Home | Databases | WorldLII | Search | Feedback National Court of Papua New Guinea

Independent State of Papua New Guinea v Johnunda [2023] PGNC 163; N10288 (10 May 2023)

N10288

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]

CR NO. 1319 OF 2022

BETWEEN:

THE INDEPENDENT STATE OF PAPUA NEW GUINEA

AGAINST:

CASEY JOHNUNDA

Prisoner

Waigani: Tamade AJ

2023:14^th April; 10^th May

CRIMINAL LAW – sentence – armed robbery – robbery of fast-food outlet – armed with bush knife – gang of four – money stolen – early guilty plea – first time offender – aged 20 – Sections 386 and 7 – Criminal Code – sentenced to eight years – three years suspended

Case Cited:

Goli Golu v The State [1979] PNGLR 653

The State v Edmond Geria [2008] PGNC 295; N3868

Gimble v The State [1988-89] PNGLR 271

Public Prosecutor v Hale [1998] PGSC 26; SC564

Anis v The State [2000] PGSC 12; SC642

Steven Wickless v The State (2020) SC2293

Peter v The State [2007] PGSC 28; SC894

State v Francis Naty (2021) N9004

State v Matu [2007] PGNC 256; N5022

Public Prosecutor v William Bruce Tardrew [1986] PNGLR 91

Legislation:

Criminal Code Act

Counsel:

Mr Jonathan Siminji, for State
Ms Kim Watakapura, for the Prisoner

10^th May, 2023

1. TAMADE AJ: The Prisoner, Casey Johnunda of Kagua, Kagua Erave District, Southern Highlands Province pleaded guilty to a charge in the indictment of armed robbery contrary to section 386(1)(2)(a)(b) and section 7(1)(a)(c) of the Criminal Code.
   
2. The facts in which the Prisoner pleaded guilty to is that on 11 November 2021 between 1:00pm and 2:00pm, the Prisoner and three other accomplices went into the Rainbow Big Rooster outlet which is located directly opposite Stop & Shop and held up the shop. The prisoner and others were armed. Johnunda was armed with a bush knife with one other and another accomplice was armed with a home made gun. The accused had used his bush knife to order the security guard inside the shop to lay on the floor whilst they attempted to remove monies at the cashier counter. Whilst they were doing this, a security guard stationed inside the shop attempted to escape interrupting the scene and upon seeing this, the Accused and his accomplices scared of being caught ran away from the scene. The matter was reported to the police and the Accused was arrested after being apprehended at Tasion Barracks.
   
3. The prisoner has made an early guilty plea to the charge and therefore a guilty verdict was entered. After hearing submissions from lawyers, this is the Court’s decision on sentence.
   
4. Section 386 of the Criminal Code is in the following term:
   

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 subject to Section 19, to imprisonment for life.

5. The prisoner is 20 years of age with no prior convictions. He has been detained for about 1 year and 6 months. His education level was only up to Grade 7. The Pre-Sentence Report states that the offender is an orphan and lives with other people and usually hangs around with the Oro people. His parents live somewhere in Oro Province however he does not know exactly where they are and has no contact with them. There is some information that his mother gave him up after a de factor relationship however that is not so clear, what is clear is that he was living with a guardian as an orphan.
   
6. Counsels have reminded me about the case of Goli Golu v The State^[1] that the punishment the Court should give should be proportionate to the gravity of the offence and that the maximum penalty should be applied to the worst of cases. In applying my mind to sentencing, it is useful to take into account these question as raised in The State v Edmond Geria^[2]:
   

“(1)What are the relevant facts or the particular circumstances in which the offence was committed?
(2) What is the nature of the offence with which the offender has been charged with and its relevant sentencing trend?
(3) What are the factors in aggravation and mitigation of the offender?
(4) Are there any special features attending the commission of the offence?
(5) After carefully considering all of the relevant factors, what should be the appropriate sentence? and
(6) Whether the whole or any part of the sentence should be suspended and if so on what terms?”

7. The aggravating factors in this case is that the offender was in the company of others, the offender and his accomplices were armed with a home made gun and bush knives, the offence of armed robbery is prevalent in society and that some cash was stolen from the shop.
   
8. The mitigating factors are that the offender is a young offender, he has no prior convictions, he made an early guilty plea, he showed genuine remorse at his allocutus and he has a favourable pre-sentence report.
   
9. Both counsels have referred to the case of Gimble v The State^[3] where the Supreme Court stated this:
   

“The following guidelines are to be taken as appropriate to sentencing for aggravated robbery contrary to s 386(2) of theCriminal 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, vehicleon 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.”

10. In Public Prosecutor v Hale^[4], the Supreme Court was of the view that the tariff of seven years of a robbery of a house was inadequate as these types of offences have increased of late and as it is a serious type category of robbery of people in their home, the Supreme increased the tariff to 10 years of robbery of a house where it involved a young offender.
    
