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State v Kumkumbun [2009] PGNC 60; N3645 (22 May 2009)

N3645

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR NO 1412 OF 2006

THE STATE

V

PAUL KUMKUMBUN

Wabag: Makail, J

2009: 15th & 22nd May

CRIMINAL LAW - Sentence - Robbery - Maximum penalty of life imprisonment - Aggravating factors - Highway robbery - Mob hold up of ambulance - Ambulance sold to third party - Substantial value of property - Prevalence of offence - Deprivation of use of ambulance by public - Mitigating factors - Early guilty plea - First offender - Unblemished criminal record and instrumental in restoring peace and harmony in community - Remorseful - Cooperation with police - No use of offensive weapons - Recovery of ambulance - Minimal damage - Head sentence of 9 years imprisonment imposed, partly suspended on strict conditions - Personal and public deterrence - Criminal Code - Sections 19 & 386(1)&(2)(b).

Cases cited:

Gimble -v- The State [1988-89] PNGLR 271
Public Prosecutor -v- Don Hale (1998) SC564
Tau Jim Anis -v- The State (2000) SC642
The State -v- Jackson Nimai (2008) N3355
Robin Gaibuli & 5 Ors -v- The State: SCRA Nos 32-37 of 2006 (Unnumbered and Unreported Judgment of the Supreme Court of 27th June 2007)
John Peter Arua -v- The State (2000) SC638
Philip Kassman -v- The State (2004) SC759
Ramsay Lestro Pitaro -v- The State (2006) SC846
The State -v- Thomas Waim, Tala Gena and Alois Wanpis [1998] PNGLR 360; (1998) N1750

Counsel:

Mr S Kesno, for the State
Mr P Kumo, for the Offender

SENTENCE

22 May, 2009

1. MAKAIL J: The offender pleaded guilty to one count of robbery of a motor vehicle, the property of the Enga Provincial Government on 04th April 2005 at Tambitanis near Surinki on the Okuk highway in the Enga Province contrary to section 386(1)&(2)(b) of the Criminal Code.

RELEVANT ALLEGATIONS OF FACT

2. The relevant allegations of fact upon which the offender pleaded guilty are as follows; on 04th April 2005 at about 4:30 pm John Basi, an employee of Muritaka Heath Centre was driving an ambulance, a Toyota ten seater land cruiser Registration No PAC 157 (herein the "vehicle") from Wabag towards Laiagam along the Okuk Highway. At a place called Tambitanis before Surinki, the offender in the company of some men numbering 10 to 15 staged a road block using a body of a used motor vehicle.

3. The ambulance came to a stop and the offender and his accomplices surrounded it and demanded the driver John Basi to give the key and for him and the passengers to get out of the vehicle of which they did. The offender got into the vehicle and drove down to Wabag. From there, he drove to Mt Hagen the same afternoon and sold it to a third party in Mt Hagen. The vehicle is the property of the Enga Provincial Government.

ALLOCUTUS

4. On allocutus, the offender says that he had a reason to rob the vehicle. The reason is this, he hails from a community that had serious break down in law and order. There were tribal fights. There were armed hold ups and the use of fire arms was rampant. As a son of a former Local Level Government member and also a law abiding citizen, he organized youths from his village to restore peace and harmony within the community. With the help of youths and his late father, he was able to round up fire arms and surrender them to the police. The campaign for peace in the community also saw the establishment of the Malipin Association, where he was a founding member. The Association spear headed the drive for peace and harmony in the community.

5. On one occasion, a big ceremony was held in the village attended by the Governor of the Enga Province, Honourable Peter Ipatas, the Commissioner of Police Mr Gari Baki, village councillors and leaders, members of the Association and about 3,000 to 4,000 people. The people came and surrendered firearms and pledged to work together to bring peace and harmony to the community. It was on that occasion that the Honourable Governor Mr Ipatas made a verbal promise that he would give K5, 000.00 cash to him for his hard work in restoring peace and harmony in the community. This money would be used to buy food and drinks like coca cola to celebrate the occasion and as a token of appreciation for the tireless efforts of those involved in restoring peace and harmony. He promised to make available the money within two days.

