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State v Engo (No.2) [2014] PGNC 76; N5618 (13 May 2014)

N5618

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR NO. 343 OF 2011

THE STATE

V
SAMUEL SAMMY ENGO
(No 2)

Alotau: Toliken, AJ.
2013: 16th October
2014: 13th May

CRIMINAL LAW – Sentence after trial – Armed Robbery & Attempted robbery of a bank by gang – Prisoner entered bank with accomplices – Armed with a shotgun – Prisoner checked customers for mobile phones - Gang unsuccessful in gaining access to main bank area – Disturbed by arrival of police and exited bank – Accomplice rips off a computer screen and runs off with it – Prisoner last to run out with a shot gun and a pistol– Caught outside the bank by a customer – Severely assaulted by members of the public – Hospitalized for injuries sustained -Further assaulted by police while in custody – Criminal Code Act Ch. 262, ss 386 (1)(2)(a)(b), 387 (1)(2)(a)(b).

CRIMINAL LAW – Sentence – Mitigating and aggravating factors considered – Settled starting point for robbery of bank considered and applied – No authority for starting point for attempted robbery cited to Court – Starting point set at 5 years – Head sentences – 10 years for robbery – 5 years for attempted robbery – Concurrent sentence of 10 years less period spent in pre-trial custody.

Cases Cited:

Goli Golu v The State [1979] PNGLR 653
Avia Aihi v The State (No.3) [1982] PNGLR 92
Gimble v The State [1988-89] PNGLR 271
The Public Prosecutor v Don Hale (1998) SC 564
Tau Jim Anis v The State (2000) SC 642
Philip Kassman v The State (2004) SC 759
Richard Liri v The State (2007) SC 883
The State v Basu (1997) N1537
The State –v- Aaron Labu (2005) N2798
The State v Francis Vau Kamo; Cr 663 – 664 (06.04.06) (unreported and unnumbered judgment)
The State v William Nanua Kapris (2011) N4305
The State v Samuel Sammy Engo; CR 343 of 2011 (unnumbered and unreported judgment delivered on 16th October 2013 at Alotau)

Counsel

B Gore, for the State
P. Palek, for the prisoner

JUDGMENT OF SENTENCE

13th May, 2014

1. TOLIKEN, AJ: On 16th October 2013, the prisoner Samuel Sammy Engo was convicted after trial for one count of armed robbery and one count of attempted robbery in contravention of Section 386(1)(2)(a)(b) and Section 387 (1)(2)(a)(b) of the Criminal Code Ch. 262 (Code) respectively.

2. I delivered a short judgment then and administered the allocutus. (The State v Samuel Sammy Engo; CR 343 of 2011 (unnumbered and unreported judgment delivered on 16th October 2013 at Alotau) I then heard submissions on sentence on 21st October 2013 and adjourned for sentence to the 25th October 2013. I was, however, unable to do so and the matter was adjourned to the December circuit. That circuit did not proceed though due to funding problems faced by the Public Prosecutor. Hence the matter now comes before me on this first circuit to Alotau this year for sentence.

THE ALLEGATIONS

3. The State's allegations are that on 4th day of May 2010, between 11.00 am and 12.00 noon, the accused and his accomplices entered the Bank South Pacific Branch in Alotau. They were armed with firearms. Customers were in the line when they entered. Then one of the accused's accomplices swung his firearm at Bank staff, Chris Orake who jumped out of the way to avoid being hit. However, the police were notified and realising that, the group ran out of the bank.

4. On their way out, one of the accused's accomplices ripped out an Acer Flat Screen Computer Monitor and ran out with it. As for the accused, before he could get into the get-away vehicle, he was knocked to the ground by a Michael Dulo. Members of the public then set upon him, assaulting him and restraining him until the police arrived. He was apprehended and taken to the police station.