11. In Anis v The State^[5], the Supreme Court followed the approach in Public Prosecutor v Hale^[6] and increased the tariff of sentencing for armed robbery as set in Gimble v The State^[7] by three years.
    
12. For robbery of a shop, the starting point of a sentence considering the age of the offender would be at 8 years as per Gimble, Don Hale and Anis decisions however this has recently been increased from 8 years by another 3 years to 11 years. In the Supreme Court case in 2020 in the case of Steven Wickless v The State^[8], the Supreme Court held that:
    

“The starting point of 8 years set by the Supreme Court inTau Jim Anis and Others v The State(supra) was twenty years ago. This was an increase of 3 years from the 5 years starting point set by the Supreme Court inGimble v The State[1988-89] PNGLR 271, twelve years earlier to that. This trend shows that the starting point has for this category of robbery increased incrementally by 3 years every 10 to 20 years and so we feel it is appropriate at this junction in time given the exponential increase of this form of robbery throughout the length and breadth of this country and the sophistication involved that its starting point should increase by three (3) years to eleven (11) years.”

13. In the Steven Wickless^[9] case, the Accused was in the company of seven gang members when they entered City Pharmacy Shop in Kimbe armed with a homemade staple gun, a pump action shot gun and knives. They held up the staff and took cash and other goods and as they were making their getaway from the shop, they were stopped by police and arrested. The Supreme Court reduced the sentence of the prisoner on appeal from 15 years to 11 years.
    
14. In Peter v The State^[10], the Court held that it is within the Court’s discretion to increase or decrease the sentence depending on the facts which aggravate the offence of robbery and or considering the mitigating factors.
    
15. In State v Francis Naty^[11], the offender held up a trader store with other young accomplices where there was actual violence and the robbery involved the presence of weapons. The Court sentenced the offender to 9 years hard labour.
    
16. In State v Matu^[12], it was a robbery of a service station and it involved a guilty plea. There was no actual violence, a small amount of money was stolen, the case involved a young offender and there was a supporting Pre-Sentence Report. The offender was sentenced to 4 years, with part of the sentence suspended to a term of 1 year, 11 months, 3 weeks, 2 days to be served in custody.
    
17. I have read the Pre Sentence Report which supports a suspension of any sentence on the offender. The offender is an orphan with no real structure in his life being parents to provide him leadership and a family to provide a sense of belonging. His guardian gives no real support other than asking for a lenient sentence. He only completed grade seven at Gerehu Primary School and has no financial support and no real means of support.
    
18. Should part of the sentence be suspended? I refer to the case of Public Prosecutor v William Bruce Tardrew^[13] in which the Supreme Court has set the guidelines for suspension of sentence as:
    

“Suspension of part of a sentence under s 19(6) of theCriminal Code(Ch No 262) is, or may be appropriate, in three broad categories. The categories are not exhaustive:

(i) Where suspension will promote the personal deterrence, reformation or rehabilitation of the offender.

(ii) Where suspension will promote the repayment or restitution of stolen money or goods.

(iii) Where imprisonment would cause an excessive degree of suffering to the particular offender, for example because of his bad physical or mental health.

19. I have said that imprisonment can sometimes harden a young man against society. I also have to take into account that armed robbery is an offence which is prevalent in society. The Courts have increased the tariffs for armed robberies in an attempt to deter offenders and this can be seen in the cases cited in this decision. This case is not an aggravated armed robbery case in the worst case category. No one was injured in the robbery however it can be psychologically traumatising for the victims. The effects of trauma are not physical, they are psychological. The offender is quite young at the time of the commission of the offence, he would have been about 18 years of age.
    
20. Taking into account all the sentencing principles, related cases and section 19 of the Criminal Code and that this is not an aggravated robbery case of a shop to start at the tariff of 11 years, I will sentence you Casey Johnunda to 8 years. You have served about 1 year and 6 months since being incarcerated. That is deducted from the head sentence leaving 6 years and 6 months. You will serve 3 years and 6 months in custody being a total of 5 years in custody. The rest of the 3 years of sentence is suspended. After you leave prison, you will be on good behaviour for the three years suspended term with the oversight of the Probation Officers.

______________________________________________________________

Office of the Public Prosecutor: Lawyers for the State

Office of the Public Solicitor: Lawyers for the Accused

^[1] [1979] PGSC 9; [1979] PNGLR 653 (14 December 1979)

[2] [2008] PGNC 295; N3868 (17 November 2008)
[3] [1988] PGSC 15; [1988-89] PNGLR 271 (27 July 1989)
[4] [1998] PGSC 26; SC564 (27 August 1998)
[5] [2000] PGSC 12; SC642 (25 May 2000)

^[6] Supra N4
^[7] Supra N3
^[8] (2020) SC 2293
^[9] Ibid

[10] [2007] PGSC 28; SC894 (27 June 2007)

^[11] (2021) N9004

[12] [2007] PGNC 256; N5022 (13 July 2007)
[13] [1986] PGSC 10; [1986] PNGLR 91 (2 April 1986)