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State v Wrakuhau (No 2) [2005] PGLawRp 25; [2005] PNGLR 186 (26 September 2005)

[NATIONAL COURT OF JUSTICE]

THE STATE

V

ISMAEL PAVO WRAKUHAU (NO. 2)

WEWAK: KANDAKASI J

09 & 26 September 2005

CRIMINAL LAW – Sentence – Armed robbery – Use of guns and other offensive weapons – Substantial amounts stolen – Only a small proportion recovered – Conviction after trial – Prevalence of offence – Increase in tariffs - Need for deterrent sentence – Custodial sentence of 17 years imposed.

Facts

The Court found the prisoner guilty on one count of armed robbery after a short trial. Following that decision the Court reserved its decision on its sentence, after having heard from the prisoner in allocutus and from his lawyer as well as that of the State as to the kind of penalty the prisoner should receive. This is now the Court's decision on sentence.

Held

1. The offence of armed robbery carries a maximum penalty of life imprisonment: see The State v Moses Tingin & Kennedy Kara (CR 1483 and 1481 of 2005). However, the Supreme Court has set sentencing guidelines for armed robbery lower than that in the exercise of the sentencing discretion vested in the Courts by s 19 of the Criminal Code: see Gimble v The State [1988-89] PNGLR 271.

2. Subsequent judgments of the Supreme Court have held that these guidelines, particularly the recommended sentences are outdated and have increased. This started on 2 April 1998 in Hawai John v The State (1998) unreported & unnumbered judgment delivered on 2/4/98 (SCR 09 of 1995).

3. The prevalence of the offence is the main contributing factor for the increase in the sentences.

4. A sentence of 17 years was imposed because of the fact that there was no personal injuries to the prisoner's victim: distinguished between Hawai John v The State and Dadly Henry Gorop v The State (2003) unreported judgement delivered on 3/10/03 - SC732.

Papua New Guinea cases cited

Acting Public Prosecutor v Don Hale (Unreported judgment delivered on (27/08/98) SC564.
Dadly Henry Gorop v The State (Unreported judgment delivered on 03/10/03) SC732.
Gimble v The State [1988-89] PNGLR 271.
Hawai John v The State (Unreported judgment delivered on 02/04/98) SCR 09 of 1995.
Nelson N. Ngasele v The State (Unreported judgment delivered on 3/10/03) SC731.
Nobert Maing v The State (Unreported judgment delivered on 02/10/03) SCRA 29 of 2002.
Tau Jim Anis & Ors v The State (Unreported judgment delivered [2000] PGSC 12; SC642.
The State v Gilbert Monai [2004] PGNC 152; N2617.
The State v Moses Tingin & Kennedy Kara N2956 (CR 1483 and 1484 of 2005)
The State v Paul Maima Yogol and Dama Teiye [2004] PGNC 186; N2583.
The State v Warip Mondol & Ors. (2004) N2707.

Counsel

A Kupmain for the State.
J Mesa for the prisoner.

26 September 2005

Kandakasi j. The Court found you guilty on one count of armed robbery after a short trial. Following that decision the Court reserved its decision on your sentence, after having heard from you in allocutus and from your lawyer as well as that of the State as to the kind of penalty you should receive. This is now the Court's decision on your sentence.

For sentencing, I note the relevant facts are set in judgment on verdict. In summary however, I note that, you in association with a gang of 6 young men staged an armed gang holdup and robbery on 6 November 2003 at Boem and Sara Villages in the Yangoru District of this Province. You and your gang were armed with guns and bush knives. You held up and robbed a Francis Nawafe and the occupants of a motor vehicle he was driving on that day along the Sepik Highway. The items robbed from the victims of the offense consisted of K317, 000 in cash, a Winchester Shotgun, 50 kilograms of dried vanilla beans and other properties. Police heard about the robbery and carried out investigations, which resulted in the arrest of three people, you, a David Ningi Lawaii and a Lukas Haunare. Following your arrests, the police recovered K19, 000.00 cash, a shotgun and 5 kilograms of dried vanilla beans.

From the proceeds of the robbery, you and your gang spent much of the money, buying and drinking beer commencing on Friday immediately after the robbery to the following Monday. You did not surrender to police. Excellent efforts of the community and police work led to your arrest and eventual conviction. The victims of your offence were terrified by what you did and will continue to live with the bitter memories of what you did to them.

Your allocutus and address on sentence

Upon being found guilty, you said you respect the Court's decision and asked the Court to transfer you to the Bomana to serve your sentence. You said that without giving any reason for it. Your lawyer did not elaborate on it either. Therefore, this request stands without any good basis.

