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State v Norai [2018] PGNC 178; N7260 (30 March 2018)

N7260

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR 333-334 of 2017

THE STATE

V

JUNIOR ROBIN NORAI

Lae: Kaumi AJ
2018: 26 February & 14, 16, 30 March

CRIMINAL LAW – Criminal Code Act 1974, Part VI-Offences Relating to Property and Contracts-Subdivision D-Stealing With Violence: Extortion by Threats-Section 386 (1) (2) (a) (b) (Offence of Robbery) and Section 7-Sentence-Sentencing Guidelines-Plea of Guilt-Robbery of a home at night-Gang of robbers-Use of Firearms-Proper Starting Point–Sentences Imposed for Equivalent Offences-Head Sentence-Identification of Relevant Considerations-Mitigating and Aggravating Factors-Pre-Trial in Custody-Should All or Part of the Sentence be Suspended –Imperative thatthere must be a basis substantiated by evidence for any recommendation of suspension of a custodial term in aPre-Sentence Report

CRIMINAL LAW- Sentence-Guilty Plea-Expression of Remorse–Prevalent Offence.

CRIMINAL LAW- Usual purposes of criminal sentencing such as Deterrence, Restitution or Rehabilitation are also relevant factors for consideration-Not worst type of offence-Aggravating factors and Mitigating factors balance out- Plea considered-Portion of sentence suspended-Criminal Code Ch.262, section 19 (1) (d) (6).

CRIMINAL LAW- It is incumbent on criminal sentencing courts to exercise the people's power vested in them by the Constitution to impose sentences that are in touch with the aspirations and attitudes of the people of PNG.

Facts

The offender pleaded guilty of one count of armed and aggravated robbery. He was at large for a period of time before being recaptured.

Held:

[1] The discretion to suspend a part or whole of the starting sentence is a discretionary matter which must be exercised on terms and it must be supported by pre-sentence report either from the community or where that is difficult to obtain, it must come from prison or the institution from where the escape took place and the arresting officer. Unless there is such material supporting a suspension of the starting minimum sentence, it cannot be reduced. Affirmed and followed The State v. Irox Winston (supra) and The Acting Public Prosecutor v. Don Hale (SC564). This principle was prescribed by the Courts with respect to the offence of escape but is equally applicable to other offences and armed robbery is no exception.

[2] I find that in this case that the recommendation for suspension of the sentence by the CBC office here in Lae is substantiated by evidence as per the PSR. The State v Benson [2006] PGNC 68 CR 447, 445 Cannings. J

Cases Cited:
Avia Aihi v The State (No.3) [1982] PNGLR 92
Don Hale v The State [1998] SC 564
Edmund Gima v The State and Siune Arnold v The State (2003) SC730
Gimble v The State [1988-1989] PNGLR 271
Goli Golu v The State [1979] PNGLR 653
Lawrence Simbe v The State [1994] PNGLR 38
Philip Kassman v The State [2004] SC 759
Public Prosecutor v William Bruce Tardrew [1986] PNGLR 91
Saperus Yalibakut v The State [2008] SC 890
The Acting Public Prosecutor v Aumane & Others [1980] PNGLR 501
The Acting Public Prosecutor v Don Hale (1998) SC564
The State v Allan Esi Waluta [2005] N2911
The State v Benjamin Nabata and Jeffery Jajata [2002] N2216
The State v Benson [2006] PGNC 68 CR 447, 445
The State v Billy Bimaru [2000] N2025 CR 1104
The State v Francis Wangi [2007] N5057
The State v Irox Winston [2003] N2304 (N2307)
The State v Jason Dungioa (13/12/00) N2038
The State v James Negol CR No. 871/2005
The State v John Carl Endekra and Others [2007] N3185 PGNC 82
The State v John Manis & John Kitoia, CR No. 35 and 36 of 2013
The State v Michael Kamban Mani (2002) N2246
The State v Moi [2006] PGNC 12; CR No. 546 of 2005
The State v Pakali [2014] PGNC 5252; N5695
The State v Sembengo [2006] N3020
Tau Jim Anis and Others v The State [2000] SC564
Tom Longman Yaul v The State [2005] SC 803
Ume v The State [2006] SC 836
Uve Hane v The State [1984] PNGLR 105

