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State v Nelson [2019] PGNC 88; N7809 (24 April 2019)

N7809

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR. N0. 398 OF 2018

THE STATE

V

POMIKA POMIKS NELSON

Kerevat: Susame, AJ
2019: 10, 16 & 24 April

CRIMINAL LAW – Sentence – Plea - Offence – Aggravated Armed Robbery –S386(1)(2)(A)(B)(C) Criminal Code – Aggravating Features Outweigh Mitigating Features – Robbery Of A Shop & Dwelling House At Night – Wife Of Owner Attacked And Received Injuries – Prisoner 26 Years Old - Not A Youthful Offender - More Than One Person Involved - 10 Years Head Sentence – 15 Years Imposed – Special Feature –– Prisoner Severely Assaulted By Police During Arrest – That Is Considerred Punishment Received - Allowance Allowed And Sentence Discounted By 2 Years – Balance Of Sentence 13 Years With Period In Custody To Be Deducted – Prisoner To Serve His Sentence At Manus.

Cases Cited:

Goli Golu v The State [1988-89] PNGLR 653
Philip Kassman v The State (2004) SC
Public Prosecutor v Don Dale (1998) SC564
Tau Jim Anis v The State (2000) SC 642,
The State v Aaron Lahu N2798 [2005] PGNC 161.
The State v Alus Tamagi and Paiji Teke [2008] PGNC 42; N3310
The State v Gilbert Monai [2004] PGNC 152; N2617
The State v John Carl Endekra & others [2007] PGNC 82
The State v Larry [2018] PGNC 352: N7432
The state v Mapinai Topin (2019) N7786
The State v Mila Renof (2009) N4027
The State v Paul Ibor & Yawing Kitum (2018) N7584
The State v Paul Maima Yogot & Dama Teiye [2004] PGNC 186; N2583
The State v Rat [2014 PGNC 230; N5783
The State v Warip Mondol & ors [2004] PGNC 72; N2707
William Ukukul Gimble v The State [1988-89] PNGLR 271

Counsel

Miss L. Shanks, for the State
Ms JM. Ainui, for the Prisoner

DECISION ON SENTENCE

24 April, 2019

1. SUSAME AJ: Prisoner pleaded guilty to a charge of aggravated arm robbery under s 386(1)(2)(a)(b)(c) of the Criminal Code. The facts upon which conviction was entered are set out below.
   

Facts

2. On Wednesday 19 December 2017 at about 1.45 in the morning six men including the prisoner used a bolt cutter and opened the main security door to the shop known as Jiline Trading at Tokua in Kokopo. The owner, Benji Roman and his wife and children had been asleep. They were woken by the sound of the bolt cutter opening the security door. They heard the men speaking in pidgin and realised they were facing a dangerous situation.
   
3. The family then attempted to block the door from inside and called out for help but no one came to their rescue. The intruders swore at the family members and used an iron bar to gain entry to the store. Benji Roman and his children hid unseen in a dark part of the building while the wife Jaqueline hid in the bottle shop.
   
4. The intruders located Jaqueline and cut her arm with a knife and forced her to show them where the cash was kept. One of the intruders scolded another saying ‘she is a mother who gave them food when they usually come to the store. ”He told them not to hurt her but to get the goods and leave.
   
5. The intruders stole K3, 500.00 cash and food items and beverages valued at K 3, 283 of a total value of K6 788.00. The prisoner was later identified to police as he was well known to the shop owners as a customer and someone who live close by. He was subsequently arrested and charged.
   

Allocutus

6. Prior to hearing of submissions prisoner was given the opportunity to address the court first. Prisoner said: “I am sorry for what I had done. The boys came and got me. I never knew their plan. We went to the store when the damage happened. I went to the store and said mum’s ya. I never held any weapon. Morning they came pick me up and they took me with them and were cutting me. They assaulted me. I was taken to the hospital. Two days later they took me back, blind folded me and shot me and placed me in custody. I stay with my adopted mother here. My father is in Manus. My mother is in West New Britain. I want to be sent to where my dad is so they can visit me. I ask court to have mercy on me. Thank you. That is all.”
   