FACTS

5. I will sentence the prisoner on the following facts which I found at the trial. On the morning of 04th of May 2010, between 11.30 am and 11.46 am, the prisoner walked into the Alotau Branch of the Bank South Pacific. He was in company of four other men namely Charlton Eric (an acquaintance of his from Gerehu in the National Capital District), Tommy Maiva Baker and another man described by State witnesses as tall and wearing a peaked cap. Three of the men, one of whom was Tommy Baker and a tall man with peak cap entered the bank first and stood at the side counter. The tall man was talking on his mobile phone. He was advised by witness Chris Orake to go outside and continue his conversation there. Chris Orake then walked the man out but not before the man pushed a red and yellow bag to Tommy Baker. After leaving the man outside the bank, Chris Orake went back into the bank and was assisting a friend of Michael Dulo when two men pushed security guard Philemon into the bank. They were armed with home-made guns. As this was happening, the tall man returned and forced a bank officer Hiroshi Kapigeno into the bank. The two armed men pointed the guns at Chris Orake one of them swinging his gun at him but missed as Orake fell to the floor.
   
6. The would be robbers then ordered the customers to lie on the floor and the accused who was armed with a home-made shot gun started to check the customers for their mobile phones. As he was doing that, his accomplices unsuccessfully tried to get one of the bank officers, James, to open the door into the main area of the bank.
   
7. By that time, the police were alerted. Sensing this, the robbers hastily ran out of the bank. One of them pulled out an Acer computer screen or monitor from the lending table and ran out of the bank with it. The men ran for a awaiting get-away vehicle.
   
8. The accused was the last to run out of the bank being the farthest from the door. He made for the get-away vehicle with a home-made shotgun and pistol in his hand. He was, however, felled from behind by Michael Dulo, one of the customers in the bank that morning who immediately followed after the accused as he was running out. The two struggled and members of the public set upon the accused and belted him up. He was later handed over to the police.
   

PERSONAL PARTICULARS

9. The prisoner is of mixed Central and Milne Bay parentage. He was 36 years old at the time of his conviction and has 3 children from a first marriage and 2 from his second marriage. He comes from a family of 5 children – 2 boys and 3 girls. He is the last born. Both his parents are now deceased. He attended Della Salle Secondary School in 1993 but did not complete Grade 10. He is a Roman Catholic. He is a first time offender and had been in pre-trial custody for a period of 3 years 5 months and 6 days.
   

ADDRESSES TO THE COURT

1. The Prisoner
   

10. When asked to address the Court prior to sentence this is what the prisoner said:
    

"I apologise firstly to the Court and to the public and to the bank staff. This is the first time for me. I ask for the Court's mercy. I ask for Good Behaviour Bond. That is all."

ii. Defence Counsel

11. In a nutshell Mr. Palek submitted for the prisoner that this case is not the worst instance of robbery and that his involvement in the robbery and attempt was minimal. He submitted that the value of the property stolen (Computer monitor) was merely K426.00 and while guns were involved the gun and pistol that the accused had with him were defective and hence the public was never really at risk though he did acknowledge the operation of Section 7 of the Code in respect of his accomplice's involvement.
    
12. Mr. Palek asked the court to take particular attention to the fact that not only was the accused attacked and severely beaten up by the public during the time of his apprehension resulting in him being hospitalized but that after he was discharged he was again severely beaten up by the police while in lawful custody. Counsel said that the prisoner suffered so much at the hands of the police hence the court should take this into account when considering an appropriate sentence.
    
13. Mr. Palek urged the court to consider the following mitigating factors in favour of the prisoner: (1) he was educated up to Grade 9 only but did not complete his studies, (2) he comes from a good family background and was of previous good character, (3) he co-operated with police by answering questions well in his Record of Interview, (4) he has shown remorse by apologising for the trouble he has caused, (5) his parents are both deceased, 6) he is a first time offender and, (7) was severely assaulted by the public and police and (8) the property stolen was merely K426.00. Counsel acknowledged though that the offence is prevalent and that dangerous weapons were used. In the circumstances he therefore submitted that appropriate sentences should be 4-8 years for robbery and 3-8 years for attempted robbery less the 3 years, 5 months and 6 days of pre-trial custody and that the resultant sentences should run concurrently.
    