6. The money did not come after two days, then weeks, then months and eventually, he gave up waiting and decided to approach the officials at the Provincial Government office at the "Green haus" in Wabag to follow up the payment. He even completed the necessary forms to make a claim for that money and submitted them to the Provincial Government so that the claim could be processed and payment could be made but, everybody turned a blind eye on him so to speak. He became frustrated and decided that enough was enough, especially after waiting for two years and went ahead and robbed the vehicle.

7. He knew that what he did was wrong but did it anyway because he was upset with the Honourable Governor and his empty promise and thought that, this would be the only way to bring his frustration to the attention of the Honourable Governor. He also says sorry to the Court and the public for committing this offence and promises not to get into trouble again. He asks for leniency.

OFFENDER’S SUBMISSIONS

8. Counsel for the offender outlines his personal details as follow:

* He is 31 years old;

* He is from Lakaiyok village;

* He is married and has 2 children, one 2 and a half years old and the other, 1 year old;

* He completed Grade 6;

* In 1989, he worked with Rainbow store in Mt Hagen and then moved to Lorma Constructions Limited where he worked at the crushing plant;

* Presently, he lives in the village and is a subsistence farmer; and

* He spent 3 weeks in custody before being released on police bail of K250.00.

9. In mitigation, his counsel submits the following:

* He is a first offender;

* He has pleaded guilty to the offence, thus saving the Court’s time and money to conduct a trial to determine his guilt;

* He fully corporated with the police during their investigations into the commission of the offence including telling them where to find the vehicle. It was later found in Mendi in the possession of one John Paragua;

* As a result of him telling the police the location of the vehicle, the police were able to retrieve it.

* The vehicle is not worth K150, 000.00 but about K90, 000.00 and if equipped with the instruments for an ambulance would have cost around K110, 000.00. When it was recovered, it was slightly damaged;

* He has expressed remorse;

* As his late father was a village councillor for more than 25 years and as a son of a councillor, he has always respected his father and upheld the rule of law in the community;

* He did not benefit from the alleged sale of the vehicle because it was never sold to a third party except that it was given to John Paragua to keep;

* There was no use of offensive weapons, like firearms or bush knives in the hold up;

* There was also no threats or assaults on the driver and his passengers during the hold up. The driver was simply asked to hand over the key of the vehicle to them and asked to get out of it with the passengers; and

* The robbing of the vehicle was to obtain satisfaction for a failed promise by the Honourable Governor to the offender.

10. His counsel also submits that part of any custodial sentence be suspended given that, first the offender has an unblemished criminal record and was heavily involved in restoring law and order in his community and secondly, that he had a genuine reason for robbing the vehicle.

STATE’S SUBMISSIONS

11. The State prosecutor draws to the Court’s attention the following aggravating factors:

* The offender’s reason for robbing the vehicle is unsatisfactory. It represents a typical mentally by people around this area. If they do not get what they want, they break the laws to get what they want. The reason offered by the offender should not be taken into account by the Court as it is neither a special mitigating factor nor an ordinary mitigating factor;

* The vehicle is valued at K150, 000.00, which means that a lot of money had been spent by the Provincial Government to purchase it;

* The vehicle was only 10 months old when it was stolen;

* The vehicle was sold to a third party for cash;

* The person who bought it, John Paragua was charged with receiving a stolen property under section 410 of the Criminal Code, but the State did not proceed against him any further because he had died in a tragic accident some years back in the Western Highlands Province;

* The vehicle was eventually recovered but slightly damaged;

* The vehicle was used as an ambulance and serving the Murikata Health Centre and the people around that part of the province and when it was stolen, the people missed out on its services in terms of attending to emergency cases;

* The offence of robbery is prevalent; and

* Although, there is no actual violence or assault on the driver and the passengers, the hold up involved 10 to 15 men, thus putting lives of the driver and the passengers at great risk of being harmed, injured or even killed. It was also a terrifying experience;

12. For these reasons, he submits that an appropriate sentence between 8 and 10 years imprisonment is an appropriate penalty to be imposed on the offender. As for suspension of the sentence, he submits that it is a matter for the Court to consider in accordance with its powers under section 19 of the Criminal Code.

