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State v Pesa [1994] PGLawRp 623; [1994] PNGLR 317 (12 May 1994)

PNG Law Reports 1994

[1994] PNGLR 317 - State v John Pesa�

[1994] PNGLR 317

N1231

PAPUA NEW GUINEA

[NATIONAL COURT OF JUSTICE]

THE STATE

V

JOHN PESA

Popondetta

Injia AJ

11-12 May 1994

CRIMINAL LAW - Sentence - Guilty plea to three counts of aggravated robbery - Robberies committed in close sequence but involving different victims in three different houses - Cumulative sentence appropriate - Five years imprisonment in hard labour on each count, made cumulative - Totality principle - Each sentence reduced by two years - Prisoner to serve nine years in total.

Facts

The accused committed three counts of aggravated robbery. He pleaded guilty to all three acts of robbery.

The Court considered the appropriate sentencing tariff, whether there are "special circumstances", and whether to impose cumulative or concurrent sentences.

Held

N1>1.������ Although the three offences are similar in character and were committed in the same evening in close sequence, the victims are all different. Therefore, the sentences are to be cumulative.

N1>2.������ There were no special circumstances and, taking all matters into consideration and based on the principle "just total", the accused is sentenced to nine years in total.

Cases Cited

Acting Public Prosecutor v Haha [1981] PNGLR 205.

Gimble v The State [1988-89] PNGLR 271.

Public Prosecutor v Kerua & Ors [1985] PNGLR 85.

Counsel

C Sambua, for the State.

D Sakumai, for the defendant.

12 May 1994

INJIA AJ:� The defendant pleaded guilty to three counts of aggravated robbery pursuant to s 386(2)(a)(b) of the Criminal Code Ch 262.

The three offences occurred within a period of two hours at the homes of Higaturu oil palm employees in the Irigi compound.

The circumstances are as set out in the statements of various witnesses, which are contained in the court depositions. On the early evening of Friday 11 February 1994, the defendant and two of his friends covered their faces with masks and armed themselves with a shotgun, a home-made pistol, and a grass knife and went to Irigi compound. At 8.30 pm, they went to the house of Doemo Paemo. Whilst Doemo and a friend of his were sitting on the verandah talking, the three men approached them and held them up. They threatened to kill Doemo unless he gave them the pay money he received that day. Doemo gave them K10, which was the last portion of his money he had left with him from his pay of K40. After taking K10 from Doemo, the robbers entered the house and held up Doemo's wife, Aio, who was cooking food in the kitchen. While one of the men held a pistol pointed at Doemo and Aio, the man with the shotgun entered the bedroom and took the personal belongings of the family. The robbers took with them two bedsheets, two blue jeans, two stringbags, a national radio cassette player, a pair of soccer boots, three "T" shirts, and two dresses.

The three men went to the house of Leban Sagi at about 9.45 pm. Leban was inside the house trying to make fire in the kitchen when the three masked men entered the house and held him up. The man with the shotgun ordered him to go outside to the verandah, which he did. There the three men threatened to kill him unless he gave them his pay money. So he went to his bedroom and took out his pay money of K40 and gave it to them.

The robbers proceeded to the house of Maguru Nape at about 10.25 pm. Maguru was inside the house while his wife, Lily, was sitting on the verandah with some relatives. The three masked men approached Lily and her friends and held them up. Lilly shouted, "Rascals, rascals." Leban rushed out to see what was happening. One of the masked men, whom Leban identified later as John Pesa, the defendant, pointed a gun at him and asked him where he had put his pay money. Maguru got scared and took out the K40, which he hid under a table inside the house, and gave the money to them. The robbers then told them to go inside the house, which they did. The three men then locked the door from the outside and left.

The next day, Saturday, 12 February 1994, John Pesa returned to Maguru's house and gave back K20, explaining, in Maguru's words, that he "thought the house belonged to another person, he and his friends held them up."

