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State v Tiasa [2024] PGNC 250; N10920 (6 June 2024)

N10920


PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]


CR NO. 664 OF 2023


BETWEEN:
THE STATE


AND:
TIGAI TIASA
of
GAIRAINA VILLAGE, WAU/WARIA, MOROBE PROVINCE
-Prisoner


Bulolo/Lae: Polume-Kiele J
2023: 4th July, 4th August, 2nd, 5th, 13th & 24th October
2024: 7th February, 19th March, 30th April, 2nd May, 3rd & 6th June


CRIMINAL LAW – Guilty Plea –Criminal Code Act - s 386 (1) (2) (a) (b), Robbery- Penalty of which is subject to s 19, imprisonment for life – s 7 (1) (a) (b) (c) – Criminal Code - invoked


CRIMINAL LAW- Sentence – Early guilty plea – No prior convictions – Criminal Code, s 19 - Suspension of sentence considered.


CRIMINAL LAW – Sentenced to 6 years imprisonment- less period held in custody- s 3(2) Criminal Justice (Sentences) Act - Sentence partly suspended, s 19, Criminal Code


Brief facts


The prisoner, Tigai Tiasa was arrested and charged for one count of armed robbery with actual violence a sum of K5, 860.00 in Bulolo and properties valued at a sum of K13,350.00, the property of Giant Holdings Limited, a shop at Bulolo Market area. On 25 March 2021, sometime around 1.00 p.m., the accused and his accomplices were armed with homemade guns and bush knives and used these weapons to threaten the security guard, shop assistant and shop manager of the Giant Holdings Limited and stole cash money in the sum of K5,860.00 and flex cards, mobile cards, smart phones and other valuable electronic items worth K13,350.00. The accused and his accomplices were armed with an offensive weapon, namely homemade guns and bush knives and they also applied personal violence to the victim, actions which contravened s 386 (1) (2) (a) (b) of the Criminal Code.


The State also invoked Section 7 (1) (a) (b) (c) of the Criminal Code.


Cases Cited
Goli Golu v The State [1979] PNGLR 653
Thress Kumbamong v The State (2008) SC1017
Saperus Yalibakut v The State (2006) SC890
The State v Nelson [2005] N2844
Gimble v The State [1988] PNGLR 271
The State v Liliura [2014] N5785
The State v Jacky Vutnamur & Kaki Kialo (No.3) (2005) N2919
State v A Juvenile [2006] N3017
State v Alphonse Polpolio and Jeffery Baru (2006) N4514
The State v RG, CR (JJ) NO. 69 OF 2022 (Unreported judgment, 14 August 2022)
The State v Steward Periwan (1999) N1834
The State v Simon Apei, Bryan Apoe and Bobby Tom (1999) N1929
Hane v the State [1984] PNGLR 105.
Lawrence Simbe v The State [1994] PNGLR 38
Avia Aihi v the State [1982] PNGLR 92
Ure Hane v the State [1984] PNGLR 105
The State v Patrick Puppy Kaikara Loavi [2006] N3384
The State v Malara [2002] N2188
The State v Richard Saku (supra)
Public Prosecutor –v- Done Hale (1998) SC564
Public Prosecutor –v- Tardrew [1986] PNGLR 91
Paulus Mandatitip and Anor -v- The State [1978] PNGLR 128
of Kuri Willie v The State [1987] PNGLR 298
State v Taulaola Pakai (2010) N4125


Counsel:
Ms S. Joseph, for the State
Mr. C. Boku, for the Prisoner


SENTENCE


6th June 2024


  1. POLUME-KIELE J: On 5 October 2023, Ms Tamate of the Office of the Public Prosecutor presented an indictment charging the accused, Tigai Tiasa for one count of armed robbery under Section 386 (1)(2)(a)(b) of the Criminal Code Act Chapter No.262 (hereinafter referred to as the Criminal Code).
  2. The accused pleads guilty to the charge of armed robbery with actual violence contrary to s 386 (1)(2)(a)(b) of the Criminal Code Act (Ch No 262).
  3. On 14 October 2023, he was arraigned and his guilty plea to the charge of one count of armed robbery with actual violence contrary to s 386 (1)(2)(a)(b) of the Criminal Code Act (Ch No 262) was accepted and confirmed.
  4. The Court then entered a conviction against the accused on the charge of one count of armed robbery with aggravation contrary to s “386 (1)(2)(a)(b) of the Criminal Code.
  5. The Offence of Robbery is provided for under Section 386 of the Criminal Code:

