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State v Bayu [2006] PGNC 96; CR 862 of 2006 (16 October 2006)

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR 862 OF 2006

THE STATE

V

NIPI BEO BAYU

Finschhafen: Kirriwom, J
2006:12 & 16 October

SENTENCE – Robbery by armed men – of vehicle on the road - no injuries inflicted and no firearm discharged – youthful offender – desirous of continuing education – paid school fee with stolen money – Pre Sentence Report – represents only principal victim’s and prisoner’s father’s views – lack of community leader’s views – report lacks objectivity – probation sentence ordered – Community Based Corrections directed to appoint Voluntary Probation Officer and enquire with relevant vocational school for the prisoner’s enrolment and training while on probation –CBC to report back to the court in two weeks.

Cases Cited:
Gimble v The State [1988-89] PNGLR 271
Tau Jim Anis & Ors v The State [2000] SC642

Counsels
N. Miviri & J. Done, for the State
M. Mwawesi, for the Prisoner

DECISION ON SENTENCE

16 October, 2006

1. KIRRIWOM, J: Nipi Beo Bayu from Bamata Village, Finschhafen District, Morobe Province was amongst a group of five masked and armed men who held up the Huon Motors Toyota Hi-Lux vehicle along the road near DCA between Gagidu Town and Buki wharf on 22 February 2006, when it was transporting some important guests from Huon Motor’s Guest House at Gagidu and at the same time carrying cash in the amount of K19,000 and cheques valued at K6,000 belonging to Huon Motors Ltd and headed for Buki wharf to catch the ferry, MV Gejamsao.

2. All five men carried a pistol, 2 homemade shotguns and 2 factory made guns. At DCA where the road was rough with deep pot-holes, the vehicle slowed down to go through that rough section of the road. The armed masked persons jumped out from the bushes and held up the passengers. Those on the vehicle lost many valuable items including a laptop, expensive digital camera, cash and other personal valuables quite apart from the cash of K19,000.00 belonging to the company. Cash amounts of different denominations and total values of expensive items stolen from special overseas visitors which included scientists from Australia attached to Ausaid and our own scientists with Forest Research Institute valued up to K52,964.00. He is the only one who appeared before me last week here in Finschhafen and pleaded guilty to the charge. Some of the stolen property was subsequently recovered. It was suggested that the driver of the vehicle must be suspected as he would have been the only person who knew about their leaving and what they were carrying with them and the movement of money to Buki and he could even have been involved in placing these men at the scene of the crime. The driver had earlier driven to Buki where he delivered heavy cargo and returned to pick up the passengers in the Hi-Lux. That is why an inside job was suspected.

3. The potential traveling passengers were eventually driven in the other direction from Gagidu to Maneba wharf to catch the ferry at its next mooring destination where they got on the ferry and returned to Lae.

4. Armed robbery is a prevalent offence in Finschhafen and the rest of this country. Incidences of armed robberies along the roads such as this one between Gagidu and Buki are happening quite frequently that public are questioning why they are happening at such frequency. Are many of these crimes deliberate? This is why witnesses such as the two who raised the possible involvement by implication of the driver of the vehicle that was taking them to Buki as a genuine conclusion, although it was only their opinion.

5. The offence of armed robbery carries a maximum penalty of life imprisonment. However applying the Gimble[1] principle, this robbery falls under the robbery of a motor vehicle on the road, which on a trial attracts a starting term of five years but increased to eight years in Tau Jim Anis & Ors v The State [2000] SC642. Thus the appropriate sentence in this case would attract a sentence at a rate of eight years or thereabouts depending on the circumstances of aggravation or mitigation.

6. The prisoner is a 23 year old single man whose education was disrupted at Grade 8 at Suqang Primary School when school fee problem forced him out of school. He has an elder brother and both his parents are alive in the village. He gave a long statement on allocatus on his involvement in this offence and what he did with his share of the money from the robbery. He said he was not a ring leader. He named three different persons as the ring leaders who got him involved in this crime. After the crime he said he went to Lae where he spent K700 on his school fees and returned home in Finschhafen to complete his schooling when he was arrested. Items he took from the robbery which were recovered by the police upon his arrest included a pair of binoculars, 10 compact discs and camera bag and K167 which was part of the K4000 he took as his share. The victim reported through PSR of having recovered K9,000 after the robbery.

7. He pleaded for mercy and said he saw the difficult life in prison and what it produces in people who find themselves in there and he never wants to be there. He said he saw some inmates escaping from custody and while at large commit more crimes and many lose their lives and those who are returned to prison are either paralyzed or with some of their limbs missing from their bodies. After witnessing these hard realities of crime and the dangers associated with it, he has no intention to break the law again.

8. When considering his plea for leniency, in his favour I take into account his plea of guilty, his expression of remorse which is consistent with his early admission of the crime following his arrest and reflected in his record of interview with the police. He is a first offender and someone I believe is sincere and is willing to make a difference in his life. He has seen what life in prison is like in the last seven months he spent at Buimo awaiting his case. Being incarcerated in prison can either make or break a person. The aim is that in the end, the person comes out fully reformed of his bad ways and he can lead a straight law abiding life thereafter. Sometimes the prison environment turns a person into a monster and he comes out a lot worse than what he was when he went in. These types of dangerous products of our prisons do not last long amongst their own people as they soon end up in trouble again and are back inside if they are lucky. Others become so hardened that their resistance with the law enforcers costs their lives or their limbs.

