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State v Yogal [2001] PGNC 120; N2080 (16 March 2001)

N2080

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]

CR No. 1462 of 2000

Between:

THE STATE

And:

GORE YOGAL

GOROKA: KANDAKASI, J
2001: 14th & 16th March

CRIMINAL LAW - PRACTICE & PROCEDURE - Prisoner having no formal or fixed source of income - Inappropriate to order compensation - Criminal Law (Compensation) Act 1991.

Defence not asking for non-custodial sentence - No need to call for and consider a pre-sentencing report.

CRIMINAL LAW - Sentence - Armed robbery with threats of violence - Guilty plea - first time adult offender - 7 years imprisonment less time already spent in custody - Criminal Code (Chp. 262) ss. 386 and 19.

Cases Cited:
Gimble v The State [1988-89] PNGLR 271
Public Prosecutors v Don Hale SC564
Tau Jim Anis & Two Ors v The State (May 2000) SC642

Counsel:
Mr K. Umpake for the State
Mr M. Apie’e for the Accused

16th March 2001

DECISION ON SENTENCE

KANDAKASI, J.: The accused pleaded guilty to one count of armed robbery under s. 386 (1)(2)(a) and (b) of the Criminal Code (Chp. 262) (hereinafter "the Code").

The allegation or charge against the accused was that on the 4th October 2000 between 5 and 5:30 pm at the PNG Motors here in West Goroka, employees of that company were just about to leave their place of work on a company vehicle when the accused and another person armed with a gun appeared and threatened the employees and stole from them a sum of K875.35 in cash and three cheques valued at K4, 282.11 which were in the vehicle, the property of PNG Motors. After stealing the money, the accused and his accomplice escaped. The accused was subsequently apprehended and charged following police investigations.

After arraigning the accused, I entered a provisional plea of guilty and then admitted into evidence without any objection from the defence counsel, the depositions together with the antecedent report. After reading the depositions, I was satisfied that, there was sufficient material to support the guilty plea. I therefore proceeded to confirm the guilty plea and convicted the accused on the one count of armed robbery under s. 386 (1)(2)(a) & (b) of the Code. That followed no s. 563 of the Code application by the defence counsel.

The administration of the allocatus was uneventful. The accused said in his allocatus that the State has had no case against him and that is why he maintained a denial from the date of his arrest up to the record of interview. However, during his incarceration pending trial, he said he changed his attitude and came to know and to respect God, the Constitution and the court system. As a result of that, he decided that the correct thing to do is to admit the charge against him as he in fact committed the offence. It was therefore, not right to maintain his denial.

Mr Apie’e of counsel for the prisoner submitted for the purposes of sentencing that, his client comes from Ku village in the Kamtai area of the Simbu Province. He is aged 30 years and has no formal education or employment. He thus has no definite and fixed source of income except only to survive as a subsistence dweller. Both of his parents are alive and are living at Ku. He has six brothers and one sister in his family and he is the fifth born in the family. He is married with two wives and one male child who is seven years old now.

In his client’s mitigation, Mr Apie’e has urged this Court to take into account the fact that his client has pleaded guilty to the charge which has saved the State and the Court the expenses of conducting a trial. He also submitted that, his client's plea of guilty was a manifestation of his remorse and being in the process of being rehabilitated. Mr Apie’e also pointed out that, his client was a first time offender and the offence was committed without any actual violence being used against the victims, evidenced by the lack of any evidence of any injuries to any of the victims.

Section 386of the Code creates and provides for the offence of armed robbery. Where it involves aggravating factors such as the use of a firearm and violence whether actual or threatened, the prescribed penalty is life imprisonment. That is an expression of the legislature's intention that it is a serious thing to commit that offence and that those who are caught committing it should be dealt with severely.

Nevertheless, the penalty provision in s. 386 is subject to the provisions of s. 19 of the Code. Because of that, the Courts have to date, in my view, have been imposing lenient punishments to offenders. That is why even up to today, there is an ever increasing number of armed robberies committed all of the country. It is time now to seriously take a look at the appropriateness of the sentences that have been imposed by the courts to date with a view to drastically increasing them. As much as I may want to impose a tougher penalty, I am nevertheless bound to go by the guidelines set by the Supreme Court until they are changed.

I have been referred to the Supreme Court decision in Gimble v The State [1988-89] PNGLR 271 which sets out the guidelines for sentencing in armed robbery cases. The judgment at pages 274 to 275 sets out four categories with varying sentencing periods. These are:

(a) Robbery of a house with a starting point of seven years imprisonment;

(b) Robbery of a bank with a starting point of six years imprisonment;

(c) Robbery of a store, hotel, club, vehicle on the road or the like with a starting point of five years imprisonment; and

(d) Robbery of a person on the street with a starting point of three years imprisonment.