“Section 386 reads:


(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) –

6. The State invoked s 7 (1) (a) (b) (c) of the Criminal Code Act.

Division 2. – Parties to Offences.

“7. PRINCIPAL OFFENDERS.

(1) When an offence is committed, each of the following persons shall be deemed to have taken part in committing the offence and to be guilty of the offence, and may be charged with actually committing it: –

(a) every person who actually does the act or makes the omission that constitutes the offence.

(b) every person who does or omits to do any act for the purpose of enabling or aiding another person to commit the offence.

(c) every person who aids another person in committing the offence.

(d) any person who counsels or procures any other person to commit the offence.

(2) ...

(3) ...

(4) ...


Committal Court Disposition


  1. The State relied on documentary evidence which comprised mainly of statements from the witnesses including the victims and the Police Record of Interview dated 26 April 2021. All these documents were contained in the Bulolo District Court Deposition and tendered into evidence by consent:

(1) The Record of Interview comprised both the original Pidgin and English Version dated 26 April 2021 conducted between the prisoner and the Investigating Officer, First Constable Lazarus Busil relating to the offence of armed robbery which occurred on 25 March 2021. The corroborating police officer was Reserve Constable John Grisan. Both officers are attached to the Bulolo Police Station. In that Record of Interview, the prisoner Tigai Tiasa admitted to having in his possession some items that were stolen from the shop “in this case flex cards, tablet and mobile phone. All these statements respectively confirmed the identity of the accused and the circumstances and his demeanour at the time of the commission of the offence including the interrogation and record of interview relating to the laying of the charge against the prisoner.


(2) The Statements of Epi Jabiro, a security guard with Giant Holdings Limited dated 26 March 2021, the shop assistants, Amanda Kaklep, Mina Stanley and Rachel Ariban at Giant Holdings Limited dated 26 March 2021 and the Shop Manager, Wilson Zeng dated 29 March 2021.


  1. Upon the reading of the Committal Court dispositions and being satisfied that the evidence contained in the dispositions supported the charge and also having noted the admissions contained in Questions and Answers No. 13 to 41 of the Record of Interview dated 9 March 2023; I accepted the prisoner’s guilty plea. I then entered a conviction against the prisoner on the charge of robbery with actual violence under s 386 (1)(2)(a)(b) of the Criminal Code Act (Ch No 262).

Antecedent Report


  1. The antecedent report tendered into evidence by the State disclosed that the prisoner is a young adult male. He is unemployed. The prisoner has no prior convictions and is a first-time offender.

Allocutus


  1. In administering the allocutus, the prisoner was asked if he had anything to say on the issue of penalty. He replied, yes. He was then given the opportunity to speak. In his statement on penalty, he said that he was sorry for what he did. He said sorry for breaking God’s 10 commandments. Sorry for breaking the Constitution. He also said sorry to the victims for what he did. He says sorry to the Police, CS officers, the court and those who are in Court for what he did. In addition, he asked for God’s mercy and the mercy of the Court when determining penalty. He also asked for leniency from the Court and request that he be placed on probation. Furthermore, he said sorry to his family, the community and church leaders of his area. He also says that he was a student at St Stephen Primary School.

