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State v Sovek [2006] PGNC 13; CR 489 of 2006 (22 May 2006)

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]

CR NO.489 of 2006

THE STATE

V

KINGSLEY SOVEK
&
ANDREW KEDANI

Alotau: Jalina J
2006: 12 & 22 May

CRIMINAL LAW- robbery -sentence- armed robbery of trade store with threats of actual violence while in company – pre- planned robbery- no actual physical violence employed to effect robbery- plea of guilty- young first offenders- expressed remorse- prevalence of crime of robbery –custodial sentence necessary as deterrent. Criminal Code Act, s.386 (1 ) & (2)(a)& (b).

Cases Cited:
Gimble v The State [1988-89] PNGLR 271
Public Prosecutor v Don Hale (1998), SC564
Tau Jim Anis v The State (2000), SC642
The State v Peter Simon (Unreported, 22 May, 2006, Jalina J- Alotau)
The State v Vere Vanua & 3 Ors (Unreported, 22 May, 2006 Jalina J- Alotau)

Counsel:
Mr. A. Kupmain, for the State
Mr. J. Mesa, for the Offender

22 May, 2006

1. JALINA J. You have each pleaded guilty to a charge of armed robbery whilst in company of two other persons and with threats of actual violence against the victim contrary to s. 386 (1) & (2) (a) & (b) of the Criminal Code Act.

2. A summary of the allegations by the State were that between 9 and 10 am on Wednesday 5 January, 2005 at Ferguson Island, the two of you in company of two others, went to the canteen at the Salamo Health Centre. You were armed with a home made shot gun, a bush knife and an axe. At the canteen you ordered the keeper, Brownwyn Tegalani out and while the one with the gun and the one with the axe were acting as watchmen, the other two went inside the canteen and put various items, including K256.00 in cash into bags they took into the store. They came out and you all escaped into the nearby bushes. The items that you stole were the property of Salamo Health Centre. None of the items have been recovered.

3. The maximum penalty for armed robbery with threats of actual violence and in company, is life imprisonment pursuant to s. 386 (1) & (2) (a) & (b) of the Code; subject to the discretionary power of the Court under s.19 (of the Code].

4. The Supreme Court has however; set sentencing guidelines for this crime through the oft cited case of Gimble v The State [1988-89] PNGLR 271. The court in that case suggested sentencing guidelines for cases of aggravated armed robbery on a plea of not guilty by a young first offender carrying weapons and threatening violence. The court considered that a family home, when compared to other places such as a bank, a store or a street, was the most serious place in which an armed robbery can occur. The following starting points were suggested:

- Robbery of a house – seven years;

- Robbery of a bank – six years;

- Robbery of a store, hotel, club, vehicle, on the road etc – five years;

- Robbery of a person on the street – three years.

- On a guilty plea, sentence lower than those suggested above.

- Where aggravating factors are present, such as actual violence, the amount stolen being large, or the robber is in a position of trust towards the victim, a sentence higher than that proposed can be imposed.

5. As I said earlier today in The State v Peter Simon and The State v Vere Vanua & 3 Ors, there have been differing views and practices by judges when dealing with sentences for robbery. Those cases are too numerous to list here. The divergence of opinion is understandable because each judge or court makes independent assessment of the evidence and the facts and circumstances surrounding each case and then arrives at a decision. For instance, during the present circuit to Alotau, counsel brought to my notice the case of The State v Dickson Sandy which was heard by Kapi DCJ (as he then was) in December, 2001 and his co-accuseds to the robbery, namely Steven Sebuloni Talawani & Tuksy Kuku who appeared before Los J in 2002. I am informed by counsel that Kapi DCJ imposed 20 years on Dickson Sandy who pleaded guilty while Los J imposed 10 years on Steven Sebuloni Talawani on conviction following a trial. Tuksy Kuku was given 7 years on a plea of guilty to robbery. These sentences have been confirmed by the respective warrants of commitment from Gili Gili Correctional Service. The respective judgments are not immediately available for me to ascertain the reasons for their Honour's decisions, but it just demonstrates the divergence of opinion on sentencing for robbery alone.

6. Even the Supreme Court has had a divergence of opinion or views on the application of Gimble's case. For instance in Public Prosecutor v Don Hale (1998) SC564, the three- member bench in that Court when dealing with an appeal by the Public Prosecutor against inadequacy of sentence of less than seven years for robbery of a dwelling house and increasing that sentence to ten (10) years, said that in view of the prevalence of violent crimes involving the use of guns, the ranges of sentences recommended in Gimble's case were having no effect and were no longer relevant. It went on to say that Gimble's case was out of date and crimes of violence have increased and the community was calling for heavier punishments as deterrence; hence its view that the starting point for robbery of a dwelling house should be ten (10) years.

7. Another three-member bench of which I was a member, said subsequently in Tau Jim Anis v The State (2000) SC642, that the principles in Gimble's case were evolved over many years and were still good law. It should be noted however; that the Court in Tau Jim Anis distinguished Don Hale on the basis that it was concerned with robbery of a dwelling house but did not expressly disagree that violent crimes involving use of fire arms and other dangerous weapons were prevalent and higher sentences needed to be imposed as deterrence. That is the view I have of Don Hale and Tau Jim Anis, with respect.

8. In the present case, the robbery you committed was of a trade store so it falls under Category 3 of the Gimble guidelines which suggested a starting point of 5 years on conviction following a trial and lower than that on a plea of guilty. The suggested starting point whether on a plea of guilty or conviction following a trial would be increased or decreased depending on the presence or absence of aggravating factors including, in my view, the aspect of prevalence which, as I have alluded to above, the Supreme Court did not expressly disagree with in Tau Jim Anis so it is quite a valid and relevant consideration when a court or judge is imposing sentence on an offender for robbery. Again, in the present case, I have noted and taken into account your respective statements on the allocutus and the submissions on your behalf by your lawyer Mr. Mesa and on behalf of the prosecution by Mr. Kupmain.

9. I have also taken into account the lack of actual physical violence against the victim and the amount being small at less than K1,000.00. It has however, been submitted by Mr. Kupmain that the money was for purposes of the health centre and was thus an aggravating factor but there is no evidence through the depositions as to purpose. We can only assume but I do not propose to rely on assumptions.

10. I have also taken into account your plea of guilty, your expression of remorse and the fact that you are first offenders. There is however, an aggravating factor in this case and that is that this was a carefully planned robbery. This plan is revealed through the confessional statement of Andrew Kedani. This robbery being pre- planned coupled with prevalence of the offence of robbery not only in this province but throughout Papua New Guinea, would warrant a custodial sentence as a deterrence not only to you but to others who may contemplate committing similar crimes in future.

11. The period I therefore consider appropriate in all the circumstances of this case is a period of 10 years imprisonment in hard labour which I so impose on each of you. I deduct from that sentence the 1year and 3 months you have each spent in custody awaiting trial which leaves 8 years and 9 months which each of you have to serve in hard labour.

_____________________________________

Public Prosecutor: Lawyer for the State
Public Solicitor: Lawyer for the Offenders