Legislations Cited:

Constitutionof Papua New Guinea
Criminal Code 1974
Criminal Justice (Sentencing) Act 1986

Counsel:

Ms. Mercy Tamate and Ms. Matana, for the State
Ms. Katurowe, for the offender

SENTENCE

30^th March, 2018

1. KAUMI AJ: INTRODUCTION: This is a decision on sentence for a man who on the 13^th February, 2018 pleaded guilty of one count of armed and aggravated robbery contrary to Section 386 (1) (2) (a) (b) and section 7 of the Criminal Code Act Chapter 262.

ISSUE

2. The relevant issue is what the appropriate sentence in this case.

AGREED BRIEF FACTS

3. The brief facts giving rise to the charge are as indicated below.

4. On the 04^th of June, 2014, at about 8:00pm the accused Junior Robin Norai whilst in the company of others was at Milfordhaven Road, Lae. They were armed with 2 home made guns and two knives. The accused and his accomplices issuing threats of violence disarmed the security guard, tied him up and stole from Julie Fan 7 laptops and other properties including K4, 500.00 in cash, all totalling to K15, 000.00. All the stolen properties belong to China Railway International

5. The matter was reported to police who investigated and charged the accused. He is indicted pursuant to Section 386 (1) (2) (a) (b) and further invoke section 7 of the Criminal Code.

ANTECEDENT

6. The Antecedent Report provided to the Court by the State on paragraph 9 states that he has no prior convictions.

ALLOCATUS

7. When I administered allocatus to the offender i.e. allowing him the opportunity to say what matters he would like the court to take into account when contemplating what kind of punishment to give him, the following is a paraphrased summary of his response:

“Your Honour I’ve been in custody for a long time. I’ve suffered and have now realized my mistakes. I’m sorry to the court and the company’s owner and its employees and to the country’s citizens in country today. I swear to this court that I will not do it again. I ask for your good wisdom and for the court’s leniency and I ask for a second chance”.

OTHER MATTERS OF FACT

8. The prisoner pleaded guilty and so I will give him the benefit of the doubt on mitigating matters raised in the committal depositions, the allocatus in submission that are not contested by the prosecution (Saperus Yalibakut v. The State (2008) SC890. In his allocatus the prisoner stated that he escaped from the hospital where he was receiving medical treatment after a cholera outbreak at Buimo Correctional Institution and I accept this reason.

SUBMISSION BY DEFENCE COUNSEL

9. The Counsel for the Offender, Ms. Katurowe highlighted matters that went to his mitigation; his lack of prior convictions, his co-operation with police by making early admissions in the ROI, his plea of guilt and his expression of remorse.

10. She has referred to the aggravating and extenuating factors as well in the case.

11. She made reference to sentences imposed in similar cases; CR No 35 and 36 of 2013, The State v John Morris & John Kitoria, The State v Sembengo [2006] N3030, The State v Moi [2006] PGNC 12; Cr No. 546 of 2005, The State v Negol N2801" title="View LawCiteRecord" class="autolink_findcases">[2005] PNGLR N2801.

12. She submitted firstly in consideration of all the factors for and against the offender for an imprisonment term of 7 years.

13. She referred to cases that reflect the Supreme Court approach to the proper starting points; Gimble v The State [1988-1989] PNGLR 271, Don Hale v The State [1998] SC 564 and Tau Jim Anis and others v The State [2000] SC 564.

14. She also referred the Court to what the Supreme Court has stated in respect to other areas of sentencing such as Goli Golu v The State [1979] PNGLR 653, Ume v The State [2006] SC 836 and Public Prosecutor v William Bruce Tardrew [1986] PNGLR 91.

