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State v Boni [2012] PGNC 380; N4626 (28 March 2012)

N4626

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR 464 of 2009

THE STATE

V

MONDO BONI

Kimbe: Batari J
2012: 28 March

CRIMINAL LAW– Sentence – Robbery – Robbery of a home – Group of young men armed with home-made guns and bush-knives held up family and stole various house hold items – Aggravated robbery - Plea – Mitigation – Accomplice sentenced to 7 years on plea –- Disparity of sentence – Whether applicable – No good reason to treat accused different on sentence - 7 years suspended sentence appropriate .

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,
Phillip Kassman v The State (2004) SC759.
Bobolan Mebu Peter v The State (2007) SC894,
Alex Pori v The State (2007) SC912

Counsel

L. Rangan, for the State
P. Mokae., for the Accused

28 March, 2012

1. BATARI J: Overview: The accused, then 21 years old, was part of a group of youths who held up the victim at his home and stole from him, various items of household goods. He pleaded guilty to armed robbery and was remanded for sentence subject to presentence reports ordered from the Community Based Correction Office (the CBC) under s.13 of the Probation Act (Ch 381). The reports are now before the Court.

Background

2. The common facts supporting the charge are that, on 15 August, 2008 past midnight, the accused whilst in the company of others went to the home of the victim, Sika Dom at Buvussi Oil Palm Settlement, Kimbe armed with home made guns and bush knives. They switch off the generator set lightings and attacked the victim together with 5 others who were present and drinking with him. The robbers destroyed properties and stole K5,669.00 in cash, the generator set valued at K388.00 and other properties valued at K2,246.30.

The Offence

3. The offence of armed robbery under s .386 (1)(2) of the Criminal Code carries the maximum sentence of life imprisonment. This maximum penalty shows Parliament's view that, armed robbery is such a serious crime of violence that severe punishment must be meted out by the Court to convicted offenders.

4. The maximum penalty though not mandatory is a guide as to the seriousness of the offence and the exercise of sentencing powers under s.19 of the Criminal Code. If the Court considers a particular sentencing option is open on the facts of the case, it will also be guided by settled sentencing guidelines so as to maintain a consistent sentencing pattern or tendency for the particular offence.

5. This is a typical armed robbery of a home that so frequently occurs against our city, town, village and settlement dwellers. It is invariably committed by young men from the neighbourhood, surrounding settlements, camps or villages, who seem to have nothing better to do then prey upon homes to steal from them.

6. In general, armed robbery has become the most prevalent offence and feared crime of violence confronting our people today. It is a very serious crime as it attacks the very essence of constitutional guarantees for every man, woman and children in this country to have the freedom to live, move around and go about his or her lawful business anywhere and at any time of the day, without fear or apprehension of unwarranted attacks. People should feel safe in their homes, at their work places, on the streets and roads, without fear as many do, of prowling armed robbers threatening and stealing from them.

7. The conduct of the prisoner and his cohorts is most serious as it threatens the lawful and peaceful presence of the victim within the security and comfort of his home. Robbery of a home is indeed categorised as the most serious type of robbery there is because such intrusive attacks on victims within the confines and sanctuary of their private homes have far-reaching consequences.

8. The potential for serious injury in an armed hold-up of a home is so great and intimidating that it causes untold misery and distress to the victim. It is viewed with abhorrence by law abiding members of the community for its violent nature and the substantial losses of property associated with it.

9. The victim, Sika Dom and his companions must have felt badly shaken and apprehensive when attacked within the confines of a residence. They were not only threatened, but assaulted as well. Cowardly actual violence was used against them under cover of darkness. Fortunately, there is no evidence of the extent of personal injury caused to the victim or any of his friends. But this does not help the prisoner.

10. Robbery cases are now dealt with under four main categories. The accepted practice has been to maintain those separate categories in the imposition of appropriate sentence and that the maximum sentence is reserved for the worst type of robbery. The categories which the Supreme Court enunciated in Gimble v The State [1988-89] PNGLR, 271 are:

1. robbery of a house – a starting point of seven years;
   
2. robbery of a bank – a starting point of six years;
   
3. Robbery of a store, hotel, club, vehicle on the road or the like – a starting point of five years; and
   
4. Robbery of a person on the street – a starting point of three years.
   

11. The starting points are relevant where young first offenders carrying weapons and threatening violence are convicted following a trial. Where actual violence was used or other features of aggravation like a loss of substantial amount of money was present or where the robbery was committed in breach of trust, a higher sentence may be justified. On the other hand, a plea of guilty with special mitigating factors may justify a lower sentence.

12. Gimble's sentencing guideline remains useful, subject to the plus three (3) year increase sanctioned by the Supreme Court in, The Acting Public Prosecutor -v- Don Hale (1998) SC564, (Amet CJ, Woods J, Kirriwom J) for category 1 robbery of a home; Tau Jim Anis v The State (2000) SC642, (Sheehan J, Jalina J, Kirriwom J) for category 3 robbery of store etc; and Phillip Kassman v The State (2004) SC759, (Jalina J, Sawong J, Batari J) for a robbery that falls within category 2 and 3 .

13. This means for instance, in relation to category 3 robbery of a store, hotel, club, vehicle on the road or the like, the Court may start at eight years subject to the judge's discretion to impose a higher or lower term as the facts of each case determines. That is the principle applied in Tau Jim Anis v The State and Phillip Kassman v The State. See also, Bobolan Peter v The State (2007) SC894 (Mogish, Manuhu & Hartshorn, JJ); Alex Pori v The State (2007) SC912 (Davani, Mogish & David, JJ).

