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State v James [2009] PGNC 134; N3752 (24 September 2009)

N3752

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR. No. 1362 OF 2008

THE STATE

V

GILBERT JAMES
Prisoner

Waigani: David, J
2009: 23 & 24 September

CRIMINAL LAW – sentence – guilty plea – 1 count of aggravated robbery – robbery of a house in the night – a machete and firearm used – robbery in the company of others – threats of actual violence – no injury sustained by complainant - mobile phone and wallet containing K90.00 in cash taken from the complainant – value of mobile phone not known - wallet recovered without cash - first offender – expression of remorse - 8 years custodial sentence – s.386 (1)(2)(a) and (b) Criminal Code.

Cases cited:

The State v. Steward Pariwan (1999) N1834
Gimble v. The State [1988-89] PNGLR 271
Public Prosecutor v. Don Hale (1998) SC564
Tau Jim Anis & Ors v. The State (2000) SC642
Dadly Henry Gorop v. The State (2003) SC732
The State v. Sunny Kaupa, CR 480 of 2003 (2003)
The State v. Paul Maima Yogol and Anor (2004) N2583
The State v. Tommy Yare & Anor, CR 1828 of 2003 (2004)
The State v. Benjamin Nabate (2002) N2216
The State v. Allan Esri Waluta (2005) N2911
The State v. Billy Bimaru (2000) N2025
The State v. Vincent Malara (2002) N2188
The State v. Nelson N. Ngasele (2003) SC731,
Saperus Yalibakut v The State (2006) SC890

Counsel:

T. Ganai and J Sebi, for the State
J. Mesa and E. Wohuinangu, for the Prisoner

DECISION ON SENTENCE

24 September 2009

1. DAVID, J: INTRODUCTION: The Prisoner pleaded guilty to 1 count of aggravated robbery under s.386 (1) and (2)(a) and (b) of the Criminal Code. I accepted the Prisoner’s plea of guilty and recorded a conviction after reading the depositions. I will say a little bit more as to why I have convicted the Prisoner later on in the judgment.

INDICTMENT

2. The indictment to which the Prisoner pleaded reads:-

"GILBERT JAMES of Surunki village, Laiagam, Enga Province stands charged that he on the 8th day of September 2007 at Four (4) Mile, Works Compound, National Capital District in Papua New Guinea stole from one Leonard Kasa with threats of actual violence a mobile phone and Ninety Kina (K90.00) in cash, the property of the said Leonard Kasa.

AND at that time, the said Gilbert James was in the company of other persons and they were armed with a machete and a firearm which are dangerous or offensive weapons."

BRIEF FACTS

3. The Prisoner pleaded to these brief facts for the purpose of arraignment.

4. On 8 September 2007, at about 07:00 o’clock in the evening, the complainant one Leonard Kasa (the complainant) and his wife were sitting outside of their house at Four (4) Mile, Works Compound in the National Capital District when the Prisoner and three (3) others entered the complainant’s premises. The Prisoner was armed with a machete and his other friends were armed with shotguns and knives. They held up the complainant at gun point and the Prisoner snatched the complainant’s mobile phone from his pocket and his wallet which contained K90.00 in cash. During the commotion, the neighbours came to the rescue of the complainant and the suspects fled the scene. The matter was reported to the police who then carried out an investigation resulting in the arrest of the Prisoner. The Prisoner had no right to be in the complainant’s premises and threatening him with offensive weapons and taking his mobile phone and K90.00 in cash.

EVIDENCE

5. Amongst the documents contained in the depositions are the following:-

1. The Statement of Leonard Kasa dated 14th September 2007;

2. The Statement of Vivian Koroti dated 14th September 2007;

3. The Statement of Andrew Ovia dated 15th September 2007;

4. The Statement of Maria Ovia dated 15th September 2007;

5. The Statement of Jackson Wally dated 14th September 2007;

6. The undated Statement of Steven Aua;

7. The Record of Interview conducted in Tok Pisin on 5th November 2007;

8. The translated English version of the Record of Interview conducted on 5th November 2007.

6. There is reference to a Statement given by one Ivan John in the depositions who appears to be a person listed at the back of the indictment as a State witness, but it is missing.