SUBMISSION BY THE STATE

15. Ms. Matana for the State highlighted that the circumstances of the offence called or an immediate custodial sentence especially for the fact that:

1. The Offence involved robbery of a house at night time;
   
2. The Offender had been armed with a home-made gun;
   
3. The Offender was in company of others.
   
4. Offender and others used force and threats to obtain the goods they had stolen.
   
5. Even though most of the stolen goods were recovered, the cash money stolen of K5,000.00 was divided and used. Offence committed on an unarmed and unsuspecting victim.
   
6. Prevalence of Offence and deterrent sentence called for and for punitive effect on the prisoner.
   

16. Ms. Matana submitted for a sentence of 8-10 years.

RELEVANT LAW

17. I will now refer to the pertinent law and Supreme and National authorities which will assist me in arriving at a penalty that befits the crime.

18. The prisoner pleaded guilty to one count of armed and aggravated robbery contrary to section 386 (1) (2) (a) (b) of the Criminal Code Act.

19. The Supreme Court in The Acting Public Prosecutor –v- Aumane & Others [1980] PNGLR 501 (Kidu, CJ, Kearney DCJ, Greville Smith, Andrew, Kapi JJ (as he then was), presiding) stated that sentencing is the ultimate phase of criminal justice and it serves four purposes namely, deterrence, separation, rehabilitation and retribution-. Further that the sentence imposed by the Court should reflect the purposes of sentencing.

20. Both the Supreme and National Courts have stated that not only is sentencing a community responsibility but that it is incumbent upon the sentencing Courts in the discharge of this duty when exercising this people’s power to reflect their attitude towards a particular offence and impose a sentence that is correspondent to it. See Acting Public Prosecutor v Don Hale (supra), The State v Irox Winston (21/09/00) N2304, State v Jason Dungoia (13/12/00) N2038, Edmund Gima v The State & Siune Arnold v The State (03/10/03) SC730

21. Kandakasi. J in St v Jason Dungoia (supra) stated that “The usual purpose of criminal sentencing such as deterrence, restitution or rehabilitation are also relevant factors for consideration and so are requirements to carefully consider and take into account the factors for and against a prisoner before sentencing him or her.”

22. His Honor Kandakasi. J stated some of the principles on sentencing in St v Michael Kamban Mani (21/05/02) N2246 which were enunciated by the Supreme Court in Goli Golu v The State, Avia Aihi v The State (No.3), Ure Hane v The State, Lawrence Simbe v The State and Acting Public Prosecutor v Don Hale. I respectfully adopt them and are as follows:-

1. The maximum prescribed penalty should not be imposed but should be reserved for the worst type of the offence under consideration.
   
2. Guilty pleas and the offender being a first time offender and the existence of “such good “factors operate in the offender’s mitigation and sentence lower than the prescribed maximum may be imposed.
   

100. The prevalence or otherwise of the offence which could be reflective of the ability of the previous sentence to either deter or not to deter would be offenders.
     

4. The kind of sentences that one being imposed in similar but less serious offences should be considered to ensure that sentences in a higher or serious offense is not lower than these imposed for the less serious offences.
   

DECISION MAKING PROCESS

23. In arriving at a penalty that befits the offence for which the prisoner has pleaded guilty to I adopt and apply parts of the process His Honour Cannings. J adopted in State v Francis Wangi (2007) N5057 in determining the appropriate penalty at paragraph 8:

“To determine the appropriate penalty I will adopt the following decision making process:

Step 1: what is the maximum penalty?

Step 2: what is a proper starting point?

Step 3: what sentence have been imposed for equivalent offences?

Step 4: what is the head sentence?

Step 5: should the pre-sentence period in custody be deducted?

Step 6: should all or part of the sentence be suspended?”

STEP 1: WHAT IS THE MAXIMUM PENALTY?

24. In this jurisdiction it is clear from the cases of Goli Golu v The State [1979] PNGLR 653, Avia Aihi v The State (No.3) [1982] 92 and Ure Hane v The State [1984] PNGLR 105 that the maximum penalty prescribed for an offence is reserved for the worst form or a category or offending for that particular offence.