14. The case before this Court is a category 1 robbery of a house. It has aggravating features besides that which is alleged under s.386 (2)(a)(b) of the Criminal Code namely, that the accused was armed with a dangerous weapon, he was in the company of others and that the robbery was carried out by use of actual violence. The circumstances of this case warrant a sentence of at least 10 years.

15. However, that consideration is not easily open to the Court in view of sentences earlier passed on the offender's associates. The question which arises for determination is whether the prisoner in this case should be given a different sentence to that imposed on his accomplices.

16. It is trite law that, disparity of sentence may be justified to reflect the offender's degree of participation in the commission of the offence. The ring leader, who planned, directed and played an active role in committing the offence or the person who pulled the trigger injuring or killing the victim in an armed hold-up may deserve a higher sentence to that of his convicted accomplice who played a lesser active role.

17. On 21 January, 2011 Cannings, J sentenced the prisoner's accomplice - 20 year old Samuel Arnold, to 7 years, less 1 year, 9 months presentence custody period and placed Samuel on probation upon suspending the balance of 5 years, 3 months. He pleaded guilty. Two other accomplices, Otto Simon and Andrew John also pleaded guilty before Kawi J. They were sentenced on 8 June 2011.

18. His Honour found the prisoner Andrew played a leading and active role and sentenced him to 9 years. Otto was sentenced to 7 years. The sentences were wholly suspended in each case and the prisoners placed on community work orders. They were also ordered to pay the victim, compensation of K900.00 and K700.00 respectively.

19. With respect, it is not clear if the suspension orders, the community work orders and the compensation orders were subject to probation supervision under s.16 (probation Orders) and s.17 (conditions of probation) of the Probation Act (Chapter 381). These are the enabling provisions for suspension of sentences and placement of prisoners on probation on the strength of presentence reports and recommendations from the Probation office.

20. In this case, there is nothing extraordinary about the offender. Because the sentence imposed on his accomplices is already in the lower end of the starting point for this category of armed robbery, there is in my view no reason to treat him differently.

21. I have also considered whether to suspend all or part of the sentence. For that purpose, those matters set out by Mrs. Christine Robe; Probation Officer of the CBC Office Kimbe is of relevance. The assessment reports do not support probation orders.

22. Even so, there is no valid reason why this prisoner should be treated differently from his accomplices. They were all in the robbery together aiding and abetting each other to enable the success of their evil enterprise. The general rule is that all active participants in the crime should be sentenced on the same basis. As the Supreme Court stated in Gimble v The State (supra) at p 273:

"The court does not normally stop to consider whether a particular prisoner actually held up the victim, or held the gun, or iron bar, or was a watchman, or was the driver in a get-away vehicle. All are equally guilty because without each playing his full part the crime could not be perpetrated."

23. I have considered extending the prisoner the sentencing option given to his accomplices for the following reasons:

1. The term of 12 months he had served in prison waiting for his trial and sentence is sufficient to have impressed upon him the ugly side of his conduct. Crime is evil, it does not pay and that he would have learnt hard lessons from the severe restrictions on individual freedom and choices in prison.
   
2. Punishment is not all about punitive or "mekim save" imprisonment. Where rehabilitation and reformation of the individual prisoner has a real chance outside prison, the court should take the risk to subject the prisoner to appropriate measures designed to influence his or her future behaviour through supervision, treatment or preventive confinement.
   
3. An alternative to imprisonment should give him the chance to redeem his past and pursue the hope to be a better and useful member of the community again.
   
4. He has pleaded guilty and there is no reason to treat him differently from his co-accused.
   

24. In the upshot, I consider that a term of imprisonment is appropriate. In my view, 10 years imprisonment is warranted on the facts. So that there is no misapprehension of being punished more than his accomplice, I will order 7 years imprisonment and suspend the whole term to be served on probation.

25. To ensure that the prisoner is also effectively punished in the community, I will order community work. He is sentenced as follows:

1. 7 years imprisonment IHL.
   
2. Pre-custody period of 12 months is deducted. The balance is wholly suspended and that he be released from custody forthwith to be on probation on the usual probation terms under the Probation Act and in addition the probationer shall;
   
   1. Within 48 hours, report to the Probation Officer after release from custody;
      
   2. Perform 900 hours of community work without pay at a worksite to be nominated and supervised by the CBC Office;
      
   100. Within two weeks of his release from prison, join a youth fellowship group of his local church and take active participation in the group activities;
        
   4. attend church every weekend for service and worship and submit to counselling;
      
   5. Keep the peace and be of good behaviour whilst on probation;
      
   6. Not to take, consume or deal with alcohol, drugs and any form of intoxicating liquor or drug substance whilst on probation;
      
   7. Not to leave Kimbe or West New Britain Province without prior approval of the National Court and must inform the CBC Office of his change of residential address;
      
   8. Have a satisfactory probation report submitted to the National Court Registry as required;
      
   9. Appear before the National Court as and when required for assessment of his progress on probation.
      
   10. The CBC office is to compile and file in the National Court Registry, six monthly reports, the first of such reports being due on 28th September 2012, on the probationer's responses and progress on probation.
       

_____________________________________________

Public Prosecutor: Lawyer for the State
Paul Paraka Lawyers: Lawyer for the Accused