SUMMARY OF EVIDENCE

The Statement of Leonard Kasa

7. He is a mining engineer by profession. He is the complainant who was held up by the Prisoner and his accomplices on 8th September 2007 at about 07:00 o’clock in the evening at the Four (4) Mile Works Compound in the National Capital District. He was with his wife sitting outside of their house at the time. The Prisoner entered the premises through the main gate. The Prisoner and his accomplices who were armed with a machete and a firearm with threats of actual violence took from him his mobile phone and wallet containing K90.00 in cash. The firearm was actually pointed at him by the gunman threatening to shoot him while the Prisoner armed with a machete threatened to hack him in the face. Neighbours came to their rescue and the Prisoner and his accomplices fled the scene. The incident took over a minute. The Prisoner and his accomplices live in and around the Four (4) Mile Works Compound and are well known in the community for their notorious activities. His wallet was found the next morning and returned to him with his driver’s licence minus the cash.

The Statement of Vivian Koroti

8. She is the complainant’s wife. She corroborates the complainant’s evidence. She has resided at the compound for almost 20 years. She knows the Prisoner and his accomplices well because they have grown up together within the compound. She also states that the security light was on at the time and she could observe clearly the robbery taking place from where she was hiding. She was hiding amongst their neighbour’s flowers and trees.

The Statement of Andrew Ovia

9. He is an accountant and lives at the Four (4) Mile Works Compound. On 8th September 2007 at about 07:00 o’clock in the evening, he was with his wife (Maria Ovia) and son (Solomon) who went to check what was causing the shouting and swearing in the yard of a workmate, namely Bosco Eli within the compound when he saw a person armed with a gun pointing it at Bosco Eli’s house and threatening to shoot into it. As they were approaching the person with the gun, he then pointed the gun at them. Another person who was armed with an axe and swearing and shouting abuses hit the door to the house trying to force it open. These persons are known to him having lived at the compound for a long time and they are also known in the community for their notorious activities. He learnt of the incident involving the robbery of the complainant after the gang left.

The Statement of Maria Ovia

10. She corroborates her husband’s evidence.

The Statement of Jackson Wally

11. He is a policeman holding the rank of sergeant and is a dog handler. He is attached to the National Capital District Dog Unit based at the Bomana Police College. On 14th September 2007, he was with the complainant whilst on patrol at the Four (4) Mile Works Compound when the Prisoner was apprehended in the vicinity of the old registry following his identification by the complainant as one of those who robbed him.

The undated Statement of Steven Aua

12. He is a detective holding the rank of first constable and is attached to the Criminal Investigations Division at the Boroko Police Station. He was the corroborating officer who was present at the interview that took place between the Prisoner and Constable Ivan John on 5th November 2007 which started at about 03:00 pm and terminating at about 04:00 pm. The Prisoner was not harassed or induced into giving his answers.

The Record of Interview

13. The Prisoner was at the Four (4) Mile Works Compound playing cards with some people at the material time, but denied his involvement in the robbery.

Remarks on evidence and findings

14. The effect of a plea of guilty is that an accused person pleads to the constituent elements of the offence. It is therefore the duty of a judge to examine the depositions to check if there is any evidence of the constituent elements of the offence with which the accused is charged: Saperus Yalibakut v The State (2006) SC890. The constituent elements for the offence of aggravated robbery which had to be proven by the prosecution beyond reasonable doubt in the present case are:

1. the accused stole something;

2. immediately before or immediately after the time of stealing it, he used or threatened to use actual violence to a person or property;

3. in order to obtain the thing stolen or to prevent or overcome resistance to it being stolen;

4. the accused was armed with a dangerous or offensive weapon or instrument (Section 386(2)(a)); or

5. the accused was in company with one or more other persons.

15. It is clear from the evidence that the Prisoner was a person known to the complainant and his wife. He was clearly recognised or identified by the complainant and his wife, Vivian Koroti as one of the robbers who had entered their yard and committed the robbery despite it occurring during the night which according to the complainant took over a minute to execute. The Prisoner entered their yard through the main gate. According to the complainant’s wife, Vivian Koroti, the security light was on at the time and she could see clearly from where she was hiding. There was sufficient lighting for purposes of recognition and identification of the Prisoner as one of the robbers.

