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State v Lipio [2014] PGNC 152; N5792 (23 August 2014)

N5792

PAPUA NEW GUINEA
IN THE NATIONAL COURT OF JUSTICE

CR 667 OF 2013

THE STATE

V

JEFFERY LIPIO

Kimbe: Cannings J
2014: 12, 22, 23 August

CRIMINAL LAW – sentence – armed robbery – Criminal Code, Sections 386(1), (2)(a) and (b) – guilty plea – offender, in company of others, held up a PMV bus, drove it to another location and held up a shop and robbed it.

A man pleaded guilty to two counts of armed robbery in the company of others by commandeering a bus, driving to another location and holding up a shop and stealing cash and goods valued at K9,680.00. This is the judgment on sentence.

Held:

(1) The maximum sentence for armed robbery is life imprisonment.

(2) Mitigating factors are: the offender pleaded guilty; he has no prior convictions; though violence was threatened, no actual physical violence was inflicted; the offender was not involved in planning either robbery and played a relatively minor role in commission of each offence.

(3) Aggravating factors are: the robbery was committed in public place, recklessly putting many people at risk of injury or death; the offender acted in a gang; victims inevitably traumatised by the incident.

(4) A sentence of eight years imprisonment was imposed for each offence, to be served cumulatively, resulting in a total potential sentence of 16 years, however the total sentence was under the totality principle reduced to ten years.

Cases cited

The following cases are cited in the judgment:

Gimble v the State [1988-1989] PNGLR 271
Mase v The State [1991] PNGLR 88
Phillip Kassman v The State (2004) SC759
Public Prosecutor v Don Hale (1998) SC564
Public Prosecutor v Kerua [1985] PNGLR 85
Saperus Yalibakut v The State (2006) SC890
Tau Jim Anis v The State (2000) SC642
The State v Alphonse Polpolio and Jeffery Baru (2006) N4514
The State v Dickson Kauboi CR No 495/2001, 07.06.06
The State v Jacky Vutnamur & Kaki Kialo (No 3) (2005) N2919
The State v Justin Komboli (2005) N2891
The State v Kia Tala Moksy CR 785/2005, 12.08.05
The State v Lesley Cletus Malo (2006) N4520

SENTENCE

This was a judgment on sentence for armed robbery.

Counsel

F K Popeu, for the State
D Kari, for the offender

23rd August, 2014

1. CANNINGS J: Jeffery Lipio has pleaded guilty to two counts of armed robbery and has been convicted of those offences under Sections 386(1), (2)(a) and (b) of the Criminal Code. These offences were committed at Morokea and Kisere, in the Kimbe area of West New Britain on 31 October 2012. At 8.00 am the offender and two or three others boarded a 15-seater PMV bus at Laleki, which was heading to Morokea town. At Morokea he and his companions held up the driver and commandeered the bus, stealing it, and drove it to Kisere. At Kisere he and his accomplices entered Arrow Mart Trading store, held up the manager and stole at gunpoint a safe and two tills containing cash, to the value of K9,680.00.

ANTECEDENTS

2. The offender has no prior convictions.

ALLOCUTUS

3. The offender was given the opportunity to address the court. He said:

I have pleaded guilty to the charges of armed robbery. I express remorse and ask this Honourable Court for mercy and for leniency. I say sorry to the court and to the officers of the court and the lawyers and everyone who has had to spend time on my case. I am a newly married person with a young baby to care for.

OTHER MATTERS OF FACT

4. As the offender has pleaded guilty he will be given the benefit of reasonable doubt on mitigating matters raised in the depositions, the allocutus or in submissions that are not contested by the prosecution (Saperus Yalibakut v The State (2006) SC890). I take into account his continual denial of active involvement in the robberies and his assertion that he was not involved in planning them.

PRE-SENTENCE REPORT

5. The court was presented with a report prepared by the Kimbe office of the Community Based Corrections Service. The offender is of mixed Siassi/West New Britain parentage. He has been living at Section 1 in Kimbe. He has a grade 10 education. His health is sound. He has a block near Numondo. He is a member of the Bahai faith.

SUBMISSIONS BY DEFENCE COUNSEL

6. Mr Kari emphasised the guilty plea, the lack of prior convictions and the offender's minor role in the offences. He submitted that a sentence of no more than eight years imprisonment is warranted, which should be made concurrent.

