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State v Jaip [2015] PGNC 277; N6188 (14 May 2015)

N6188

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR NO. 42 OF 2013

THE STATE

V.

EMMANUEL PAUL JAIP

Lae : Murray J
2013 : 8 & 14 March
2015 : 14 May

CRIMNALW LAW – sentence – plea of guilty – prisoner convicted of two counts of aggravated armed robbery – motor vehicles stolen on both counts – prisoner used offensive weapons with accomplices – imposition of a deterrent sentence required – aggravating and mitigating factors considered – prisoner sentenced to 11 years & 4 months in hard labour - s 386 (1) & (2)(a)(b) of the Criminal Code Act.

Cases Cited

Tau Jim Anis vs. The State (2000) SC642
State vs. Ago (2004) N2673
State vs. Apei (1999) N1929
State vs. Anse Anskar Pakai (1999) N1883
State vs. Gatana (2001) PGNC 78
State vs. Guba (2000) N2020,
State vs. Pakai (1999) N2174
State vs. Paul Maima Yogol & Anor (2004) N2583
State vs. Sunny Kaupa (2003), CR 480 of 2003
State vs. Vincent Malara (2002) N2188

Counsel

Ms. C. Sopa, for the State
Ms. G. Masalo, for the Prisoner

RULING ON SENTENCE

14th February, 2014

1. MURRAY J: Emmanuel Paul Jaip, this is a Ruling on your Sentence.
   
2. On 8th March 2013, I convicted you on 2 counts of aggravated armed robbery contrary to s 386 (1) & (2)(a)(b) of the Criminal Code Act. The facts which support the charge of which you have been convicted are these: At about 8.00 pm on Friday 1 July 2011, you and two others were in the vicinity of 2nd Street Lae in a blue Land cruiser. You observed Mr. Thomas Iha drive a white Mazda Utility bearing Registration No. LAZ 801 into his residence, and approached him carrying guns and a bush knife. You pointed a gun at

Mr. Iha's head and demanded he hand over his keys. He did so. You entered the vehicle and drove the vehicle away towards the stadium.

3. Then on 1st September 2011 at about 7.00 am at 2 Mile, you again and your accomplices walked out into the middle of the road pointing weapons including bush knives and a home-made pistol at a Toyota Land cruiser bearing Registration No. BCZ 686 driven by Mr Moses Ogensa. You held him up at gunpoint and forced him out of his car. You entered the vehicle and drove off toward 3 Mile.
   
4. Following a media campaign, you surrendered yourself to police and was arrested, interviewed and charged.
   
5. The offence which you have been convicted of is armed robbery and the maximum penalty for this offence is Life Imprisonment. On 14th March 2013 I heard submissions from your lawyer as well as the lawyer from the State as to what sentence I should impose on you taking into account what the maximum sentence prescribed by law is, the peculiar circumstances in your case and the factors for and against you.
   
6. The most recent Supreme Court Judgement on point is that of Tau Jim Anis & Ors v The State (2000) SC564. The Supreme Court per: Sheehan J, Jalina & Kirriwom, JJ, in the guideline it established, held 8 years to be the starting point for robbery of a store, hotel, club, vehicle on the road or the like.
   
7. In your case, you committed robbery of 2 motor vehicles. The starting point in your case therefore is 8 years imprisonment for both counts. The question now is, should I sentence you to 8 years imprisonment for each count or should I impose a sentence above or below the starting point.
   
8. Your lawyer submitted, 6 years be imposed for the first count and a sentence of 8 years be imposed for the second count. That would make a total of 14 years. Then it was further submitted that I use my discretion under s.19 of the Code and suspend part of the total sentence so that the total sentence is not too excessive or crushing on you.
   
9. In mitigation, your lawyer submitted, you freely pleaded guilty and expressed remorse; your expression of remorse is genuine, firstly by your quick action in surrendering to the police and secondly your co-operation with the police further supported by your admissions in your Record of Interview; by pleading guilty you saved Court time and expense in running full trial to find out your guilt; your co-accused are still at large whilst you carry the sole blame for the offence; and you received some form of jungle justice, that upon your interrogation you were beaten up.
   
10. In response, State counsel submitted, a sentence of 8 years or more for each count is appropriate for your case and further submitted the sentences be served cumulatively. In saying that the state lawyer submitted I take into account cases similar to yours dealt with by other Courts, and the aggravating factors in particular your prior conviction and the fact that the robberies you committed were done in a space of 2 months.
    