16. All the constituent elements of the offence of aggravated robbery having been substantiated by evidence, I accepted the Prisoner’s plea of guilty and convicted him of the offence.

ALLOCATUS

17. The Prisoner expressed remorse. He asked the Court to consider in his favour that; he was a young and first time offender; that his parents were old and facing problems; and to have mercy on him.

ANTECEDENTS

18. The State alleged no prior convictions against the Prisoner.

PRE-TRIAL CUSTODY

19. The Prisoner was arrested on 14th September 2007 and has been in custody since. According to my calculation, he would have been in custody for a period of 2 years and 10 days as at the date of sentence.

SUBMISSIONS FOR THE PRISONER

20. Ms. Wohuinangu of counsel for the Prisoner submitted that mitigating factors that should be taken into account in the Prisoner’s favour were that; he pleaded guilty saving the Court’s time and resources in conducting a contested trial; there was an expression of remorse; he was a young 21 year old first time offender; his parents were very old although it is not an excuse; and the complainant did not sustain any injury.

21. As to penalty, counsel submitted that the present case fell under category 1 of the guidelines in Gimble v. The State [1988-89] PNGLR 271 which initially recommended 7 years as a starting point, but has now been increased to 10 years by judicial pronouncements in Public Prosecutor v. Don Hale (1998) SC564 and Tau Jim Anis v The State (2000) SC 642. This was despite the maximum prescribed penalty being imprisonment for life subject to s.19 of the Code, counsel said. Counsel further submitted that whilst a deterrent sentence was required because of the nature of the crime, she suggested that a sentence of 8 years was appropriate in the present case less the time spent in pre-trial custody.

SUBMISSIONS FOR THE STATE

22. Mr. Sebi of counsel for the State submitted that factors that were aggravating against the Prisoner were; the use of offensive weapons; that the Prisoner was acting in concert with other persons when making threats of violence to the complainant and his wife; that aside from the recovery of the complainant’s wallet, the mobile phone and K90.00 in cash were not recovered; and that the offence was prevalent especially in urban areas.

23. As to penalty, counsel agreed with Ms. Wohuinangu’s submissions that the present case fell under category 1 of the guidelines in Gimble and that the starting point is 10 years. Whilst he acknowledged that the Prisoner pleaded guilty and that the maximum penalty applicable in the present case was life imprisonment, counsel urged the Court to impose a custodial sentence between 8 to 10 years.

THE LAW

24. The Prisoner was charged under s.386 (1) and (2)(a) and (b) of the Code. Section 386 (1) and (2) of the Code creates the offence and prescribes the penalty for simple and aggravated robbery. I set out the relevant provision as follows:-

"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; 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."

25. I have convicted the Prisoner for aggravated robbery therefore will consider an appropriate sentence from a determinative term up to imprisonment for life subject of course to s.19 of the Code.

26. I agree with submissions of counsel as to the law concerning the offence of aggravated robbery. In Gimble, the Supreme Court prescribed sentencing guidelines for aggravated robbery cases for which the maximum prescribed penalty is life imprisonment. The guidelines are set out below (from the head note):-

"On a plea of not guilty by young first offenders carrying weapons and threatening violence for:-

(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 the 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;

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; a plea of guilty may justify a lower sentence."

27. These guidelines were varied in Tau Jim Anis where the Supreme Court held that while the sentencing guidelines were still useful, the tariff was not which resulted in the increase of the recommended sentences for each category by 3 years. The Supreme Court was influenced by Don Hale where the Supreme Court held that with the prevalence of violent crimes involving the use of guns, the tariff recommended in Gimble had no effect and was no longer relevant. The Supreme Court in Don Hale felt that the starting point to an appropriate sentence for armed robbery of a house at night should be 10 years, an additional 3 years above the tariff set. The Supreme Court in Tau Jim Anis also said there was a need to increase the sentencing tariff for all categories of armed robberies, but that it is done progressively and not by leaps and bounds.

28. The guidelines in Gimble as varied are merely guidelines and do not take away the trial judge’s discretion that is vested in him or her under s.19 of the Code: see The State v. Steward Pariwan (1999) N1834.

