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State v TL (Juvenile) [2018] PGNC 494; N7605 (6 December 2018)

N7605

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]


CR N0. 247 OF 2018


THE STATE


V


T. L.
(JUVENILE)


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


CRIMINAL LAW – Sentience on Plea- Offence – Robbery - S 386(1) (2) (A) (B) (C) Criminal Code- Sentencing Considerations & Guidelines- Prisoner 17 Years of Age – A Juvenile – Sentencing Consideration in Juvenile Justice Act 2014- Best Interest of Juvenile Paramount Consideration – Offence Prevalent- Use of Knife- Complainant Sustained Injuries - Purpose Sentence Tries to Achieve – Four Years Imprisonment Less One Year Custody Period – Resultant Sentence Wholly Suspended Upon Probation-

Cases Cited
Public Prosecutor v Don Dale (1998) SC564
Phillip Kassman v The State (2004) SC759
Tau Jim Anis & Ors v The State (2000) SC642
The State v Keduke [2014] PGNC 150; N5784
The State v Kingsley [2011] PGNC 187; N4465
The State v Sakias [2009] PGNC 137; N3777
The State v Keduke [2014] N5784
The State v Larry [2018] N7432
William Ukukul Gimble v The State [1988-89] PNGLR 271


Counsel
Mr. Tugah, for the State

Mr. Ainui, for the Prisoner

DECISION ON SENTENCE

6th December, 2018


  1. SUSAME, AJ: Prisoner is in court to receive his sentence after he pleaded guilty and conviction entered on 8 November 2018.

FACTS


  1. Facts upon which prisoner was convicted is that at around 1.00 pm on 9 November 2017, the prisoner and his accomplish were at Works Department Kokopo, East New Britain Province (ENBP). The complainant a Chinese National, So –O Iming was at the work site. He was the works supervisor. He got off the vehicle to issue instructions to the workers and noticed a guy with a mask over his face approach him. The guy was none other than the offender. The offender went for his mobile phone valued at K800.00 and by force removed it from him. The complainant grabbed hold of him and to get back his phone. In the scuffle the offender swung a bush knife and cut his thumb and palm. The offender was with his other accomplice who was also masked. After stealing the phone, the offender and his accomplice escaped.
  2. The offence of robbery is found in s 386 which is reproduced 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,

is liable to be sentenced to death.

ALLOCUTUS


  1. Prisoner expressed his apology to the court for what he did. He said he was a first time offender and promised he will not commit the crime again in future. He said he respected the court. He asked court for its mercy and place him on probation.

PRE-SENTENCE & MEANS ASSESSMENT REPORTS


  1. Both reports have been read. Offender is 17 years of age and is a juvenile. He comes from a broken marriage and is living with the mother. He is the second last born of six siblings. Offender moves around a lot and associates with his peer friends and easily influenced hence resulting in him committing the offence. He was doing grade 7 in 2017 at Kalamanagunan Primary School in Kokopo, East New Britain Province (ENBP) when he committed the offence. He intends to repeat his grade 7 next year after case is over. The views expressed by persons interviewed are noted with appreciation, in particular the mother and the Village Court Peace Officer.

SUBMISSIONS


  1. Mr. Tugah for the State considered the following were the mitigating factors.
  2. The following were considered aggravating factors.
  3. Mr. Tugah submitted the case does not fall within the category of cases warranting the maximum sentence. He made reference to sentencing guidelines on robbery cases prescribed by the Supreme Court in William Ukukul Gimble v The State [1988-89] PNGLR 271. He submitted the guidelines in Gimble were considered outdated due to prevalence of the offence. Therefore sentences were increased by the Supreme Court in Public Prosecutor v Don Hale (1998) SC564 which was reaffirmed in Tau Jim Anis & Ors v The State (2000) SC642 and Phillip Kassman v The State (2004) SC759. Starting points in those cases were:
    1. 10 years for robbery of a house
    2. 9 years for robbery of a bank
    3. 8 years for robbery of a store, hotel, club, vehicle on the road etc.
    4. 6 years for robbery of a person on the street.
  4. To further assist the court, he referred to the following cases:
    1. The State v Keduke [2014] PGNC 150; N5784 (23 August 2014
    2. The State v Kingsley [2011] PGNC 187; N4465 (15 December 2011)
    3. The State v Sakias [2009] PGNC 137; N3777 (23 July 2009)
  5. In the end Mr. Tugah submitted offence was serious and warrants a punitive sentence for personal and general deterrence.
  6. Ms. Ainui considered the following as mitigating factors.
  7. As for aggravating factors Ms. Ainui considered complainant suffered injuries.
  8. She also referred the court to the guidelines prescribed in Gimble v The State (supra) and one decided case of The State v Keduke (supra).
  9. She made further reference to The State v Larry [2018] N7432 in which His Honour Numpao AJ presiding stated young offenders should be given every opportunity to become good law abiding citizens of the country and it follows therefore, that penalty imposed by the court must be the one that promote reformation and rehabilitation. In her final appeal Ms. Ainui asked for a 3 years sentence following tariffs in Gimble for category 4 robbery of person on a street and to be wholly suspended.