14. Counsel cited the several cases which he said could assist the Court in arriving at an appropriate sentence. However, I find only a couple of these directly relevant to the facts of the matter at hand. These are The State v Francis Vau Kamo; Cr 663 – 664 (06.04.06) (unreported and unnumbered judgment) and Philip Kassman v The State (2004) SC 759.
    

3. Counsel for the State
   

15. Ms. Gore on the other hand submitted that whilst the current starting point for robbery of a bank is 9 years per The Public Prosecutor v Don Hale (1998) SC 564; Tau Jim Anis v The State (2000) SC 642 and Philip Kassman v The State (supra) – a three- fold increase from the tariffs set in Gimble v The State [1988-89] PNGLR 271 – actual or head sentences have increased in keeping with the prevalence of the offence. In Richard Liri v The State (2007) SC 883 (Sevua, Kandakasi JJ. (Gabi J. dissenting) the Supreme Court by majority increased the sentence of 8 years to 15 years on appeal. In The State v Francis Vau Kamo (supra), a case involving the robbery of monies destined for a bank the prisoner was sentenced to 13 years.
    
16. Ms. Gore acknowledged that the prisoner was remorseful of his crime and that he did not benefit from it. But even though this is not a worst case she said that the offences are aggravated by the fact that his conviction was after trial and that threats of violence were used on the victims, the use of guns and that the prisoner was in the company of others. Ms. Gore submitted therefore that for the purposes of both personal and general deterrence the prisoner should be sentenced, subject to the court's discretion, to between 6 and 8 years imprisonment.
    

THE LAW

1. The Offences
   

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.

387. Attempted robbery accompanied by wounding, or in company.

(1) A person who assaults a person with intent to steal anything, and, at, immediately before or immediately after, the time of the assault, uses or threatens to use actual violence to any person or property in order—

(a) to obtain the thing intended to be stolen; or

(b) to prevent or overcome resistance to its being stolen, is guilty of a crime.

Penalty: Imprisonment for a term not exceeding seven years.

(2) If the offender—

(a) is armed with a dangerous or offensive weapon or instrument; or

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

he is liable to imprisonment for a term not exceeding 14 years.

(3) ...

17. It is clear then that the offences of robbery and attempt thereto carry very stiff penalties, the maximums there being life imprisonment and 14 years respectively where the offence is committed while in the company of others or dangerous weapons are used or where actual violence or injury is caused on others at, immediately before or after the robbery.
    
18. The sentencing guidelines for a plea of not guilty for armed robbery were set by Gimble v The State (supra) as follows:
    
    1. Robbery of a house – starting point of 7 years
    2. Robbery of a bank – Starting point six years
    3. Robbery of a store, hotel, club or vehicle on the road – five years
    4. Robbery of person on the street – 3 years
       
19. When setting the starting point at 6 years for robbery of a bank the Supreme Court there said:
    

2. ROBBERY OF A BANK

Where a group of young first offenders, carrying weapons, use the threat of violence to rob a bank, we consider that a sentence of around six years imprisonment is appropriate in a contested case. A lesser sentence can be imposed where the offender pleads guilty. We consider that a sentence of around six years is justified in a contested case because bank staff are very vulnerable. They are only employees, they do not own the bank. Tellers are weak and they are readily accessible to the public. These factors make them a tempting target for robbers. We believe that bank staff deserve the protection of a sentence adequate enough to deter potentialrobbers. If aggravating features are present, a sentence of more than six years can be imposed; for example, if actual violence is used.

20. But it is not only the bank staff that are vulnerable – the customers are also very much vulnerable and very much at risk. Banks are normally always full and there is no knowing what can happen during a hold-up or how the robbers or customers can react in such situations. Armed robbers are not as cool as they might want us to believe. The safety of their victims is the least of their concerns hence the slightest of resistance can be seen as a direct challenge to them which can result in serious injuries or fatalities. And being mere humans themselves robbers are very much concerned about their own safety so that they are bound to do everything to fulfill their intentions and protect themselves at the same time.
    