Pre-Sentence Report


  1. Because he had asked to be placed on probation, his lawyer, Mr Boku requested that this Court direct the Community Based Corrections (CBC) Office to prepare a Pre-Sentence Report to be complied on the prisoner and have it filed for purposes of assisting this Court determine the issue of penalty.
  2. This process is a necessary component of the Court process where prisoners have exercised their right to ask the Court to be placed on probation. To facilitate this process, this Court had directed the Probations Officer, (Bulolo) to prepare and file a Pre-Sentence Report on for purposes of determining your suitability as a candidate for probationary orders and also issued orders that these reports be filed prior by 23 October 2023.
  3. The Pre-Sentence Report received from the CBC Office, Bulolo on 23 October 2023 is available to the Court. The overall assessments contained in the report appears favourable to the prisoner. It indicated that he lives with his parents and is supported by them both financially and emotionally. He is however unemployed and had left school of his own accord.
  4. His mother is very supportive and wishes to see her son placed on some probationary orders. Whilst I also note that the prisoner has asked for leniency and to be placed on probationary orders, it is apparent that the Pre-Sentence Report does not provide any suggestions as to how the probationary orders if granted were to be implemented.
  5. Aside from the above, there are no community views regarding the rehabilitation and reconciliation back to the community and how the prisoner can adjust back to community life. Given the lack of community views, and the fact that the prisoner appears to hand around with other young people of his age and is bound to be influenced through peer pressure. It is also noted that he has escaped from police custody previously.

Mitigating Factors

  1. In determining the severity of sentence, the Court took into consideration mitigating factors relevant to your case, such as your early guilty plea, which greatly assisted this Court in arriving at this early outcome. In addition, this Court also noted that you are a first-time offender, your co-operation with the police and explanation as to how you committed the offence in the Record of Interview and recommendations contained in the pre-sentence report. These are factors in your favour.

Aggravating Factors


  1. The aggravating factors against you are however that the sum of money stolen is substantial, it should be pointed out that this Court does not condone your actions including acts of actual violence on the victim. You robbed the victim of its cash of K5,860.00 and properties valued at K13, 350.00. During the robbery you also applied physical violence on the security guard and several shop assistants including the shop manager whilst armed with dangerous weapons, namely homemade guns and bush knives, immediately and/or during the commission of this robbery. This type of offence is prevalent.

Application of the law to the facts


  1. In order to substantiate the charge of armed robbery, the elements of the offence must be established by evidence under section 386 (1)(2)(a)(b) of the Criminal Code; the State must prove the following:
  2. In your case, because you had pleaded guilty to the charge, the State did not call any oral evidence to corroborate the evidence contained in the various witnesses’ statements but relied on these oral statements which had been tendered into evidence by consent to substantiate the allegations. These witnesses’ statements clearly showed that an armed robbery had occurred at the Giant Holdings Limited store, in the Bulolo market area, Bulolo Town. The robbery occurred within the surroundings of Giant Holdings Limited on 25 March 2021. The cash of K5,860.00 and properties valued at K13, 350.00 was not recovered by police. You were arrested on 31 March 2023 and charged for the offence.
  3. For purposes of this charge, money is capable of being stolen and the commission of this robbery was carried out with the use of home-made guns and bush knives which are a dangerous and offensive weapon. In addition, personal violence was used to commit the robbery whereby the victims were threatened with home-made guns and bush knives.

