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National Court of Papua New Guinea |
PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]
CR NOS 122 & 123 OF 2007
THE STATE
V
BORIA HANAIO, BULA HANAIO,
TIMOTHY KOMU & EDWARD HANAIO
Buka: Cannings J
2007: 24-26 October
CRIMINAL LAW – sentencing – armed robbery – unlawful use of motor vehicle – sentences after trial – multiple offenders – multiple offences.
Four men were convicted on one count each of armed robbery and unlawful use of a motor vehicle. Three of them had pleaded not guilty to the armed robbery charge but were convicted after a trial. One pleaded guilty to armed robbery. All pleaded guilty to the unlawful use charge.
Held:
(1) When sentencing multiple offenders for multiple offences, the court should arrive at a notional sentence for each offender for each offence, before determining whether the sentences should be served cumulatively or concurrently, applying the totality principle and deciding whether to suspend any part of the sentences.
(2) The offenders were committed to custody for the following periods: (a) Boria Hanaio – 5 months; (b) Bula Hanaio – 4 months; (c) Timothy Komu – 5 months; and (d) Edward Hanaio – 3 months.
Cases cited
The following cases are cited in the judgment:
Gimble v The State [1988-1989] PNGLR 271
Ignatius Pomaloh v The State (2006) SC894
Mase v The State [1991] PNGLR 88
Phillip Kassman v The State (2004) SC759
Public Prosecutor v Kerua [1985] PNGLR 85
The State v Boria, Bula Hanaio & Timothy Komu CR Nos 122 & 123/2007, 24.10.07
The State v Chris Baili CR 1396/2006, 17.08.07
The State v John Carl Endekra, Wilson Isaiah & Albert Martin Klembasa CR 70-72/2007, 21.03.07
Tom Longman Yaul v The State (2005) SC803
SENTENCES
This was a judgment on sentence for four offenders convicted of two offences each.
Counsel
L Rangan, for the State
P Kaluwin, for the offender
26 October, 2007
1. CANNINGS J: This is a decision on the sentences for four men who have each been convicted of two offences:
2. Both offences were committed at Mangoana, Buka Island, on the morning of 10 April 2006. Three workers from the World Vision office in Buka town drove to Mangoana to work on a water and sanitation project in the area. They got there about 10 am, parked their vehicle (a blue Toyota Landcruiser reg No BBL 109) on the roadside near a beach and started work. They were constructing a well and installing a water pump with the help of villagers. About 11 am the four offenders came to the scene. Two of them, Bula Hanaio and Timothy Komu, were drunk. One of them, Timothy Komu, had a bushknife. Boria Hanaio was the leader of the group. He confronted the World Vision workers, had an angry conversation with them, accused World Vision of not doing enough to help the local villages with their projects and using up ex-combatants' money from the Bougainville Crisis, and threatened them with personal violence. The workers were unarmed and were scared by the aggressive behaviour of the offenders. Boria seized the keys to the vehicle, got in and drove off with the three others on board. The vehicle was at Boria's house that night when the police arrived and, following intervention of the Minister for Police in the Autonomous Bougainville Government, Hon Ezekiel Masatt, it was returned to World Vision the next day. It had been driven 63 kilometres.
3. When the indictment was presented in the National Court sitting on Sohano Island in September 2007, only three of the four offenders were present. Edward was sick and took no part in the proceedings. Boria, Bula and Timothy pleaded guilty to unlawfully using the motor vehicle, but not guilty to armed robbery. They claimed that they were not armed and issued no threats. A trial was conducted and they were convicted. I rejected the State's submission that they had a firearm but concluded that they had a bushknife, which is a dangerous and offensive weapon, that they were in each other's company and that they stole the vehicle and issued threats of personal violence against the World Vision workers. The verdict on count 1 was handed down on 24 October 2007, by which time Edward had turned up. He is Boria's and Bula's brother. Edward pleaded guilty to both charges; so, like the other three, he stands convicted of the two offences. Further details of the offences are in the written judgment on verdict in The State v Boria, Bula Hanaio & Timothy Komu CR Nos 122 & 123/2007, 24.10.07.
ANTECEDENTS
4. None of the offenders has prior convictions.
ALLOCUTUS
5. I administered the allocutus, ie each offender was given the opportunity to say what matters the court should take into account when deciding on punishment. They all apologised, emphasised that there was a reason behind the incident, asked for mercy and indicated that they would not do anything similar again.
