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State v Ibor [2018] PGNC 468; N7584 (20 November 2018)

N7584

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR. N0. 219-220 OF 2016

THE STATE

V

PAUL IBOR

&

YAWING KITUM

Kokopo: Susame, AJ
2018: 26 October 15 & 20 November

CRIMINAL LAW – Sentence - After Trial - Offence – Aggravated Robbery - S386(1) (2) (A) (B) (C) Criminal Code - Sentencing Guidelines- Prevalence of Offence – Sentencing Trend – Use of A Firearm- K12,000.00 Stolen – K3,772 .00 Recovered – 10 Years Imprisonment – No Special or Extenuating Factors to Justify Suspension.

Cited Cases:
Goli Golu v The State [1988-89] PNGLR 653
Philip Kassman v The State (2004) SC759
Public Prosecutor v Don Hale (1998) SC564,
Tau Jim Anis v The State (2000) SC642 and
William Ukukul Gimble v The State [1988-89] PNGLR 271

Counsels:

Miss. Batil, for the State
Ms. Ainui, for the Prisoner

DECISION ON SENTENCE

20^th November, 2018

1. SUSAME, AJ: Prisoner Paul Ibor had been convicted after trial and is in court to receive his sentence. His co-prisoner had absconded bail while waiting decision on verdict and a bench warrant has been issued for his immediate arrest.

FACTS

2. The basic facts are as follows. Paul Ibor, Yawing Kitum and two other unidentified persons entered Kada Lama Copra Trading Depot in Rabaul, ENBP between 9 am and 10am on 7 September 2015. Therein Paul Ibor and Yawing Kitum rushed over to the company truck which had just driven and stopped with some company workers on board. Yawing Kitum was armed with a pistol. He went straight to Nick John, threatened him with the pistol and removed the money bag from him while Paul Ibor forced the driver out of the vehicle and made him lie face down on the ground. After the robbery they got in another vehicle and drove away. They were apprehended by the security guards working for NKCL Security Company and taken to Rabaul Police Station later in the afternoon of the same day. Amount of K12 000.00 in cash was stolen. Only K3772. 00 was recovered from the prisoners’ possession.

THE OFFENCE OF ROBBERY.

386. [123](1) A person who commits robbery is guilty of a crime.

Penalty: [124] Subject to Subsection (2), imprisonment for a term not exceeding 14 years.

(2)[125] [126]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.

3. Prisoner was convicted for aggravated robbery which attracts the maximum life year sentence. That is again subject to court exercising its extra powers vested under s19 for a lesser penalty to be considered.
   
4. The law on maximum penalty is settle by case authority. It should not be readily given unless case is assessed to be the worst type. (Goli Golu v The State [1988-89] PNGLR 653). I do not consider the circumstances of the present case and prisoner’s characteristics places the case in the worst type to attract the maximum.
   

SENTENCING CONSIDERATIONS

Allocutus

5. Prisoner made a brief statement stating he respected the decision of the court. He pleaded for the court to be merciful on him.

Pre-Sentence & Means Assessment Reports

6. The reports provide prisoner’s personal information, his financial status, and views expressed by the prisoner, two members of his family and General Manager of East New Britain Development Corporation (ENBDC) who owns the Kada Lama Copra Depot. The Manager expressed robbery at Kada Lama Depot was the first one. The company had experience similar incidents four times at their other Depots in which the company lost substantial amount of money. He asked for some form of punishment to be considered.
   
7. Prisoner is 58 years old. He is from Kairuru East Sepik Province. He is married to a woman from Vunamurmur village, ENBP and is expecting his first child from her. He stated he was assaulted by police and received injuries to his 3 upper teeth.
   
8. The prisoner is without paid employment. He relies on meagre income he receives from the sale of garden produce. He does not have personal savings or own any assets. He admitted he is unable to afford payment of a fine if ordered or if a restitution order is made. He might be able to if given a specific period for compliance. The two family members of the prisoner indicated their willingness to assist financially if fine is ordered.
   
9. From the above information I consider the prisoner’s personal financial status is almost zero level. If any order for restitution is made or fine is ordered in the vicinity of K2 000.00 I doubt he will be able to afford to pay. There is therefore no point making such orders.
   
10. There were request from the family members for a repatriation order as condition of probation sentence. The wife’s views have not been obtained on repatriation of her husband. What about his wife and child? Are they going to be left behind? If the wife is willing to accompany her husband who is going to meet the cost of her travel with the child?
    

Aggravating Factors

11. Factors that weigh against the prisoner are that the offence committed consists of threats of violence causing fear and anxiety to company employees. Their lives were put at great risk. A firearm was used which makes it more frightening. Prisoner was in the company of 3 other persons. Offence was committed inside a company premises. Sum of K12, 000.00 has not been fully recovered which is a loss to the company. The prisoner forced the case to go through a lengthy trial at great expense.
    

Mitigating Factors

12. The following are the mitigating factors. Firstly, no one was injured during the robbery. Prisoner has no previous convictions. He is considered a first time offender. Part of the stolen money (K3,772.00) has been recovered.