Submission on Sentence


  1. Mr. Boku in his submission on your behalf submitted that although you pleaded guilty upon indictment to the charge of one count of armed robbery with actual violence contrary to the Criminal Code Act; for which the maximum penalty prescribed under s 386 (1)(2)(a)(b) of the Criminal Code Act (Ch No 262) is subject to s 19, life imprisonment. Mr Boku reiterated that the courts have wide discretion under s 19 of the Criminal Code to impose a lesser penalty. Thus, the issue before the court is whether you should be sentenced according to the penalties prescribed under s 386(1)(2)(a)(b) of the Criminal Code Act (Ch No 262), which is subject to Section 19, to imprisonment for life.
  2. Mr. Boku submitted that whilst you had used force or used a lethal weapon, namely home-made guns and bush knives to apply personal violence on the victims during the commission of the offence, Mr. Boku submitted that your present case does not warrant the imposition of the maximum penalty. He submitted therefore submitted that the imposition of the maximum penalty should be reserved for the worst of category offence under consideration: Goli Golu v The State [1979] PNGLR 653, further, the Courts have unfettered sentencing discretion and are not necessarily bound by the Supreme tariffs when considering sentence: Thress Kumbamong v The State (2008) SC1017; and where in plea cases, “... the offender must be given the benefit of any reasonable doubt and if there are contentious facts in which there is no agreement, the Court should act on the version of the facts which, within the bounds of possibility, is most favourable to the accused: Saperus Yalibakut v The State (2006) SC890. Mr Boku further submitted that since the prisoner had pleaded guilty early, the prisoner has gained considerable benefit by his early plea by saving the Court’s time and expenses in running a trial of the matter. He relied on the case of The State v Nelson [2005] N2844 which is a rape case to support his submission on leniency.
  3. Submissions on the provisions of the Juvenile Act No. 11 of 2014 – relating to sentencing of Juveniles and its applications to this case is noted. However, I must say that the indictment in this case does not indicate that the offender is a juvenile. In any case, the defence has not raised any issue with regard to the indictment. Consequently, trial had proceeded on the understanding that the offender is charged as an adult.

Sentencing guidelines


  1. In his overall submission on sentence, Mr. Boku refer the Court to the sentencing guidelines enunciated in the case of Gimble v The State [1988] PNGLR 271 which case sets out the category of robbery and the term of sentence imposed which are useful guides in sentencing. These are:

(i) Category 1 – Robbery of a house 7 years
(ii) Category 2 - Robbery of a bank 5 years
(iii) Category 3 - Robbery of a store and vehicle 5 years
(iv) Category 4 - Robbery of a person on a street 3 years


  1. In The State v Liliura [2014] N5785, the Court had reviewed the sentencing guidelines set out in Gimble v The State (supra) which the Court viewed as outdated and increased the sentencing guidelines. This is set out as follows:

(i) Category 1 – Robbery of a house 10 years
(ii) Category 2 - Robbery of a bank 9 years
(iii) Category 3 - Robbery of a store and vehicle 8 years
(iv) Category 4 - Robbery of a person on a street 8 years


Starting point of sentence


  1. Mr. Boku in his submissions submitted that this Court should follow the guidelines set out in Gimble v The State (supra) he proposed that a sentence of 3 years be imposed. However, he conceded that due to the increase in the sentencing trends for armed robbery, he submits that the starting point of sentence be of 4 years imprisonment.

Comparable cases


  1. Counsel for the prisoner referred to this court to several cases of armed robbery which I have set out in this judgement in my deliberations on sentence.
  2. In The State v Jacky Vutnamur & Kaki Kialo (No.3) (2005) N2919, the prisoners pleaded guilty to the charge of armed robbery of a family home and a trading supermarket and stealing weapons and police uniforms and cash of K40,000.00 in company of others. They were armed with firearms. They were sentenced to 12 years imprisonment.
  3. In the State v A Juvenile [2006] N3017, the prisoner pleaded guilty to armed robbery of Shopper’s Choice, Kimbe, offender had minimal involvement, was sentenced to 4 years imprisonment. In any event, this case does not include a juvenile offender.
  4. In the State v Alphonse Polpolio and Jeffery Baru (2006) N4514, this was a guilty plea matter. The prisoner admitted to robbing two stores in Kandrian in company with another person. In first robbery, a sum of K2,807.00 stolen and in second robbery, a sum of K21, 530.00 stolen. Cumulative sentences of 5 years for first robbery and 9 years for second robbery prison terms imposed.
  5. Overall, Mr., Boku submitted that a starting point of a prison term of 4 years is appropriate given the sentencing guidelines in Gimble v The State (supra) and noting the recent case of State v Liliura (supra). Further, you are a young offender and also the Court does not know what role the prisoner played nor knows the amount benefited from the proceeds of the crime and relied on the case authorities of State v Nelson [2005] N2844, and Saperus Yalibakut v The State (2006) SC890, which are relevant in terms of the exercise of discretionary powers of the Court with regard to a prisoner’s plea on leniency and the benefit of reasonable doubt in regard to contentious facts of the case.
  6. In this case, the offender was charged as an adult. No issues were raised by the Defence as to the correct status of the prisoner. In any case, there is no record of this actual date of birth in the Antecedent Report submitted to Court. Given the absence of any concrete evidence as to the age of the prisoner, trial had been conducted based on the Indictment presented by the State Prosecutor dated 5 October 2023 charging the prisoner as an adult. He also has pleaded guilty to the offence of armed robbery under s 386 (1)(2) (a) (b) of the Criminal Code.
  7. Mr. Boku submitted that the head sentence to be imposed in this present case should be set at 4 years less the pre-sentence custody period applied in the case of The State v RG, CR (JJ) NO. 69 OF 2022 (Unreported judgment, 14 August 2022) pursuant to s 3 (2) of the Criminal Justice (Sentence) Act. The balance of the prison term wholly suspended given the youthfulness of the offender pursuant to s 19 of the Criminal Code and that you be sentenced on the rising of the Court.
  8. Overall, this case is an armed robbery of a store, for which a starting point as established in the State v Liliura (supra) is sentence of 8 years imprisonment.

