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State v Taha [2024] PGNC 385; N11057 (4 October 2024)

N11057

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR No. 713 OF 2023

THE STATE

V

JOEL RUANA TAHA (TAIVERI)

Waigani: Miviri J
2024: 11^th September, 4^th October

CRIMINAL LAW – PRACTICE AND PROCEDURE – Robbery – Plea – Air Terminal Office Aggravated Armed Robbery – Armed with pistols & In company – Well Planned Offence – Other Criminal Offences Committed to Facilitate Aggravated Armed Robbery – Vehicles Hired to Facilitate – Very Well-Planned Offence – First Offender – Prevalent Offence – Strong Punitive & Deterrent Sentences – Sentence By Facts & Circumstances.

Facts

Accused was part of a group of men who were armed with pistols and other dangerous weapons which they threatened to use upon the employees of Tropic Air Terminal at 7-mile Jacksons International Airport and stole K1.195, 000. 000 and drove away with it.

Held
Guilty plea to Aggravated Armed Robbery.
First Offender.
Well planned offence.
Large sum of money stolen K 1.195 million stolen
Prevalent offence
Armed with Pistols
Other criminal offences committed to facilitate Robbery.
Strong Deterrent & punitive Sentences.

Cases Cited:
Golu v The State [1979] PNGLR 653
Thress Kumbamong v The State (2008) SC1017
Simbe v The State [1994] PNGLR 38
Aubuku v The State [1987] PNGLR 267
Kama v The State [2004] PGSC 32; SC740 (1 April 2004)
State v Hahuahoru (No 2) [2002] PGNC 136; N2186 (21 February 2002)
Lahui, Hetau, Noho, and Eki, The State v [1992] PNGLR 325
Simbago v The State [2006] PGSC 23; SC849 (31 August 2006)
Public Prosecutor v Hale [1998] PGSC 26; SC564 (27 August 1998)
State v Malo [2006] PGNC 231; N4520 (19 December 2006)
Marase v The State [1994] PNGLR 415
Gorop v The State [2003] PGSC 1; SC732 (3 October 2003)
Anis v The State [2000] PGSC 12; SC642 (25 May 2000)
Gimble v The State [1988-89] PNGLR 271
Maima v State [2016] PGSC 19; SC1504 (27 April 2016)
Tardrew, Public Prosecutor v [1986] PNGLR 91

Counsel:
D. Kuvi & S. Kuku, for the State
K. Watakapura, for the Defendant

SENTENCE

04^th October 2024

1. MIVIRI J: This is the sentence upon Joel Ruana Taha (Taiveri) of Medene village, Rigo District, Central Province for the crime of Aggravated Armed Robbery of K 1, 195, 000.00 property of Rimbunan Hijau Group of Companies.
   
2. He was charged pursuant to Section 386 (1) (2) (a) (b) (c) of the Criminal Code Act, that he at Tropic Air Terminal, 7 mile, Jacksons International Airport, National Capital District, Port Moresby on the 03^rd of November 2016 committed robbery, in that he stole from Rimbunan Hijau Group of Companies, cash money in the sum of K 1, 195, 000.00 and at immediately before the time of the stealing he threatened to use actual violence to any person in order to obtain the thing that he intended to steal. Circumstances of aggravation were pleaded in that at this time, he was armed with pistols dangerous and offensive weapons and was accompanied by others.
   
3. Specifically, that section is in the following terms: “Section 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.

4. The definition here sets that robbery committed without the aggravation set out in subsection (2) will draw 14 years upon the robber. The prisoner is armed with factory made pistols, accompanied by others, and uses or threatens to use actual violence. His sentence will be the maximum of life years, if his case is the worst case of aggravated armed robbery: Golu v The State [1979] PNGLR 653. The sentence must fit the crime and be proportionate to it. And this will be determined by the facts and circumstances posed. And that will be the case here drawing an appropriate sentence for the prisoner. All mitigating aggravating extenuating circumstances will be basis to arrive at a proportionate and just sentence for him.
   
