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State v Matu [2007] PGNC 256; N5022 (13 July 2007)

N5022

PAPUA NEW GUINEA
IN THE NATIONAL COURT OF JUSTICE

THE STATE

V

JETHRO PAUL MATU

Kimbe: Cannings J
2007: 15 May, 4, 13 July

CRIMINAL LAW – sentence – armed robbery – robbery of a service station – guilty plea – K177.40 cash stolen.

A man pleaded guilty to armed robbery. He held up a pump attendant at a service station by threatening her with a knife and stealing cash. He acted alone. He later apologised and repaid the money stolen.

Held:

(1) This was the robbery of a store and the starting point for sentencing is eight years imprisonment.

(2) Mitigating factors are: no actual physical violence; small amount stolen; co-operated with police; apology and repayment; pleaded guilty; remorse; first offender; young offender; very good PSR.

(3) Aggravating factors are: victim threatened; real danger of people being injured; offender did not play minor role.

(4) The offender was given a head sentence of four years imprisonment. The pre-sentence period in custody was deducted from the time to serve; and half the sentence was suspended.

Cases cited

The following cases are cited in the judgment:

Gimble v The State [1988-89] PNGLR 271
Phillip Kassman v The State (2004) SC759
Public Prosecutor v Don Hale (1998) SC564
Saperus Yalibakut v The State (2006) SC890
The State v A Juvenile "ET" CR No 1012/ 2003, 09.04.05
The State v A Juvenile, "TAA" (2006) N3017
The State v Alphonse Polpolio and Jeffery Baru CR No 865 + 701/2006, 14.07.06
The State v Dickson Kauboi CR No 495/2001, 07.06.06
The State v Jacky Vutnamur and Kaki Kialo (No 3) (2005) N2919
The State v Justin Komboli (2005) N2891
The State v Kia Tala Moksy CR 785/2005, 12.08.05
The State v Lesley Cletus Malo CR No 379/2005, 19.12.06
Tau Jim Anis v The State (2000) SC642

PLEA

An accused pleaded guilty to armed robbery and the following reasons for sentence were given.

Counsel

F Popeu, for the State
O Oiveka, for the accused

13th July, 2007

1. CANNINGS J: This is a decision on sentence for a young man who pleaded guilty to one count of armed robbery arising from the following facts. At 4.00 pm on 30 December 2006 he was at the Dae Ju Ltd service station, next to E-Mart in Kimbe. A number of people were sheltering from the rain under the service station awning. The offender was armed with a small kitchen knife. As a female pump attendant walked by, he pulled out the knife and threatened her by pressing it against her chest. The offender cut the strap of her moneybag with his knife, grabbed the bag and ran off, stealing K177.40 in cash.

ANTECEDENTS

2. The offender has no prior convictions.

ALLOCUTUS

3. I administered the allocutus, ie the offender was given the opportunity to say what matters the court should take into account when deciding on punishment. A paraphrased summary of his response follows:

I was supposed to go back to school this year but because of this trouble my education has been interrupted. I have repaid all the money that I stole and apologised to the company. I am a first time offender. I apologise to the court, to the public, and to my parents.

OTHER MATTERS OF FACT

4. As the offender has pleaded guilty he will be given the benefit of the doubt on mitigating matters raised in the depositions, the allocutus or in submissions that are not contested by the prosecution (Saperus Yalibakut v The State (2006) SC890). He co-operated with the police and made admissions in his police interview. He apologised to the owner of the service station and repaid the cash stolen. His apology has been accepted in writing by the owner of the service station.

PRE-SENTENCE REPORT

5. To help me make a decision on the appropriate sentence I considered a pre-sentence report under Section 13(2) of the Probation Act in relation to the offender. The report was prepared by the Kimbe office of the Community Corrections and Rehabilitation Service. A summary of the report follows.

JETHRO PAUL MATU: 21-year-old male.

