money to visit me. I was worried. I was upset with the treatment other detainees were giving me. On the day of the escape I had my lunch and saw that the wire was cut. I did not see who cut it. I took the opportunity of escaping. Then I heard gunshots and realised that one of the other detainees had been shot. So I put my hands up and surrendered myself. Then they cut my leg and I fell down. I was put in the detention cell with Linden Alphonse and Noutim Mausen. My leg was paining and I could not sleep and I felt sick in the stomach. I apologise to the CS for what I have done and also to the court. I ask for mercy.

OTHER MATTERS OF FACT

18. Though the prisoner has pleaded guilty there are some issues of fact raised in the depositions and in the allocutus, which, if resolved in his favour, may be relevant to the sentence.

19. In two recent Kimbe cases I have set out the principles to apply whenever there are significant issues of fact arising from the depositions or the allocutus that were not in the prosecutor’s summary of the facts. Those cases are The State v Mark Kanupio and Others (2005) N2800, which deals with issues arising from the depositions, and The State v Aaron Lahu (2005) N2798, which deals with issues arising from the allocutus. I now apply the above principles to the present case.

20. The allocutus regarding the armed robbery charge discloses a number of mitigating factors that are not disputed by the prosecution:

• not involved in plan;
• only acted as watchman;
• did not get a lot out of it;
• was not armed;
• did not threaten or use violence;
• made a confessional statement on 27 June 2005.
  

21. As for the escape charge the mitigating factors are:

• he was given a hard time by other mature-aged detainees;
• he was kept in the main compound when he should have been in the juvenile compound;
• he surrendered soon after the escape;
• he was injured by correctional officers after he had surrendered;
• he was put in a detention cell (a dark cell) with two other detainees and not given appropriate medical treatment.
  

RELEVANT LAW

Armed robbery

22. 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.

Escape

23. Section 139 of the Criminal Code states:

(1) A person who, being a offender in lawful custody, escapes from that custody is guilty of a crime.

Penalty: A term of imprisonment of not less than five years.

(2) An offender under Subsection (1) may be tried, convicted, and punished, notwithstanding that at the time of his apprehension or trial the term of his original sentence (if any) has expired.

SUBMISSIONS BY DEFENCE COUNSEL

24. Mr Oiveka emphasised the following mitigating factors:

Armed robbery

• the offender is a juvenile;
• he was the watchman – ordered by the co-offenders to get involved.
  

Escape

• all the matters raised in his allocutus.
  

SUBMISSIONS BY THE STATE

Armed robbery

25. Mr Popeu urged the court not to treat the offender too leniently as the robbery of a store was involved, the storekeeper and his offsider were put at risk of being killed and the amount of money stolen was substantial.

Escape

26. Mr Popeu did not press for a heavy sentence.

PRE-SENTENCE REPORT

27. To help me make a decision on the appropriate sentence and determine whether any of it should be suspended I requested and received a pre-sentence report under Section 13(2) of the Probation Act for the offender. The report, prepared by the Kimbe office of the Community Corrections and Rehabilitation Service, is summarised below.

Family background: father is from Morobe and mother from WNB – second born of 7 children – all live in Kimbe.

Family supportive – mother thinks that sending him to gaol will ruin his life – father also supportive.

Offender is single – unemployed.

While he has been in gaol, he has joined God’s 21^st Ministry led by Korak Mekorie.

Community support solid: Aaron Miambinaka Mayor.

New store manager – says the money was not recovered.

Conclusion: suitable candidate for probation supervision.

DECISION MAKING PROCESS

28. To determine the appropriate penalty I will adopt the following decision making process:

• step 1: I will fix an appropriate head sentence, in terms of years, for (a) the armed robbery conviction; and (b) the escape conviction;
  
• step 2: I will determine whether the sentences are to be served cumulatively or concurrently;
  
• step 3: I will consider whether any part of the sentences should be suspended.
  

STEP 1(a): WHAT IS THE HEAD SENTENCE FOR THE ARMED ROBBERY CONVICTION?

29. In setting an appropriate head sentence I will address the issues this way:

(i) What is the maximum penalty?
(ii) What is the starting point?
(iii) What are the considerations to be taken into account in deciding whether to impose a sentence equal to, lesser or greater than the starting point?
(iv) Applying those considerations to this case, what is the head sentence?

(i) What is the maximum penalty?

30. Under Section 386(2) of the Criminal Code it is life imprisonment.

(ii) Starting point

31. The Supreme Court in Gimble v The State [1988-89] PNGLR 271, Bredmeyer J, Los J, Hinchliffe J (an offender successfully appealed against the sentence for armed robbery of the San Remo Club, Kimbe) used the terminology ‘starting point’ to describe the head sentence around which the courts should work in armed robbery cases. 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.
  

32. In more recent Supreme Court decisions, the categories have been endorsed but the starting points have been bumped up by about three years.

