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State v Sakias [2009] PGNC 137; N3777 (22 July 2009)

N3777

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR NO 552 OF 2007

THE STATE

V

NELSON SAKIAS

Kokopo: Makail J,
2009: 13th, 16th & 22nd July

CRIMINAL LAW - Sentence - Armed robbery - Street robbery - Robbing of person - Mitigating and aggravating factors considered - Sentence of 3 years imprisonment imposed - Wholly suspended on strict conditions - Criminal Code - Sections 19 & 386(1)&(2)(a),(b)&(c).

Cases cited:

Don Hale -v- Public Prosecutor (1998) SC564
Gimble -v- The State [1988-89] PNGLR 271
Tau Jim Anis -v- The State (2000) SC642
The State -v- Sul Kora (2001) N2092
The State -v- Luke Mera Yauwe & David Markus (2006) N3158
The State -v- Peter Kaur (No 2): CR No 334 of 2007 (Unnumbered & Unreported Judgment of 26th June 2009)

Counsel:

Ms S Luben & Ms B Gore, for the State
Ms J Ainui, for the Offender

SENTENCE

22nd July, 2009

1. MAKAIL J: The offender pleaded guilty to one count of armed robbery when he in the company of another, one Michael Jack Lote held up the victim, one David Aina and another by the name of Robert Michael and robbed David Aina off a Sony Ericsson mobile phone valued at K2,000.00 at old Jack Emmanuel Park in Kokopo town in the early hours of the morning of 13th January 2007, contrary to section 386(1) & (2) (a), (b) & (c) of the Criminal Code.

2. This section states:

"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."

BRIEF ALLEGATIONS OF FACT

3. The brief allegations of fact upon which the offender pleaded guilty are these; in the early hours of the morning of 13th January 2007, the offender and another person were in Kokopo town and the victim by the name of one David Aina and another, Robert Michael were walking along the old Jack Emmanuel Park. The offender confronted the victim and Robert Michael and attacked the victim with a stone. He hit the victim on his forehead with the stone and the victim fell down. The offender removed the victim’s Sony Ericsson mobile phone valued at K2,000.00 and ran away. The victim and Robert Michael reported the armed robbery to the police and the offender returned the mobile phone to the victim sometimes before he was arrested by the police.

ALLOCUTUS

4. On his allocutus, the offender told the Court that he is very sorry for committing the offence and asked for leniency. He also asked the Court to put him on probation rather than imprisonment.

REASONS FOR DECISION

5. In order to determine an appropriate sentence for the offender, first, I take into account that he is 23 years old from Bitavavar village in the Kokopo District of the East New Britain Province and married with 1 biological daughter and 3 step daughters from his wife’s previous marriage. At the time of the offence, he was about 20 years old. He has a brother and 2 sisters and a member of the United Church. I also take into account that his parents are separated or living apart. He completed primary education at Kalamangunan Primary School and went on to complete Grade 10 at St Mary’s High School, Vuvu but is presently unemployed.

6. Secondly, I take into account the following mitigating factors operating in favour of the offender:

* Plea of guilty,

* First offender,

* Youthful offender,

* The property stolen, being the mobile phone was returned by the offender, and

* An isolated incident.

7. This case is also aggravated by a number of factors which I must take into account and they are:

* Prevalence of the offence,

* In the company of another,

* Dangerous or offensive instrument, namely as stone was used to attack the victim,

* The property stolen, being the mobile phone was of substantial value, and

* There was violence, where the victim suffered injury to his forehead.

8. The offender is indicted with a very serious offence. The maximum penalty of armed robbery carries a maximum penalty of life imprisonment but that is subject of course, to section 19 of the Criminal Code where a lesser penalty maybe imposed by the Court. In the present case, the offender’s counsel has asked for a sentence of 4 years imprisonment to be wholly suspended on strict conditions including community service. The State has called for 6 years imprisonment in line with the increase in the sentencing tariff of 6 years in the case of Don Hale -v- Public Prosecutor (1998) SC 564 from the much-celebrated case of Gimble -v- The State [1988-89] PNGLR 271.