Submission from the State


  1. Ms. Joseph for the State on the other hand, submits that this is a case where you, Tigai Tiasa, the prisoner robbed the victim of their cash of K5, 860.00 and properties to the value of K13,350.00. You applied physical violence on their persons (employees and store manager).
  2. Ms. Joseph submitted further that you; at, immediately and during the commission of the offence you were armed with a homemade gun, a factory-made firearm and a bush knife and applied personal violence on one of the victims. This is a case where you robbed the victim of their cash of K5,860.00 and property valued at K13, 350.00. You applied physical violence on the victims immediately and during the commission of the crime. Furthermore, you; at, immediately and during the commission of the offence used force or used a lethal weapon, namely home-made guns and bush knives to apply personal violence on the victims. To date, no attempts have been made to reconcile or to pay compensation to the victims. In addition, your statement on allocutus did not disclose that there was any genuine attempt or efforts made to do so.
  3. Therefore, an appropriate custodial sentence is necessary, as a deterrent factor, both personal and generally, this is so that others who are tempted to carry out such activities are deterred from doing so. Ms. Joseph also submitted that these sort of offending is a serious crime as it attacks the very essence of the Constitutional guarantees accorded to every men, women, and child of this nation, who should be allowed the freedom to live, move around and go about their lawful business anywhere and at any time of the day, without fear and or unwarranted attacks.
  4. Comparable cases which were relied upon in her submission include, The State v Steward Periwan (1999) N1834, where the accused in the company of others held up the store manager and other employees using shotguns, bush knives and ran away with a sum of K1,800.00, the property of the store. The manager was assaulted, and gun shots were fired at the manager resulting in permanent injury to the eye. The prisoner was sentenced to 11 years less the period spent in custody.
  5. In The State v Simon Apei, Bryan Apoe and Bobby Tom (1999) N1929, the prisoner was in a group of 4 men who were armed with two home-made guns and two bush knives, they held up the staff of a store and stole a sum of K4,099.00 in cash. Actual violence was used causing serious injuries to two people with the use of the gun. All accused persons were of previous good character with no prior convictions, pleaded guilty and expressed remorse . They co-operated with the police, free admitted to the offence and returned the money stolen. They were subjected to police brutality and other persons involved in their apprehension. A sentence of 12 years was imposed, less the period held in custody whilst awaiting trial and sentence.
  6. With regard to sentence, this Court has wide discretion under s 19 of the Criminal Code to impose an appropriate penalty; including discretion to also impose conditions as to the payment of compensation and to reconcile and make peace with the victims and their families. Overall, Ms Joseph submitted that the Court exercise discretion to impose a custodial sentence.
  7. It is trite that the maximum penalty prescribed for an offence is reserved for the worst form or category or offending for that particular offence: see Hane v the State [1984] PNGLR 105. In addition, in determining sentence, each and every case should be decided on its own peculiar facts and circumstances: Lawrence Simbe v The State [1994] PNGLR 38.
  8. The principles of sentencing guidelines established in the cases of Gimble v The State (supra) which the starting point for robbery of a trade store from 3 years has since increased to 8 years as held in The State v Liliura (supra).
  9. In this present case, Ms Joseph submitted that the starting point of sentence should be set at 10 years imprisonment. This is because this is a case where there is a strong need for both personal and general deterrence. The offences are very serious in nature and taking into consideration, the society’s concerns about the safety of their persons and their properties, Ms Joseph impresses on the Court the need to consider imposing severe penalties or sentences as a means of deterrence. It is also appropriate to impose a custodial sentence as a necessary means to reflect what is becoming a very prevalent offence within society, with the aim of deterring others from committing similar offence.
  10. Ms Joseph also impresses upon the Court that the offence of armed robbery is being committed almost every single day, not only in Bulolo but also everywhere in our country. People are constantly living in fear of their lives as well as the fear of loss and damages to their properties. This is evidenced by the increase in building structures such as high rise corrugated fences with barbed and razor wires throughout the small township of Bulolo. Furthermore, business houses and small stores are also vulnerable at the hands of the likes of the prisoner, who preyed upon their businesses and even use threat and actual violence to steal from them.