29. I will have regard to the following aggravated robbery cases which show that there has been an increase in sentences when determining an appropriate sentence for the present case.

30. In The State v. Billy Bimaru (2000) N2025, the prisoner, a male aged 17 years and his accomplices planned to hold up and rob one of the victims, a Manager, who was resident in Wau. The prisoner played a major role in the planning of the robbery which took place in the wee hours of the morning at about 12:30 am. They walked all the way from Taraka which is near Lae and arrived at the scene of the crime in Wau 5 hours later. They were armed with 2 homemade shotguns, 2 bush knives and a crow bar. The Manager’s house was damaged during the robbery including the smashing of the doors and the destruction of household goods. The prisoner kept watch outside of the gate as the robbery took place. The occupants of the house were tied up however, the Manager saved himself by hiding. A large quantity of goods were also stolen from the house including gold valued at K9,000.00 none of which was recovered. On a guilty plea, the Court imposed a sentence of 8 years in hard labour less time spent in custody.

31. In The State v. Vincent Malara (2002) N2188, on a guilty plea, the Court imposed a sentence of 15 years in hard labour less time spent in custody. The prisoner had a prior conviction. The prisoner, in a gang numbering about 12 men, held up the security guards of a supermarket using a gun, bush knives, a crowbar and a pinchbar. The crowbar and pinchbar were used to breakdown doors to the supermarket and its doors. One of the guards received 2 cuts to his head. A total of over K26,000.00 inclusive of cash, cheques and goods was stolen, but K500.00 was recovered.

32. In Dadly Henry Gorop v. The State (2003) SC 732, on a guilty plea, the appellant was sentenced to 22 years imprisonment in hard labour for the robbery of a tourist couple at Rabaul with physical violence occasioning serious injuries to both of them. He claimed that the sentence was excessive. The appellant attacked the victims with a hockey stick repeatedly until the victims fell to the ground unconscious and then stole from them a camera, a bag containing their business cards and K150.00 in cash. The victims suffered multiple injuries including fractures to the head and facial area affecting the sight of one them and the brain of the other. They were initially taken to the Nonga Base Hospital, Rabaul, but were later flown to Cairns Base Hospital and then transferred to Townsville General Hospital where they recovered from the injuries. They required ongoing rehabilitation particularly for the male victim whose long term prognosis was not good. The Supreme Court reduced the sentence to 18 years holding that the trial judge failed to consider the sentencing trend in similar cases.

33. In The State v. Sunny Kaupa, CR 480 of 2003 (2003), on a guilty plea, the Court sentenced the prisoner to 5 years imprisonment in hard labour less time spent in custody. The Court suspended 2 years of the term and the prisoner placed on a good behaviour bond for 3 years after serving 2 years 1 month and 3 weeks in gaol. There, the prisoner, who was a youthful first time offender and in the company of others held up the victim while driving his motor vehicle along the Sogeri Road towards Port Moresby. The prisoner and his accomplices were armed with home made guns and a bush knife. The victim and his passengers were robbed of K1,500.00 in cash and property valued at K190.00 out of which the prisoner only received K50.00 in cash.

34. In The State v. Paul Maima Yogol and Anor (2004) N2583, on a guilty plea, the prisoners were charged with the armed gang robbery of a motor vehicle. They were first time offenders and had no prior convictions. They were in the company of 10 other young men when they set up a road block, held up and robbed the driver of the motor vehicle and his passengers of cash and property with an estimated total value of K1,300.00. The prisoners and their accomplices were armed with three home-made shotguns and bush knives at the time. The Court imposed a sentence of 12 years in hard labour less the time spent in custody.

35. In The State v. Tommy Yare & Anor, CR 1828 of 2003 (2004), the prisoners were charged for armed robbery and for unlawful use of a motor vehicle. On a guilty plea, the Court sentenced them to a term of 6 years on the charge for armed robbery. In that case, the prisoners held up the driver of the motor vehicle with a gun, got the keys and drove off in the motor vehicle, but nothing of value was taken.