33. In Public Prosecutor v Don Hale (1998) SC564, Supreme Court, 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.

34. In Tau Jim Anis v The State (2000) SC642, Supreme Court, 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 offender; there was little physical violence; and they pleaded guilty. The 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.

35. In Phillip Kassman v The State (2004) SC759, Supreme Court, Jalina J, Sawong J, Batari J, the court heard an appeal against sentence of a man involved in an armed robbery of an ANZ Bank customer, in the bank car park, at Waigani. The offender 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 Supreme Court did not disturb the ten years sentence.

36. The present case involved an armed robbery of a store. It falls into the third most serious of the Gimble categories. Applying the plus-three denominator sanctioned by Hale, Anis and Kassman, and disregarding for a moment that the offender is a juvenile, the starting point for the present case is eight years.

(iii) Relevant considerations

37. I regard the following as considerations to take into account in deciding whether the sentence should be above or below the starting point:

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?
    

38. 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.

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

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

(iv) Application of considerations to arrive at head sentence

41. 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 store manager.
   
3. No the gang had two firearms, so there was a real danger that someone would be killed or injured.
   
4. Yes, there were no vulnerable victims (eg children, women, elderly people) present.
   
5. No the amount of money stolen was not small. It was close to K50,000.00.
   
6. Yes, the offender played a small role in the robbery.
   
7. No the offender did not give himself up to the police.
   
8. Yes he did co-operate with the police by making a confessional statement.
   
9. No there is no evidence that the offender 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 fair degree of remorse, through his allocutus.
    
12. Yes this is his first offence.
    
13. Yes he was a youthful offender. He is now aged 18, which makes him about 17 years of age when he took part in the robbery.
    
14. Yes there are aspects of the robbery or the offender’s personal circumstances that warrant mitigating the head sentence. He got involved almost by accident. He did not get much out of the robbery. He has strong family and community support.
    

42. To recap, I regard the following as strong mitigating factors:

• No 1 – no actual physical violence;
  
• No 6 – small role in the robbery;
  
• No 8 – co-operated with police;
  
• No 10 – pleaded guilty;
  
• No 11 – remorse shown;
  
• No 12 – first offender;
  
• No 13 – youthful offender, a juvenile;
  
• No 14 – was involved almost by accident; has strong family and community support.
  

43. I regard the following as strong aggravating factors:

• No 2 – threats of violence;
  
• No 3 – gang had firearms;
  
• No 5 – large amount of money stolen.
  

44. The other factors are not significantly mitigating (No 4) or not significantly aggravating (Nos 7 and 9).

45. After weighing all these factors and bearing in mind that there are eight strong mitigating factors compared to three strong aggravating factors, I consider that the head sentence should be well below the starting point of eight years.

46. I accordingly fix a head sentence of four years imprisonment.

STEP 1(b): WHAT IS THE HEAD SENTENCE FOR THE ESCAPE CONVICTION?

47. In setting an appropriate head sentence I will take the same general approach as for the armed robbery conviction. That is:

(i) What is the maximum penalty?
(ii) What is the starting point?
(iii) What are the relevant considerations?
(iv) Applying those considerations to this case, what is the head sentence?

(i) Maximum penalty

48. No maximum is prescribed. The minimum penalty is five years imprisonment. However, the court still has a considerable discretion whether to require a convicted escapee to serve the whole of the head sentence in custody. Some or all the sentence can be suspended provided that the judge obtains a pre-sentence report, gives it careful consideration, and spells out the reasons for allowing a suspension of all or part of the sentence. (SCR No 1 of 1994; The State v Aruve Waiba, 04.04.96, unreported, Los J, Salika J; Edmund Gima and Siune Arnold v The State (2003) SC730, Supreme Court, Kirriwom J, Kandakasi J, Batari J.)

(ii) Starting point

49. The starting point is five years.

(iii) Relevant considerations

50. 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 not use violence in the escape, actual or threatened?
   
2. Did the offender not put anybody in real danger of being injured or killed?
   
3. Did he escape by himself?
   
4. Did the offender not cause damage to property of great value?
   
5. Was there something happening inside the gaol that provided a good reason to escape?
   
6. Was there something happening outside eg with this family that gave him good reason to escape?
   
7. Did the offender give himself up after the escape?
   
8. Was he at large for only a short time?
   
9. Did the offender cooperate with the police in their investigations?
   
10. Has the offender done anything tangible towards repairing his wrong, eg, personally or publicly apologising for what he did?
    
11. Has the offender pleaded guilty?
    
12. Has the offender genuinely expressed remorse?
    
13. Is this his first offence?
    
14. Can the offender be regarded as a youthful offender or are his personal circumstances such that they should mitigate the sentence?
    
15. Are there any other circumstances of the escape or the offender that warrant mitigation of the head sentence?
    

51. Numbers 1 to 7 focus on the circumstances of the escape.

52. Numbers 8 to 12 focus on what the offender has done since the escape and how he has conducted himself.

53. Numbers 13 to 15 look at the personal circumstances of the offender and give an opportunity to take into account any other factors not previously considered.