11. In aggravation, State counsel submitted, this a serious case of armed robbery. They used very dangerous and offensive weapons namely home-made guns and bush knives when they committed both robberies. The Prisoner has a prior criminal record, the different victims were threatened, both vehicles were not recovered, the Mazda BT 50 being sold off and the Toyota Land cruiser being stripped off its parts and sold. The first robbery having been planned and executed. The offence of armed robbery is a very prevalent offence in Lae and PNG.
    

Sentences imposed by other Courts in similar cases to your case

12. I have considered the following cases cited by both your lawyer and the lawyer for the State:
    
    • (i) State vs. Gatana (2001) PGNC 78
      

Four accused were charged with two counts of aggravated armed robbery.

On the first count, they each and severally stole with actual violence a vehicle Nissan Navara No. AGK. 492, 4x4 Double Cabin white in colour with red stripes which vehicle they stole from its owner Norbert Marus. On the second count they used the vehicle stolen on the first count, and severally stole two guns, one being factory made while the other a home-made one and bush knives. For count one: they were sentenced to a term of five and a half (51/2) years in hard labour and four (4) years in hard labour. For count two: sentenced to a further term of five and a half (51/2) years in hard labour cumulatively upon the sentence for count 1 making a total of 11 years. The Court suspends 4 years from the total sentences and you shall serve 7 years in hard labour. Michael Otly, on Count 2 you are sentenced to a term of four (4) years in hard labour to be served cumulatively upon the sentence for the first count, making a total of eight (8) years. The Court suspends three (3) years from the sentence and you shall serve the balance of five (5) years.

(ii) State v Sunny Kaupa (2003), CR 480 of 2003

The Court sentenced a youthful offender to 5 years imprisonment. He was in the company of others when they held the victim who was driving his motor vehicle. The prisoner and his accomplices were armed with home-made guns and a bush knife. They robbed the passengers of K1, 500 cash and other properties worth K240.00. Two years of the term was suspended and the prisoner placed on good behaviour bond.

(iii) State vs. Paul Maima Yogol & Anor (2004) N2583

The prisoners were charged with armed gang robbery of a motor vehicle. They were in the company of 10 men who held and robbed the driver of the motor vehicle. They stole properties worth K1, 300.00 and were armed with 3 shot guns and bush knives. The Court imposed 12 years less time spent in custody.

(iv) State vs. Anse Anskar Pakai (1999) N1883

The accused two and accomplices held up a vehicle on the highway with a pistol threatened and removed the driver and drove off in that vehicle. They later crashed the vehicle and fled. Considering the serious nature of the crime, especially when committed by a group of men acting together using guns and any dangerous weapons with threat to use violence, and the prevalence of this crime being committed by youthful first time offenders, they deserved no leniency or sympathy from the Court, given the consistent warnings by the Courts that the sentence would be increased as a deterrent measure. The accused pleaded guilty, was first time offender and cooperated with the Police; all these were given little weight including his age which was 20 which the Court ruled was not youthful. The Prisoner was sentenced to 9 years Imprisonment.

(v) State vs. Pakai (1999) N2174

This was a armed gang robbery, with the use of offensive weapons being armed with 2 home-made guns, a bush knife and a bolt cutter, part of the property stolen was recovered. The Prisoner pleaded guilty, had one prior conviction and expressed remorse. He was sentenced to 8 years Imprisonment.

(vi) State v Ago (2004) N2673

Accused and 5 others held up 3 victims in motor vehicle. Armed with 2 home-made pistols and a rifle, they stole K9, 400 from the victims. The victims were removed from the vehicle and thrown to the ground. The gang then drove away. This was a armed gang robbery on a street involving the use of firearm and other offensive weapon, threats and actual violence, the amount stolen was never recovered, was a first time offender and readily made admissions to the Police. The prisoner was sentenced to 13 years imprisonment.

(vii) State vs. Apei (1999) N1929

Accused was in a group of 4 men who armed themselves with two home-made guns and two bush knives and held up the staff of a store and stole K4, 099.91 in cash. Actual violence was used causing serious injuries to two people with the use of the gun. All accused were of previous good character with no prior convictions, pleaded guilty, offered remorse, co-operated with the Police, freely admitted the offence to the Police and returned the money stolen. They were also subjected to heavy-handed treatment, assaulted and abused by the Police and other people who had apprehended them. The Court referred to Gimble's case and was of the view that, the mitigating factors do not in any way significantly reduce the seriousness of the offence committed as they are the common once often raised in the Courts. A strong deterrent and punitive sentence was suggested. The Accused was sentenced to 12 years imprisonment.