9. I have considered the prisoners’ plea for mercy. I am mindful of the prevalence of this offence here in Finschhafen and I do not overlook the concern expressed by the owner of the business that was robbed by the prisoner and his cohorts. He pointed out in his letter to the Police Station Commander of the need to make Finschhafen a safe place for the business community and to have those suspected of committing these serious crimes still running wild arrested and placed behind bars. His plea is sincere like everybody else who longs for peace and carefree society. People must be allowed to move around freely wherever they are. Businesses must be allowed to operate without fear of being robbed and attacked so that they can service the community and at the same time enjoy their fair share of earnings from their business. We cannot talk about promoting local participation in businesses when those who try are subjected to criminal attacks. Shrewd business operators from beyond our shores are capitalizing on our fears, lack of motivation and disinterest in engaging in simple business ventures due to criminal activities by establishing themselves in our midst because they have the finance to cover their losses and continue and become even bigger while we take the back seat and watch them grow. Finschhafen has a huge potential for growth in business but it is being eroded away by the rust from the sea because of lawlessness and hooliganism by its young people.

10. I note from the Pre Sentence Report that those popular names mentioned by the prisoner as those who involved him in this crime continue to remain at large while he is behind bars and the same concern is expressed by the principal victim of this robbery. If they are not caught and put behind bars there is no guarantee that further young men will escape being influenced by them. I do not accept that as his excuse for his crime because if he was minded to stay out of crime, he did not have to leave his home in the first place. As such I appreciate the skepticism by the victim of the offence of considering non-custodial sentence for offenders like the prisoner who should face the music for his action. I also note that PSR compiled is one sided with only the victim’s views obtained and none from the prisoner’s community leaders in the village due of course to shortage of time and transportation.

11. All that the prisoner is pleading for now is to be given a good future. His father is also concerned about him just as much as his mother. He is their second son of two boys. He wanted to complete his education and he was going to attend Finschhafen Vocational Centre to learn carpentry trade when he fell victim to crime. He took steps to continue with that by paying the fees when he was in lawful custody after the crime and all that now stands between him and going to school is this crime.

12. In my view, in this prisoner there seems to be a flicker of hope of turning this one bad apple around into a positive outcome if everyone can play a meaningful part in assisting him in his ambitions. It is unfortunate that it must take a crime for the society to see his plight but as he has already undertaken to see himself on the right path to achieve his lifetime wish, there can be no more injustice than to shatter someone’s flicker of hope of recovery from hopelessness to reality, accepting of course that the end does not justify the means and that there are some bad lessons to be learnt along the way.

13. In my view an appropriate sentence for the prisoner in this case is five years imprisonment in hard labour. I deduct seven months pre-trial period which leaves him with four years and five months to serve. He will serve five months in prison, and the balance of four years he will serve on probation on the following conditions:

i. he shall enter into his own recognizance to keep peace and be of good behavior for the duration of his probation sentence;

ii. He shall do ten hours of unpaid community work per week at such place and at such times as his voluntary probation officer assigns to him for a period of six months following his release from prison which is to cease once full time schooling is secured.

iii. He shall immediately follow up with the Education Department in Morobe and Finschhafen Vocational Training Centre on the prospects of pursuing his vocation training in carpentry trade.

iv. He shall refrain from consuming alcohol or other intoxicating drugs during the period of his probation sentence;

v. He shall refrain from associating with persons with known criminal backgrounds or other boys who are likely to cause him to re-offend;

vi. He shall remain at home between the hours of 6:00 pm and 6:00 am which includes dormitory accommodation, if he is attending an educational institution, pursuant to (iii) above.

14. I have arrived at this sentence contrary to the express recommendation of the Pre Sentence Report for good reason in that the report is one sided and fails in objectively of its purpose. In the circumstances I direct the officer in charge of the Community Based Corrections to make every effort to give the prisoner the assistance that is necessary to:

1. Locate and identify an appropriate person in the village at Bamata, Finschhafen where the prisoner comes from and appoint him as the voluntary probation officer who shall supervise the prisoner during the period of his probation;

2. Make necessary enquiries with the Education Department and Finschhafen Vocational Training Centre for the prisoner’s intake to under take training on carpentry trade upon his release from prison and during his probation sentence.

15. I will give the Community Based Corrections two (2) weeks to attend to 1 and 2 above and to report back to the court at the next call-over on 6 November 2006.

__________________________________

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

^[1] See Gimble v The State [1988-89] PNGLR 271 where the Supreme Court said: “The following guidelines are to be taken as appropriate to sentencing for aggravated robbery contrary to s 386(2) of the Criminal Code (Ch No 262, for which the maximum prescribed penalty is life imprisonment: On a plea of not guilty by young first offenders carrying weapons and threatening violence for:

(a) robbery of a house – a starting point of seven years;
(b) robbery of a bank – a starting point of six years;

(c) robbery of a store, hotel, club, vehicle on the road or the like – a starting of five years and

(d) robbery of a person on the street – a starting point of three years; features of aggravation such as actual violence, the large amount stolen, or where the robber is in a position of trust towards the victim may justify a higher sentence; a plea of guilty may justify a lower sentence.”