25. Section 386 (1) (2) (a) (b) of the Criminal Code states:

“(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 of one or more other persons; or

(c) at, immediately before 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 death.”

STEP 2: WHAT IS THE STARTING POINT?

26. In the seminal case of Gimble v The State [1988-89] PNGLR 271 the Supreme Court set tariffs for sentencing in Armed Robbery cases on a plea of guilty by young first offenders carrying weapons and threatening violence in the following manner:

(a) Robbery of a house- a starting point of 7 years.

(b) Robbery of a bank- a starting point of 6 years.

(c) Robbery of a store, hotel, club, vehicle on the road or the like- a starting point of 5 years

(d) Robbery of a person on the street- a starting point of 3 years.

27. Features of aggravating such as actual violence, a large amount of stolen or where the robber is in position of trust towards the victim may justify a higher sentence.

28. Ten years later in the case of Public Prosecutor v Don Hale (1998) SC 564 the Supreme Court considered that the sentencing guidelines set by Gimble (supra) were outdated as there had been and continued to be an increase in the instances of armed robbery in the country and increased the starting point of robbery of a house up to ten (10) years, an increase of three (3) years.

29. The Supreme Court in Tau Jim Anis and Others – v- The State (2000) SC 564 (Sheehan, Jalina and Kirriwom, JJ, presiding) noted the increase made by Hale (supra) when it heard an appeal against a sentence of 10 years imposed for robbery of a factory. The Supreme Court noted that the Gimble (supra) guidelines was still good law but the set tariffs in that case were not proportionate to the increased prevalence of the offence in the community nowadays and that all terms to increase with 3 years used as a common denominator.

30. The Supreme Court in Philip Kassman v The State (2004) SC 759 considered the cases of Acting Public Prosecutor v Don Hale (supra) and Tau Jim Anis and Others – v- The State (supra) and agreed that a 3 year increase denominator should be applied.

31. In The State v John Carl Endekra and others (2007) N3185 PGNC 82 (21 March 2007) Cannings. J after considering what the Supreme Court in the cases of Gimble (supra), Hale (supra) and Anis (supra) had said with respect to sentencing tariffs applicable in Armed Robbery cases, stated that the appropriate starting points in like cases nowadays should be:

(a) Robbery of a house- ten years
(b) Robbery of a bank- nine years
(c) Robbery of a store, hotel, club, vehicle on the road etc- eight years
(d) Robbery of a person on the street- six years

32. The Courts have stated that the sentencing principles of Gimble were good for the type of robberies but starting points are out of date given prevalence of robberies.

33. The proper starting point in this case is ten years.

STEP 3: WHAT SENTENCE HAD BEEN IMPOSED FOR EQUIVALENT OFFENCES?

34. I will now consider the sentencing trends in recent history.

NATIONAL COURT SENTENCES FOR ARMED AND AGGRAVATED ROBBERY OF HOMES

35. I note from the cases above that the starting point is 10 years and generally the head sentence is 8 years on a plea of guilty and suspension of these periods have depended on the peculiar circumstances of the matter. I note where the circumstances dictated and also upon conviction after trial the head sentence increased over the starting point.

STEP 4: WHAT IS THE HEAD SENTENCE?

36. In order to arrive at a head sentence I have to consider the particular circumstances in which the prisoner has committed the offence and the result of which will come the factors in his aggravation as well as those in his mitigation.

37. The Supreme Court in Lawrence Simbe v The State [1984] PNGLR 38 stated that each case is determined by its own peculiar facts and circumstances.

It also stated in the case of Ume v The State (2006) SC 836 (Kapi CJ, Injia DCJ, Los, Hinchcliffe & Davani JJ, presiding) that the head sentence depends on the factual circumstances of the case which are in fact, the aggravating circumstances, the extenuating circumstances and the mitigating circumstances.

