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State v Koto [2021] PGNC 166; N8988 (21 June 2021)

N8988

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR 1267 OF 2020

BETWEEN:
THE STATE

AND:
PINU KOTO

Waigani: Salika, CJ
2021: 1^st, 10^th & 21^st June

CRIMINAL LAW – Practice and Procedure-Charge of aggravated robbery- Section 386(1) and (2) of Criminal Code Act – Maximum penalty is death – Case not a worst case – death penalty not appropriate

Cases Cited:

William Ukukul Gimble v The State (1988-89) PNGLR 271
Public Prosecutor v Don Hale (1988) SC 564
State v Tau Jim Anis (2000) SC 642

Counsel:

Mr A Kaipu, for State
Ms G Nara, for Prisoner

21^st June, 2021

1. SALIKA CJ: INTRODUCTION: The prisoner pleaded guilty to one count of armed robbery; a charge brought under Section 386(1) of the Criminal Code Act. The charge reads:
   

“Pinu Koto of Hisiu Village, Kairuku District, Central Province stands charged that he on the 22^nd day of January 2020, at Agevairu Health Centre, Kairuku District Central Province in Papua New Guinea, stole from Koru Kere with actual violence a Mazda BT50, white in colour, bearing the registration number BEK 537, the property of one Koru Peter.

And at that time, the said Pinu Koto was armed with a dangerous weapon namely a homemade pistol and was in company of two other persons namely Mala Bawai and Joshua Peter.

FACTS

2. The facts to which the prisoner pleaded guilty to are these:
   

The State alleges that on the 22^nd of January 2020, at about 7:00 pm the prisoner and two of his accomplices held up the victim namely Koru Kere at the Agevairu Health Centre, Kairuku District, Central Province and stole the victim’s vehicle, a Mazda BT50 Single Cab Utility, registration number BEK 537. In the vehicle were the driver Koru Kere and three others namely, Augustine Veine, Varia Sale and Walter Vague. They had parked on the premises of the Agevairu Health Centre, when the prisoner walked to the driver’s side and pointed his pistol at the victim while his accomplices pointed their pistols at the passenger seated on the offside seat.

The three men (the prisoner) and his two accomplices) forcefully removed the four passengers from the vehicle and drove off. The prisoner later surrendered himself to the police and gave a voluntary confessional statement in relation to his involvement in the incident. He was thereafter arrested and charged with armed robbery under Section 386(1)(2) of the Criminal Code Act.

THE ISSUE

3. The prisoner pleaded guilty to the charge. The only issue for the Court to consider is what punishment to impose on him.
   

THE LAW

4. Section 386 (2) of the Criminal Code Act says:
   

“If a person charged with an offence against subsection (1):

(a) is armed with an offensive weapon or instrument, or
(b) is in company with one or more persons; or
(c) as immediately before or immediately after, the time of the robbery wounds or use any other personal violence to any persons.

Penalty: Death.

5. Parliament, the maker of our laws, in its wisdom prescribed the highest penalty for the crime of aggravated robbery to death penalty. That is how serious Parliament views this offence. This offence is therefore a very very serious offence. Parliament was deliberate in making that law.
   
6. I ask myself, is the death penalty in this case warranted? This armed robbery is not the worst type of robbery. I have heard many more violent robbery cases than this in my time as a Judge. Death penalty with respect, is not warranted in this case in my respectful opinion, given the factual circumstances of the offence.
   
7. The next highest sentence is life imprisonment. Is life imprisonment in this case warranted? Again, this is not the worst robbery case, although it is still an armed robbery.
   
8. Recent trends in such violent cases appear to say that those convicted or those who plead guilty to aggravated robberies are sentenced to 5 years imprisonment. Moreover S19 of the Criminal Code gives the Court a wide discretion to impose a lesser sentence then the maximum prescribed.
   
9. The case precedents of Gimble (1988-89) PNGLR 271 and Don Hale (1998) SC 564 are acknowledged as stating the law for appropriate sentences to be imposed in varied acts of circumstances in robbery cases.
   

PERSONAL PARTICULARS

10. The prisoner is 26 years of age this year. He was 25 years old when the offence was committed. He comes from Hisiu in the Kairuku District, Central Province. He is the eldest son in the family and has three other siblings.
    
11. He was educated in Grade 6 at the Hisiu Primary School, in the Central Province.
    
12. The prisoner is married but has no children yet. He lives with his wife, mother and siblings at Hisiu Village, Central Province.
    
13. The prisoner is unemployed and does subsistence farming including other odd jobs to sustain his wife, his mother and other siblings as his father is deceased and being the eldest in the family, he feels obliged to take care of them all.
    

RELEVANT CONSIDERATIONS

14. In considering the appropriate penalty I take into account the following aggravating factors pertinent to this case.
    

AGGRAVATING FACTORS

1. The prisoner committed the offence using a dangerous and offensive weapon, namely a homemade pistol.
2. The prisoner was in the company of other two men when the offence was committed.
3. The offence occurred at night during the hours of 7:00 pm-8:00 pm.
4. The offence is prevalent in this country.
   