Your lawyer urged the Court to note before arriving at a decision on your sentence that you are a first time offender. He also urged the Court to note that you are married without any children. Further, your lawyer correctly submitted that there has been an increase in the kinds of sentence the Courts have been imposing for armed robbery given the prevalence of the offence. He urged the Court to consider a sentence between 17 to 20 years being appropriate. The State's lawyer highlights the factors in your aggravation and urged the Court to impose a sentence between 15 to 17 years.

The offence and sentencing tariffs

Repeating what I have just said in the decision I handed down a while ago in The State v Moses Tingin & Kennedy Kara (CR 1483 and 1481 of 2005), the offence of armed robbery carries a maximum penalty of life imprisonment. However, in the much celebrated case of Gimble v The State [1988-89] PNGLR 271, the Supreme Court however, set sentencing guidelines for armed robbery cases lower than that in the exercise of the sentencing discretion vested in the Courts by s19 of the Criminal Code.

Subsequent judgments of the Supreme Court have held that these guidelines, particularly the recommended sentences are outdated and have increased them. This started on 2 April 1998, in Hawai John v The State, (Unreported judgement delivered on 02/04/98) SC09 of 1995. In that case, the Court considered a sentence of 8 years given to the appellant's accomplish on a guilty plea was too lenient. In the case before it, the appellant was given a sentence of life imprisonment. On appeal, the Supreme Court reduced the sentence to 15 years. The reduction was because of a huge disparity between the appellant and his co-offender. Otherwise, the Court found that the offence was most serious because it was a planned robbery carried out with reckless disregard for others using firearms resulting in one of the victims of the offence being rendered blind.

That was a case of robbery on a street, which falls in the last category under the Gimble v The State, [1988-89] PNGLR 271 guidelines. The victim was transporting bags of money in cash totaling K1,798.00 and cheques totaling K215,000. 00 in a company vehicle. The appellant and his accomplishes followed the victim and shot into the screen of the vehicle on the driver's side. That injured the driver rendering him fully blind. The money was stolen with the cash distributed and the cheques destroyed. Therefore, the company lost financially.

Subsequent judgments of the Supreme Court did not consider this judgment perhaps due to it not being numbered and circulated amongst the judges. An example of this is the judgment in Tau Jim Anis & Ors v The State, (Unreported judgement delivered on (25/05/00)) SC642, citing Acting Public Prosecutor v Don Hale, (Unreported judgement delivered on 27/08/98)) SC564. In the first of these two cases, the Supreme Court increased the range of sentences. It did so by a factor of 3 years going by the judgment in Acting Public Prosecutor v Don Hale, (Unreported judgement delivered on 27/08/98)) SC564. That saw an increase of the previous highest recommended sentence of 7 years to 10 years for robbery of a dwelling house and other categories also increased by the same factor with the last category of robbery on a street, increased to 6 years.

Recently, the Supreme Court in Dadly Henry Gorop v The State, (Unreported judgement delivered on (02/10/03)) SC732, held that if the Courts in the earlier judgments were aware of the decision in Hawai John v The State, (Unreported judgment delivered on 02/04/98) SCR 09 of 1995 there would have been greater increases in the sentence than the ones recommended in Tau Jim Anis & Ors v The State, (Unreported judgment delivered 25/05/00) SC642. This is how the Supreme Court expressed it:

"...[W]e are of the view that if that was done [considered the judgment in the Hawai John's case] the sentence ranges recommended in the subsequent judgments could have been beyond what the Court was prepared to settle at. But because that has not happened everyone has been proceeding on the basis of the judgments in Tau Jim Anis & Ors v The State SC64 and Acting Public Prosecutor v Don Hale SC 564. This has resulted in sentences after a trial reaching as high has 20 years as demonstrated by The State v Edward Toude, & Ors (No 2) N2299"

The prevalence in the offence of armed gang and other forms of robbery caused the Supreme Court to take this position, as the past sentences appeared not to deter other would be offenders from committing armed robberies. In so doing, the Supreme Court acknowledged that there have been increases in the sentences imposed by the National Court, most of them my own judgments.

In the case before the Supreme Court, the Court had regard to the increase in sentences for armed robbery and reduced a sentence of 20 years to 18 years. In that case, the prisoner pleaded guilty to one charge of armed robbery. The amount of property stolen was not substantial, but the injuries to the victims were very serious. The victims were a Canadian couple, touring the country at the time. The prisoner seriously assaulted the victims with a hockey stick. This resulted in fractured head injuries to both victims. The prisoner also knocked them down unconscious, with one of them almost dying but for swift medical intervention.