Sentencing guidelines

13. Court has been referred to the authorities of William Ukukul Gimble v The State [1988-89] PNGLR 271, Public Prosecutor v Don Hale (1998) SC564, Tau Jim Anis v The State (2000) SC642 and Philip Kassman v The State (2004) SC759 on sentencing guidelines in robbery cases. The guidelines were first set down by the Supreme Court in William Ukukul Gimble v The State (supra) and they are:

14. In their respective submissions counsels stated tariffs have been increased by the Supreme Court in Public Prosecutor v Don Hale. Which means that by applying the same 3 denominators right across; robbery of a home – 10 years, robbery of a bank - 9 years, robbery of a store, a vehicle etc. - 8 years and robbery of a person on a street - 6 years.
    
15. Apparently, the judgment in Public Prosecutor v Don Hale has been misconstrued. The Public Prosecutor lodged an appeal against a 5 years suspended sentence upon payment of K1000.00 fine imposed by the trial court on aggravated robbery charge in which armed men robbed a family in their home at night. The Supreme Court bench comprising of Amet CJ, Woods, and Kirriwom, JJ expressed inter alia that, “Gimble’s case was decided in 1989 and crimes of violence have definitely increased with the use of guns being more prevalent and the community is calling for heavier punishments as a deterrence. We feel that the starting point to an appropriate sentence involving the robbery of home owners at night with the use of firearms to threaten victims should be 10 years.” The appellate court considered the 5 year suspended sentence was too lenient and went on to quash the sentence.
    
16. Two years later in 2000 Supreme Court comprising of Sheehan, Jalina and Kirriwom JJ in Anis v The State (supra) in their deliberation on an appeal against sentence of 10 years of a robbery at a Coffee Mill observed that:
    

“ Robbery of a factory, like a club or a store, according to Gimble guidelines attracted 5 years sentences and if 10 years for robbery of a dwelling house in Don Hale was intended to raise the tariff set in Gimble, then applying the same denominator of 3 years, the appropriate tariff for robbery of a factory ought to be 8 years. In this respect, inter alia, we are of the view that the trial judge had erred. We find nothing in the case of Public Prosecutor v Don Hale (supra) to be laying down a blanket authority superseding the more detailed and categorically evolved principles in Gimble v The State. The excerpt we quoted from Don Hale above clearly indicates that the Supreme Court therein was referring to the robbery of a dwelling house in the context of Gimble guidelines. It seems that that discussion had been read and construed out of that context and in so doing already offends against the principles established in Gimble v The State which in our view is still good law. What the Supreme Court needs to do now is to prescribe new guidelines to supersede those in Gimble.”

17. The court went on to quash the 10 years sentence by the primary court and considered sentence of 8 years to be more appropriate.
    
18. It can be seen clearly from the judgment the court never set down new tariffs superseding those set in Gimble v The State. They still stand and continue to serve as guide until the Supreme Court prescribes new guidelines. The judgment in Public Prosecutor v Don Hale has certainly been misconstrued. It would therefore, be erroneous to argue as it has been, that the tariffs have been increased by the Supreme Court in that case.
    

Comparable decisions

19. Court has been referred to six of the many decided cases. All of them are decisions of robbery cases falling under category 3. It is not necessary to list them but I have taken note of the types of sentences imposed. Sentences range from 9 years to 17 years. Indications are that sentences are way above the baseline sentence of 5 years for category 3 aggravated robbery cases set down in Gimble v The State. The current sentencing trend is that courts have been imposing much heavier penalties on aggravated robbery cases particularly with the use of offensive or dangerous weapons in recent times.
20. Robbery by its nature is a violent and life threatening offence. It causes great anxiety, fear, physical injuries even deaths, property’s a damaged and lost. These are a types of offences that contribute to the bad publicity of our beautiful country.
    
21. Sentencing is an important task of the court. It must be approached with care taking into account factual circumstances of the case. It requires proper exercise of judicial discretion guided by proper principles in accordance with law and not “arbitrarily, vaguely, fancifully,” or capriciously.
    
22. The judicial power of the people is vested in the courts by s. 158 (1) of the Constitution. If the society is calling for tougher penalties due to prevalence of such violent crimes then it is imperative courts have a duty to respond to the concerns of the greater community in our ongoing efforts to create a just, safe and secure PNG. If the leadership and the general populace are thinking along that path then the prisoner or any likeminded persons must re-align their thinking and join our efforts to create a safe and secure PNG for now and beyond.
    
23. With those concerns expressed the prisoner’s sentence should fall between 5 years and 13 years. Concession would have been made if the prisoner had cooperated and pleaded guilty to the charge. Sentence would have fell mid-point between 5 years and 13 years. However, prisoner had forced the case to go into a lengthy trial. Money stolen has not been fully recovered. The prevalence of the robbery incidence calls for nothing than a deterrent sentence.
    
24. The end result of all the discussions is that the prisoner is sentenced to 10 years jail term to be served at Kerevat Goal with light labour less period in custody.
    
25. I consider there are no special or extenuating circumstances to justify for suspension of sentence partially or wholly. Prisoner’s financial status is next to zero level. There is no real likelihood of him repaying the balance of the money stolen if a condition of restitution was made as condition of the suspended sentence.
    

SUMMARY.

26. The prisoner is therefore sentenced as follows:
    
    1. 10 years imprisonment less pre-sentence custody period.
    2. Balance of the sentenced to be served at Kerevat Goal with light labour subject to further remission by the Jail Commander.
    3. Prisoner’s cash bail and any bail security paid by his guarantors to be refunded forthwith.

__________________________________________________________________
Public Prosecutor: Lawyer for the State
Public Solicitor: Lawyer for the Prisoner