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State v Mailele [2012] PGNC 317; N5181 (13 September 2012)

N5181

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR 353 OF 2011

THE STATE

-V-

ARLSON MAILELE

Alotau: Toliken, AJ.
2012: 13th, 21st September

CRIMINAL LAW – Sentence – Armed robbery – Prisoner and accomplices rob victim of substantial sum of money on busy street – Armed with guns and bush knives – Guilty plea – first time offender – co-operated with police – Exposed victim and bystanders to threat of being killed – Prevalent offence – Stolen money not recovered – No compensation or apology to victim – Head sentence of 5 years – Criminal Code Act Ch. 262, s 386(1)(2)(a)(b).

Cases Cited:

Goli Golu –v- State [1979] PNGLR 653
Acting Public Prosecutor –v- Joe Kovea Mailai [1981] PNGLR 258
Avia Aihi –v- State (No.3) [1982] PNGLR 92
Gimble v State [1988-89] PNGLR 271
Acting Public Prosecutor -v- Don Hale (1998) SC 564
Tau Tom Anis –v- State (2000) SC 642
Philip Kassman –v- State (2004) SC 759
The State –v- Terence Yabok Hiafrie (No.2) (2008) N3366

Counsel:

D. Kuvi, for the State
A. Kalandi, for the Prisoner

JUDGMENT ON SENTENCE

21st September, 2012

1. TOLIKEN, AJ: Arlson Mailele on 13th September 2012, you pleaded guilty before me to one count of aggravated robbery contrary to Section 386(1)(2)(a)(b) of the Criminal Code Ch. 262 (the Code).
   
2. I had perused the committal files from the District Court and was satisfied that evidence supported the charge. I then confirmed your plea and convicted you.
   

THE FACTS

3. The facts which you admitted and upon which I am going to sentence you are as follows. On 13th of March 2009, you were part of a gang that held up an employee of the Alotau Family Store and robbed him of K47,559.55. On the date in question around 11.00 a.m. Gorden Moabi, an employee of Alotau Family Store was crossing the street with a security guard to do banking at the Westpac Bank just across the road. As they were crossing the street with the money bag, one of your accomplices approached them and pulled the bag from Gordon. The security guard tried to assist Gordon but your accomplice brandished a bush knife and threatened him.
   
4. At that moment, you and your other accomplices moved in and threatened Gordon with a factory made shot gun and a home- made shot gun. As soon as you got the money, you ran to a waiting vehicle and escaped with the money. You and your accomplices had pre-planned the hold-up several days before the actual hold-up.
   
5. At the time you committed this offence, you were in the company of others whilst armed with dangerous weapons – a factory made shot gun, a home- made shot gun and a bush knife.
   

ADDRESSES TO THE COURT

6. In your address to the Court before sentence you made certain allegations against the Arresting Officer – that he had solicited and took K1,450.00 from you and a further K500.00 from your brother, purportedly to drop the charge which of course he did not. Now, that is something that you have to bring to the attention of the police authorities themselves.
   
7. You said you have two young children. You said that your wife died while you were in custody awaiting your trial and thus you said you do not know what the situation affecting your children is. You told me that you were only educated up to Grade 4 and are a member of the United Church. You apologised to the Court and the community for what you did.
   
8. Your lawyer confirmed your antecedents and added that your children are 3 and 1 years old and are currently in the custody of their maternal grandparents. He said that your own parents are both deceased. Counsel referred to the leading case of Gimble v State [1988-89] PNGLR 271, which set out sentencing guidelines for case of robbery under four categories in the following terms:
   

9. However, counsel submitted that in subsequent cases, the Supreme Court had increased the starting point across the board on all categories by 3 years (Acting Public Prosecutor -v- Don Hale (1998) SC 564; Tau Tom Anis –v- State (2000) SC 642; Philip Kassman –v- State (2004) SC 759.
   
10. Counsel said on your behalf, however, that the Courts have determined sentencing tariffs on a case by case basis while taking into account the peculiar circumstances of each case. Counsel said that your case falls under the 4th Category – attracting a starting point of 6 years, subject to the Court's discretion under Section 19 of the Code. He submitted that you have shown remorse and that consideration should be taken of the fact that the Arresting Officer had taken K1,450.00 from you which he said should have been kept as Exhibit.
    
11. There are mitigating factors in your favour he submitted. These are:
    
    1. You are a first offender.
    2. You assisted the Police by confessing to your involvement and maintaining that admission throughout.
    3. You pleaded guilty thus saving time for the State.
    4. You have shown remorse.
       
12. Counsel further submitted that the main culprit in the robbery – co-accused Luke Jerome had already been sentenced to 5 years. This was confirmed by a copy of the prisoner's Warrant of Commitment which was later handed up to the Court by consent.
    
13. Counsel refers me to Acting Public Prosecutor –v- Joe Kovea Mailai [1981] PNGLR 258 which he said set out the law on the issue of parity of sentences. He submitted therefore that based on the above circumstances and the relevant principles of law, you should be given a similar term of imprisonment as the co-accused Luke Jerome i.e. 5 years.
    
14. Counsel for the State on the other hand submitted that the maximum penalty for this offence is life imprisonment, subject to the Courts discretion under Section 19 of the Code and the well established sentencing principle that the maximum penalty is reserved for the worst of cases. (Goli Golu –v- State [1979] PNGLR 653; Avia Aihi –v- State (No.3) [1982] PNGLR 92.
    