9. In Gimble’s case (supra), the Supreme Court enunciated the relevant sentencing guidelines for armed robbery cases on a plea of not guilty by a young first offender carrying weapons and threatening violence, the starting sentence for the robbery of a:

(a) dwelling house, 7 years;

(b) bank, 6 years;

(c) store, hotel, club, vehicle on the road or the like, 5 years; and

(d) person on the street, 3 years.

10. I agree with the State’s submission that the sentencing tariffs in Gimble’s case (supra) are outdated as they have been increased by the Court given the prevalence of the offence in Don Hale’s case (supra), which was subsequently reaffirmed by Tau Jim Anis -v- The State (2000) SC 642. That means that the starting point for a street robbery like, in this case is 6 years imprisonment and depending on mitigating and aggravating factors, the Court may decrease and increase the starting point of 6 years imprisonment.

11. There is no doubt in my mind that the offence of armed robbery is a very serious offence and perpetrators of the offence must be punished severely by the Court. This is not only to bring justice to the victim but also to protect the lives of people and property in our good country. Offenders like the offender in this case must be told in no uncertain term that he has committed a serious offence and must pay the price of his criminal actions. He can be sentenced to life imprisonment but he should be grateful that the Court has been given discretion to consider a lesser sentence than life imprisonment by virtue of section 19 of the Criminal Code. Thus, in my view, this is a case of street robbery which attracts 6 years imprisonment sentence as a starting point.

12. In my view also, this case sits in the balance because the mitigating factors and the aggravating factors even out. First, the offender is a first offender and pleaded guilty to committing the offence. On the other hand, he was in the company of another person and attacked the victim with a stone. The victim suffered an injury, namely a cut to his forehead. Secondly, the offender is a youthful offender as at that time of the offence, he was around 20 years old and it was an isolated incident.

13. There was no preplanning involved to commit the offence although there is some suggestion in the offender’s record of interview that he was drunk when he saw and attacked the victim at the old Jack Emmanuel park, that morning, and removed the mobile phone from the victim. See answer to Q 16 in the offender’s record of interview dated 19th March 2007. Then, on the other hand, a dangerous or offensive instrument, namely a stone was used in the robbery. The property stolen from the victim is a mobile phone worth K2,000.00. To my mind, it is of substantial value. But it has been returned by the offender to the police after the victim reported the armed robbery to the police. Thus, the victim’s loss has been made good by the offender.

14. Weighing the mitigating and aggravating factors out, it is my view that they are evenly balanced. They make this case not a very serious case of armed robbery, although I must acknowledge that the victim must have had a terrifying experience at that time when he was attacked that morning by the offender and his accomplice, let alone right in the heart of Kokopo town and just a stones throw away from the Kokopo Police Station. In my view a sentence less than the starting point of 6 years imprisonment is appropriate in the circumstances.

15. As I have alluded above, the State has asked for a sentence of 6 years imprisonment whilst the offender’s counsel has asked for 4 years imprisonment to be wholly suspended on strict conditions. The offender’s counsel also relied upon first, the Pre Sentence Report by the Community Based Correction Service based in Rabaul to support her call for a non custodial sentence. In that report, I note that it strongly recommended a non custodial sentence for the offender for two reasons.

16. First, the offender is very remorseful and is willing to abide by the law if given a second chance. Secondly, the offender has a large family of 4 children to look after whilst the wife, Nancy Kipan works at the National Agriculture Research Institute (NARI). There will be no one to care for the children if he is sent to prison.

17. The second document counsel relied upon is the Statement of the offender’s wife dated 17th July 2009. It is a plea on behalf of the offender on the basis that he is a "house husband" and his absence from home in the event that a custodial sentence is imposed on him would be detrimental to the family’s well being.

18. The first matter I wish to mention here is that, the report does not have any input from the victim. That is, the victim’s opinion as to what kind of punishment the Court should impose upon the offender. In my view, the report is a bit bias or one sided. It is preferable that the report takes into account the views of not only the victim but also the community at large before it is presented to the Court to enable the Court to make an informed decision. See Don Hale’s case (supra). In this case, the report favours the offender only, hence I will not solely decide whether or not to suspend whatever the sentence is based on the report. I will take other matters into account.

