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State v Hosea [2018] PGNC 493; N7604 (6 December 2018)

N7604

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR. N0. 761& 762 of 2018

THE STATE

V

RETA SOLOMON HOSEA
&
JUNIOR THOMAS BEKET

Kokopo: Susame, AJ
2018: 8^th November & 6^th December

CRIMINAL LAW – Sentence on Plea- Offence – Robbery - S 386(1)(2)(A)(B)(C) Criminal Code- Sentencing Considerations & Guidelines – Robbery of a PMV & Persons in the PMV on a Public Road - Prevalence of Offence – Aggravating Factors Slightly Outweighed Mitigating Factors – Prisoners in Company of 4 Others – Use of Dangerous Weapons - Prisoners Active Participants – No Special or Extenuating Circumstances a Suspended Sentence - Seven (7) Years Imprisonment Less Time Spent in Custody

Cases cited
Public Prosecutor v Don Hale (1998) SC564,
Phillip Kassman v The State (2004) SC759
The State v Endekra & 2 ors [2007] N3185.
The State v Endekra & 2 ors [2007] N3185.
Tau Jim Anis & Ors v The State (2000) SC642
The State v Henry Wartia (2018) N7293 (13 June 2018)
William Ukukul Gimble v The State [1988-89] PNGLR 271

Counsel:

Miss. Batil, for the State

Ms. Jean Marie Ainui, for the prisoners

DECISION ON SENTENCE

6^th December, 2018

1. SUSAME, AJ: Prisoners are in court to receive their sentence. On arraignment they both pleaded guilty to the charge and were convicted accordingly on 8^th November 2018.
2. Facts

Both prisoners were convicted on the following set of facts. Between 6pm and 6.30pm on 1 February 2018 Junior Thomas Beket got on a blue 15 seater PMV bearing the registration number P.7178 at a bus stop in Rabaul and travelled on the bus with other passengers to North Coast. As the bus was approaching Raval Vocational Centre at Putanagororoi village he told the driver to stop. When the bus pulled over and stopped Reta Solomon Peter and others who were there waiting rushed out armed with home-made guns and bush knives. They pointed at the driver and everyone and commanded them not to move. Reta Solomon removed the key and told the driver to move aside. He got in with the other accomplices and with all the passengers still inside the bus, he drove into the bushes along a bush track. In the bush the prisoners and their other accomplices began assaulting the driver and the crew and robbed them of the bus takings. They also ordered all the passengers to lie down on the ground and robbed them of cash, groceries and other items.

3. The offence of robbery is provided in section 386 which is set out in full below.

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, to be sentenced to death.”

(Note: penalty in sub sect (2) has been changed from life imprisonment to death by amendment No.6 of 2013)

ALLOCUTUS

4. Reta Solomon Hosea expressed his apology to the court, the constitution and the victim. He promised this court this was his first and the last time for him to commit such an offence. He asked for the mercy of the court.

4. Junior Thomas Beket also expressed his apology to God, the court and the victim. He asked for court’s mercy and court to place him on probation. That was all he said.
   

PRE SENTENCE & MEANS ASSESSMENT REPORTS

5. Probation Officer manage to complete the reports for prisoner Junior Thomas Beket. No reports were done for prisoner Reta Solomon Hosea. The report provided additional information about the prisoner’s back ground, his family. It captured views from his parents, ward member and the owner of the bus. The highest grade prisoner completed is grade 8. He comes from a poor family who really heavily on subsistence farming and fishing which is their main source of income. He is the only son from his father’s second marriage after his first wife died. He has six sisters from his father’s first marriage. None of the children have secure formal employment. The parents and the ward member spoke well of the prisoner. Prisoner was a well behaved son and were surprised for him to be arrested and charged for the robbery that occurred.
6. The owner of the bus expressed the bus was substantially damaged with an estimated cost of K30 000.00. She expressed the prisoners cannot afford to pay the cost of damage so they have to go to jail. The author of the report recommended prisoners are released on probation with strict conditions.
7. Ms. Ainui representing the prisoners recommended a 5 year sentence following the guidelines in William Ukukul Gimble v The State [1988-89] PNGLR 271 as it was a case of robbery of a vehicle on the road. She also referred the court to the case of The State v Endekra & 2 ors [2007] N3185. It was a case of robbery of a truck on the road. Prisoners pleaded guilty to the charge and were sentenced to 5 years each.
8. Ms. Ainui final plea was for the court to consider their expression of remorse and that they are first time offenders. She asked the court to be lenient on them.
9. Miss Batil representing the State referred the court to case authorities of Gimble v The State (supra), Public Prosecutor v Don Hale (1998) SC564, Tau Jim Anis & Ors v The State (2000) SC642 and Phillip Kassman v The State (2004) SC759. In addition, she made reference to a number of decided cases. She submitted robbery was a serious offence which involves violence against other persons. The offence was more prevalent in society and in the East New Britain Province. In the light of aggravating factors, a strong deterrent sentence is warranted.
10. She further submitted the case fell within category 3 of Gimble’s tariffs with a starting point of 5 years. Due to prevalence of the offence sentence to go up by applying a 3 year denominator as was done in Don Hale, Tau Jim Ani and Philip Kassman.