THE APPLICABLE LAW

13. The offence of robbery in the company of one or more persons is provided under section 386(1) & (2) (b) of the Criminal Code Ch 262 and carries a maximum of life imprisonment. It states 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 no exceeding 14 years.

(2) If a person charged with an offence against Subsection (1) -

(a) ...................................; or

(b) is in company with one or more other persons; or

(c) ....................................,

he is liable subject to Section 19, to imprisonment for life".

REASONS FOR DECISION

14. In the much-celebrated case of Gimble -v- The State [1988-89] PNGLR 271, 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.

15. But I do note 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. However, the starting point in Gimble’s case (supra) was increased by 3 years in Public Prosecutor -v- Don Hale (1998) SC 564 which was subsequently reaffirmed by Tau Jim Anis -v- The State (2000) SC 642. In Tau Jim Anis’s case (supra), the Supreme Court increased the guidelines set by the Gimble (supra) case for armed robbery cases falling in the third category to 8 years on an appeal against a sentence of 10 years by the National Court. That was a case of planned robbery of a factory with actual violence involving just over K20,000.00. There were mitigating factors like young first offenders and a guilty plea. This means that the starting point for a robbery of a dwelling house is 10 years which may vary by 1 or 2 years depending on the facts of each case, likewise for robbery of a bank, vehicle on the road, and so forth.

16. I also note that each case of robbery in the company of others must be determined on its peculiar circumstance. I find that there are so many decided cases of house robbery, highway armed robbery, bank robbery, store, hotel, club, and vehicle robbery by the Court in the past. For highway robbery cases, I have referred to about 14 of them in my judgment of The State -v- Jackson Nimai (2008) N3355 to show the frequency of highway armed robberies and also better appreciate the various types of armed robbery cases and the significance of the sentencing tariffs of the National and Supreme Courts. One thing that is very obvious from all these cases is that, they all have acknowledged that the offence of armed robbery is prevalent in this country and so, as part of the law enforcing agency, the Courts must be tough with their decisions when it comes to sentencing offenders in armed robbery cases. These cases have imposed sentences between 7 and 12 years even in early guilty plea cases. Sentences of 12 years imprisonment have been imposed in cases of very serious armed robbery cases like when there is present actual violence and injury to victims.

17. Some of the cases which both counsel referred me to in their respective submissions are Robin Gaibuli & 5 Ors -v- The State: SCRA Nos 32 -37 of 2006 (Unnumbered & Unreported Judgment of the Supreme Court of 27th June 2007) where the Supreme Court dismissed appeals by the six Appellants against the decision of the National Court in convicting them on their guilty pleas and sentencing them to 10 years imprisonment. The National Court found that the armed robbery occurred on a highway, there was use of firearms and bush knives, and there were substantial loss of properties although some of them were eventually recovered. On appeal, the Supreme Court said that the sentence of 10 years imprisonment was lenient, given that there were present other aggravating factors such as the offence was committed in the early hours of the morning (3:00 am), logs and large rocks were used to block the road and the victims were also body searched and ordered to lie on the ground.

18. In John Peter Arua -v- The State (2000) SC 759, the Appellant appealed against a 10 years imprisonment sentence imposed by the National Court on his guilty plea to armed robbery of a motor vehicle. The Appellant had cooperated with the police during the investigation. On the other hand there was use of firearm. The Supreme Court dismissed the appeal and confirmed the sentence imposed by the National Court. In the other case of Philip Kassman -v- The State (2004) SC 759, armed men had attacked a bank customer outside the precincts of the bank and stole K128,464.24. The Supreme Court said that applying the 3 year denominator in Don Hale’s case (supra), the sentence should have been around 8 years. However, while "the sentence of 10 years is slightly above what might be the starting point of 8 years, we do not, however, consider that the sentence of 10 years was manifestly excessive in all the circumstances."