The defendant admitted participating in the three robberies with his two friends. His admissions are contained in the record of interview, in his confessional statement, and in his statement on allocutus. However, he said that he merely stood on guard outside the three houses whilst the other two went inside and held up the victims. He also said he was not masked, he was not armed with any of the weapons, and he did not receive any of the money taken in the first and second robberies. As for the third robbery, he recovered K20, which he returned the next day. As the State has not called evidence to dispute these claims, I must accept the defendant's version.

The defendant is aged about 18 years old. He voluntarily left school in Grade 4 in 1987 because his father died and he had to attend to his old mother, his father's 15 acres of oil palm block, and a small trade store. He says he earned about K120 per week from sale of oil palm and about K80 - K100 per week from the small trade store. He has only one brother, who lives in Port Moresby. He says these three offences are his first offences.

It appears to me that he comes from a relatively good family background. He also appears to be an economically independent person. For instance, he says he has K1,000 in his personal savings bank account. He has offered to pay K500 of that money as compensation to the three victims. I find it difficult to understand how a young man of his background chose to engage in criminal practices in order to obtain a little more money for his purposes.

The prisoner has pleaded guilty to three serious offences, each of which carries a maximum of life imprisonment. There is clear evidence from his own admissions in the record of interview and confessional statement that these robberies were planned and well-executed.

In considering sentence, I take the following mitigating factors into account in his favour:

N2>1.������ His youth.

N2>2.������ His good family and economic background.

N2>3.������ He co-operated with police in readily admitting the offence.

N2>4.������ He pleaded guilty to all three counts of aggravated robbery.

N2>5.������ In respect of the third offence, he demonstrated remorse by returning K20 to the victim.

N2>6.������ He has no prior convictions.

In addition, he has offered to pay compensation of K500, to be shared between the three victims. I have given some thought to the question of whether or not this offer is to be taken into account as part of the punishment, as provided for in the Criminal Law (Compensation) Act 1991. I have decided to take it into account as a mitigating factor - as evidence of his remorsefulness and good character rather than punishment, because I do not think compensation as a form of punishment is appropriate in this case. The three offences being serious, the length of custodial sentence which I will impose is such that it will have little impact on the overall punishment because, under the said Act, all that he will be entitled to receive by way of default penalty for the K500 is a maximum of one month. See s 6(b) and Schedule 1 of the Act.

As to the circumstances of the offence, I accept that the prisoner did not actively participate in the three robberies, except that he stood on watch as a guard. I also note that the three victims were not actually assaulted but merely threatened. Further, I note that one bedsheet and a "T" shirt have been recovered.

The guidelines for sentencing in robbery cases were set out by the Supreme Court in Gimble v The State [1988-89] PNGLR 271. The present offences fall into the first category, which deals with robbery of a house. The Supreme Court at p 274 states:

N2>"1.����� Robbery of a house

Where a group of young first offenders, carrying weapons, invade a house and use the threat of violence to rob the occupants, we consider that a sentence of around seven years imprisonment is appropriate in a contested case. A lesser sentence can be imposed in an uncontested case, that is, where the offender pleads guilty. When actual violence is used, for example if one of the victims is bashed or stabbed or shot, a higher sentence would be justified. If actual violence is attempted even though it fails, for example, if a shot is fired at a victim but it misses, that is an aggravated feature which would justify a higher sentence. We consider that the robbery of the occupant of a house is more serious than the robbery of a store or business because it is an invasion of privacy and family life. One of the basic rights enshrined in the Constitution is 'protection for the privacy of their homes'. A man's home, whether it is a mansion or a shack, is his castle and we think the punishment for robbery of a home should reflect those community values."

On the question of leniency of sentence in a case where the court is dealing with young first offenders, 18 years or above, the Supreme Court stated at p 275:

"In suggesting sentencing tariffs in the above four categories of robbery, we have been considering first offenders, 18 years and above, and in those cases we do not consider that a suspension of any part of those sentences is appropriate. If, however, the offender is very young and there are special circumstances, a suspended sentence may be considered. If the offender has a prior conviction, then the suggested tariffs may be exceeded and suspension of any part would rarely be appropriate."