Submissions

7. Submissions have been heard and considered. Court has been referred to several judgments in the respective submissions by counsels. I will refer to them a bit later.
   

Issue

8. What is the appropriate sentence court should impose upon the prisoner?
   

Offence

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,

he is liable to be sentenced to death.(amendment N0.6 of 2013)

Maximum Penalty

9. First, is the consideration of maximum penalty? The maximum mandatory penalty is death for aggravated robbery. However, courts have a wider discretion to impose a lesser penalty by invoking s 19 sentencing discretion.
   
10. In practice imposing of maximum penalty should be reserved for the most serious case of robbery. (Goli Golu v The State [1988-89] PNGLR 653). Wilson J (one of the member of the Supreme Court Bench) cited with approval judgment of Court of Criminal Appeal (Lord Denning M.R Widgery and MacKenna JJ) in R v Hodgson, Unreported (Judgment S, C, 137 25 October 1978) of conditions to justify a life imprisonment sentence (maximum sentence):
    

1. Where the offence or offences are in themselves grave enough to require a very long sentence;

2. Where it appears from the nature of the offence or from the defendant’s character that he is a person of unstable character likely to commit such offences in the future; and

3. Where if the offences are committed the consequences to others may be specifically injurious, as in the case of sexual offences or crimes of violence.”

11. Prosecution and defence have both conceded that features to justify the maximum penalty are not present in this case. A sentence other than the maximum will be considered. That is when reference to past judgments become useful.
    

Sentencing Guidelines on Robbery

12. Supreme Court in William Ukukul Gimble v The State [1988-89] PNGLR 271 set down the following guidelines for robbery cases:
    

CATEGORY TYPE OF ROBERRY HEAD SENTENCE

1 Robbery of a house 7 years
2 Robbery of a bank 6 years
3 Robbery of a store, a vehicle etc. 5 years
4 Robbery of a person on a street 3 years

13. Ms Shanks made reference to The State v Aaron Lahu [2005] N2798 PGNC 161 and The State v John Carl Endekra & others [2007] PGNC 82 and in which Cannings J listed a number of questions in deciding an appropriate sentence. Questions 1 to 6 relates to the characteristics of the offence questions 7 to 11 concerns offenders personal circumstances. Answering the questions will give an indication if there are more factors against the offender or not. The decisions are not binding on this court. But, they are quite useful and will be guided by them.
    
14. The questions are:
    
    1. Did the offender and other members of the gang commit actual violence during the robbery?
    2. Did the offender and other members of the gang threaten the victims of the robbery with violence?
    3. Did the offender and other members of the gang put the victims or innocent bystanders in real danger of being injured or killed?
    4. Did the offender and other members of the gang ensured that especially vulnerable victims such as children, women or older people were not threatened or treated badly?
    5. Did the offender and other members of the gang steal money or property of a relatively small value?
    6. Did the offender play a relatively minor role in the robbery?
    7. Did the offender give himself up after the robbery?
    8. Did the offender cooperate with the police in their investigations?
    9. Has the offender done anything tangible towards repairing his wrong?
    10. Has the offender pleaded guilty?
    11. Has the offender genuinely expressed remorse? partial
    12. Is this his first offence?
    13. Can the offender be regarded as a youthful offender or are his personal circumstance such that they should mitigate the sentence?
    14. Are there any other circumstances of the robbery or the offender that warrant mitigation of the head sentence?
        
15. Tariffs in Gimble v The State (supra) have been considered inappropriate and have come under review by both the National and Supreme Courts in recent times due to prevalence of robber incidents. Few of these cases are; Public Prosecutor v Don Dale (1998) SC564, Tau Jim Anis v The State (2000) SC 642, Philip Kassman v The State (2004) SC759 & The State v John Carl Endekra & others (supra).
    