36. In The State v. Benjamin Nabate (2002) N2216, the prisoners and their accomplices held up the victim who was resident in a compound at night and stole from him cash in the sum of K538.00 and properties altogether totalling in value K800.00. The victim was in his house that particular night when he heard his dogs barking. When he opened the door to investigate he was met by the prisoners and their accomplices who were armed with a gun, a grass knife and a chain from a chainsaw. The victim was threatened and forced back into the house. While one of them stood guard over the victim at gunpoint, the others searched the house and stole various items including a radio with 2 speakers and 3 highlands made bilums. They then escaped into the night. Except for the radio and highlands bilums which were returned, all other items stolen were never recovered. On a guilty plea, the Court imposed upon each prisoner a sentence of 8 years in hard labour less time spent in custody taking into account the prisoners’ antecedents and mitigating factors such as the absence of violence and damage to properties, the amount of money was not substantial, expression of remorse, first time offender, the entering of guilty pleas and some of the stolen items were returned to the victim.

37. In The State v. Nelson N. Ngasele (2003) SC731, the appellant was a first time offender. He appealed the sentence imposed on him of 5 years imprisonment in hard labour which he claimed on a guilty plea was excessive. The appellant was part of an armed gang involved in 2 robberies conducted in the night which involved actual violence, damages and injury caused to persons and property. Cash and goods of substantial value were stolen with only a part recovered. The Court dismissed the appeal, but held, inter alia, that the sentence of 5 years was well below the sentencing tariff or the range of sentences imposed in similar cases. The Court also expressed surprise that the Public Prosecutor did not cross appeal against sentence, because if he had, the Court would have had no hesitation in imposing a sentence in excess of 10 years given the factors in aggravation.

38. In The State v. Allan Esri Waluta (2005) N2911, the victim was preparing dinner for her family in her village at about 07:00 o’clock in the evening when 8 suspects including the prisoner came to her house and held her up with her children. The suspects were armed with 3 shotguns and 1 SLR rifle. There was evidence indicating that the other gang members also had in their possession bush knives and axes. Of the gang members, 4 of them demanded from the victim the keys to her Toyota Land Cruiser and while she was being harassed, three of them went up to the house where the children were and started terrorising them by also demanding from them car keys and searched the house for money. After the victim had given the keys to her motor vehicle to the prisoner and his gang, they continued searching for money under the floor mats and beddings and found K1,000.00. They also demanded from the victim money and she gave them about K1,000.00. A total of K2,300.00 in cash was actually stolen. Other items stolen were a BMX bicycle, a key to the family’s PMV bus and a lawnmower. The gang loaded all the stolen items into the victim’s Toyota Land Cruiser and drove away. The motor vehicle was driven to a plantation, the prisoner alighting along the way, where it was abandoned and the prisoner’s accomplices fled with the stolen properties. On a guilty plea, the Court imposed a sentence of 8 years imprisonment less time spent in custody.

THE PRESENT CASE

39. I agree with the counsel that this case falls under category 1 of the guidelines in Gimble and the starting point is 10 years. The starting point can be adjusted downwards or upwards or remain at the starting point depending on whether mitigating factors outweigh aggravating factors and by how many and vice versa or they are on par.

40. I accept in the Prisoner’s favour that; he has pleaded guilty; he is a first time offender; the complainant did not suffer any physical injuries; he has expressed remorse and the complainant’s wallet and driver’s licence were recovered. I do not however give any credit to the Prisoner’s submission or excuse concerning his parents.

41. I accept the aggravating factors operating against the Prisoner as advanced by the State, but the dangerous or offensive weapons used were a machete and a firearm as pleaded in the indictment and supported by evidence. The value of the mobile phone is not known as well.

42. I consider therefore that under the circumstances, taking into account the seriousness of the offence, the mitigating and aggravating factors which appear to be on par, the sentencing trend for this offence and the need to impose a deterrent sentence because of the prevalence of the offence, a custodial sentence of 8 years in hard labour is appropriate. The period of pre-trial custody of 2 years and 10 days shall be deducted from the head sentence leaving 5 years and 355 days to be served. Incarceration will be at the Bomana CIS.

43. A warrant shall be issued forthwith to execute this sentence.

44. I order accordingly.

______________________________________

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