19. The last case is Ramsay Lestor Pitaro -v- The State (2006) SC 846. The brief facts are these; Mahara Auhi, an employee of Neptune Fisheries Limited, was dropping off another employee of the said company at his home at Papuan Compound and had arrived at the front gate of the house and the motor vehicle came to a halt. Soon after, the Appellant and 3 others appeared on the scene armed with a homemade gun. They made threats with the gun and ordered the two men out of the car and to leave the keys in the ignition. The order was obeyed and the Appellant and his accomplices drove off in the motor vehicle.

20. The Appellant pleaded guilty to the charges and the National Court dealt with the Appellant and one of his co-accused (in absentia as he had escaped) and sentenced the Appellant to 8 years imprisonment and the co-accused to 7 years imprisonment, both in hard labour. On appeal against the excessiveness of the sentence, the Supreme Court dismissed the appeal and confirmed the sentence of 8 years imprisonment, saying that the sentence was too lenient notwithstanding that the Appellant had pleaded guilty and a first offender. This is because sentences for armed robbery cases usually start with 10 years imprisonment.

OFFENDER’S CASE

21. In the present case, first, there is no use of offensive weapons such as firearms or bush knives unlike the cases of Robin Gaibuli, John Arua Peter and Ramsey Lestor Pitaro (supra). That means that this case will attract a sentence less this 10 years imprisonment. Secondly, there was no actual violence or assault committed against the driver and passengers, although the offender and his accomplices demanded the keys from the driver and after the driver and the passengers got off, the offender drove it back to Wabag and onto Mt Hagen. Thirdly, no other properties belonging to the driver and the passengers were stolen during the hold up.

22. Apart from the above three reasons, I consider that the sentence will also be less than 10 years imprisonment because he is a first offender. He has an unblemished past. The community leaders speak highly of him as a person who has not only abided the law but also heavily involved in restoring peace and harmony in the community. In this regard, I wish to refer to the Affidavit of Councillor Alus Yangi sworn and filed on 14th May 2009 where he says inter alia that he is a Local Level Government member of Sopas LLG ward and knows the offender very well because apart from the offender being from his ward, he had seen the offender taking the lead in organizing gatherings for youths to discuss social issues affecting the youths and the community generally including law and order.

23. He also says that the offender was involved in the Malipin Association which is an association formed by prominent Malipin tribal leaders and businessmen based in Port Moresby with the aim of fostering peace and harmony in the community after a big trial fight had occurred a few years back between two clans within the Malipin tribe. The offender led the members of the association and youths to surrender firearms and return to normal life for the betterment of community.

24. I note there is no Pre Sentence Report from the Probation Officer setting out the offender’s background, character reference and whether the community, more so the victims of the hold up are agreeable that the offender should be released into the community through a non custodial sentence. I am informed by counsel for the offender that the Probation Officer is not available at this point in time to give such a report as he is away in Port Moresby attending a course. Therefore, the only evidence of the offender’s character and standing in the community before me is the evidence of Councillor Alus Yangi which I have briefly set out above.

25. As the State has not contested the evidence of Councillor Alus Yangi, I am prepared to accept it because I am satisfied that the evidence of the offender’s background, character and good standing comes from a person who not only knows the offender but also the father of the offender who was once a village councillor and leader in the community. I have no reason to doubt his evidence.

26. Proceeding on this premise, I am satisfied that the offender has had an unblemished criminal record. He is a person who is not only a law abiding citizen but also a person who is interested in restoring and promoting peace and harmony in the community through the various programmes like the firearms surrender campaign and the establishment of Malipin Association. I find this factor operating favourably for him.

