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State v Tovaboda [2008] PGNC 196; N3554 (18 September 2008)

N3554

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR 882 OF 2008

THE STATE

V

DAVID TOVABODA, ROLAND GISAWA,
CHARLIE STEVEN and JUAN LAI
Prisoners

Alotau: Davani .J
2008: 12th, 18th September

SENTENCE – Armed robbery – guilty plea – home made shot gun used – prisoners in a group – students held up fellow students – properties worth K1,500.00 stolen – s.386(1)(a) of Criminal Code Act

SENTENCE – 7 years – fully suspended on conditions – exercise of Court’s discretion - s.19(1)(a) of Criminal Code Act

Facts

The four (4) prisoners, all aged 18 and 19, held up students at the school they attend, and stole goods to the value of K1, 500.00. At that time, they were all intoxicated with home brew and were armed with a gun and knives.

Issues

What is a suitable sentence for young offenders who express genuine remorse and are determined to change their lives?

Held

On reviewing the evidence, the Court noted the following predominant facts;

1. The prisoners are all students at the Hagita High School;
   
2. At least two of them are from broken homes;
   
3. One parent has expressed keen interest in helping his son;
   
4. The school they attend uses a punitive approach in punishment, rather than a corrective, rehabilitative approach;
   
5. The consumption of home brew and drugs is very high at the school;
   
6. The school and town authorities in Alotau must show a keener and positive interest in the rehabilitation of its youths;
   
7. In exercising its discretion, the Court will impose 7 years, to be wholly suspended on conditions, which conditions will be monitored by the Courts relying on quarterly reports to be furnished by probation officers;
   
8. A breach of any of the conditions will result in the matter going before a judge for the prisoners to show cause why the suspended sentence should not be revoked.
   

Cases

Kurie Willie v The State [1987] PNGLR 298
The State v Frank Kagai [1987] PNGLR 320
Gimble v The State [1988-89] PNGLR 271
Public Prosecutor v Don Hale (1998) SC564
Tau Jim Anis v The State (2000) SC642
Kennedy Kara v The State (2006) SCR 51 of 2005

Counsel:

P. Kaluwin, for the State
R. Yayabu, for the Prisoners

SENTENCE

18 September, 2008

1. DAVANI .J: On 12th September, 2008, David Tovaboda, Roland Gisawa, Charlie Steven and Juan Lai (‘Prisoners’) all pleaded guilty to 1 count of armed robbery, charge laid under s.386(1) (a) of the Criminal Code Act (‘CCA’). This section reads;
   

"386. The offence of robbery

(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;
  
• (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."

2. On an application by Defence Counsel, I ordered the production of a Pre-Sentence Report (‘PSR’) which is now before me.
   

Facts

3. The fact to which the prisoners pleaded guilty to, where that on 20th April, 2008, all of them were at the Hagita Secondary School. They were armed with a home made shot gun and bush knives. Whilst the students were in their dormitories, the prisoners used violence upon them stealing their goods and possessions to the value of K1,500.00.
   

Mitigating Factors

4. I have heard that the prisoners are all very remorseful and sorry for what they did. On allocatus, each one said words to this effect.
   

David Tovaboda

• Apologise to the members of this Court and all the victims;
  
• First time to attend Court;
  
• Asked the Court for its mercy and to find a way to continue his education.
  

Charlie Steven

• He has never faced a Court of law;
  
• He sincerely regrets what he did;
  
• He did not have the intention to do this wrong;
  
• Swears and undertakes to observe all good behaviour conditions;
  
• Will never leave Alotau during the term of the sentence.
  

Roland Gisawa

• He apologized to God, the State and the Judge;
  
• They have returned all the items that were taken;
  
• He said some of the properties claimed to have been stolen are theirs;
  
• Asked the Court for its mercy;
  
• His educational future lies on this Court’s decision.
  

Juan Lai

• He apologized to the Court;
  
• The act of stealing was not planned;
  
• It was peer pressure that led to them consuming homebrew;
  
• He is a student and is very young;
  
• His fate and future lies in this Court’s decision.
  

5. The Court heard the prisoners do not have any prior convictions. Their guilty pleas also saved the Court a lot of time.
   

Aggravating Factors

• The prisoners were armed with a home made shot gun;
  
• They were in each others company.
  

Pre-Sentence Reports

6. The prisoners’ parents and relatives were interviewed and their wishes and aspirations for each prisoner, noted in the PSR. The PSR was prepared by Sisi Jonathan, Juvenile Justice Officer and Edith Matau, Probation Officer. Their titles appear on the PSRs.
   
7. The PSR’s cover all prisoners’ family background, marital status and whether they have children, their educational background, work and financial history, health, future plans and participation in the community, amongst others.
   
8. The PSR strongly recommends a non-custodial sentence for these young men because of their ages and largely because they will be at the mercy and influence of the more experienced prisoners, if the Court imposes a custodial sentence.
   

Analysis of evidence and the law

9. The sentencing guidelines in armed robbery cases are established in Gimble v The State [1988-89] PNGLR 271 but the tariffs have generally increased (see Public Prosecutor v Don Hale (1998) SC564 and Tau Jim Anis v The State (2000) SC642).
   
10. In armed robbery cases, sentences usually range from 6 years, upwards. In a case similar to this, Kennedy Kara v The State (2006) SCR 51 of 2005, dated 30th August, 2006, the Supreme Court reduced sentence of 11 years on a guilty plea to 7 years. Stolen were a sum of K30.00, a pair of sandals, a wrist watch, towel and other personal belongings. The accused was armed with a bush knife and in the company of other persons. They exhibited violence by pointing the bush knife at the victim’s neck.
    