5. The facts on arraignment were that on the 03^rd November 2016 at 7 mile, Jacksons International Airport, National Capital District, between 7.30am and 8.00am the Accused with four accomplices drove a Ford Ranger registration number BEV 869 into the Tropic Air Terminal armed with three factory made pistols. They went through the arrivals gate entered the cargo bay where the parcels of the money were kept. The Accused and two others armed with two pistols threatened to shoot the Staff of Tropic Air and RH Personal and ordered them to lie flat on the ground. The Accused went and took six (6) parcels of bag containing cash.
   
6. They stole a total of one million one hundred ninety-five thousand Kina (K1, 195, 000. 00) cash belonging to Rimbunan Hijau Group of Companies. After stealing the Accused and Accomplices fled the scene using that Ford Ranger registered number BEV 869 which was parked outside waiting. On the 31^st December 2016, accused was arrested at Gorudobu village Koiari Sirinumu Dam where he was later questioned and charged.
   
7. His guilty plea before me is consistent with the admission he made to police in a confessional Statement that was obtained on the 06^th January 2017 in which he detailed his role in the crime. He admits to going into the cargo area where the money is in parcels that he picks out. And he is seen in footage that is captured by the CCTV carrying all the money parcels. It is detailed out in the record of interview conducted with Police on the 16^th January 2017. The compound effect is a very detailed explicit well-planned robbery. The eventual execution of the robbery at the Tropic Air Terminal is the materialization of that preplanning. Preplanning that is carried out at Apex Park on Tuesday. And reinforced with the prisoner with accomplices all gathering overnighting at Kevau Inn from where they proceeded to the execution of the robbery. His own role caught out by the footage at the scene shows that he is clearly leading in picking up and taking out the money contained in parcels all of which are carried out by him.
   
8. The footage shows that he is wearing a reflector presumably to lay down any suspicion of what he is intending to do there. Including that he has a dark pair of sunglasses over his eye. It is indeed well planned because a ford ranger registered number BEV 869 stolen in an armed robbery on the 30^th October 2016 is used as a getaway vehicle. And there is hire of two Toyota five door land cruisers that are used as getaway vehicles transiting from the Stolen ford ranger into them to ensure successful getaway after the crime. The former is abandoned for the latter giving successful escape after the armed robbery. Yes, this is a guilty plea but the facts that are aggravating must be given due weight in the determination of the matter. A case is made up of aggravating as well as mitigating features that must be the subject of due weighing to arrive at just determination of the matter. It cannot be ignored that this was a very well planned aggravated armed robbery with pistols that were sourced out corresponded to at the end of the successful execution of the robbery, paid out and for by the persons who issued them purposely for the execution of the robbery. Each case will draw its own sentence by its own facts and circumstances: Thress Kumbamong v The State (2008) SC1017. Not all will be the same and will draw out the tariff and range proposed as the starting point set out above. Because the Courts domain is not legislating but application of the law. As such the views in Simbe v The State [1994] PNGLR 38 set this out well and applicable here. So, the appropriate penalty due to the prisoner is deduced from the facts and circumstances posed here by the evidence.
   
9. And therefore, it cannot be ignored that the prisoner Joel Ruana Taha (Taiveri) played a very important and leading role in the execution of the robbery. He was the lead hand with who picked out the parcels of money from the cargo bay. And this is documented out by the photograph taken from the CCTV showing him carrying out the parcels of money. He is therefore the leader of the pack. He gets the loot that is taken out of its lawful possession into the domain of the robbers. And that photograph depicting leaves no doubt that he is the leader of the robbers. Without him picking up the money it could not have been stolen. He has pleaded guilty but the facts aggravating cannot be scaled down to draw favour in his cause. They are very relevant and underpinning just determination of the sentence due. And I will not ignore nor downplay the gravity depicted his role in that photograph. It is in real time as he carried out the crime of robbery. It is without any words conclusive evidence of the role he played in the crime. It is very serious and damning fact of his role in the successful execution of that crime. He is not a follower in the crime but the leader in its successful execution. This is a very serious aggravating feature of the case that must be accommodated in the sentence due: Aubuku v The State [1987] PNGLR 267. Because robbery is by its very nature a serious and aggravated crime of violence as is rape and therefore it would be not erroneous to take account of serious aggravation that would increase the sentence due an offender. Some of which are highlighted here which need not be repeated.
   