27. Next, I accept that he has pleaded guilty to the commission of the offence, thus saving the Court time and money to conduct a full trial to determine his guilt. Also, I accept that he has expressed remorse and has cooperated with the police during the investigations including telling them where to find the vehicle which eventually led to its retrieval. I accept that there was minimal damage done to the vehicle.

28. In accepting the above mitigating factors, I also find that the offender’s reason for robbing the vehicle unsatisfactory. In this regard, I accept the State prosecutor’s submission that the reason offered by the offender for robbing the vehicle represents a typical mentality by people around this area. If they do not get what they want, they break the laws to get what they want. This is a very bad mentality and must be stopped! The offender must also be reminded that the vehicle is neither the Honourable Governor’s personal property nor the offenders, to give him the authority to do what he did. The vehicle is the property of the Enga Provincial Government and allocated specifically to Murikata Health Centre to serve the people there as an ambulance. I also find that the reason offered by the offender neither a special mitigating factor nor an ordinary mitigating factor.

29. I also find that the vehicle is valued at K150,000.00, which means that a lot of money had been spent by the Provincial Government to purchase it. This is confirmed by the evidence of the Provincial Transport Officer, Mr David Yambu in his statement of 5th June 2005. As the Provincial Transport Officer, he would have been better placed to know the costs of the vehicle and I have no reason to doubt it. On the other hand, I reject the submission of counsel for the offender that the vehicle would have cost K90,000.00 if not fitted with the instruments for an ambulance or if fitted, about K110,000.00. I reject this submission because there is no evidence to back this submission. That being so, I make out that the vehicle is of substantial value and no doubt, has cost the Enga Provincial Government a lot of money to purchase it. I hold this factor against the offender.

30. I also accept that the vehicle was only 10 months old when it was stolen. This means that the vehicle is fairly brand new and when it was recovered after it was sold to a third party for cash, it was slightly damaged. Whilst there is no evidence of the costs of repairs placed before me, I am sure it must have cost the Enga Provincial Government money to repair it. I find these are circumstances of aggravation which I will hold against the offender.

31. I also find that the vehicle was sold to John Paragua even though the offender says that he did not sell it to John Paragua but for John Paragua to keep. I find this quite strange. Accepting that the offender did sell it to John Paragua, it would make sense a lot of sense as to why John Paragua had been charged with receiving a stolen property under section 410 of the Criminal Code, but as noted from the State prosecutor’s submission above, the State had not proceeded against him any further because he had died in a tragic accident some years back in the Western Highlands Province. Whether John Paragua would have been found guilty or not guilty is another matter, but the point is, there was cause for the police to charge John Paragua for receiving a stolen property. The cause here as I find is that the vehicle was sold for an undisclosed amount of cash, therefore, I hold this factor against the offender.

32. One matter which I consider a serious aggravating factor is that, the vehicle was used as an ambulance and serving the Muritaka Health Centre and the people around that part of the province. When it was stolen, the people missed out on its services in terms of attending to emergency cases like transporting pregnant mothers to Wabag General Hospital for proper treatment during child birth related complications or victims of fatal road accidents and the list goes on. It is even more serious and also disheartening to know that since there is the general perception that there is "no money" to fund basic health services in the rural areas where the bulk of the country’s population is found, hence deprivation of basic health services to the people, robbing of an ambulance does not help the cause at all. The offender must be told in no uncertain terms that his actions had dearly cost the innocent people the right to basic and better health services and must be severely punished for depriving them of such vital service. I hold this factor against him.

33. The commonly committed offences like in this case, robbery have always had the presence of the prevalence of the offence as an aggravating factor. It is an indication of the lack of or no respect of the law by people in the communities around the country. Like any other sentencing judge, I too must be weary of the prevalence of the offence and must punish an offender like this offender here, with an appropriate term of imprisonment to curb the rise in the commission of the offence and reduce its adverse impact on the society generally.

34. Finally, I find that although, there is no actual threat of violence or assault on the driver and its passengers, the hold up involved 10 to 15 men, thus putting lives of the driver and the passengers at great risk of being harmed, injured or even killed. I am pretty sure, the driver and the passenger were terrified by the presence of the offender and 10 to 15 men that day. I hold this factor against him.