16. A survey of cases show that there has been a significant increase in the sentencing trend tariffs in recent times. Sentences imposed have been over the tariffs in Gimble. Ms Shanks has referred the court to several of them.
    
17. The State v Mila Renof (2009) N4027 (Injia CJ). Prisoner was sentenced to 10 years on plea for robbery of a store. Facts were that the prisoner in company of other men armed with bush knives and home-made robbed the owner and stole goods worth K2 128.25. A guard at the store hit one of the robbers with a baton and in retaliation the guard was cut twice on his arm.
    
18. The State v Alus Tamagi and Paiji Teke [2008] PGNC 42; N3310 (Kandakasi J. Robbery was committed at a supermarket. The two prisoners pleaded guilty. The two held up the staff and stole the sum of K190, 000.00 most of which was recovered later. No one was injured during the robbery. Despite their plea and them being first offenders both were sentenced to 15 years imprisonment.
    
19. The State v Paul Maima Yogot & Dama Teiye [2004] PGNC 186; N2583, Kandakasi J, Guilty plea. Robbery of a motor vehicle along the highway. Value of cash and property stolen was K1300.00 Prisoners were sentenced to 12 years.
    
20. The State v Warip Mondol & ors [2004] PGNC 72; N2707, Lenalia J. Robbery of a vehicle on a highway. Plea case. Cash and goods stolen amounted to K31, 155.00. In the robbery one person received physical injury when he was chopped on his hand with a bush knife. Prisoners were sentenced to 12 years imprisonment.
    
21. The State v Gilbert Monai [2004] PGNC 152; N2617, Sevua J Robbery of a motor vehicle on a public road valued at K57, 897.00. Prisoner was sentence for 2 counts of arm robbery. First count he received a 12 months sentence second count he received a 15 years sentence which were to be served concurrently with period in custody deducted.
    
22. Ms. Ainui has however, referred to two cases with sentences of 5 years and 4 years sentence respectively.
    
23. The first is The State v Larry [2018] PGNC 352: N7432, Numapo AJ,- Robbery of a shop. Three prisoners pleaded guilty. Properties worth of K95, 155.74 were stolen. Many of the properties were recovered. Prisoners were first time youthful offenders. 5 years sentence was imposed which was partially suspended and they were to serve 2 years.
    
24. The second is The State v Rat [2014] PGNC 230; N5783, Cannings J. This was a case of robbery of a store. Prisoner pleaded guilty. He was in company of others and stole sum of K3, 500. 00 and goods valued at K15, 000.00. The prisoner played a less active role and was sentenced to 4 years.
    

Suggested Sentences

25. Ms. Ainui submitted the case fell within category 3 of Gimble tariffs with a starting point of 5 years. She urged the court for a 4 years sentence as the prisoner played a minimal role. He is a youthful offender. She asked for the sentence to be partially suspended.
    
26. Ms. Anui submitted further others involved in the robbery have not been arrested. She asked the court to be lenient on the prisoner and prisoner to serve his sentence in Manus where his father will be able to visit him.
    
27. Ms. Shanks urged the court for an 8 years starting point suggested in The State v John Carl Endekra & ors (supra) for robbery of a shop. Ms. Shanks submitted aggravating features of the case outweighed those in mitigation. She submitted for a sentence between 12 and 15 years to deter the prisoner and other people from committing similar offences.
    

Court’s View

28. Considering the facts robbery was not committed on a stand-alone shop. The shop was part of the family dwelling house. In the circumstances case should fall under category 1 which attracts a head sentence of 10 years suggested in Public Prosecutor v Don Hale (supra).
    
29. In Public Prosecutor v Don Dale the court expressed:
    

“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".

