N3743

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR 228, 229, 230 & 231 of 2009

THE STATE

V

WAIYAPE KUROMU, BAI BUBU, PENTIKO NIGRO & TONNY APA

Goroka: Kirriwom. J
2009: 20 August

CRIMINAL LAW – Sentence – Armed robbery of vehicle on highway – four school students armed with home-made guns and bush-knives – All properties stolen returned to owners – Compensation in cash also paid – Good community support – All desires of completing school – Misled by an elder boy still at large – Strong mitigating factors – Sentence to four years suspended and placed on probation with additional conditions – Criminal Code, s. 386(1)(2).

Cases Cited

Gimble v The State [1988-89] PNGLR 271
Public Prosecutor v Don Hale[1998] Unreported Supreme Court Judgment SC564
Tau Jim Anis & Ors v The State [2000] Unreported Supreme Court Judgment SC642

Counsel

K. Umpake, for the State
V. Agusave, for the Accused

SENTENCE

20 August, 2009

1. KIRRIWOM. J: These four young men pleaded guilty to armed robbery. They come from Rongo and Hokstu villages in Lufa District, Eastern Highlands Province.

2. Between 1 and 2 pm on 12 October 2008, on the Lufa road at Tanaragato, Lufa, these boys armed with three home-made guns and bush knives held up a PMV Dyna truck laden with passengers travelling from Lufa to Goroka. They stole from the driver and passengers whilst threatening them with their weapons and using violence, one wrist watch valued at K12, one mobile phone and K120 in cash.

3. These prisoners were apprehended soon thereafter with the assistance of the village people and most, if not all of the stolen items were returned to the owners. In addition, monetary compensation was also paid on top of the items stolen as show of reconciliation between the community and the PMV operator concerned.

4. All four prisoners were students in Grade 8 attending Rongo Primary School at the time of this offence.

5. This is an aggravated robbery and under section 386(2) it attracts a maximum penalty of life imprisonment.

6. Under the Supreme Court sentencing guidelines in Gimble v The State which were subsequently followed and expanded in Public Prosecutor v Don Hale and Tau Jim Anis & Ors v The State, the prisoners starting terms is eight years imprisonment, being armed robbery of a motor vehicle on the highway. 

7. All these prisoners are physically big people in size consistent with their age estimated as 19 in the depositions but I am told that they are juveniles aged 15, 16, 16 and 16 respectively as supported by the Pre Sentence Reports obtained on all of them. However, according to their lawyer which could only have been obtained from them, Waiyape Kuromu is 18 years old, Pentiko Nigro is 15, Bai Bubu is 17 and Tony Apa is 16 years old. I have altogether three versions of the ages of these men. Nonetheless the PSR also confirms that the prisoners were all students in Grade 8 at Rongo Primary School at the time they got into this trouble.

8. They pleaded for non-custodial sentence and another chance to finish their schooling. Their plea is also shared by the community where they come from who acted promptly to address this problem on the same day it happened or soon thereafter by not only retrieving the stolen items from the prisoners and returning them to the owners who were from the neighbouring village, but the community contributed cash and paid compensation of K500 on top to show their sincerity in making peace.

9. Robbery on a public highway is a prevalent crime involving mostly young men like these prisoners and many of them are school-leavers but there are also some who are still in school such as in this case.

10. Those who are in school do not appreciate the advantages of school and what education can bring to them for their livelihood in their lives until they get themselves into trouble. By the time they realise the good opportunities they had lost, it is too late. These four young men finally came to their senses that the life they got themselves into is not as fun-filled and rewarding as that comes with education and they blew it.

11. The Pre Sentence Report speaks well for all four prisoners. They come from supportive families and have been good students at school according to the advice from the headmaster. Church elder and pastor as well as other leaders are fully supportive of the prisoners.

12. They are all members of the Lutheran Church. This is the first time that these young men became involved in this crime because they were misled by one David Kuria to do what they did. That man had escaped before the police could go to the village and arrest him.

13. Wayape Kuromu is the third born in the family of 3 children. Both parents are alive. Pentiko Nigro is second born in the family of 4 children and both parents are subsistence farmers. Bai Bubu is the third born of 3 children and both his parents are alive and are subsistence farmers and Tony Apa is also the third born in the family of 3 children and both parents are alive and live on subsistence farming. 

14. In considering an appropriate penalty in this case, I take into account in their favour their pleas of guilty, expression of remorse, cooperation with the police and the village community in returning the items they stole, all first offenders, and that compensation was paid on top of all that they returned. This must go a long way in demonstrating the community’s concerns for the behaviour of these boys and their commitment to ensuring that they abide by the law. 

15. At the same time I must not overlook the seriousness of this crime. Armed robbery is a prevalent crime everywhere in Papua New Guinea and is committed in many different dimensions. It is the most serious of crimes of violence that affects our country today because of its devastating effects on those who become victims of these crimes and the negative outlook it gives of the country as unsafe place for foreign investments.

16. We say that we are a rich country with so many resources and we can stand on our own two feet, but we continue to rely heavily on foreign aid in millions of dollars injected into the country to keep us going in terms of health, education, infrastructure, road maintenance and including maintaining law and order in the country through our Police Force, the Law Offices and the Courts.

17. We cannot continue to destabilise and retard our country’s development through rampant and continuous criminal behaviour of young people whose future we are trying to secure when foreign aid money is poured in millions to alleviate poverty amongst the majority of the population. There are serious considerations that justify the court taking a very serious view of this crime in punishing these four young men. 

18. The difficult task before me is trying to balance the seriousness of the case with that of the prisoners’ pleas for leniency and arriving at an appropriate punishment that is fair and just. There is no doubt that deterrence is the primary objective in sentencing these young men. Can that goal be achieved without sending them to prison? Or is this an appropriate case for custodial punishment?

19. There is no doubt that this is an appropriate case for custodial punishment because armed robbery involving guns and gangs brings terror amongst peace-loving people in the villages and commuters of our public roads and highways. Such violent crimes bring about many untold miseries upon those affected and definitely justify custodial punishments.

20. While I have that power to send these young men to prison, I also have discretion to impose other forms of punishment as circumstances of the case warrant. The exceptional circumstances of this case can warrant in my view a suspended sentence on each of these prisoners so that they have the opportunity to continue their schooling.

21. In the circumstances of this case I am satisfied that there are enough mitigating circumstances that warrant a less crushing and more rehabilitative form of punishment. I therefore sentence the prisoners to four years imprisonment in hard labour less time spent in custody which is nine months and two days which leaves them the remaining balance of three years two months and 28 days.

22. This remaining balance of three years two months and 28 days I suspend and place them all on probation supervision subject to the following conditions:

1. They shall do 200 hours of unpaid community work in and around Lufa District Administration area under the supervision of Station Commander Lufa Police Station and submit monthly report to CBC Goroka;

2. They shall not leave their village or change their location while on probation;

3. They must seek monthly counselling from the local Pastor, Pastor Reuben at Rongo Lutheran Church; 

4. CBC shall provide quarterly review report to the Court. 

______________________________

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