N9102

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR 272 OF 2021

THE STATE

V

GILBERT FARISA

Waigani: Berrigan, J
2021: 9th June, 6th August and 1st September

CRIMINAL LAW – SENTENCE – GUILTY PLEA - AGGRAVATED ROBBERY – S 386(1)(2) of the Criminal Code - Offender in company with others, and armed with firearms, robbed the staff of an office - sentence of 8 years imposed, less time spent in custody.     

Cases Cited:

Allan Peter Utieng v The State (2000) SCR No 15 of 2000
Tau Jim Anis and Others v The State (2002) SC564 
Phillip Kassman v The State (2004) SC759 
Kaya & Kuman v The State (2020) SC2026
Goli Golu v The State [1979] PNGLR 653
The Public Prosecutor v Vangu’u Ame [1983] PNGLR 424
The State v Tardrew [1986] PNGLR 91 
The State v Frank Kagai [1987] PNGLR 320
Gimble v The State [1988-89] PNGLR 271
Lawrence Simbe v The State [1994] PNGLR 38 
State v Hekoi (2016) N6413
State v Ere (2018) N7484
State v Eric (2020), unreported, Mogish J
The State v Bobby Andrew Don (2021) N8889 

References Cited

Sections 19, 383A, 386(1)(2)(a)(b) of the Criminal Code (Ch. 262) (the Criminal Code) 

Counsel

Mr. F Galama, for the State 
Ms. A Peter, for the Offender

DECISION ON SENTENCE
1st September, 2021 
1.	BERRIGAN J: The offender pleaded guilty to one count of the aggravated robbery of cash and personal items belonging to Kevin Yue Peng and others, whilst armed with a dangerous weapons, namely a factory made pistol and a knife, and whilst in the company of others, contrary to s 386(1)(2)(a)(b) of the Criminal Code, on the basis of the following facts which were admitted on arraignment and are supported by the depositions. 

2.	On the 30th day of November 2017, at the National Research Institute (NRI) Compound, Port Moresby, National Capital District, the offender and several accomplices entered the NRI Compound gate between 10am and 10:30am.  At the time they were armed with a dangerous weapon, namely a factory made pistol. They subdued the guards and entered the office of China Harbour Engineering.  The group robbed the manager, Kevin Yue Peng, a Chinese national and his staff.  They took cash together with personal items including mobile phones and locked the manager and his staff in a room before leaving.

3.	The indictment and alleged facts referred to cash monies in K39,000 but the depositions only establish a sum of K2500. Sentence will therefore be imposed on that basis.

4.	The offender was apprehended on 2 May 2018. 

Allocutus 

5.	On allocutus the offender said: I am sorry to this Court. Sorry to God.  Sorry to the company for what I have done.  Sorry to my family.  I am a first time offender.  Thank you. 

Sentencing Principles

6.	The maximum penalty under s 386(1)(2)(a)(b) is death: see The State v Bobby Andrew Don (2021) N8889 at [4] to [11].

7.	Having regard to Gimble v The State [1988-89] PNGLR 271, and the Supreme Court decisions in Tau Jim Anis and Others v The State (2002)    SC564 and Phillip Kassman v The State (2004) SC759 the following may be regarded as appropriate starting points on sentence 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 ten years;
b)	robbery of a bank, a starting point of nine years;
c)	robbery of a store, hotel, club, vehicle on the road or the like, a starting point of eight years; and
d)	robbery of a person on the street, a starting point of six years.

8.	Features of aggravation such as actual violence, a 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.

9.	Through its 2013 amendment Parliament has clearly indicated that aggravated robbery is a very serious offence which must be met with strong punishment:  see the discussion regarding amendment to s 383A of the Criminal Code in Kaya & Kuman v The State (2020) SC 2026 per Batari J at [3] to [5], and Berrigan J at [107].  The necessary corollary of the grave increase in the maximum penalty is that all sentences imposed under s 386(1)(2), regardless of whether or not in the worst category, should, in general terms, increase: Bobby Andrew Don (supra) at [16].