38. DCJ Salika in State v Pukali [2014] PGNC 252; N5695 (22 July 2014) and Cannings. J in State v Benson [2006] PGNC 68. CR 447, 445 have used a method of determining the aggravating and mitigating factors in cases for different offences. I have found their approach encapsulating and of great assistance to me and am indebted to them for their ingenuity. Their methods vary according to the type of offence but generally speaking is a method that involves the use of considerations in the form of questions which have been designed in such a way so that an affirmative (yes) answer to any question can be regarded as a mitigating factor, a negative (no) answer will be an aggravating factor and a neutral answer will be neutral factor. Cannings. J in The State v James Negol (2005) N280 stated that the more mitigating factors present means the more likely it is that the head sentence will be reduced. The more aggravating factors present, the more likely it is that the head sentence will be lifted above the starting point. Some mitigating factors may be strongly mitigating or mildly mitigating and the same applies to aggravating factors. In The State v James Negol (supra) where the offender pleaded guilty to robbery and at page 6 Cannings. J employed this method by setting out a number of considerations in a series of questions which I respectfully adopt and use with adjustments to suit the circumstances of this case:

[1] Did the offender and other members of his gang not commit actual violence during the course of the robbery? Yes.

[2] Did the offender and other members of his gang not threaten the victims of the robbery with violence? No, there were threats of violence against the security guard and the victims were ordered not to move.

[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? No the offender and his gang had firearms and knives so the victims were in real danger of being killed or injured.

[4] Did the offender and other members of his gang ensure that especially vulnerable victims such as children, women or older people were not threatened or treated badly? No the female victim Julie Fan was subject to the same threats as the other occupants of the house.

[5] Did the offender and other members of his gang steal money or property of a relatively small value? No 7 x laptops, 11x assorted mobile phones, 4 x flash drives, 3 x external drives and K4500.00, a total value of K15, 000.00 were stolen in the robbery.

[6] Did the offender play a relatively minor role in the robbery? Yes, he was the watchman.

[7] Did the offender give himself up after the robbery? No he did not give himself up to police.

[8] Did the offender cooperate with the police in their investigations? Yes he made admissions in the Record of Interview.

[9] Has the offender done anything tangible towards repairing his wrong, e.g., offering compensation to the victims, repaying what he has stolen, personally or publically apologising for what he did? No.

[10] Has the offender pleaded guilty? Yes, the prisoner pleaded guilty saving the State resources in conducting a trial and relieving the victims the inconvenience and trauma of coming to court to give evidence and the Court the time in running a trial.

[11] Has the offender genuinely expressed remorse? Yes.

[12] Is this his first offence? Yes.

[13] Can the offender be regarded as a youthful offender or are his personal circumstances such that they should mitigate the sentence? Yes he was a youthful offender when the robbery took place 4 and half years ago. He escaped from lawful custody on 5^th June, 2015 as per the Notice of Escape and I do not see a Notice of Recapture on file that would inform when he was recaptured. But I have noted notations on the court file (of which I take Judicial Notice) which indicate that he appeared from remand again on 3^rd June 2017. However his escape has contributed to the delay in bringing his matter to finality. I do not take that into account when considering sentence. According to the PSR he is 22 years old so that would make him 18 years of age when he took part in the robbery.

[14] Are there any other circumstances of the robbery or the offender that warrant mitigation of the head sentence? No, I do not consider that there are other circumstances of the robbery or the offender that mitigation of the head sentence.

39. Both mitigation and aggravating factors may be mild or strong and weighed accordingly. The State v Raka Benson (2006) CR 447 and 445.

40. There are eight aggravating factors and seven mitigating factors.

41. Considering the circumstances of this matter and the sentencing trend in the cases of Hale, Anis and Kassman the head sentence should not be above the starting point of ten years therefore the head sentence will therefore be eight years imprisonment.

STEP 5: SHOULD THE PRE-SENTENCE PERIOD IN CUSTODY BE DEDUCTED?

42. Section 3 (2) of the Criminal Justice (Sentences) Act 1986 provides that:

There may be deducted from the length or any term of imprisonment imposed of any court any period before the sentence was imposed during which the offender was in custody in connection with the offence for which the sentence was imposed.