35. As I said above, given that the head sentence for armed robbery of a dwelling house is 10 years, for robbery of a vehicle is 8 years whilst for a street robbery is 6 years nowadays, I consider that an appropriate head sentence for an armed robbery committed in the company of others is 8 years, like the one I am dealing with today. But given the presence of aggravating factors and the fact that I have rejected the reason offered by the offender for committing the offence, I consider that the sentence falls between 8 years imprisonment and 10 years imprisonment. I will strike a balance here and impose 9 years imprisonment on the offender.

36. As noted above, the offender’s counsel has also submitted that whatever the term of sentence this Court imposes on the offender, part of the sentence should be suspended and the offender be placed on good behaviour or on strict conditions whichever is appropriate in the circumstances. Whether or not I suspend part of the sentence is an exercise of the sentencing discretion given to the Court by virtue of section 19 of the Criminal Code and must be exercised on proper basis. In considering the question of suspension of sentence, I am reminded of the case of The State -v- Thomas Waim Tala Gena and Alois Wanpis [1998]PNGLR 360; (1998) N1750, where His Honour Injia J (as he then was) said:

"On the question of suspension of the whole or part of the minimum sentence, this power is conferred by section 19(1)(d). The power to suspend a sentence must be exercised on proper basis: Public Prosecutor -v- Thomas Vola [1981]PNGLR 412. Relevant factors include first time young offenders, 18 years or below: Gimble -v- The State[1988-89]PNGLR 271 at 275: Good character and good family background: The State -v-Frank Kagai[1987]PNGLR 320; State -v- Justin Nyama [1991]PNGLR at 127; or on medical grounds: Public Prosecutor -v- William Bruce Tardrew [1986]PNGLR 91".

37. Bearing these factors in mind, I maintain the view that imposing a suspended sentence is not an exercise of discretion in leniency. However, it is a form of punishment aimed at achieving one of the purposes of criminal sentencing, which is rehabilitation. I also maintain the view that a community based sentence is far more effective in appropriate cases, not only in terms of rehabilitation but also in terms of serving both as personal and general deterrence against other would be offenders.

38. In the represent case, the offender is a young man of 31 years and has a young family. I take these matters into account. I also accept that he is a person with unblemished criminal record and had been instrumental in bringing peace and harmony to his community after serious break down of law and order. In this regard, I am persuaded by the evidence of Councillor Alus Yangi that the offender is a useful person in the community and his release into the community will not pose any serious threat to the safety of others and their properties including the victims of the hold up. Therefore, I am prepared to suspend part of the custodial sentence.

ORDERS

39. In the end, the offender is sentenced to 9 years imprisonment in hard labour at Baisu Corrective Institute but I suspend 4 years of that term leaving 5 years and I also deduct 3 weeks for pretrial custody, leaving a balance of 4 years, 11 months and 1 week to serve in prison. Upon release from serving the prison term, the offender shall be visited with the following conditions of the suspended sentence, to be strictly observed:

1. The offender shall perform community work in and around the Muritaka Health Centre including but not limited to cutting grass, making and cleaning flower gardens, cleaning drains, etc every Mondays of each week between the hours of 8:00 am and 4:00 pm for a period of 4 years.

2. In performing the community work, the offender shall report to the Officer in Charge of Muritaka Health Centre to be assigned work each Monday.

3. The offender shall not leave Enga Province during the period of the suspended sentence unless with the leave of the Court.

4. The Probation Officer shall attend to the offender to ensure that he complies with conditions 1, 2, and 3.

5. The Probation Officer shall compile a report for the offender and present to the Court for review at the beginning of each 6 months of each year.

6. If for whatever reason the offender breaches these conditions, he shall serve the balance of the term of the suspended sentence of 4 years as at the time of the breach.

7. The offender’s bail money shall be refunded forthwith.

A warrant of commitment in the above terms will be issued shortly.

Sentence accordingly.

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