Residence: lives with his parents at Section 43, Kimbe.
Family background: mixed parentage: East Sepik/Eastern Highlands – oldest in a family of four children – strong family ties – good family upbringing – father works for PNG Ports Corporation, Kimbe.
Marital status: single.
Education: grade 10, Kimbe secondary School (2003) – completed first year at Vunabosco Technical Secondary School, ENBP, in 2006 and was supposed to return this year but did not due to this case.
Employment: worked for a short time with Hargy Oil Palms at Bialla in 2004, after leaving school, but was sacked over an alcohol-related incident.
Health: good except for some back pain ongoing since he was bashed up by security and police officers soon after the robbery.
Financial status: relies on his father for pocket money.
Plans: return to Vunabosco, then attend University of Technology, Lae – go back to SDA Church.
Victim's family's attitude: the owner of the company has accepted his apology and counselled him on the need to improve his life.
Offender's family's attitude: supportive – they were surprised and disappointed when he got into this trouble – the family are committed SDA Church members – the offender had become wayward, not attending church activities and developed an alcohol problem – want him to go back to Vunabosco and for this purpose his school fees for 2008 have already been paid.
Attitude of community: prior to the offence his behavioural record in the local community was good – local community leaders thought this incident was out of character.
Assessment: not a threat to the community.
Recommendation: imprisonment would not aid rehabilitation and is therefore not an appropriate sentencing option.

SUBMISSIONS BY DEFENCE COUNSEL

6. Mr Oiveka highlighted that the offender made early admissions to the police and co-operated fully. He has pleaded guilty and expressed remorse. A head sentence of three years would be appropriate.

SUBMISSIONS BY THE STATE

7. Mr Popeu agreed that a sentence in the lower range of sentences for armed robbery would be sufficient, in view of the low degree of violence involved.

DECISION MAKING PROCESS

8. To determine the appropriate penalty I will adopt the following decision making process:

• step 1: what is the maximum penalty?
• step 2: what is a proper starting point?
• step 3: what sentences have been imposed for equivalent offences?
• step 4: what is the head sentence?
• step 5: should the pre-sentence period in custody be deducted?
• step 6: should all or part of the sentence be suspended?
  

STEP 1: WHAT IS THE MAXIMUM PENALTY?

9. Armed robbery, with circumstances of aggravation, has a maximum sentence of life imprisonment (Criminal Code, Section 386). 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?

10. The Supreme Court has given sentencing guidelines in a number of leading cases: Gimble v The State [1988-1989] PNGLR 271; Public Prosecutor v Don Hale (1998) SC564; Tau Jim Anis v The State (2000) SC642; and Phillip Kassman v The State (2004) SC759. Nowadays the starting points are:

• robbery of a house – ten years;
• robbery of a bank – nine years;
• robbery of a store, hotel, club, vehicle on the road etc – eight years;
• robbery of a person on the street – six years.
  

11. Both counsel submitted that this case falls within the last category. However, I disagree. This was the robbery of a service station so it falls within the third category and the starting point is eight years.

STEP 3: WHAT SENTENCES HAVE BEEN IMPOSED FOR EQUIVALENT OFFENCES?

12. Recent sentences are shown in the following table.

TABLE 1: SENTENCES FOR STORE ROBBERIES, WEST NEW BRITAIN

STEP 4: WHAT ARE THE RELEVANT CONSIDERATIONS AND WHAT IS THE HEAD SENTENCE?

13. There are a number of considerations to take into account in deciding on the head sentence. I have listed them below as a series of questions. An affirmative (yes) answer is regarded as a mitigating factor. A negative (no) answer is an aggravating factor. A neutral answer will be a neutral factor. The more mitigating factors there are, the more likely the head sentence will be below the starting point. The more aggravating factors present, the more likely the head sentence will be above or at the starting point. Three sorts of considerations are listed. Numbers 1 to 6 focus on the circumstances of the robbery. Numbers 7 to 11 focus on what the offender has done since the robbery and how he has conducted himself. Numbers 12 to 14 look at the personal circumstances of the offender and take account of other factors not previously considered.