(iv) Application of considerations

1. Yes the offender did not use violence in the escape.
   
2. No the offender did put people in real danger of being injured or killed, as one of his colleagues was shot dead during the course of the escape.
   
3. No he was involved in a mass escape.
   
4. Yes he caused no damage to property.
   
5. Yes he had been mistreated inside the gaol.
   
6. No he was not concerned about things happening outside.
   
7. Yes the offender gave himself up after the escape.
   
8. Yes he was at large for only a short period.
   
9. Yes the offender cooperated with the police.
   
10. No he has not done anything to right his wrong.
    
11. Yes the offender has pleaded guilty.
    
12. Yes the offender genuinely expressed remorse – to the extent necessary in the circumstances.
    
13. Yes this was his first offence.
    
14. Yes he is a youthful offender.
    
15. Yes special circumstances exist:
    
    • he was slashed with a bushknife by correctional officers upon being recaptured;
    • he was not given appropriate medical treatment; and
    • he was kept in the dark cells.
      

54. To recap, I regard the following as strong mitigating factors:

• No 1 – no violence;
  
• No 5 – mistreated in gaol;
  
• No 7 – surrendered;
  
• No 8 – at large for very short period;
  
• No 12 – pleaded guilty;
  
• No 11 – remorse shown;
  
• No 12 – expressed remorse;
  
• No 13 – first offender;
  
• No 14 – youthful offender, a juvenile;
  
• No 15 – was slashed with bushknife.
  

55. I regard the following as strong aggravating factors:

• No 2 – a fellow detainee was killed;
  
• No 3 – mass escape.
  

56. The other factors are not significantly mitigating (No 4) or not significantly aggravating (Nos 6 and 9).

57. After weighing all these factors and bearing in mind that there are ten strong mitigating factors compared to two strong aggravating factors, there is no case for lifting the head sentence above the starting point of five years.

58. I accordingly fix a head sentence of five years imprisonment.

STEP 2: SHOULD THE SENTENCES BE SERVED CUMULATIVELY OR CONCURRENTLY?

59. I summarised the principles to apply when deciding whether to make sentences cumulative or concurrent in The State v Jacky Vutnamur and Kaki Kialo (No 3) (2005) N2919.

60. That is:

• First, apply the “one transaction rule”. Where two or more offences are committed in the course of a single transaction, all sentences in respect of the offences should be concurrent.
  
• Secondly, where the offences are so different in character, or in relation to different victims, cumulative sentences are normally applicable, eg burglary and violence to the householder, or assault plus escaping from custody, or sexual assaults on different victims.
  
• Thirdly, apply the “totality principle”. When the court has arrived at appropriate sentences and decided whether they should be concurrent or cumulative, it must look at the total sentence and see if it is just and appropriate. If it is not, one or more of the sentences should be varied to get a just total.
  

61. The one transaction rule does not apply in this case. The two offences for which the offender is being sentenced are different in character and happened at different times in different places. The two sentences are therefore to be served cumulatively, subject to application of the totality principle. That is:

4 years (armed robbery) + 5 years (escape) = 9 years.

62. I now look at that the total sentence that the offender is potentially facing, to see if it is just and appropriate having regard to the totality of the criminal behaviour involved. The court needs to guard itself against imposing a crushing sentence, ie one that is ‘over the top’ or manifestly excessive.

63. I consider that sentencing this young man, a juvenile, who has pleaded guilty to two offences and expressed remorse, to nine years imprisonment would be excessive. I will therefore reduce the total sentence for the two crimes to five years.

STEP 3: SHOULD ALL OR PART OF THE HEAD SENTENCE BE SUSPENDED?

64. This is a case where it is appropriate to consider suspending part of the sentence, given the many mitigating circumstances and the age of the offender. The pre-sentence report indicates that the offender does not pose a danger to the community and that he has strong family and community support. Against that is the fact that he was involved in an armed robbery and he deserves to be punished. I will therefore not suspend any part of the sentence at this stage but indicate a minimum term that the offender must serve after which he will be eligible for release on probation.
The minimum term is two years.

SENTENCE

65. The court makes the following order:

1. the offender, “a juvenile TAA”, having been convicted of the crimes of armed robbery and escape from lawful custody, is sentenced to a total of 5 years imprisonment, 2 years of which must be served and the balance of 3 years of which may be suspended by the National Court subject to the offender having a good record of behaviour in the gaol in which he is imprisoned and the court being satisfied that there is a community work program in place that the offender must comply with;
   
2. for the avoidance of doubt:

(a) suspension of the above sentence will only come into effect if and when ordered by the National Court; and

(b) there shall be deducted from the term of imprisonment the period in custody that the offender has already spent in relation to these matters.

Sentenced accordingly.
_____________________________________________________________
Public Prosecutor: Lawyer for the State
Public Solicitor: Lawyer for the Accused