(viii) State vs. Vincent Malara (2002) N2188

Because of the prevalence of the offence of arm robbery, the Courts have decided to increase the starting points for sentence. The Court was of the view "this is my view, calls for the Courts to be prepared to depart from the traditional methods of sentencing with a view to substantially increasing sentences to send stronger messages from the Courts to offenders that they now stand the risk of much higher or severe sentences." The Prisoner was sentenced to 15 years on a guilty plea.

Present case

13. In your case, you and your accomplices stole two (2) motor vehicles in a space of two (2) months. On both occasions, you used home-made guns and knives which are offensive weapons.
    
14. The motor vehicle you stole on 1st July belonged to the Morobe Provincial Government valued at K75, 000.00. This vehicle was never recovered as it was sold off.
    
15. As for the other motor vehicle, you stole on 1st September, it was a Toyota Land cruiser, valued at a K100 000.00. This vehicle was stripped off its parts and sold. From the sale of the parts, you and your friends received K8, 000.00.
    
16. Comparing your case to the ones I have considered, your case is similar to that of State v Gatana (supra). It involved 2 counts of aggravated armed robbery, as it is in your case.
    
17. The other cases all involved 1 count of aggravated armed robbery.
    
18. In that case, the first count of robbery involved the stealing of a motor vehicle by four (4) men. That motor vehicle was then used to go and carry out the second count of robbery. The second count involved stealing of cash and 2 cheque books, the property of Boroko Motors.
    

Of the four (4) men who committed the offence, two (2) pleaded guilty resulting in their sentence as follows:

(i). Prisoner 1, a sentence of five and half (51/2 ) years for each count, with a total sentence of 11 years but reduced that with a suspended sentence of 4 years.

(ii). Prisoner 2, a sentence of 4 years for each count, making a total of 8 years but reduced by 3 years.

17. In your case, you stole two (2) motor vehicles with substantial value, and none of them recovered. Obviously, the owner of those two (2) vehicles made huge financial loss because of your actions, whilst you benefited from their loss. This is a strong factor against you. Added to that is the fact that you were previously convicted of another offence. This makes you not a first time offender.
    
18. If that is the case, then why should this Court believe that you are sorry for your actions. You offended before and was punished by a court of competent jurisdiction for the offence of being in possession of offensive weapons, but that did not deter you from having in your possession offensive weapons again which were used in the crime you are now before this Court for. By committing this offence only tells me one thing and that is, you have no regard for our laws. That to me aggravates your case more.
    
19. On the other hand, I note the factors in your favour as submitted by your lawyer; which are set out in paragraph 7 above.
    
20. The mitigating factors far outweigh the aggravating factors in terms of numbers. However, I am also mindful of the fact that, this offence is prevalent.

Therefore, to impose a sentence below the starting point would in my opinion not do any justice to the community at large nor yourself. An appropriate sentence would be one that would be sufficient to deter you and the general public. I am therefore of the view that, given the circumstances in your case, 8 years sentence for each count of armed robbery in your case, is appropriate.

21. The next question is, whether the sentences be served cumulatively or concurrently. In State v Guba (2000) N2020, the Court per Kandakasi, J held that where two (2) separate offences are committed at different times against separate victims, a cumulative sentence is appropriate.
    
22. In your case, although the offence is same, in that the offence committed on both occasions is aggravated armed robbery, the offence was committed at two (2) different times and against two (2) separate victims. Accordingly, I find that a cumulative sentence is appropriate in your case. Your sentence of 8 years for each count of aggravated armed robbery will therefore be served cumulatively. This would bring your term of years to a total of 16 years.
    
23. The next question then is, is 16 years too excessive. Taking into account the case I considered similar to yours, the total sentence imposed was 11 years for the first prisoner and 8 years for the second prisoner. Applying the totality principle, the Court considered the total for each prisoner too excessive and so the sentences were reduced by 4 years and 3 years respectively.
    
24. In your case, I am of the opinion that 16 years will be too excessive and a quantum leap without any justification and so in exercising my discretion under s.19 of the Code, I will suspend 2 years. 1 year for each count. This will leave you with 7 years for each count to be served cumulatively. Your total sentence therefore would be 14 years. Of the 14 years, the time you have been in custody prior to today (which is a period of 2 years & 8 months) will be deducted, leaving you with the balance of 11 years & 4 months to be served at Buimo with hard labour.
    
25. A Warrant of Commitment in those terms shall be issued forthwith.
    

Sentence accordingly.
________________________________________________________________
Public Prosecutor : Lawyer for the State
Public Solicitor : Lawyer for the Prisoner