1. Did the offender not commit actual physical violence? Yes.
   
2. Did the offender not threaten the victims of the robbery with violence? No.
   
3. Did the offender not put the victims or innocent bystanders in real danger of being injured or killed? No.
   
4. Did the offender ensure that especially vulnerable victims such as children, women or older people were not threatened or treated badly? Neutral.
   
5. Did the offender steal money or property of a relatively small value? Yes.
   
6. Did the offender play a relatively minor role in the robbery? No.
   
7. Did the offender give himself up after the robbery? Neutral. He was injured and apprehended soon afterwards.
   
8. Did the offender cooperate with the police in their investigations? Yes.
   
9. Has the offender done anything tangible towards repairing his wrong? Yes, he has apologised, repaid the money stolen and his apology has been accepted.
   
10. Has he pleaded guilty? Yes.
    
11. Has he genuinely expressed remorse? Yes.
    
12. Is this the first offence? Yes.
    
13. Can the offender be regarded as a youthful offender or are his personal circumstances such that they should mitigate the sentence? Yes.
    
14. Are there any other circumstances of the robbery or the offender that warrant mitigation of the head sentence? Yes, he has a very favourable pre-sentence report, showing that the offence was out of character. He has strong family and community support.
    

14. After weighing all these factors, and noting that there are nine mitigating factors compared to three aggravating factors, and comparing this case with other sentences I have recently imposed in West New Britain for store robberies, the head sentence should be below the starting point of eight years. I fix a head sentence of four years imprisonment.

STEP 5: SHOULD THE PRE-SENTENCE PERIOD IN CUSTODY BE DEDUCTED FROM THE TERM OF IMPRISONMENT?

15. 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 five days.

STEP 6: SHOULD ALL OR PART OF THE HEAD SENTENCE BE SUSPENDED?

16. Mr Oiveka submitted that a wholly suspended sentence should be imposed given the very positive pre-sentence report, which recommended against imprisonment. The submission is a proper one but I am not going to uphold it. An armed robbery is a very serious event in a person's life. The primary victim here was a woman doing her job. She was threatened with a knife by a drunken man. Anything could have happened and it was no doubt a traumatic experience for her. To suspend the entire sentence might send a signal to the offender and the people of Kimbe that this was something insignificant. A term of imprisonment will seriously disrupt the offender's education but is the price he will have to pay for his own stupidity. I will suspend half of the sentence on the strength of the very favourable pre-sentence report, subject to the following conditions:

(a) must reside at Kimbe and nowhere else except with the written approval of the National Court;

(b) must not leave WNB Province without the written approval of the National Court;

(c) must perform at least six hours unpaid community work each week at a place to be determined by the National Court, in consultation with the Community Based Corrections Service;

(d) must attend the Seventh Day Adventist Church every Saturday for service and worship and assist the church in its community activities under the supervision of the Senior Pastor;

(e) must report to the senior Probation Officer at Kimbe on the first Monday of each month between 9.00 am and 3.00 pm;

(f) must not consume alcohol or drugs;

(g) must keep the peace and be of good behaviour and must not cause any trouble for, or harass, the victim and her family;

(h) must have a satisfactory probation report submitted to the National Court Registry at Kimbe every three months after the date of sentence;

(i) if the offender breaches any one or more of the above conditions, he shall be brought before the National Court to show cause why he should not be detained in custody to serve the rest of the sentence.

17. If the offender is still to pursue his education in East New Britain, he will need to apply to the court for variation of the above conditions.

SENTENCE

18. Jethro Paul Matu, having been convicted of one count of armed robbery, is sentenced as follows:

Sentenced accordingly.

________________________________
Public Prosecutor: Lawyer for the State
Public Solicitor: Lawyer for the accused