21. The Supreme Court has since said that the tariffs set in Gimble should be increased proportionately three-fold across the board. (The Public Prosecutor v Don Hale (supra) and Tau Jim Anis v The State (supra) and Phillip Kassman v The State (supra). So for robbing a bank the starting point should be 9 years imprisonment.
    
22. It is to be noted, however, that these are mere starting points and actual sentences, as is the norm, very much depend on the peculiar facts and circumstances of each case and settled principles of sentencing such as that the maximum penalty is reserved for the worst instances of a particular crime.(Goli Golu v The State [1979] PNGLR 653; Avia Aihi v The State (No.3) [1982] PNGLR 92). So what has been the sentencing trend for this particular type of robbery?
    

SENTENCING TREND

23. While both counsel cited several cases to the Court only two of these bear direct relevance to the case at hand – i.e robbery of a bank. These are The State v Francis Vau Kamo; Cr 663 – 664 (06.04.06) and Phillip Kassman v The State (supra.) In Kamo (supra) the prisoner was part of an armed gang which held up two Westpac Bank employees and their policeman guard at Hoskins and robbed them off a patrol box containing K380,000.00 cash which had just arrived in an Air Niugini flight. The police officer was stabbed during the hold-up. The gang was armed with a pistol and knife. Apart from that they also stole a vehicle and a police-issued shotgun. He was convicted after trial and sentenced to 13 years imprisonment.
    
24. In Phillip Kassman v The State (2004) SC759, in the Supreme Court (Jalina, Sawong, Batari JJ.) the appellant appealed against his sentence of 10 years for the armed robbery of an ANZ Bank customer outside the bank car park. The appellant was part of a gang of four. They robbed the victim at gunpoint of more than K120,000.00 in cash. These were the takings of a company that the appellant worked for. On appeal the Supreme Court took cognizance of previous Supreme Court decisions in Hale and Anis which had decided that Gimble categories ought to be increased three-fold due to the increasing prevalence of robberies. The case was akin to robbery of a bank. The Supreme Court found that the trial judge properly considered the aggravating factors in the matter. The robbery was committed in broad daylight on the doorsteps of the bank at a time where a lot of people were expected to be present and thus there was risk of injury to innocent bystanders. The court dismissed the appeal and confirmed the sentence.
    
25. In The State v William Nanua Kapris (2011) N4305 the notorious late bank robber was found guilty after trial with 11 accomplices for armed robbery of the Madang Branch of Bank South Pacific Ltd and other offences (conspiracy (1 count), kidnapping for ransom (13 counts) and unlawfully depriving liberty (14 counts). For armed robbery Kapris was sentenced to 20 years for a combined concurrent sentence of 30 years with sentences for other counts.
    
26. It is therefore clear that sentences for this type of robbery – and robbery generally - has increased and the Supreme Court had been mindful not to disturb sentences because of the prevalence of the offence which calls for deterrence.
    

PRESENT CASE

27. Turning now to the present case, I find the following factors in favour of the prisoner; (1) he was educated up to Grade 10 only but did not complete his studies, (2) he comes from a good family background and was of previous good character, (3) he co-operated with police by answering questions well in his Record of Interview, (4) he has shown remorse by apologizing for the trouble he has caused, (5) he is a first time offender was severely assaulted by the public and police, (6) the property stolen was merely K426.00.
    
28. A couple of the mitigating factors should, however, not go without comment. First the prisoner's apology does not carry any weight at all. This was a case where he was caught in the act and if I can remember correctly this matter proceeded initially as a plea matter but the prisoner surprised even his lawyer by denying the charge on arraignment. While he has the right to take the prosecution on, his expression of remorse really is meaningless, if I can be that bold to say so, because in denying the charge at the eleventh hour and forcing a trial where the verdict was going to be obvious as day light was not only a fruitless exercise for him but a waste of judicial time and any expression of remorse now will carry no weight. An apology would have been more believable if it were offered after a plea to say the least.
    