PERSONAL PARTICULARS
6. Boria, Bula and Edward are brothers, aged 34, 40 and 25 respectively. They have all been raised in the village and educated to grade 6. Boria and Bula are married with children. Edward is single. Timothy is married with children, educated to grade 6 and is also a village man.
SUBMISSIONS BY DEFENCE COUNSEL
7. Mr Kaluwin submitted that this was a technical armed robbery only. The case only went to trial because of the allegation that they had a gun. That was proven at the trial to be untrue. They have only been convicted of armed robbery because one of them happened to be holding a bushknife. But it was not actually used. This is one of the least serious forms of armed robbery imaginable and should attract a sentence of only three years imprisonment. The other offence requires a sentence of two years, which should be served concurrently. The total sentence should therefore be three years, all of which should be suspended.
SUBMISSIONS BY THE STATE
8. Mr Rangan, for the State, submitted that sentence of six years (armed robbery) and four years (unlawful use) should be imposed; and that they could be served concurrently. However, the court should send a message through the sentence that armed robbery is a serious crime. It is a rare crime in Bougainville, so when it happens it has to be taken very seriously.
DECISION MAKING PROCESS
9. To determine the appropriate penalty I will adopt the following decision making process:
STEP 1: WHAT IS THE MAXIMUM PENALTY FOR EACH OFFENCE?
10. Count 1 – armed robbery – is based on Sections 386(1), (2)(a) and (2)(b) of the Criminal Code. The maximum penalty is life imprisonment. Count 2 – unlawful use of a motor vehicle – is based on Section 383(2) of the Criminal Code. The maximum penalty is five years imprisonment. The court has a considerable discretion whether to impose the maximum penalty by virtue of Section 19 of the Criminal Code.
STEP 2: WHAT IS A PROPER STARTING POINT FOR EACH OFFENCE?
11. For count 1, armed robbery of a vehicle on the road, Supreme Court sentencing guidelines suggest a starting point of eight years imprisonment (Gimble v The State [1988-1989] PNGLR 271; Phillip Kassman v The State (2004) SC759). For count 2, unlawful use of a motor vehicle, I will, in the absence of Supreme Court sentencing guidelines, use a starting point at the middle of the range: 30 months imprisonment.
STEP 3: WHAT SENTENCES HAVE BEEN IMPOSED FOR EQUIVALENT OFFENCES?
12. I have passed sentence in 20 armed robbery cases since 2005 and the sentences have ranged from four to thirteen years. As for armed robbery of vehicles on the road or something like the carjacking that occurred here, two cases are relevant. In The State v John Carl Endekra, Wilson Isaiah & Albert Martin Klembasa CR 70-72/2007, 21.03.07, three young offenders pleaded guilty to holding up a truck carrying cargo on a public road near Bialla, West New Britain. They had guns and bushknives and were in the company of two convicted criminals. They stole K600.00 worth of cargo and the occupants of the vehicle were wounded with bushknives. They were sentenced to five years imprisonment each. In The State v Chris Baili CR 1396/2006, 17.08.07, the offender conspired with a number of other young men to hold up a company truck that was doing a payroll run in the West Kove area of West New Britain. He got on the truck and made it easier for his accomplices to stage the hold up, which they did with firearms and bushknives, stealing K22,400.00 cash. He was sentenced to seven years imprisonment.
STEP 4: WHAT IS THE HEAD SENTENCE FOR EACH OFFENDER, FOR EACH OFFENCE?
13. I am sentencing multiple offenders (4) for multiple offences (2). I must therefore arrive at 4 x 2 = 8 notional sentences before determining whether the sentences should be served cumulatively or concurrently, applying the totality principle and deciding whether to suspend any part of the sentences. When sentencing co-offenders it is proper to take account of their different degrees of involvement in commission of the offence (Ignatius Pomaloh v The State (2006) SC894).
Boria Hanaio
14. He instigated the incident, led the group that staged the robbery, threatened the World Vision workers and drove off with the others on board. For the armed robbery, mitigating factors are:
15. Aggravating factors are:
16. Having weighed those factors against the starting point of eight years and compared this with other armed robbery cases, a sentence below the starting point is warranted. I fix a head sentence of five years imprisonment.
