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State v Max [2025] PGNC 99; N11224 (18 February 2025)

N11224

PAPUA NEW GUINEA
[NATIONAL COURT OF JUSTICE]

CR NO. 1554 OF 2023

THE STATE

V

SAMUEL MAX
of
PILIMUNG VILLAGE, BULOLO
MOROBE PROVINCE

BULOLO/LAE: POLUME-KIELE J
4 AUGUST, 2, 5, 10, 13, 24 OCTOBER, 7 NOVEMBER 2023; 7 FEBRUARY, 19 MARCH, 6 JUNE 2024; 7 & 18 FEBRUARY 2025

CRIMINAL LAW - Plea of guilty - Sentence – armed robbery – s 386(1) (2) (a) (b) (c ) – Criminal Code – Relevant considerations

Brief allegations

The prisoner, Samuel Max in the company of a group of armed men at Lilibang Hetwara, Pine Top, Wau/Waria, Morobe Province in Papua New Guinea committed robbery in that they stole from Risima Rotex and others; money in the sum of K1650 and properties valued at K863.00 and at the time of stealing they used actual violence to any person in order to obtain the thing stolen. They were armed with a dangerous weapon and were in company of other persons contrary to s 386 (1) (2) (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
Ure Hane v the State [1984] PNGLR 105
Public Prosecutor v Hale [1998] PGSC 26; SC564

Counsel

Ms S Joseph for the State
Mr. J John for the prisoner

SENTENCE

1. POLUME-KIELE J: On 5 October 2023, Ms Tamate of the Office of the Public Prosecutor presented an indictment charging the accused, Samuel Max of one count of armed robbery with actual violence contrary to s 386 (1), (2) (a) (b) (c) of the Criminal Code Act (Ch No 262). This offence attracts a penalty subject to s 19, imprisonment for life.
   
2. The State invoked s 7 (1) (a) (b) (c) of the Criminal Code Act. This means that 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.
   
3. On 13 October 2023, he was arraigned. He pleaded guilty to the charge of one count of armed robbery with actual violence contrary to s 386 (1) (2) (a)(b) (c) of the Criminal Code Act (Ch No 262).
   
4. This ruling relates only to the charge of armed robbery with actual violence contrary to s 386 (1), (2) (a) (b) (c) of the Criminal Code Act (Ch No 262).
   

Penalty Provision

5. The Charge of armed robbery – Section 386 states:
   

“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”

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) ...

Issue

6. The issue for determination by the Court is what is an appropriate sentence to impose on the prisoner.
   

Committal Court Disposition

7. The State relied on documentary evidence which comprised mainly of statements from the witnesses including the victims and the Police Record of Interview dated 17 March 2023. All these documents were contained in the Bulolo District Court Deposition and tendered into evidence by consent.
   

(a) The Record of Interview comprised both the original Pidgin and English Version dated 17 March 2023 conducted between the prisoner and the Investigating Officer, Constable Jack Kaman relating to the offence of armed robbery which occurred on 4 December 2022 corroborating police officer was Constable Ken Serot. Both officers are attached to the CID, Bulolo Police Station.

(b) In that Record of Interview, the prisoner, Samuel Max admitted to “the offence of armed robbery whilst “armed with a dangerous or offensive weapon or instrument; and that at, immediately before or immediately after, the time of the robbery, wounds or uses any other personal violence to a person, namely --” (Question and Answer 12, 16, 17, 18, 19, 20, 21, 22, 23, 24, 25, 26, 27, 28, 29, 30, 31, 32, 33, 34, 35, 36, 37 & 38 of the Record of Interview).

(c) The Statements of Risima Rotex dated 8 December 2022 who is the victim in this matter also includes the statements of Jacob Lennox dated 8 December 2022, Evina Yengis dated 8 December 2022, Lena Joe dated 8 December 2022, Dorcas Maima dated 8 December 2022, Piapipanguwo Maima dated 8 December 2022; Jelex Maima dated 13 March 2023, Catherina Jerex dated 8 December 2022,

(d) Also in the depositions were the statements of Senior Constable Jack Kaman dated 21 March 2023 (Investigating Officer) and Constables Jerry Pinda dated 20 March 2023 of Bulolo Police Station. Also included in the deposition is the statements of Constables Allan Alimaka, dated 13 March 2023, Ken Serot (Corroborator) dated 17 March 2023, & Benson Lavenoma dated 16 March 2023.