29. Secondly there is the fact that the prisoner was badly beaten up by members of the public and the police. I agree entirely with what His Honour Batari AJ. (as he then was) said in The State v Basu (1997) N1537 in regard to extra judicial beatings of criminals by members of the public. His Honour said:
    

Most people may say, you deserved to be beaten up. And it is also common sense that persons who steal or tried to do so from others with violence, will expect strong reaction against them by the victims in the course of protecting their properties. I do not however, and the Courts for that matter will not condone actions of police and the public which go beyond legal limits.

30. On this point I do take into account that the prisoner did raise these in his oral testimony. The State did not challenge his evidence more particularly over his alleged beatings while in custody. I will therefore place due weight on this in the prisoner's sentence.
    
31. I, however, find the following aggravating factors against the prisoner. The prisoner was in the company of others and they were armed with firearms, actual violence was committed when an accomplice of the prisoner knocked down bank staffer Chris Orake, and that the offence is prevalent even for a small town like Alotau which has had its fair share of robberies. What then should be an appropriate sentence for the prisoner?
    
32. Well to begin with let me consider if these offences should attract the maximum penalties – life imprisonment for robbery and 14 years for attempt. I agree with both counsel that these are not the worst instances of the offences. Be that as it may for the count of robbery I must start with the acknowledged starting point of 9 years. For attempt, I have not been cited any authority nor have I found authority for a starting point for attempted robbery generally or specifically for robbery of a bank. It would suffice to say, however, that an attempt to rob a bank should attract a starting point just below that of an attempt to rob a house for the same reason that bank staff and customers are vulnerable and exposed to great risk.
    
33. Without the benefit of argument from counsel I should like to think that a starting point for attempted robbery of a house should be 6 years and attempted robbery of a bank should attract a starting point of 5 years. These starting points should reflect the need for personal as well as general deterrence for an offence which has continued to rise and with more sophistication and planning despite increasing sentences by this court. I therefore fix the starting point for the charge of robbery at 9 years and for attempted robbery at 5 years. What then should be the actual or head sentences?
    
34. To assist me in arriving at head sentences that fit the circumstances of this particular case I find very helpful considerations postulated in question form by 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?
        
35. 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. I find that the following considerations are present in your case:
    
    1. The prisoner did not plead guilty to the charge
    2. He and his gang threatened the victims with violence and offered violence to a bank staffer Chris Orake
    3. He and his gang exposed innocent bank staff and customers to real danger of being killed or injured
    4. He and his gang managed only to steal a computer monitor worth K426.00 but which has not been recovered.
    5. Contrary to his lawyers submission he played a significant role in that not only was he armed for the job but he went among the customers checking for their phones and it can be reasonably inferred that he had a part in planning the robbery if not he knew what role he were to play in the robbery once they were in the bank.
    6. Yes he co-operated with police
    7. Yes he apologised to the victims but such apology is meaningless as he did not offer it personally to the bank and its staff or customers and for other reasons I alluded to above.
       
36. In addition to the above I do accept that the prisoner was severely beaten up by the members of the public and again by the police who are and were supposed to be upholding the law.
    
37. Hence in applying the considerations in The State –v- Aaron Labu (supra) against the prisoner's personal circumstances, for the offence of robbery I feel that despite the small value of the property that one of the prisoner's accomplices ran away with, any sentence by this Court should nonetheless reflect the seriousness of the offence and the need to punish the prisoner and at the same time deter him personally and others out there who would be similarly inclined. This, however, has to be seen against the prisoner's mitigating factors (which unfortunately I must say are not extraordinary) and of course the fact that he was subjected to extra-judicial punishment by members of the public and the police. Hence appropriate discounts – for both counts – is in order.
    
38. The relevant cases cited above for bank related robberies attracted sentences of 10, 13 and 20 years. In the circumstances of this case I therefore impose the following sentences:
    
    1. For the count of robbery – 10 years
    2. For the count of attempted robbery – 5 years
       
39. Since these offences were part of the same transaction they shall be served concurrently. The prisoner shall therefore serve 10 years imprisonment less 3 years, 5 months and 6 days he was in custody prior to the commencement of his trial.
    

Ordered accordingly.

_________________________________________________________

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