In the instance case, the offender is not very young. Indeed, I have said he appears to be a mature young man who demonstrates a sense of responsibility and economic independence. I also consider that these two factors do not constitute "special circumstances" which would justify a suspension of the sentence or a part thereof, because it is those very things which should have discouraged him from committing these offences.

I consider that a sentence of five years imprisonment in hard labour for each offence is appropriate.

Having decided the appropriate sentence in each case, I must now consider whether the sentence should be made concurrent or cumulative. There are three principles involved. One of those principles was set out in Acting Public Prosecutor v Haha [1981] PNGLR 205 and the two others were further added on in Public Prosecutor v Kerua & Ors [1985] PNGLR 85. These three principles are set out in Kerua's case at p 90:

"The National Court has a discretion whether a sentence should be concurrent or cumulative but that discretion should be exercised in accordance with well-known principles. The latest local case on those principles is Acting Public Prosecutor v Konis Haha [1981] PNGLR 205. We follow that case and the useful statement of the English law found in Thomas, Principles of Sentencing (2nd ed), at 53-61). The first principle is what Thomas calls "the one-transaction rule": where two or more offences are committed in the course of a single transaction all sentences in respect of the offences should be concurrent. The Supreme Court in Tremellan v The Queen [1973] PNGLR 116 made the same point in different words (at 117): 'Although it is neither desirable nor possible to lay down any all-embracing rule as to when sentences for two or more convictions should be made concurrent, sentences should generally speaking be made concurrent where a congeries of offences are committed in the prosecution of a single purpose or the offences arise out of the same or closely related facts.'

The facts of Tremellan's case illustrate this rule. The counts were paired for stealing and for fraudulent and false accounting, and the Supreme Court on appeal imposed concurrent sentences. Other examples are a series of sexual assaults or frauds on the same victim. There can be exceptions to this rule and the Court of Appeal in England has upheld sentences which appear to offend this rule because the court considered that the totality of the sentence was correct. It is more a rule of thumb or a guiding principle than a strict rule and it is subject to the totality principle which we mention in a moment.

The second rule is that where the offences are so different in character, or in relation to different victims, cumulative sentences are normally applicable. Examples given by Thomas are burglary and violence to the householder, assault plus escaping from custody, and sexual assaults on different victims. Wari Mugining v The Queen [1975] PNGLR 352 affords a local example. Cumulative sentences were upheld for grievous bodily harm and assault with intent to commit rape. Konis Haha's case (supra) supplies another local example; cumulative sentences for robbery with violence and rape were imposed. This rule, like the first one, is flexible; it is a rule for guidance only and like the first rule is also subject to the totality rule.

The third rule, the totality rule or principle, is that when the sentencer has arrived at appropriate sentences and decided whether they should be concurrent or cumulative he must then look at the total sentence and see if it is just and appropriate. If it is not, he must vary one or more of the sentences to get a just total. The court must look at the total sentence and see if it is just and appropriate for the totality of the criminal behaviour."

Applying those principles to this case, I consider that, although the three offences are similar in character and were committed in the same evening in close sequence, the victims in all three cases are different. Accordingly, I consider that the sentences should be made cumulative. Indeed, counsel for the defendant quite correctly conceded this point. This means that the defendant will serve a total of 15 years in gaol.

The final issue is whether or not the total sentence offends the principle of just total, as set out in Kerua's case. In deciding this issue, it is also relevant to take into account the young age of the offender and impose a total sentence which avoids a crushing effect on his efforts in prison to reform his life in order to live a normal life after he is released from prison. I consider that a total of 15 years imprisonment is excessive punishment for the prisoner's participation in the three crimes. It would also have a crushing effect on his future. Therefore, I reduce two years from each sentence. This means that he will serve a total sentence of nine years imprisonment in hard labour, less the period of two months and 18 days he has already spent in custody.

Lawyer for the State: Public Prosecutor.

Lawyer for the defendant: Public Solicitor.