30. I endorsed that statement and shared similar sentiments in The State v Paul Ibor & Yawing Kitum (2018) N7584. This was a case of robbery of staff within a copra buying depot. I considered Gimble was decided 29 years back and was inappropriate in the present day. There has been a marked increase in incidents of arm robberies, Arm robberies were so prevalent and the society is calling for heavier deterrent punishments. If 10 years based sentence was suggested for robbery of homes at night (category 1) there should also be an increase in other 3 categories.
    
31. Sum of K12 000, 00 was stolen with about K3772 .00. No one received physical injury. Prisoner was a first time offender. After trial one of the prisoner Paul Ibor was sentenced to 10 years imprisonment while the other absconded bail while pending sentence and is on bench warrant.
32. The state v Mapinai Topin (2019) N7786 (12 April 2019) (Susame AJ). Robbery of a PMV along a public street. Prisoner pleaded guilty. Cash stolen and properties were of minimal value. One person was assault but no injuries received. Prisoner first time offender. Sentence of 10 years imposed.
    
33. It is such a very frightening experience to be confronted with weapons by armed men. You never know if they will chop you or press the trigger on you except to think of saying your last prayers. In this case the wife of the owner was slashed with a knife and received physical injuries.
    
34. Using the guide in The State v Aaron Lahu (supra) there are more negative answers which is an indication that there are more aggravating features than those that weigh for the prisoner even though he pleaded guilty and is a first time offender.
    
35. I consider that prisoner was an active member of the arm hold up. He cannot come to the court and put the blame on his other accomplices for persuading him to accompany them. He had the will power to say no. He knew they were planning to hold up a known family who at times had shown kindness and offered them food. Without any sense of appreciation prisoner chose to participate in robbing the family in the privacy of their home where the family shop was.
    
36. I reiterate 10 years is the appropriate starting point for this particular case. The aggravating features identified justifies the court to go higher by 5 years to 15 years. The message is clear.
    
37. It is imperative court has a constitutional mandate to protect the lives and properties of its citizens against perpetrators of violent crimes. Perpetrators of such serious violent crimes must be incarcerated from the community and sent to prison for longer period of time. This is not only for the purposes of personal and general public deterrence but also with an aim for personal rehabilitation through reformation programs that are being introduced in major goals in the country in which prisoners are given the opportunity to participate in.
    
38. Accordingly prisoner is sentenced to 15 years imprisonment with hard labour. Are there any special features of the prisoner that should justify portion of the sentence to be suspended?
    
39. Prisoner stated during his apprehension he was brutally assaulted by police personnel that saw him admitted to the hospital for treatment. State has not challenged that and is a factor in prisoner’s favour. (See The State v John Carl Endekra & others).
40. I consider that as a special feature to mitigate his sentence as he has already received some form of punishment which may be considered unlawful. Court doing justice will give due regard to that. Coupled with his early plea. Through plea bargaining many offenders will waive their position to decide to plea with expectation of receiving some reduction in sentence. Prisoners should not feel they have been given false hope along the bargaining process. By doing so the process will encourage more offenders to come forward and to plea and have their cases disposed of early. Not only that it saves court a lot of time and expense in running a trial. It is only just court gives due regard also to that factor.
    
41. Accordingly, court in the exercise of its discretion will grant an allowance of 2 years to be discounted. Specific orders will also be issued for prisoner to undergo reformation programs initiated by the institution while serving his sentence. Request has been made for the prisoner to be transferred to Manus to serve his prison where is father is. That has also been considered by the court.
    

Summary

1. Balance of 13 years to serve with time spent in custody to be further deducted.
2. Prisoner to be transferred to serve his sentence at the Manus prison.
3. That the CIS commissioner to ensure that funds are readily made available to ensure conveyance of the prisoner to Manus forthwith
4. Prisoner to attend all Prison Ministry programs and other reformation programs running within the prison.

_______________________________________________________________
Office of the Public Prosecutor: Lawyer for the State
Office of the Public Solicitor: Lawyer for the Prisoner