10.	Defence counsel submitted that the offence was prevalent and this offence was serious.  It was premeditated, involved the use of firearms, in the company of others, and threats of violence.  In mitigation the offender is a first time offender, he cooperated with police, made admissions in his record of interview, pleaded guilty and demonstrated remorse.  She asked the court to take into account that he was injured during his apprehension, and that he has a young family.  No injury was inflicted.  His role in the offence was limited.  He was a look out, was not armed himself and never benefited.  The offence fell into category c of Gimble, but having regard to the mitigating factors a head sentence of six to eight years would be appropriate but should be wholly suspended. He has had sufficient time to rehabilitate.  

a.	State v Hekoi (2016) N6413, Toliken J: Guilty plea. Offender ran into his accomplices who asked him to join them, so he did.  They held up a taxi and drove to a store at which they robbed phones, cigarettes, K200. He was drunk at the time and played a minimal role.  He was caught at the scene and severely assaulted by the public and later police.  He was sentenced to 5 and 2 years’ respectively, to be served concurrently, less time spent in custody;
b.	State v Ere (2018) N7484, Miviri AJ: the offender armed with a bush knife kept watch as his accomplices with firearms went to a canteen and held up one Bernadette Giru threatened her with the weapons, assaulted her and stole K1000 in cash and goods valued K72.00 and escaped. He pleaded guilty and was sentenced to 7 years less time spent in custody; and
c.	State v Eric (2020), unreported, Mogish J: Robbery of a supermarket at Sabama, after car chase the offender was apprehended and admitted to the charge.  He was sentenced to 6 years, less time spent in custody, balance wholly suspended because of guilty plea and time spent in custody. 

11.	The State agreed in mitigation that the offender had no prior convictions, pleaded guilty, and expressed remorse. In aggravation it noted the presence of offensive weapons, the company of others, pre-planning, and the prevalence of the offence.   In addition, there was a breach of trust on the part of the offender as a passenger. A key to another stolen vehicle was found in the offender’s pocket at the time of his apprehension. 

12.	State counsel submitted that this case falls within category three of Gimble, but should attract a sentence of 8 to 10 years because of its aggravating features.  

Consideration  

13.	It is well established that the maximum penalty is reserved for the most serious instances of the offence:  Goli Golu v The State [1979] PNGLR 653.  Whilst this case does not fall within that category, it remains very serious.

14.	Having regard to Gimble, Tau Jim Anis and Kassman (supra), it is my view that this case falls into category three and that the appropriate starting point is eight years.  

15.	In my view, however, the penalties set out in Gimble, Tau Jim Anis and Kassman must be regarded as out of date not only because of the prevalence of aggravated robbery but having regard to the 2013 amendment.  

16.	Section 19 of the Criminal Code provides the Court with broad discretion on sentence. I remind myself when considering the guidelines and comparative cases that whilst they are relevant, every sentence must be determined according to its own facts and circumstances: Lawrence Simbe v The State [1994] PNGLR 38.  

17.	Having identified the starting point it is necessary to consider the aggravating and mitigating factors.

18.	The offender is from Moveyave Village in Malalaua, Gulf Province.  Prior to his arrest he has lived at Gerehu in his family home his entire life.  Both his parents are now dead.  He is the fifth born of eight children, all of whom, including their spouses live in the family home.  He is married with a daughter who is two years old. 

19.	He is 29 years old and was 26 at the time of the offence. Whilst still young, his age cannot be regarded as a matter of special mitigation.  The offender is educated to Grade 9 but never completed high school.  He was previously employed as a construction worker but left due to the low level of pay.  

20.	In mitigation this is the offender’s first offence.  He is of prior good character.  The offender pleaded guilty at the National Court.  I take this into account as reflecting remorse, which he expressed on allocutus, qualified, however, by my comments below, as well as the fact that it has saved the Court, the State and its witnesses the time, cost and inconvenience of a trial.  