REASONS FOR DECISION


  1. First of all, let me consider the factors that weigh for and against the offender. The mitigating factors are that; offender has pleaded guilty to the charge saving court’s time and cost to run a trial. The offender cooperated and was taken to the police by the mother. He made police investigation more easier when he made early confessions and admissions in the record of interview. Being truthful from the very beginning is a good practice and must be encouraged at all times. The views expressed by the mother and the Village Court Peace Officer are acknowledged and taken on board.
  2. They are prepared to help in the supervision and monitoring of the juvenile for future improvement of the juvenile if placed on probation. Court has also considered the recommendations of the Probation Officer.
  3. Offender was a grade 7 pupil when he committed the offence. He has missed classes for the entire 2018 school year since November 2017 when he was taken into custody. Offender was remorseful and made an undertaking not to commit the same wrong again in future. I consider his remorse to be genuine. Offender is a juvenile and first time offender. Lastly, the stolen item has been returned to its owner who has left for his home country.
  4. Factors that aggravate his case is that actual violence was used. Offender was with one other and in the commission of the offense. Complainant received a wound on his hand when he was cut with a knife. Lastly, offence is prevalent in society and in Kokopo and Rabaul, ENBP. Weighing those mitigating and aggravating factors the scale tilt in favor of the offender.

Sentencing Guidelines and Comparable Decisions.


  1. Gimble v The State is the leading case outlining criteria of sentencing in robbery cases. The present case was robbery of a person committed on the street. That places the case within category 4 with the head sentence of 3 years going by the tariffs in Gimble.
  2. However, due to prevalence of the offence and public outcry against such violent crimes in recent times courts have begun imposing sentences over and above baseline sentences set in Gimble which were considered outdated.
  3. Past decided cases also serve as useful guide. While sentences vary in the cases mention above prisoners were not juveniles. They were young adult offenders. In sentencing of juveniles the court is not strictly bound by precedents. [s77 (2) of Juvenile Justice Act 2014]. The Act prescribes special sentencing considerations for juveniles because of their youthfulness and vulnerability. The Act stipulates that in all actions concerning a juvenile, the best interests of the juvenile are primary consideration. Those considerations are found in sections 5, 6, 75, 76, 77, 80 & 81 with emphasizes on the need for reintegration and rehabilitation of juvenile offenders.
  4. Robbery 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 and usually committed by young offenders. Lately, there has been a sudden upsurge in criminal activities in the towns of Kokopo and Rabaul. That is portraying a negative image of the province which has been declared as a tourism hub amongst couple of other provinces. Court therefore has a duty to protect the rights of citizens and non-citizens in our towns, cities and communities. That our towns and cities are safe and secure for people of all walks of life to live in and visit.
  5. While the society is calling for high deterrent sentences to be imposed due to prevalence of offence sentencing approach will be in line with the objective of Juvenile Justice Act. And I concur with the statement made by His Honour Numapo AJ in The State v Larry (supra) that “young offenders should be given every opportunity to become good law abiding citizens of the country and it follows therefore, that penalty imposed by the court must be the one that promote reformation and rehabilitation.”
  6. The sentence imposed should achieved the purpose of personal and general deterrence as well as for rehabilitation of the juvenile.
  7. Accordingly, offender is sentenced to 4 years with hard labour.
  8. The court orders that one year is deducted for the period in custody.
  9. The balance of the sentence is wholly suspended and juvenile released on probation. In addition to the mandatory conditions under the Probation Act the following conditions are ordered:
    1. Prisoner is to allow the Probation Officer to visit him at any time.
    2. Prisoner is to remain with his mother until contacted by the Probation Officer.
    3. Prisoner is restrained from leaving ENBP without the discretion of the Court.
    4. Prisoner is restraint from associating with his peer friends at any time.
    5. Prisoner is to be confined at home between the hours of 6.00 pm and 6am each day.
    6. If the prisoner is to attend church services and other community gatherings he is to be accompanied by the mother or nominated adult family member or relative.
    7. Prisoner is restraint from taking alcoholic beverages.
    8. Prisoner is to attend counselling programs to be organized by the Probation Officer.
    9. Probation Officer to file quarterly report to this court to ensure compliance of the probation sentence.
    10. No order for compensation is made as the complainant has left the country.

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


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