MITIGATING FACTORS

15. The following are the mitigating factors.
    
    1. The prisoner had pleaded guilty, thus saving the Court and the State time and resources in running a trial.
    2. The prisoner had surrendered himself to the Village Ward Councillor and allowed the Councillor to take him to the Doa Police Station.
    3. The prisoner admitted to his crime which is evident in his Record of Interview.
    4. At the time the offence was committed, there was no actual violence or physical assault on the victims.
    5. The offence occurred inside the premises of the Agevairu Health Center and not in the middle of the highway which would render the victims in a helpless situation.
    6. The prisoner assisted the police in finding the keys of the stolen vehicle and the pistol used by him to commit the offence.
    7. The prisoner is a first offender, without any prior criminal record.
       
16. The maximum penalty for armed robbery is a sentence of death. I make the following observations in relation to the matter as extenuating factors:
    

EXTENUATING FACTORS

The following extenuating factors are noted and taken into account:

1. The prisoner was not the leader or the mastermind behind the plan to rob the vehicle. It was his friends who made that suggestion and being intoxicated at that time he followed his two friends to rob the vehicle.
2. There was no particular reason for stealing the vehicle, they just stole it as alluded to in the prisoner’s ROI in Question 47 and took it for a joy ride and then left it in a secluded place at Ovia village.

100. He acted in a manner that was out of character, of which he realised sooner that it was wrong and surrendered himself to the Village Councillor and subsequently to the police and admitted to committing the offence.

4. The prisoner has expressed remorse and apologised to the court and his family and has asked the court for leniency.
5. The prisoner and his family have paid compensation to owner of the vehicle and families of those victims who were held up at the time the offence was committed. Compensation was made by way of custom where a pig and other food items were given to the owner of the vehicle in order to maintain peace and reconcile differences caused by the prisoner when he committed the offence.
6. This does not justify or is an attempt to minimise the prisoners’ criminal actions. The prisoner was not forced in any way to do what he did. He had a choice. This, however, goes to show that the prisoner is better than the worst decision he has ever made, and that was to commit armed robbery.
   

CASE PRECEDENTS

17. In William Ukukul Gimble v The State (1988-89) PNGLR 271, the Supreme Court had laid down the guideline sentencing tariffs for young first-time criminal offenders convicted for committing offences such as the present case. That on a plea of not guilty for armed robbery of a;
    
    1. House – starting point of 7 years.
    2. Bank – starting point of 6 years.
    100. Store, hotel, club, vehicle on the road or the like – starting point of 5 years.
    4. Person on the street – starting point of 3 years.
       
18. When determining sentence, the court should take into consideration the following circumstances:
    
    1. Features of aggravation such as actual violence.
    2. The amount of money stolen, or the value of the property stolen.
    100. Where the robber is in a position of trust towards the victim may. justify a higher sentence.
    4. The offence was committed by more than one person.
    5. A plea of guilty may justify a lower sentence.
       
19. Robbery of a store, or a vehicle was considered in the Gimble (Supra) case a less serious category. In this case, where a group of young first-time offenders carrying weapons used the threat of actual violence to rob a store. The court considered that a term of 5 years imprisonment was appropriate if the offenders pleaded guilty. If they pleaded not guilty then a term of more than 5 years is appropriate which includes if there was actual violence and other considerations outlined above.
    
20. Gimble v State (Supra) was decided over 33 years ago, and the sentencing principles and guide are considered relevant. Due to the prevalence of the offence of armed robbery in the country, the sentences have gradually increased overtime.
    
21. The Supreme Court case of Public Prosecutor v Don Hale (1988) SC 564 and the State v Tau Jim Anis (2000) SC 642 increased the sentencing tariff by 3 more years. The increase was to be served as a deterrent factor. The sentencing tariffs in the Don Hale (Supra) case are as follows:
    
    • (a) Robbery of a house – starting point of 10 years.
    • (b) Robbery of a bank – starting point of 9 years.
    • (c) Robbery of a store, hotel, club, vehicle on the road and the like – starting point of 8 years.
      
22. The case falls under category 3 and that is a robbery of a vehicle and the starting point for sentence is 8 years. In determining the sentence based on the actual facts and evidence presented, the court is guided by the aggravating and mitigating factors together with the extenuating circumstances found during the time of the commission of the offence.
    
23. The maximum penalty for Aggravated Robbery is death which should be reserved for the worst type of cases. Clearly this case does not fall under the category of worst cases.
    
24. The prisoner committed the offence with two other persons, who are not here with the prisoner because they escaped. The prisoner would have escaped as he had the chance to but he willingly surrendered himself to the police. The prisoner and the other two person were in possession of homemade pistols which are dangerous weapons that could inflict physical injury or cause death but none of the victims were injured or killed. Nothing was stolen or taken from the victims. The car was returned to the owner.
    
25. The prisoner pleaded guilty and has apologised to the court and to his family and has compensated the driver of the vehicle for committing the offence against him.
    
26. Taking into account all the mitigating factors and the aggravating factors I impose a term of imprisonment for a period of 5 years. He was in custody for a period of 1 year 5 months. That is taken away from the 5 years. The balance he will spend in jail is 3 years 7 months.

___________________________________________________________
Public Prosecutor: Lawyers for the State
Public Solicitor: Lawyers for the Accused