(e) 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.

8. Upon reading 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.12 to 39 of the Record of Interview dated 17 March 2023; I accepted the prisoner’s guilty plea. I then entered a conviction against the prisoner on the charge of armed robbery with actual violence under s 386 (1), (2) (a) (b) (c) of the Criminal Code Act (Ch No 262).
   

Antecedent Report

9. The antecedent report tendered into evidence by the State disclosed that the prisoner is a young adult male, aged 24 years old. He is unemployed and has no formal education. The prisoner has no prior convictions and is a first-time offender.
   

Allocutus

10. 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.
    
11. 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.
    

Pre-Sentence Report

12. Because he had asked to be placed on probation, his lawyer, Mr. John 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.
    
13. 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, the Probation Officer, (Bulolo) was ordered to prepare and file a Pre-Sentence Report for this purpose. He was directed to have this Report prepared and be filed by 23 October 2023.
    
14. The Pre-Sentence Report was received from the CBC Office, Bulolo on 6 November 2023 and is available to the Court. I have perused the Report, and the overall assessments contained in the report appears favourable to the prisoner. It indicated that he lives in his own home which he built himself and is supported by his sister. He supports himself and his young family financially and emotionally. He does pan for alluvial gold and is a very resourceful and considerate young man. He supports his own family including those of his sister-in law who has since passed. He runs a small trade store and also involves in buying alluvial gold from the alluvial miners along the Bulolo River.
    
15. The community members interviewed were very supportive of the prisoner and stated that he is financially secured and supports his family members through his trade store and gold buying business and panning for gold himself. The members interviewed also stated that they will provide support to the prisoner should he be placed on probationary orders.
    
16. The prisoner has admitted that he was wrong and that he asked for leniency and to be placed on probationary orders.
    
17. Pre-Sentence Report has recommended supervisory probationary orders on terns and has provided suggestions as to how the probationary orders if granted were to be implemented.
    

Mitigating Factors

18. The mitigating factors in your favour include your early guilty plea, which greatly assisted this Court in achieving 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 the views expressed in the pre-sentence report.
    

Aggravating Factors

19. The aggravating factors against you are, however, is that you in the company of other accomplices stole cash in the sum of K1,650.00 and goods worth K863.70.
    
20. It should be pointed out that this Court does not condone your actions including acts of actual violence on the victims. You robbed the victim of his cash and properties of value. During the robbery you were armed with dangerous weapons and in company with other persons. Several homes and other properties belong to the villagers were burnt to the ground. This type of offence is prevalent.
    

Application of the law to the facts

21. The State in this case must prove the following elements of the offence under section 386(1) (2) (a) (b) (c) of the Criminal Code. These are the following:
    
    • (a) There must be a robbery.
    • (b) The robbery must be committed on a thing capable of being stolen.
    • (c) At the time of the robbery the accused is armed with a dangerous or offensive weapon; or
    • (d) Is in company with one or more other persons.
    • (e) At the time of robbery, the person wounds or uses other personal violence.
      
22. 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 the Record of Interview and other oral statements which had been tendered into evidence by consent to substantiate the allegations. This means that all the elements of the offence of armed robbery under s 386 (1) (2) (a) (b) (c) of the Criminal Code are proven.
    
23. These witnesses’ statements clearly showed that you and your accomplices entered the village, threatened the villages, robbed them of their valuables and goods, to the total value of K2,513.70 and also set their homes on fire. At the time of stealing you and your accomplices used actual violence on any person in order to obtain the thing stolen. At the time you and your accomplices burnt down several houses and properties. You (the robbers) were armed with homemade guns and bush knives It is understood that the armed robbery occurred during the day on Sunday, 4 December 2022. The cash amount of K1,650.00 and store goods worth K863.70 were not recovered by police.
    
24. For purposes of this charge, money is capable of being stolen and the commission of this robbery was carried out with the use of homemade guns and knives which are dangerous and offensive weapon. In addition, personal violence was used to commit robbery whereby the victims were threatened with homemade guns and knife and several victim sustained injuries.
    