These guidelines were set for uncontested or guilty plea cases. After setting out those guidelines the Supreme Court at page 275 of the judgment said:

In suggesting sentencing tariffs in the above four categories of robbery, we have been considering young first offenders, eighteen 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 or 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.

Then for the case before it, the Supreme Court found that the case fell into the third category of robberies where the victim was knocked unconscious and the case was contested. There was no evidence of the victim suffering any permanent injury. The Court said that, if there was evidence of permanent injury, a sentence of more than seven years may have been justified. The National Court imposed a sentence of nine years imprisonment but the Supreme Court reduced it to seven years.

I was also referred to the Supreme Court decision in the Public Prosecutor v Don Hale (Unreported Supreme Court decision delivered 27th August 1998) SC564, where the Supreme Court upheld an appeal against sentence for armed robbery of a dwelling house. The National Court imposed a suspended sentence of five years on the condition that a fine of K1, 000.00 be paid and that, the offender return to his home area at Tari in the Southern Highlands Province. The Supreme Court found that, the learned trial judge erred in imposing that sentence when the case called for a higher sentence. It considered the sentence imposed by the National Court was not reasonably proportionate to the circumstances of the crime even though no particular error could be identified. The Supreme Court also found that, the trial judge erred in not starting with a term of seven years going by the guidelines set in the Gimble’s case. It then expressed the view that, the starting sentence for armed robbery of a dwelling house should start at ten years in view of the fact that a period of more than ten years have passed since the Gimble case and in any case, the imposition of sentences in line with that guideline have not deterred would be offenders from committing this kind of offences.

Counsel for the prisoner further referred my attention to the Supreme Court decision in Tau Jim Anis and Two Ors v The State (Unreported Supreme Court decision delivered in May 2000) SC642. The Court in that case, followed what was done in the Don Hale case but going by the same guidelines set by the Gimble case only in respect of the term of years. The National Court had imposed a term of 10 years imprisonment for armed robbery of a factory with actual violence and involving just over K20, 000.00. There were good mitigating factors like young first time offenders and guilty pleas.

Mr Apie’e for the prisoner argued for a sentence between four years and eight years as being appropriate in the circumstances of this case. He has not asked for a non-custodial sentence. In view of that, I considered it not necessary and appropriate that I should call for and consider a pre-sentencing report before sentence. Therefore I did not call for and consider a pre-sentencing report in this case. Similarly, the defence made no submissions for compensation orders in a bid to further mitigate his sentence. Besides the evidence is that, he does not have any formal employment and does not have a definite source of income, save only is subsistence dwelling. In the circumstances, I considered it inappropriate that compensation should be ordered under the Criminal Law (Compensation) Act 1991. This is because the prisoner may, not meet any order for compensation under that Act, given that, he has no means to meet such an order.

Mr Umpake of counsel for the State argued for a sentence starting at eight years having regard to the above mentioned Supreme Court judgements. He argued that armed robbery is a serious offence and the sentence should reflect that.

This Court is bound to follow the Supreme Court decisions and the guidelines set by them. Going by the Tau Jim Anis case, the starting point for armed robbery with actual violence and involving substantial cash amounts with good mitigating factors like young first time offenders and a plea of guilty is eight years.

In the present case, the prisoner pleaded guilty to a charge of armed robbery with threats of violence and involving money in the sum of K875.35 cash and K4,282.11 in cheques. There was no actual violence with injuries to the victims of the offence. I consider therefore, that the sentence in this case has to be lower than eight years taking into account the factors in mitigation submitted for the prisoner. These are namely, the prisoner pleaded guilty to the charge thereby, saving the State and Court the expenses that could have been incurred in running a trial, he has no prior convictions and has freely admitted to the charge expressing remorse and showing a preparedness to rehabilitate. I also note and take into account his family and personal back as presented by himself and his counsel. However in view of the concerns raised in Don Hale’s case as well as the Tau Jim Anis cases especially in relation to the prevalence of the offence of armed robbery, the sentence has to be higher than the guidelines set by the Gimble’s case.

I consider a sentence of seven years in hard labour appropriate. Of that, the period of five months three days as of today already spent in custody awaiting trial is to be deducted. The prisoner is therefore, to serve the balance of six years, six months and 27 days in hard labour. He is ordered to serve that term at the Bihute Corrective Institution. If the prisoner prefers, the Court recommends that the prisoner serve his term at the Corrective Institution at Barawagi in the Simbu Province, where he comes from.
____________________________________________________________________
Lawyer for the State: Public Prosecutor

Lawyer for the Accused: Public Solicitor