Determining sentence


  1. In applying the sentencing criteria prescribed under s 386 (1)(2)(a)(b) of the Criminal Code, it follows that the following elements of the offence have been proved by your admission. In that all the elements of the offence are established. These elements are that: -
  2. According to the various statements relied upon by the State, they clearly show that a robbery occurred on 25 March 2021. The court disposition corroborates the allegations contained in the various witnesses’ statements tendered into evidence by consent to substantiate the allegations. These witnesses’ statements clearly showed that a robbery had occurred at the Giant Holdings Limited store, Bulolo Town. The robbery occurred within the Giant Holdings Limited store on 25 March 2021. The cash of K5,860.00 and property valued at K13, 350.00 was not recovered by police. You were arrested on 31 March 2021 and charged with the offence.
  3. For purposes of this charge, money is capable of being stolen and the commission of this robbery was carried out with the use of a bush knife which is a dangerous and offensive weapon. Furthermore, personal violence was used to commit the robbery whereby the victims were threatened with homemade guns and bush knives.
  4. The sentencing guidelines and the principle applied in the case of Gimble v State (supra), was decided more than 25 years ago, and outdated as the range of sentence terms imposed by the Courts has since increased due to the prevalence of such offences. The case of the State v Liliura (supra) is more relevant. Hence category 3 of the State v Liliura (supra) case is applied in relation to your case. Consequently, I consider that a starting point of 8 years is more relevant.
  5. Whilst I acknowledge that Mr Boku on your behalf submitted that it is settled law in this jurisdiction that the maximum penalty for an offence should ordinarily be reserved for the very worst types of cases and thus the question then arises as to whether this present case is such a case and referred this Court to the following cases; Avia Aihi v the State [1982] PNGLR 92 and Ure Hane v the State [1984] PNGLR 105 and invited the Court to determine the facts and circumstances of each case on its own merits in order to determine an appropriate penalty.
  6. Mr. Boku submitted further that in this case, you did not plan to rob the victim, it was due to peer pressure. The prisoner was in the wrong company at the time of the commission of the crime. He is sorry for what he has done. He also wishes to return to school and complete his education. He says that he will not reoffend.
  7. This Court is assisted with citation of a number of case law, and I refer to these accordingly in determining penalty. In any event, I also refer to a several cases which are also relevant to this present case. In the case of The State v Patrick Puppy Kaikara Loavi [2006] N3384 per Kandakasi, J, the offender pleaded guilty to one count of armed robbery pursuant to section 386(1) and (2) of the Criminal Code. The offender on the 1 April 2005, at Kerema town, armed with a homemade pistol went into the Kerema Traders Store, held up two employees of the trade store and stole cash of K39.00 and fled. He was subsequently apprehended by police, arrested, and charged. Only, K17.00 was recovered. In determining sentence, the mitigating factors in his favour were: he pleaded guilty, and this saved the State expense in running a trial. He was a first-time offender, co-operated with Police and showed genuine remorse. The amount of money stolen not substantial. Stole K39.00 and K17.00 was recovered. He acted alone and had family problems caused the offender to commit the offence. The aggravating factors on the other hand, were that armed robbery was a serious and prevalent offence, the offender was armed with a homemade gun. He was a mature adult and should have known that what he had done was wrong. The Court held that the factors in aggravation outweighed the factors in mitigation. The Court also held that the sentence should be immediate custodial sentence going beyond 15 years. The Court however imposed a sentence of 10 years and deducted the pre-custody period of 1 year, 6 months and 14 days. The balance sentence of 8 years, 5 months and 14 days was to be served in hard labour at Bomana Correctional Institution.
  8. .In The State v Malara [2002] N2188, where the prisoner had pleaded guilty to the charge of armed robbery of a supermarket and stole cash and cheques and goods to a value of K26,000.00 in company of others. They were armed with gun, pinch bar, and other weapons. They broke down the doors to the supermarket. He was sentenced to 15 years imprisonment; pre-trial custody period was deducted, and the balance of prison term served in custody.
  9. In The State v RG, CR (JJ) NO. 69 OF 2022 (14 August 2023),unreported judgment, the accused was charged for armed robbery of the Giant Holdings Limited store, he pleaded guilty to the charge and was sentenced to 4 years less the period held in custody and the sentence was partially suspended. He was remanded to 11 months 27 days imprisonment to be served at Erap Boys Town.
  10. In your case, the robbery took place in Bulolo town inside a trade store. It was a public place. You and your accomplices exhibited some bold approach to committing this serious crime without any fear for the law and respect for a commercial business. I say even ordinary people cannot be treated in the way you and your accomplices had treated the employees of the business at that relevant period. I also find that you did not display any respect for people who have worked hard and earned their living lawfully. Ordinary citizens should not suffer unnecessarily from the hands of a cruel minority who have no respect for the law.
  11. Reiterating and adopting the statement by Lenalia in The State v Richard Saku (supra) where he stated, and I quote:

“the legislative intent of prescribing the maximum penalty of 14 years for ordinary armed robbery and life imprisonment for those cases aggravated by the use of violence or threatened violence by those who act in concert carrying dangerous offensive weapons must meet the consequences of high penalties to reflect the community’s view on how serious the crime of armed robbery is” (end of quote).


  1. Having considered all the above mitigations and aggravations, I would adopt and apply the reasoning applied in the case of The State v Alus Tamagi and Paija Teke (supra). In that case two offenders pleaded guilty to the offence of armed robbery. In determining an appropriate sentence, the Court noted that the sentences that have been imposed for the offence of armed robbery has not served its purpose in deterring likeminded offenders. Therefore, the sentence the Court must impose must deter the offenders and other likeminded offenders. The Court considered a sentence between 8 years and 16 years and imposed a sentence of 15 years against the offenders, of which 1 year 7 months pre-custody period was deducted, and the balance of 13 years, 11 months and 3 weeks was to be served in hard labour at Ningerum Correctional Service.
  2. Applying this principle to the case against you, the offence of armed robbery is serious as it involved the use of dangerous weapons namely homemade guns. You also had stolen an amount of money which belongs to a business. Whilst I have taken into account the mitigating factors submitted in your favour and out of other mitigations, the only mitigating circumstance is that the court can consider is that you pleaded guilty, saving time and expenses and what you have said in allocutus together with what your lawyer submitted in your favour.
  3. The aggravating factors far outweighs the mitigating factors, and these include the fact that, you committed the offence with threat of violence. Whilst I consider the offending not the worst type of armed robbery, I must say that you have committed the offence of armed robbery in aggravating circumstances, an offence for which you must be punished as a deterrent to likeminded offenders and others tempted to engage in such lawlessness involving violence.
  4. By reasons of the foregoing, I consider that a custodial term of sentence is warranted. In your case, the State has suggested a term of imprisonment between the range of 8 to 10 years. Your lawyer on the other hand has suggested that a head sentence of 3 years be imposed less the pre-trial period that you have been remanded in custody. The balance of the sentence term be suspended on terms on the rising of the Court.