Submission on Sentence

25. Mr. John on your behalf submitted that whilst you pleaded guilty 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) (c) of the Criminal Code Act (Ch No 262) is subject to s 19, imprisonment for life.
    
26. Mr John reiterated 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 and in addition, 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: The State v Nelson [2005] N2844 to support his submission on leniency. Other cases which were relied upon in his submission on a partly suspended sentence as in the case of The State v Potena Enai (CR No. 1222 of 2019, Unreported judgment, 13 February 2022), an armed robbery case, where a sentence of 12 months was imposed on the prisoner, six months of which is suspended and the balance of the six months to serve in custody at CIS, Buimo.
    
27. . In reply, Ms Joseph for the State submitted that this is a case where the prisoner robbed the victim of her cash in the sum of K1, 650.00 and properties valued at K863.00. The prisoner is convicted of one count of armed robbery under circumstances of aggravation under s 386 (1) (2) (a) (b) (c) of the Criminal Code.
    
28. At the time of stealing you and your accomplices used actual violence on any person in order to obtain the thing stolen. At the time you and your accomplices stole from an elderly woman, you and your accomplices, (the robbers) were armed with homemade guns and bush knives. In the act of stealing the money, you and your accomplices cut the elderly woman on her head using a knife. The armed robbery occurred between 10.00 a.m. and 11.00 a.m. on 4 December 2022. The cash and store goods were not recovered by the police.
    
29. The maximum penalty prescribed for the offence of armed robbery under circumstances of aggravation is subject to s 19, imprisonment for life. However, submitted that it is trite law that the maximum penalty prescribed for an offence is reserved for the worst form or category or offending for that particular offence as held in the case of Ure Hane v the State [1984] PNGLR 105. Further and in addition, she referred this Court to the case of Lawrence Simbe v The State [1994] PNGLR 38, where the Supreme Court held that the principle in determining sentence, is that each and every case should be decided on its own peculiar facts and circumstances.
    
30. Furthermore, this court was referred to several comparable case authorities by both counsels on their address on sentence which were very useful in my deliberations.
    
31. Ms Joseph submitted that you; at, immediately and during the commission of the offence, used force or used a lethal weapon, namely a bush knife to apply personal violence by attacking Lena Joe with the barrel of a gun on her head.. Ms Joseph further submitted that 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 were any genuine attempt or efforts made to do so.
    
32. With regard to sentence, Ms Joseph submitted that this Court has wide discretion under s 19 of the Criminal Code to impose an appropriate penalty.
    
33. Overall, Ms Joseph submitted that the Court exercise discretion to impose a custodial sentence.
    

Sentencing guidelines

34. Both counsel referred to the case of Gimble v The State [1988] PNGLR 271 and The State v Liliura [2014] N5785 which 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

35. In The State v Liliura [2014] N5785, the court reviewed the sentencing guidelines set out in Gimble v The State (supra) and increased the sentencing guidelines. These are set out below:
    

(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

36. Mr. John submitted that this Court should follow the guidelines set out in Gimble v The State (supra) and he proposed that a starting point of sentence of 7 years be imposed. However, he conceded that there is an increase in the sentencing trends for armed robbery, he submitted that a proper starting point of sentence be of 10 years imprisonment less the period of time that the prisoner has been held in custody.
    
37. Regarding what would be a head sentence to be considered, Counsel suggested that a head sentence of 3 years as applied in the case of State v Potena Enai (supra) is appropriate given that the prisoner has pleaded guilty to the charge. Hence, giving the prisoner considerable benefit of doubt on contentious facts. He submits further that the balance of the term of sentence, however, be wholly suspended and the prisoner be discharged to the rising of the Court.
    
38. Ms Joseph for the State submitted that the starting point of sentence should be 10 years imprisonment. There is a strong need for both personal and general deterrence. The offence of armed robbery is being committed almost every single day, not only in Bulolo but also everywhere in our country.
    
39. People are constantly living in fear of their lives as well as the fear of loss and damages to their properties. Business houses and small stores are 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.
    