17. For the unlawful use of the motor vehicle, I give full credit to the offender for pleading guilty and impose a sentence of one-year imprisonment. The total potential sentence is:
5 years + 1 year = 6 years
Bula Hanaio
18. He had a much lesser degree of involvement than Boria. But he was drunk, and I regard that as an aggravating factor. I fix a head sentence of four years imprisonment. For the unlawful use of the motor vehicle, I give him credit for pleading guilty and impose the same sentence as for Boria: one-year imprisonment. The total potential sentence is:
4 years + 1 year = 5 years
Timothy Komu
19. He had a lesser degree of involvement than Boria. But he was drunk and armed with a bushknife, two significant aggravating factors. I give him the same sentence as Boria: five years imprisonment. For the unlawful use of the motor vehicle, I give him credit for pleading guilty and impose the same sentence as for Boria: one-year imprisonment. The total potential sentence is:
5 years + 1 year = 6 years
Edward Hanaio
20. He had a minimal degree of involvement. He was the youngest member of the group and seems to have just gone with the tide of events. He was sober and unarmed. I fix a head sentence of three years imprisonment. For the unlawful use of the motor vehicle, I give him credit for pleading guilty and impose the same sentence as for Boria: one-year imprisonment.
3 years + 1 year = 4 years
STEP 5: SHOULD THE SENTENCES BE SERVED CONCURRENTLY OR CUMULATIVELY?
21. If two or more offences are committed in the course of a single transaction all sentences in respect of the offences should be concurrent (Public Prosecutor v Kerua [1985] PNGLR 85; Mase v The State [1991] PNGLR 88). The armed robbery and the unlawful use of the motor vehicle were offences committed at the same time, with the same victims, in the same incident or transaction. Therefore the sentences should be concurrent. That means the offenders are facing the following terms:
STEP 6: WHAT IS THE EFFECT OF THE TOTALITY PRINCIPLE?
22. I now look at that the total sentence that each offender is potentially facing, to see if it is just and appropriate having regard to the totality of the criminal behaviour involved. The court needs to guard against imposing crushing sentences, those that are over the top or manifestly excessive. I do not consider that sentencing these young men to prison terms of three to five years would be excessive. Any armed robbery is serious so the sentence must reflect that.
STEP 7: SHOULD THE PRE-SENTENCE PERIODS IN CUSTODY BE DEDUCTED FROM THE TERMS OF IMPRISONMENT?
23. Yes. I decide under Section 3(2) of the Criminal Justice (Sentences) Act that there will be deducted from the term of imprisonment the whole of the pre-sentence period in custody, which is four months for each offender.
STEP 8: SHOULD ALL OR PART OF THE HEAD SENTENCE BE SUSPENDED?
24. This was not the worst form of armed robbery but it was still armed robbery and some more time in custody is warranted. The People of Bougainville do not want to put up with this sort of crime. The message has to go to the community that it will not be tolerated. There is always a danger that giving fully suspended sentences for armed robbery will send the wrong message to the community. I will suspend an appropriate part of each sentence, so that the offenders will still have to serve the following periods in custody:
25. The rest of each sentence is suspended on the following conditions:
26. The last condition is very important. If any of these conditions is breached, any person may report the matter to the police or to any person nominated to supervise the offender or to the Probation Office, any of whom may bring the matter to the attention of the National Court. The Court may then issue a warrant for arrest of the offender and he can be brought before the Court to show cause why he should not be sent to jail to serve the rest of his sentence. (See Tom Longman Yaul v The State (2005) SC803.)
SENTENCES
27. Boria Hanaio, Bula Hanaio, Timothy Komu and Edward Hanaio, having been convicted of the crimes of armed robbery and unlawful use of a moor vehicle, are sentenced as follows:
| Calculation | 1st offender: Boria Hanaio | 2nd offender: Bula Hanaio | 3rd offender: Timothy Komu | 4th offender: Edward Hanaio |
| Length of sentence Imposed | 5 years | 4 years | 5 years | 3 years |
| Pre-sentence period deducted | 4 months | 4 months | 4 months | 4 months |
| Resultant length of sentence to be served | 4 years, 8 months | 3 years, 8 months | 4 years, 8 months | 2 years, 8 months |
| Amount of sentence suspended | 4 years, 3 months | 3 years, 4 months | 4 years, 3 months | 2 years, 5 months |
| Time to be served in custody | 5 months, subject to compliance with conditions of suspended sentence | 4 months, subject to compliance with conditions of suspended sentence | 5 months, subject to compliance with conditions of suspended sentence | 3 months, subject to compliance with conditions of suspended sentence |
Sentenced accordingly.
_________________________________
Public Prosecutor: Lawyer for the State
Public Solicitor: Lawyer for the accused
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