REASONS FOR DECISION

11. What sentence should the court impose?

Mitigating Factors against Aggravating Factors

12. Let me begin by weighing the mitigating factors against the aggravating factors. Prisoners pleaded guilty to the charge, cutting down time and cost associated with running a trial. Both of them have no record of prior convictions. They are considered as first time offenders. They both cooperated with police and made early confessional statements or admissions in their respective record of interviews. Each of them expressed remorse for committing the offence and I perceived they were genuine. There was no detail report of Reta Solomon Hosea’s background. As for Junior Thomas Beket he was a well behaved boy to his parents and the community.
13. Against those factors are these aggravating factors. There was use of gun and knives which were dangerous weapons. The offenders were in the company of four other persons. They threatened the driver, crew and other passengers, hence putting their lives at great risk. Though no person received physical injury. The PMV bus sustained damage estimated at K30 000.00. Valuable personal items were stolen all of which have not been recovered. In my assessment aggravating factors slightly outweigh the mitigating factors.

Sentencing Guidelines

14. Next is the consideration of sentencing guidelines. Gimble -v- The State is the leading authority in which the Supreme Court set down guidelines for offence of robbery. The court stated:

“The following guidelines are to be taken as appropriate to sentencing for aggravated robbery contrary to s 386(2) of the Criminal Code (Ch No 262), for which the maximum prescribed penalty is life imprisonment:

On a plea of not guilty by young first offenders carrying weapons and threatening violence for:

(a) Robbery of a house — a starting point of seven years;

(b) Robbery of a bank — a starting point of six years;

(c) Robbery of a store, hotel, club, vehicle on the road or the like — a starting point of five years; and

(d) Robbery of a person on the street — a starting point of three years;

Features of aggravation such as actual violence, the large amount stolen, or where the robber is in a position of trust towards the victim may justify a higher sentence; a plea of guilty may justify a lower sentence.

15. Both offenders were convicted for aggravated robbery which carries the maximum death sentence. They were both active participants in the robbery. I do not consider the circumstances of the case do not place it in the worst category to attract the maximum penalty. A lesser sentence will be considered by virtue of s19, of course guided by the criteria set by the Supreme Court in Gimble. The present case was robbery of a PMV and persons travelling on it on a public road. That places the case within category (c) or (3) of guidelines in Gimble with a baseline sentence of 5 years.

Comparable Judgments

16. Thirdly, consideration of comparable judgments. I have read the brief facts of judgments Miss Batil made reference to. Each of them were decided on their own peculiar set of facts and circumstances. Sentences imposed in those cases were between 4 years to 10 years.
17. In concluding let me express the following. Crime of robbery no doubt is on the rise and quite prevalent in our society including East New Britain Province. Our leaders, business community, and law abiding citizens of our country are crying out for tougher penalties due to prevalence of the offence. Courts have a constitutional duty to protect the community at large against all forms of violent behaviour and are responding to those cries which are reflected in the increase in sentences being imposed in this day and age. As an illustration the highest court of the land in Public Prosecutor v Don Hale made the following comments:

“We find that with the prevalence of violent crimes involving the use of guns the ranges of sentence recommended in Gimble’s case are having no effect and are no longer relevant. 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".

18. In The State v Henry Wartia (2018) N7293 (13 June 2018) I expressed similar sentiments which I endorse:

Robbery in whatever mode adapted and executed, pre-planned or not is a serious crime, violating people’s rights, freedom and liberty guaranteed in the Constitution. It is a life threatening crime particularly when dangerous or offensive weapons are used. People whether they are rich or poor must enjoy the freedom to move around freely anytime, anywhere in our villages, towns and cities without being harassed, intimidated, threatened and robbed by anyone with the use of dangerous or offensive weapons. Kokopo town if not the entire East New Britain Province is no exception. It is therefore everybody’s business in promoting a safe, secure and healthy East New Britain society for people to come and visit and live in.

19. There are no special or extenuating circumstances in the present case to move this court to go below the baseline sentence of 5 years or even suspend part or whole of the sentence. The offence is prevalent. Public is calling for a high deterrent sentence. This court will not depart from the general sentencing trend. Using the 3 year denominator as applied in the authorities discussed the sentence should go up to 8 years. But, because of their plea, cooperation and being first time offenders court in its discretion will allow a concession and lower the sentence by a year.
20. Finally, order for compensation is discretionary. The cost of damage is estimated at K30, 000.00. I doubt very much prisoners will afford to pay that amount given their poor financial status. As such no order for compensation will be made.
21. Accordingly, prisoners are each and severally sentenced to seven (7) years.
22. Court orders that period prisoners were in custody to be deducted from the sentence imposed.
23. The resultant sentence is to be served with hard labour at the Kerevat Jail.

________________________________________________________________
Public Prosecutor : Lawyer for the State
Public Solicitor : Lawyer for the Accused