Comparable cases

Both counsels referred this Court to a number of comparable cases as a guide to assist determine sentence which I am grateful for the assistance provided, a few of which I have out set below:

A number of cases were cited by counsel, however, I have only listed a few noting that the facts of the case do differ to the matter currently before the Court. I set out several cases as a guide in my deliberations on sentence. These are listed as:

40. For comparable cases, Ms Joseph referred to the following cases to support her submission on sentence:
    

Determination of sentencing criteria

41. 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 made references to the following cases: SCR No. 1 of 1984; Re Maximum Penalty [1984] PNGLR 418, Avia Aihi v the State [1982] PNGLR 92 and Ure Hane v the State [1984] PNGLR 105. This Court is minded determining the facts and circumstances of each case on its own set of facts and circumstances in order to determine an appropriate penalty: Lawrence Simbe v The State [1994] PNGLR 38. For this case, the prisoner was involved in the planning and commission of the offence. The robbery was pre-planned and consciously carried out by the offender and other persons who are still at large. The money stolen was not recovered by police.
42. Further, the sentencing guidelines established in Gimble v the State (supra) has been reviewed, and it has increased: The State v Liliura (supra). The sentencing guideline has increased from 3 years to 8 years. The sentencing trends however have varied considerably as can be seen by various pronouncements by the Courts and highlighted in the comparable cases set out in this ruling. There is an increase in the range of sentence terms imposed by the Courts due to the prevalence of such offences.
43. In The Public Prosecutor v Don Hale (1998) SC564, the Supreme Court introduced the following starting point:

(1) robbery of a house – ten years.
(2) robbery of a bank – nine years.
(3) robbery of a store, hotel, club, vehicle on the road etc – eight years.
(4) robbery of a person on the street – six years.

44. There has since been an increase in the sentencing tariffs. Hence, the sentencing guidelines in Don Hale (supra) if adopted and applied to your case attracts a penalty of 6 years imprisonment. The State in their submission, submits that adherence to these tariffs will not adequately reflect the prevalence of this offence and has asked this Court to consider other case authorities which have dealt with similar offending and make a finding accordingly. Ms Joseph submitted that a custodial sentence of 10 years is appropriate penalty to be imposed on you.
    
45. The exercise of discretion to suspend the minimum sentence is provided for under s 19 (1) (d) of the Code (State v Waim [1998] PNGLR 360 at 363 per Injia J (as he was then) is also available to the Court and must be based on some proper basis: Public Prosecutor v Thomas Vola [1981] PNGLR 412, for instance, a first time young offenders; 18 years or below; Gimble v The State [1988-89] PNGLR 271 at 275; and is of good character and good family background; State v Frank Kagai [1987] PNGLR 320 and State v Justin Nyama [1991] PNGLR at 127 or on medical grounds; Public Prosecutor v William Bruce Tardrew [1986] PNGLR 91.
    
46. Whilst I have taken into account all that the prisoner has said in his allocutus and have considered the address by his counsel on mitigation. I am also required to weigh the consequences of sending offenders to prison for “non-violent crimes” and those which have been categorised as “violent crimes”: Doreen Liprin v. The State [2001] PGSC 11; SC673 (9 November 2001) and off course, the established principle of law which states that the maximum penalty should be reserved for the worst type cases: Goli Golu v The State (supra).
    
47. This present case may not be the worst type of offence of robbery. however, the accused committed the offence in aggravating circumstances. It is very serious crime and is prevalent. It appears that the sentences imposed by the Courts are not having an effect. Hence, the Courts must play its part in ensuring that the principles of sentencing of deterrence, separation, rehabilitation and retribution still remain the same: see The Acting Public Prosecutor v Uname Aumane & Ors [1980] PNGLR 510 at [537-538] per Kapi J. Of the four (4) principles of sentencing, I note that deterrence is used more frequently because the concept of deterrence is to discourage the prisoner from repeating the same offence and to also serve as a promotion of peace, good order, and safety with the community. The other desired effect of deterrence is that it is seen as a warning to other likeminded offenders to cause them not to engage in such criminal activity because if they do than they will be dealt with by the law and punished accordingly: The Acting Public Prosecutor v Uname Aumane & Ors (supra); see also State v Moewe [2024] PGNC 135; N10801 (5 April 2024).
    