43. This provision allows the court discretion to decide whether or not to deduct the period an offender has spent in custody in remand awaiting trial. It is not an automatic right of the offender to have this period deducted.

44. The offender was in pre-trial period for 1 year 9 months and it is proper that this period be deducted.

STEP 6: SHOULD ALL OR PART OF THE SENTENCE BE SUSPENDED?

45. Suspension of sentence is primarily the discretion of the Court and is stipulated under Section 19(6) of the Criminal Code that after a court has sentenced an offender to a term of years, it may order a portion of the sentence to be served and the remaining sentence to be suspended. The Supreme Court in the case of Public Prosecutor –v- William Bruce Tardrew [1986] PNGLR 91 when considering suspension of sentence held that suspension was appropriate in three categories:

1. Where suspension will promote the personal deterrence, reformation or rehabilitation of the offender.
2. Where suspension will promote the restitution of stolen money or goods.
3. Where imprisonment would cause an excessive degree of suffering to the particular offender, for example because of his bad physical and mental health.
   

46. The discretion to suspend a part or whole of the starting sentence is a discretionary matter which must be exercised on terms and it must be supported by pre-sentence report either from the community or where that is difficult to obtain, it must come from prison or the institution from where the escape took place and the arresting officer. Unless there is such material supporting a suspension of the starting minimum sentence, it cannot be reduced. Affirmed and followed The State v. Irox Winston (supra) and The Acting Public Prosecutor v. Don Hale (SC564). This principle was prescribed by the Courts with respect to the offence of escape but is equally applicable to other offences and armed robbery is no exception.

47. Kandakasi. J in St v Jason Dungoia (13/12/00) N2038 stated that “The usual purpose of criminal sentencing such as deterrence, restitution or rehabilitation are also relevant factors for consideration and so are requirements to carefully consider and take into account the factors for and against a prisoner before sentencing him or her.”

48. There are four factors which persuade me to consider this case as an appropriate one for the consideration of suspending part of the sentence, firstly is the age of the offender, secondly, the fact that there was no actual serious violence committed during the robbery, thirdly, his genuine expression of remorse and lastly, the offender’s plea in his allocatus to be given a second chance.

49. Everyone makes mistakes in life given the circumstances one finds himself or herself in at that time. That is human nature. The offender has admitted the mistake he committed when he was a youth and it is something he cannot take back. He has informed the court that he has now realized his mistake and promised not to do it again. He has expressed genuine remorse and asked for the Court’s leniency and to be given a second chance. I strongly feel for these reasons that the offender should be allowed another opportunity in life to prove to himself, his family, his community and to his country that he is a better person.

50. The PSR is favourable to the offender because I find that the aggregate results of the inputs are for a suspension of sentence.

51. Going by Cannings, J’s dictum in St v Raka Benson there must be a basis substantiated by evidence for any recommendation of suspension of a custodial term. I find that in this case that recommendation for suspension of the sentence by the CBC office here in Lae is substantiated by evidence as per the PSR.

52. I have considered the aforementioned factors and decided in the present case to suspend only a part of the sentence as if I was to suspend the entire sentence that would not in my view serve the purposes of personal and general deterrence and would be a disservice to society.

53. I suspend two (2) years three (3) months of the sentence subject to the following conditions:

[i] Upon release the offender will keep the peace and be of good behaviour for the period of the suspended portion of his sentence (2 years 3 months);

[ii] The offender shall reside at his residence at Scout Camp (Barracks), West Taraka, Lae, Morobe Province;

[iii] The offender shall not leave Morobe Province without the written approval of the National Court;

[iv] The offender shall not associate himself with criminals;

[v] The offender shall attend his local church for service on every day of worship;

[vi] The offender shall perform 500 hours of unpaid community work in his community, under the supervision of Mr. Chris Smacker (Ward 6 Community Leader)

[vii] If the offender breaches any one or more of the above conditions, he shall be brought before the National Court to show cause why he should not be detained in custody to serve the rest of the sentence. (see Tom Longman Yaul v The State (2005) SC 803)

SENTENCE

54. The orders of the Court are as follows:

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