10. He is not collecting cans that have been discarded on the side streets of Port Moresby, or any other centre throughout Papua New Guinea to be sold so that money can be made for the collector, a Papua New Guinean who is very honest to the extent of looking into rubbish drums that are filled with refuse, overwhelming with decaying substance and food remains, filled with betel nut spit, prone to disease. This is a robber dressed like an airport employee with a reflector to seal that fact who goes into a cargo area to pick out the K 1, 195, 000.00 of money that has been hard earned by Papua New Guineans who must be paid for their services. Or expenses of the company it is obligated to meet contributing to the success or demise of the Country, now 49 years on after independence. He has gone to extreme lengths to plan out and execute this crime. He does not take heed that other Papua New Guineans earn their keep from being employed there. He is prepared to be accompanied by others who are armed with pistols that have potential to kill at the squeeze of the trigger.
    
11. And which fact is set out in where robbery has climaxed in death to the victims, because of the level of violence. And reported cases Kama v The State [2004] PGSC 32; SC740 (1 April 2004); State v Hahuahoru (No 2) [2002] PGNC 136; N2186 (21 February 2002) and Lahui, Hetau, Noho, and Eki, The State v [1992] PNGLR 325; Simbago v The State [2006] PGSC 23; SC849 (31 August 2006), evidence the run that a robbery will more than probable run into homicide and very serious injuries to the victims and robbers alike. It is therefore not a light matter that will be dictated by a tariff or range set. It must draw from its own facts and circumstances. And that is the view I adopt here in sentencing the offender.
    
12. And in this regard apt are the remarks of the supreme Court, “We find that with the prevalence of violent crime involving the use of guns the ranges of sentences recommended in Gimble’ 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 homeowners at night with the use of firearms to threaten victims should be 10 years,” Public Prosecutor v Hale [1998] PGSC 26; SC564 (27 August 1998). This is an airport terminal liken to a house, dwelling, frequented by People who use aircrafts for transport and businesses. It must be protected by the sentence that is imposed here. Section 386 does not distinguish between robbery of a house and an office. Both are robberies, and if accompanied by or with aggravating features as is the case here, it will draw the maximum sentence if it is the worst case, of life imprisonment.
    
13. And even aggravated is the fact that it is one of the most prevalent offences known to the law. Sentences that have been imposed have simply being brushed aside and the offenders have continued to pile up. Therefore, it is incumbent upon the Courts to impose serious sentences penalties befitting the crime. Penalty that will send the message loud and clear that the law has now realized that in the way it has sentenced, it has contributed. In this regard it is relevant to look at the execution of the robbery rather than the proceeds of the crime: State v Malo [2006] PGNC 231; N4520 (19 December 2006) a store was robbed of K165,924.17 with use of guns and firearms, a vehicle was also stolen in that robbery. Police pursued and apprehended the prisoner who was slashed with a knife when apprehended. He pleaded guilty and was sentenced to 8 years IHL. In Marase v The State [1994] PNGLR 415 the appeal was dismissed and the 19 and half year IHL was confirmed for rape and robbery. In Gorop v The State [2003] PGSC 1; SC732 (3 October 2003) 20 years sentence for robbery was reduced to 18 years because the National court did not accede to current sentencing trend and tariff. Appellant had badly assaulted a tourist couple with a hockey Stick injuring both seriously and then stealing their properties. Comparably the present case is very serious by its own facts and circumstances set out above.
    