48. By reasons of the foregoing, I have arrived at a conclusion that the circumstances of the case do not warrant the imposition of the maximum penalty prescribed under s 386 (1) (2) (a) (b) of the Criminal Code. I consider that a lesser sentence be imposed based on the sentencing guidelines in The State v Liliura (supra) with a starting point of sentence of 10 years as submitted by the State, with movements up and down based on the factual circumstances of the case. In this case, the prisoner and his accomplices did use force or used other forms of weapons to threaten and cut a security officer on the thumb during the commission of the offence.
    
49. On the other hand, I also accept submission from the State that sentences imposed for armed robbery cases are not having any effect on offenders who commit the crime of robbery. What is clear is that now a days, the offence of armed robbery is freely and frequently committed invariably by young people such as your case. I also note that the aggravating factors against you far outweighs the mitigating factor.
    
50. Whilst I do note that you have expressed remorse for what you have done, I refer to and reiterate my statement in the case of State v Kanamai [2024] N10921; where I reiterated the statement made by his Honour Lenalia J in the case of The State v Richard Saku (No.3) (2006) N3284 where he referred to the comments made by the Court the case of Gimble v The State (supra) in which the Court stated: “that where an offence of armed robbery is committed with features of aggravations such as actual violence or where a robbery involves a large amount of money may justify a higher sentence. A plea of guilty should justify a lower sentence.” I adopt that proposition and agree that since you have pleaded guilty, consideration be given to a lower sentence. However, having stated the above, the Court is also mindful that the sentences that have been imposed for the offence of armed robbery has not served its purpose in deterring likeminded offenders: The State v Alus Tamagi and Paija Teke (supra). Armed robbery is on the increase therefore, something needs to be done to address such a hike in this type of offence. It justifies an increase in sentence as a deterrence to the offenders and other likeminded offenders. The offence of armed robbery here is serious as it involved the use of dangerous weapons namely homemade guns and knives. Numerous lives were placed at risk. The whole village was terrorised, and their valuables and cash were stolen.
    
51. I have taken into account the mitigating factors submitted in your favour . However, I am of the view that the aggravating factors outweighed the factors in favour of the prisoner. Consequently, I am of the view that a starting point of 10 years sentence be imposed with movements up and down the scale of the maximum penalty imposed under the provisions of s 386 (1) (2) (a) (b) of the Criminal Code as submitted by the State.
    
52. I find that a custodial term sentence is warranted and thus am inclined to accept the submission of the State that a head sentence of 10 years be imposed on you,
    
53. At the same time, I also do take into account the fact that you have pleaded guilty saving Court’s time and expense in running a full trial which necessitate some leniency in terms of sentence.
    
54. I note that you been in custody since 10 July 2023 and have been in custody at Buimo CIS for a period of 1 year 7 months 8 days.
    
55. In conclusion, I hereby sentence, you, the prisoner, Samuel Max to 10 years imprisonment with hard labour less the period of 1 year 7 months 8 days that you have been held in custody pursuant to s 3 (2) of the Criminal Justice (Sentences) Act 1986.
    
56. In the exercise of discretion under s 19 of the Criminal Code, 2 years of the sentence is suspended.
    
57. You (Samuel Max), the prisoner will now serve the balance of the term of sentence of 6 years 4 months 22 days imprisonment at CIS, Buimo
    

Orders

58. Having convicted you, Samuel Max on one count of robbery with actual violence contrary to Section 386 (1) (2) (a) (b) and (c) of the Criminal Code, you are now sentenced as follows:
    
    • (1) Length of sentence imposed: 10 years.
    • (2) Pre-sentence period deducted: 1 year 7 months 8 days.
    • (3) Balance of term of sentence to be served: 8 years 4 months 22 days
    • (4) Amount of sentence suspended: 2 years.
    • (5) Time to be served in custody: 6 years 4 months 22 days.
    • (6) This sentence is to be served currently with the sentence of 18 years 4 months 22 days for one count of murder contrary to s 300 (1) (b) of the Criminal Code, such sentence term to be served in CIS, Buimo.
      

Sentenced accordingly.
________________________________________________________________
Lawyer for State: Public Prosecutor
Lawyer for prisoner: Public Solicitor