21.	I don’t accept in mitigation that the offender was influenced by his accomplices.  It is not borne out by the depositions which show that he took an active role in the robbery even if he acted as lookout and did not enter the building.  His real complaint seems to be that the other boys took the money, telling him that there was none inside, and he did not benefit at all.  That may be but he still participated in a well-planned robbery with every intention of benefitting.  

22.	The impact of the offence on the offender has been and will continue to be great.  In particular, imprisonment will have a significant impact on his wife and young daughter, the latter of whom was just one month old when he was arrested and has never really known her father.  Whilst regrettable, it is well established that except in very extreme circumstances, it is not ordinarily a relevant consideration on sentence: see for example Allan Peter Utieng v The State (2000) SCR No 15 of 2000; The Public Prosecutor v Vangu’u Ame [1983] PNGLR 424.  

23.	Whilst the fact that dangerous weapons were used and the offence was committed in company of others is to a large extent already reflected in the starting point I have identified, I do take into account that it is not alleged that the offender was personally armed, and that he remained outside as lookout.  For obvious reasons the role of lookout is an important one, nevertheless, I accept that he did not personally threaten the staff inside the building.  I also take into account that he did not personally benefit. I accept that his culpability was more limited than the other participants. 

24.	Nevertheless, a number of factors make this case a very serious one.  The offence was brazen and very well planned. It would have been terrifying for all involved.  The offender and his accomplices, acting together, subdued the guards and then terrorised the staff, albeit that no actual violence was inflicted. 

25.	It is also well accepted that the victims of such offences are often left with psychological scars that live on long after the incident itself.  Probation Services was unable to speak to anyone affected by the offence.  It has been almost four years since the offence took place.  I have no doubt, however, that the guards and staff present on that day were traumatised by what happened.  It is because of these very types of offences that guards are needed to protect office workers simply trying to earn their livelihood.  

26.	The penalty imposed in this case must be strong enough to ensure both specific and general deterrence.  

27.	Having regard to the general circumstances of the case, the personal circumstances of the offender, the aggravating, extenuating and mitigating factors, the submissions of counsel, the guidelines contained in Gimble, Tau Jim Anis and Kassman, and comparative cases, I sentence the offender to 8 years of imprisonment.  

28.	The offender has been in custody since 2 May 2018. I exercise my discretion to deduct the time spent in custody to date.

29.	Defence counsel asks for the sentence to be wholly or partially suspended. 

30.	In The State v Tardrew [1986] PNGLR 91 the Supreme Court set out three broad, but not exhaustive, categories in which it may be appropriate to suspend a sentence, namely: where it will promote the general deterrence or rehabilitation of the offender; where it will promote the repayment or restitution of stolen money or goods; or where imprisonment would cause an excessive degree of suffering to the particular offender, for example because of bad physical or mental health.  Suspension is not an act in leniency but a form of punishment that is to be served outside the prison system in the community interest to promote restitution or rehabilitation: The State v Tardrew [1986] PNGLR 91; The State v Frank Kagai [1987] PNGLR 320.

31.	Probation Services do not regard the offender as suitable for probation.  I agree.  Whilst the offender has demonstrated through his plea some prospects for rehabilitation, it is very clear from the pre-sentence report that he considers that he is being punished “just” for participating in the robbery when he did not benefit.  It is clear that he resents the fact that others who did benefit remain free.  That is not true remorse. He clearly does not appreciate the gravity of the offending.  In addition, no one from his community came forward to speak up on his behalf.  The offender comes from a loving family, but I also note that his sister, whilst making it clear that her brother is a good person at home, has on behalf of the family expressed some concern about him returning home too soon.   In the circumstances and having regard to the serious nature and prevalence of such offences, I do not intend to suspend the sentence.   

32.	I make the following orders.

Orders

(1)	The offender is sentenced to 8 years of imprisonment in hard labour to be served at Bomana Correctional Institution.

(2)	Time spent in pre-trial custody, namely 3 years, 3 months, 26 days is deducted from time to be served, leaving a balance of 4 years, 8 months, 4 days to be served in custody.

Sentence accordingly.
_______________________________________________________________
Public Prosecutor: Lawyers for the State
Public Solicitor: Lawyers for the Accused