In arriving at that decision, the Supreme Court said:

"Given these, the sentence of 20 years in your case would appear not to be manifestly excessive going by the guidance of the judgment in Hawai John's case SCR9. At the same time however, given the kind of sentence the offenders have received in cases like that of The State v. Vincent Malara N2188. following a guilty plea in the particular circumstances in those cases with a sentence after a trial as in The State v Edward Toude, & Ors (No 2) N2299 reaching 20 years, we are of the view that you would have a justified feeling of the sentence being excessive. We are therefore of the view that your sentence should be reduced to 18 years."

What is clear from all of this is the fact that, sentences in armed robbery cases have increased since the guidelines in Gimble v The State [1988-89] PNGLR 271. The prevalence of the offence is the main contributing factor for the increase in the sentences. The lowest starting point for a simple robbery of a dwelling house is now 10 years. This sentence may be increased or decreased depending on the factors in aggravation as well as those in mitigation. However, if this is reconsidered in the light of the judgment in Hawai John v The State, (Unreported judgment delivered on 02/04/98) SCR 09 of 1995, the sentence could well start at 13 to 15 years. Indeed two recent judgments of the Supreme Court in Norbert Maing v The State, (Unreported judgment delivered on 02/10/03) SCRA 29 of 2002, and Nelson Ngasale v The State, (Unreported judgment delivered on 3/10/03) SC731, endorsed a number of judgments increasing sentences, most of them mine by indicating a preparedness to increase sentences from 10 years to 13 years for armed robberies on a street on a plea of guilty.

In very recent times since the above Supreme Court decisions, the National Court has imposed sentences beyond the 10 years mark for robbery on a street. An example of that is my own judgment in The State v Paul Maima Yogol and Dama Teiye, (21/05/04) N2583, I imposed a sentence of 12 years. The prisoners were part of an armed gang that held up a motor vehicle and stole from its driver and others cash and goods valued at about K1, 300.00. That was on a guilty plea by two first time young offenders.

Other examples include the judgment of my brother Lenalia J., in The State v Warip Mondol & Ors. (19/08/04) N2707 and Sevua J., in The State v Gilbert Monai, (09/06/04) N2617. In the former, the National Court imposed on a guilty plea a sentence of 12 years for armed gang robbery on a street. That was for robbery of a vehicle on a highway, with the use of bush knives with actual violence where a victim was cut by a bush knife. In the latter, the National Court imposed a sentence of 12 years and 15 years respectively for two separate counts of armed gang robbery with serious aggravating factors, which included the unlawful detention of the victims of the first of the two counts and physical injury to the victims of the second count.

Your case

Bearing the above sentencing trend in mind as well as the particular circumstances in your case, including your guilt being established after a trial and you having no prior convictions, I consider a sentence exceeding 12 years is appropriate. In arriving at that view, I note that the amounts of money or value of goods involved in your case is substantial and most of them have not been recovered. I note too that the victim was shaken by what you did to him and that is an experience he will have to live with for the rest of his life. He recovered only part of what your gang stole from him. From the evidence on file, it is clear that the money you stole from the victim went to buying and drinking of beer. You did nothing useful with the money, not that, that would free you of your criminal responsibility. I contrast that with the main victim of your offence working hard for his money and reached that level all to be lost to you and your gang, who were not prepared to do anything useful but waste them on alcohol.

Your case is closer to the Hawai John v The State, (Unreported judgement delivered on 02/04/98) SC09 of 1995), in that there were substantial amounts of money involved with substantial part of them not recovered. There, the prisoner was found guilty after trial and given a sentence of life imprisonment. Although the Supreme Court thought that that was in order, it had the sentence reduced to 15 years because his accomplish received a very lenient sentence of 8 years. The only fact that distinguishes your case from that case is the fact that there were no personal injuries to any of your victim as opposed to almost blindness to the victim in that case. It is this factor alone that also brings your case a little less than the case of Dadly Henry Gorop v The State, (Unreported judgement delivered on 03/10/03)) SC732.

Having regard to the sentence in the above cases and those that have been imposed since the decision in the later Dadly Henry Gorop v. The State (Unreported judgement delivered on 03/10/03)) SC732, and the increase and prevalence of the offence of armed gang robbery, I consider a sentence of 17 years is appropriate and I impose it against you. From the head sentences of 17 years, I order a deduction of the period already spent in custody awaiting your trial. This will leave you to serve the balance of your sentence in hard labour at the Boram Correction Services. A Warrant of Commitment in those terms shall issue forthwith.

Lawyers for the State: The Public Prosecutor.
Lawyers for the accused: The Public Solicitor.