15. The sentencing issues he submitted are:
    
    1. Whether this case falls in the worst category; and
    2. If not what would be an appropriate sentence?
       
16. Counsel submitted that there are two aggravating factors against you. Firstly, when you committed the offence, you were in the company of others and you were armed with dangerous weapons. Secondly, you and your accomplices stole a substantial amount of money ( K47,559.55) which, despite your statement on allocutus, has not been recouped by the owners of Alotau Family Store.
    
17. Furthermore, he asked the Court to take into account the prevalence of this offence in the country but particularly in Milne Bay Province where it is increasingly becoming prevalent as we speak. He agreed with your lawyer that the principles of sentencing for robbery have been laid down in the case of Gimble –v- State (supra). These are out of date and as stated by your lawyer, the tariffs have increased 3 fold since the case of Don Hale –v- The State (supra). Hence, he submitted sentences for robbing a dwelling house has increased from 7 years to 10 years.
    
18. He also submitted that your case falls within Category 4, attracting a sentence starting from 6 years which can slide upwards or downwards depending on the aggravating and mitigating factors. Counsel referred me to The State –v- Terence Yabok Hiafrie (No.2) (2008) N3366. This was a case of street robbery. It involved the use of a bush knife and involvement of others. Two female employees on the way to the bank were robbed off K19,360.00. The prisoner was sentenced to 8 years.
    

THE OFFENCE

19. The offence of robbery is provided by Section 386(1)(2)(a)(b) of the Criminal Code Ch. 262 in the following terms:
    

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.

20. The offence of robbery had always been viewed by the courts with seriousness, particularly when committed under circumstances of aggravation as provided under Subsection (2) of the Code. This is because of the threat posed to lives of persons who are victims or bystanders.
    
21. Both counsel have conceded that your offence falls within Category 4 of the Gimble principles has been increased subsequently 3- fold by the Supreme Court in Public Prosecutor –v- Don Hale (supra). It must be noted, however, that in Tau Tom Anis –v- The State (2000) SC 642 the Supreme Court (Sheehan, Jalina and Kiriwom, JJ.) said that they find nothing in Public Prosecutor –v- Don Hale that laid down a blanket authority to supersede the principles in Gimble and that the discussion of the Supreme Court in Don Hale had been misconstrued and taken out of context as Don Hale merely dealt with the robbery of a house in the context of the principles in Gimble – which they viewed was still good law. Their Honours suggested that the Supreme Court should prescribe new guidelines to supersede those in Gimble.
    
22. I am not aware of any subsequent Supreme Court cases which may have set new sentencing guidelines which superseded Gimble but I am aware based on the limited resources available to me on circuit that the Supreme Court continues to follow Gimble, Don Hale and Tau Tom Anis as per its decision in Alex Pori –v- The State (2007) SC 912 (Davani, Mogish, David, JJ).
    
23. I feel therefore, that I am still very much bound by the sentencing guidelines enunciated in Gimble while acknowledging that I have a very wide discretion under Section 19 of the Code. So what considerations should I take into account in the process of determining an appropriate sentence for you within the prevailing guidelines?
    
24. In this regard, I find helpful the considerations suggested by my brother Cannings, J in The State –v- Aaron Labu (2005) N2798. These are:
    
    1. Did the offender and other members of his gang not commit actual violence during the course of the robbery?
    2. Did the offender and members of his gang not threaten the victims of the robbery with violence?
    3. Did the offender and other members of his gang not put the victims or innocent bystanders in real danger of being injured or killed?
    4. ...
    5. Did the offender and other members of his gang steal money or property relatively small value?
    6. Did the offender play a relatively minor role?
    7. Did the offender give himself up after the robbery?
    8. Did the offender co-operate into police?
    9. Has the offender done anything tangible towards repairing his wrong e.g. Compensation to victim, repaying what he stole, personally or publicly apologising to what he did?
    10. Has he pleaded guilty?
        
25. I adopt these considerations as I find them applicable. I have considered them and your mitigating and aggravating factors as put to me by your lawyer and the counsel for the State.
    
26. I find that the following considerations are present in your case; you pleaded guilty to the charge, you and your gang threatened the victims with violence, you and your gang exposed your victims and innocent bystanders of a busy main street to real danger of being killed or injured, you stole property of substantial value which has not been recovered, you played a major role in the robbery including pre-planning, you co-operated with police and you have not repaid the amount of money you received as your share from the robbery nor have you apologised to the victims.
    
27. Hence in applying the considerations in The State –v- Aaron Labu (supra) against your personal circumstances, I feel that a starting point within the range suggested by counsel i.e. between 6 – 7 years is appropriate. I therefore fix your starting point at 6 years.
    
28. However, because of your guilty plea and other mitigating factors I impose a head sentence of 5 years. This will be on par with Luke Jerome's sentence so as not to offend against the principles of parity of sentence and equality of justice.
    
29. From this, I suspend 3 years 4 months and 1 day for pre-trial custody period. You will therefore serve the balance of 1 year 7 months 29 days, with no suspension of sentence.
    
30. I therefore order as follows:
    
    1. The prisoner Arlson Mailele is sentenced to a term of 5 years imprisonment with hard labour.
       
    2. Three (3) years, four (4) months and 1 day are deducted from the sentence for period spent in pre-trial custody.
       
    3. The prisoner shall serve a period of 1 year, 7 months and 29 days.

________________________________________________
Public Prosecutor: Lawyers for the State
Public Solicitor: Lawyers for the accused