Conclusion


  1. Whilst appreciating the submissions presented by counsels, the crime of robbery is on the increase and in order to deter such behaviour, it is proper that a custodial sentence of appropriate proportion be imposed on you as a deterrent to other likeminded offenders and others tempted to engage in such lawlessness involving violence. I am inclined to that a make a finding that a head sentence of 6 years is an appropriate sentence to be imposed on you.
  2. At the same time, I also noted that you were remanded into custody on 3 April 2023. Given that you have already been in custody for a period of 1 year 1 month 3 days, I will now deduct the period of 1 year 1 month and 3 days from the term of your sentence under s 3 (2) Criminal Justice (Sentences) Act.
  3. The next issue is to consider whether the balance of your sentence be suspended. Firstly, suspension of a sentence is at the discretion of the Court, to be exercised on proper principles and if it is recommended by a Pre-Sentence Report (Public Prosecutor –v- Done Hale (1998) SC 564). Secondly, suspension may also be appropriate if it encourages reconciliation and restoration of damaged relationships. (Public Prosecutor –v- Tardrew [1986] PNGLR 91). For your case, the PSR does recommend suspend of the sentence. I note that there is feedback from the community on this aspect of consultation from community views overall. For your case, whilst the Pre-Sentence Report did suggest that probationary orders to be imposed, no recommendation were presented for consideration. Given the lack of such recommendation, I am inclined not to discretion in the absence of such recommendation.
  4. With regard to your pleas for leniency and being a first time offender in court, this case can be distinguished from the case of Paulus Mandatitip and Anor -v- The State [1978] PNGLR 128 where youth was considered as a mitigating factor or the case of Kuri Willie v The State (1987) PNGLR 298 Hinchliffe, J discussed the need for courts to investigate alternatives to imprisonment when dealing with youthful first time offenders and the need to consider alternative mode of punishment to imprisonment. However although you are a first time offender and young man, the crime of armed robbery which is committed with such impunity must carry with it some serious penalties as a deterrent factor and I therefore adopt the principle applied by Hartshorn J in the State v Taulaola Pakai (2010) N4125, where he stated that “Court’s should not lose sight of its duty to impose what is a just and fair punishment on an offender." A plea for leniency to avoid the suffering of one's family should have little or no weight when an appropriate sentence is being considered."
  5. In these circumstances, I consider that incarceration is an appropriate penalty and I therefore sentence you to 6 years imprisonment with hard labour, which is midway from the head sentence of 4 years to 8 years submitted by counsels.
  6. In addition, I deduct a period of 1 year 1 month 3 days being the period that you have been held in custody pursuant to s 3(2) of the Criminal Justice (Sentences) Act.
  7. Further and in addition, in the exercise of discretion under s 19 of the Criminal Code, I suspend 2 years of the sentence term. This means that you will now serve the balance of the term of sentence of 2 years 1 months 27 days in custody, to be served at CIS, Buimo, Lae, Morobe Province.

Sentence


  1. Having been convicted you, Tigai Tiasa, of one count of armed robbery under s 386 (1)(2)(a)(b) of the Criminal Code, you are now sentenced as follows:
Length of sentence imposed:
6 years.
Pre-sentence period deducted:
1 year 1 month 3 days.
Balance of term of sentence to be served:
4 years 10 month 27 days.
Amount of sentence suspended:
2 years.
Time to be served in custody:
2 years 10 month 27 days.

Sentenced accordingly.
________________________________________________________________
Public Prosecutor: Lawyer for the State
Public Solicitor: Lawyer for the Offender

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