19. The second matter I wish to mention is that, the Statement of the offender’s wife is nothing new. It is one of those common "excuses" a wife would give to save her husband when he is in trouble. As I have alluded to earlier, there is some suggestion that he was out drinking and in the course, committed the offence that day. In my view, he should have thought about the consequences of his actions before embarking on this journey, which I might add by saying a "foolish" and "stupid" journey because it has now landed him in this Court. In any case, the Statement is a restatement of what she had told the Community Based Correction Service officer in the report. Thus, it only plays a minor role in the decision on sentence.

20. In tossing the two competing submissions on sentence by counsel, I have also considered the case of The State -v- Sul Kora (2001) N2092, a case cited by the offender’s counsel during submissions in which Kandakasi J, sentenced the offender to 6 years imprisonment but partly suspended the sentence on conditions. Although there was a pre sentence report, it did not contain views of the community at large to support the recommendation by the probation officer for a non custodial sentence against the offender and His Honour did not consider it. But His Honour suspended part of the sentence because of the offender’s voluntary admission to the commission of the offence, corporation with the police during their investigations, was a first offender, there was no use of offensive weapon and the value of the property stolen was not substantial.

21. In another case of The State -v- Luke Mera Yauwe & David Markus (2006) N3158, also a case cited by the offender’s counsel, Kirriwom J, sentenced the offenders to 4 years imprisonment but partially suspended the sentence because the offenders were young and pleaded guilty to armed robbery when they held up the victim with homemade guns and bush knives and stole grocery from him. They also expressed remorse and paid compensation to the victim.

22. Finally, in the case of The State -v- Peter Kaur (No 2): CR No 334 of 2007 (Unnumbered & Unreported Judgment of 26th June 2009), Lenalia J, here in Kokopo and very recently, on 26th June 2009 sentenced the offender to 8 years imprisonment for the same offence. He denied the offence and a trial was conducted to determine his guilt. It was a case of armed robbery of a house at Burit block on 14th November 2006. It took place in the night between 7 o’clock and 10 o’clock while the victim was asleep in the house.

23. But in my view, that case is a more serious one than the present case because it was aggravated by a number of factors like it was committed in the night, there was use of offensive weapon, namely a homemade gun, the offender denied the offence and a trial was conducted, and the offender was in the company of three other persons. Thus, I consider that the sentence in the present case will be less than 8 years.

ORDERS

24. When I consider the entire circumstances of the case including the mitigating and aggravating factors which I have already said are on equal footing and of course not relying too heavily on the report and statement of the wife of the offender, I consider a sentence of 3 years imprisonment appropriate in the circumstances and I so order. I am inclined to wholly suspend the sentence but the offender shall be visited with very strict conditions, which are:

1. The offender shall enter into a recognizance to be of good behaviour and keep the peace for a period of 3 years.

2. The offender shall perform community work, such as cutting grass, making flower gardens, cleaning and sweeping the Church building at the local United Church at Kerevat every Mondays and Fridays of each week between the hours of 8:00 am and 12:00 noon for a period of 1 year.

3. The offender shall report to the local Church pastor of the United Church at Kerevat and the local Church pastor shall supervise the offender in terms of carrying out term 2 of the suspended sentence.

4. The offender shall not consume alcohol or any intoxicating liquor for a period of 3 years.

5. The offender shall reside at his home at NARI Station at Kerevat between the hours of 6:00 pm and 6:00 am each day for the period of 3 years.

6. The offender shall not leave the East New Britain Province under any circumstances unless with leave of the Court.

7. The Community Based Correction Service officer shall attend to and make a report of the offender’s compliance with the above conditions after every three months and shall report to the Court on the first National Court Criminal call over of the third month.

25. Finally, in suspending the whole of the sentence let me remind the offender, or anyone for that matter that, this is not an act of leniency but an opportunity given by the Court to him to rehabilitate himself outside the walls of Kerevat prison and I trust that he makes good use of it. I also order that his bail monies shall be refunded forthwith.

Sentence accordingly.

_______________________________

Acting Public Prosecutor: Lawyers for the State
Public Solicitor: Lawyers for the Offender