11. What is the principle in relation to the suspension of sentence and placing on probation? Defence Counsel relied only on the probation report and the fact that if imprisoned, the prisoners will turn out to be hardened criminals and which in turn, will not assist society. These sentiments were expressed by Hinchliffe. J in Kurie Willie v The State [1987] PNGLR 298, where in upholding an appeal from the District Court, held that where young offenders are involved, the Court must look to alternatives to imprisonment. There, His Honour said;
    

"...prisons do not change young offenders into law-abiding citizens but in effect, destroy any chance they may have of becoming law-abiding citizens." He used the phrase "a shop lifter goes to prison and comes out a bank robber".

12. In Gimble v The State (supra), the Supreme Court held that "... if however, the offender is very young or there are special circumstances, a suspended sentence may be considered."
    
13. First, how old are the prisoners? Juan Lai is aged 18, Roland Gisawa, 18; Charlie Steven, 18 and David Tovaboda, 19. They fall within the category of Juveniles and of course are potential candidates for a suspended sentence. But age considerations are more obvious to a judge, if an offender is below the age of 16 (Gimble v The State (supra)). In this case, they are all above 16. When is it proper to decide on when a suspended sentence is appropriate? As was held in The State v Frank Kagai [1987] PNGLR 320, a suspended sentence is considered;
    
    1. To prevent re-offending;
       
    2. That the person is of good character, he will not re-offend and that incarceration will damage him.
       
14. Many 18 and 19 year olds appear before the Courts for offences of this nature and other offences. Their pleas for a suspended sentence, are more often than not, refused.
    
15. Why should these prisoners get a suspended sentence?
    
16. To answer that, I note that there are special circumstances in this case that warrant the suspension of sentence. They are;
    
    1. I was impressed by the manner in which the prisoners requested a non-custodial sentence and am of the view, that if given a second chance, and with the right supervision, they will make the most of it;
       
    2. The PSR speaks of all prisoners lives at the School, in the community and at home. One thing I noticed was the general lack of supervision by their parents. I elaborate further on this, below.
       
    3. The consumption of home brew at the high school and how readily available it is to the high school students. I elaborate further on this, below.
       
17. Milne Bay people generally are known to be very industrious, hardworking, very pleasant, respectful, and where family ties and discipline are very strong. It is indeed sad that a lot of its young people are now caught up in society’s woes, the societal diseases that have ravaged centres like Lae and Port Moresby, more particularly, the consumption of home brew, drugs, laziness, lack of respect for others and the breakdown of the family unit.
    
18. The prisoners are all in high school. I had specifically asked for reports from the school on their academic abilities and potential. The reports were very morbid and do not speak at all about the assistance it would give to its students if they are caught breaching school rules. The high school adopts a very punitive approach in their punishment rather than a corrective, rehabilitative approach. It may have its reasons for doing that. I do not know. But it should now focus more on a corrective approach towards its students who flaunt and breach school rules.
    
19. In my view, the high school should give these young men a second chance, working in tandem with community justice personal and their families. I say this because whilst the prisoners are still in school, that the school must also be part of this process. The opportunity to complete ones schooling is very important to a young person because it is the stepping stone to a good life.
    
20. The statements by the prisoners tell me that this offence was a spur of the moment decision, heavily influenced also by home brew. The High School must now work on or devise measures to stop the bringing into the school and consumption of home brew. It must work together with Alotau Town Authorities, the Police and Juvenile Justice Officers.
    
21. A crime has been committed and the prisoners must pay the consequences for the crime. As they asked of this Court, this Court will give them a second chance where hopefully, with the help of other stakeholders, they will progress to be better citizens.
    
22. Furthermore, their parents must now play a larger role in their lives. They should demonstrate this by the care and attention they give to their sons, rather than leaving it to the school.
    
23. Considering the tariffs in armed robbery cases, on guilty pleas and the amount stolen, I will sentence the prisoners to a term of 7 years each. Exercising powers available to me under s. 19(1)(a) of the CCA, I make the following orders in addition to the sentence imposed;
    
    1. That each prisoner will enter into their own recognizance and pledge to pay K300.00 each, to keep the peace and be of good behaviour;
       
    2. That after execution of the recognizance, that the term of 7 years shall be wholly suspended on the following conditions;
       
       • 2.1 That the prisoners shall keep the peace and not engage in any unruly behaviour including inciting trouble;
         
       • 2.2 That they shall not consume any alcohol which includes home brewed beverage;
         
       • 2.3 That they shall not consume any illegal drugs;
         
       • 2.4 To enter into a work programme to be devised by the Parks and Gardens Section of the Alotau Urban Local Level Government or the Officer Services Section of the Milne Bay Administration.
         
       • 2.5 That this programme must be drafted and filed by the relevant authorities within a month from today, on or before 19th October, 2008, with the following stakeholders;
         
         • (i) the National Court Waigani, to the attention of the Criminal Clerk and to my attention;
           
         • (ii) the Public Solicitor’s Office, Boroko, to the attention of Ms R. Yayabu;
           
         • (iii) the Public Prosecutor’s Officer, to the attention of Mr P. Kaluwin.
           
    3. The Juvenile Justice Officer shall also immediately liaise with the Hagita High School Administration to have all prisoners re-enrol, subject to the school terms, and with a view to assisting them improve their lives.
       
    4. The Juvenile Justice Officers shall provide a quarterly report of the prisoners’ progress to the persons referred to in par. 2.5 of these orders and shall also appear together with all prisoners before every circuit judge to Alotau, with the same report.
       
    5. The conditions referred to in pars. 1, 2 and 3 of these orders shall continue for 3 years, to end on 19th September, 2011.
       
    6. In the event any of these conditions are breached within the 3 year period, and subject to application to a National Court Judge, the conditions of suspension may be lifted and the prisoners shall serve the full 7 years.
       

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