SUBMISSIONS BY THE STATE

7. Mr Popeu countered by submitting that it was a major robbery, a serious offence that was committed in a public place, with many innocent people (including the direct victims) in the vicinity. Firearms were involved. Cumulative sentences of eight years for each offence should be imposed.

DECISION MAKING PROCESS

8. To determine the appropriate penalty, and bearing in mind that the offender has been convicted of two offences, I will adopt the following decision making process:

• step 1: what is the maximum penalty for each offence?
• step 2: what is a proper starting point?
• step 3: what sentences have been imposed for equivalent offences?
• step 4: what is the head sentence for each offence?
• step 5: should the sentences be served concurrently or cumulatively?
• step 6: what is the effect of the totality principle?
• step 7: should the pre-sentence period in custody be deducted?
• step 8: should all or part of the sentence be suspended?
  

STEP 1: WHAT IS THE MAXIMUM PENALTY FOR EACH OFFENCE?

9. For armed robbery (Criminal Code, Sections 386(1), (2), (a) and (b)) – the maximum penalty is life imprisonment. However I have discretion to impose less than the maximum term and suspend part or the entire sentence under Section 19 of the Criminal Code.

STEP 2: WHAT IS A PROPER STARTING POINT?

10. The Supreme Court has given sentencing guidelines in a number of leading cases: Gimble v The State [1988-1989] PNGLR 271; Public Prosecutor v Don Hale (1998) SC564; Tau Jim Anis v The State (2000) SC642; and Phillip Kassman v The State (2004) SC759. Nowadays the starting points are robbery of a house: ten years; robbery of a bank: nine years; robbery of a store, hotel, club, vehicle on the road: eight years; robbery of a person on the street: six years. Each robbery falls into category 3. The starting point for each is eight years.

STEP 3: WHAT SENTENCES HAVE BEEN IMPOSED FOR EQUIVALENT OFFENCES?

11. Recent sentences for armed robbery are shown in the following table.

SENTENCES FOR STORE AND ROAD ROBBERIES

STEP 4: WHAT IS THE HEAD SENTENCE FOR EACH OFFENCE?

12. The head sentence will reflect the following mitigating and aggravating factors.

Mitigating factors:

• the offender pleaded guilty;
• he has no prior convictions;
• though violence was threatened, no actual physical violence was inflicted;
• the offender was not involved in planning either robbery and played a relatively minor role in commission of each offence.
  

Aggravating factors:

• the robbery was committed in public place, recklessly putting many people at risk of injury or death;
• the offender acted in a gang;
• victims inevitably traumatised by the incident.
  

13. I uphold the position of the State and impose a sentence of eight years imprisonment for each offence. The total potential sentence the offender is facing is:

8 years + 8 years = 16 years.

STEP 5: SHOULD THE SENTENCES BE SERVED CONCURRENTLY OR CUMULATIVELY?

14. I now have to decide whether the head sentences should be served concurrently (the sentences are served at the same time) or cumulatively (the sentences are added together). Here there were two separate incidents, with different victims, therefore the sentences should be served cumulatively (Public Prosecutor v Kerua [1985] PNGLR 85, Mase v The State [1991] PNGLR 88).

STEP 6: WHAT IS THE EFFECT OF THE TOTALITY PRINCIPLE?

15. I now look at the total sentence the offender is facing, to see if it is appropriate having regard to the totality of the criminal behaviour involved. The court needs to guard against imposing a crushing sentence. I consider that 16 years would be excessive, therefore the total sentence is reduced to ten years, being five years for each offence.

STEP 7: SHOULD THE PRE-SENTENCE PERIOD IN CUSTODY BE DEDUCTED?

16. Yes. I decide under Section 3(2) of the Criminal Justice (Sentences) Act that there will be deducted from the term of imprisonment the whole of the pre-sentence period in custody, which is one year, eight months.

STEP 8: SHOULD ALL OR PART OF THE HEAD SENTENCE BE SUSPENDED?

17. No. The pre-sentence report does not warrant suspension.

SENTENCE

18. Jeffery Lipio, having been convicted of two counts of robbery contrary to Section 386(1) of the Criminal Code in circumstances of aggravation under Section 386(2)(a) and (b) of the Criminal Code, namely he was armed with a dangerous and offensive weapon and in company with other persons, is sentenced as follows:

Sentenced accordingly.
_________________________________________________________
Public Prosecutor: Lawyer for the State
Public Solicitor: Lawyer for the offender