14. I am not observing what the Supreme Court saw in Anis v The State [2000] PGSC 12; SC642 (25 May 2000). He is not a youthful offender. Here he is aged 40 years old, single man with no education beyond grade 1 to 3 at Medene Primary School at his home village. Prisoner is a mature person with no formal employment record. A first offender who has pleaded guilty to this very serious aggravated armed robbery of a substantial sum of money. But a very well planned and executed robbery with him as leader of that offence. He is simply a very greedy person unjustified who has gone to great lengths to build up a team of robbers armed with pistols, whether factory made, or homemade, have the real propensity to kill at the squeeze of a trigger. Carefully planned so that he escapes and is at large to deal with the money stolen. It is no light matter to dawn upon that office and its employees who had just opened for business in the morning. It is not robbery of a house, but it is an office where human being work day in and out. The distinction by Gimble v The State [1988-89] PNGLR 271, imposing 7 years starting point was in 1988 to 1989, this is 2024, and robbery is as prevalent as ever. Hales case (supra) voices 10 years imprisonment. Tariff and range are guiding not necessarily the dictate of the legislature.
    
15. I consider it compounded when robbery of a vehicle has taken place to facilitate as means to access this robbery. One crime perpetrated as basis upon which to commit another. I likened it to the case of Maima v State [2016] PGSC 19; SC1504 (27 April 2016) where the applicant sought review against the sentence of 53 years imprisonment for armed robbery and two counts of rape. He argued that the sentences were excessive and there was identifiable error on the face of the sentence. The sentencing discretion was erroneously exercised. The Supreme Court granted the application and substituted, for the sentence imposed by the National Court, a total sentence of 30 years imprisonment. This is a conviction for aggravated armed robbery. But the fact that it got off successfully because of an earlier act of robbery cannot be ignored. Yes, it is not a conviction but an aggravating feature that must be settled in the sentence passed. It is the legs that got the robbery successfully. And so, a proportionate sentence due on the conviction here would be 30 to 20 years imprisonment considering all set out above. And I so consider as it would not be erroneous to so impose here upon the prisoner for the crime of aggravated armed robbery committed on the 03^rd of November 2016 in that he stole from Rimbunan Hijau Group of Companies, cash money in the sum of K1, 195, 000.00 and at immediately before the time of the stealing he threatened to use actual violence to any person in order to obtain the thing that he intended to steal. It would not be disproportionate to impose 30 years imprisonment upon the prisoner.
    
16. In my view the level of planning to execute successfully the robbery must be stopped on all fours by a corresponding sentence. And that determined by the facts and circumstances would be 30 years imprisonment. I am determining a sentence for the conviction of aggravated armed robbery which is compounded and aggravated by the features that I have set out above. This is the leader of the pack that successfully got that haul. Evidence stands him out. He must be compensated with sentence appropriate and proportionate. It is a guilty plea by a first offender who has returned K 75, 000.00 of the K 1, 195, 000.00 stolen by the presentence report ordered. There is no independent verification from the company Rimbunan Hijau of this fact. It is therefore self-serving without confirmation. There is nothing in the presentence report that points to a sentence other than custodial term. I remind myself of the law in Tardrew, Public Prosecutor v [1986] PNGLR 91on the basis of which I consider that there is no material here warranting a suspension of the term due the prisoner. There will be no suspension of the sentence imposed here. The level of violence in this crime has continued to escalate and very serious planning showed here must meet the full force of the rule of law.
    
17. Prisoner was prepared to do what he did on conviction that will draw a sentence for that offence of 30 years imprisonment IHL committed on the 03^rd of November 2016 in that he stole from Rimbunan Hijau Group of Companies, cash money in the sum of K 1, 195, 000.00 and at immediately before the time of the stealing he threatened to use actual violence to any person in order to obtain the thing that he intended to steal.
    
18. The sentence is 30 years imprisonment IHL. And time on remand is deducted forthwith. He will serve the balance in jail forthwith.
    

Orders Accordingly
__________________________________________________________________
Office of the Public Prosecutor: Lawyer for the State
Office of the Public Solicitor: Lawyer for the Defendant