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State v Endekra [2007] PGNC 82; N3185 (21 March 2007)

N3185

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR NO 70-72 0F 2007

THE STATE

V

JOHN CARL ENDEKRA,
WILSON ISAIAH &
ALBERT MARTIN KLEMBASA

Bialla: Cannings J
2007: 13, 20, 21 March

CRIMINAL LAW – sentence – armed robbery – hold-up of truck carrying goods on public road – guilty plea – physical violence used – gang robbery – use of firearms and bushknives to threaten innocent people – K600.00 worth of cargo stolen – motor vehicle stolen also – equal level of involvement – sentence of 5 years each.

Three young man pleaded guilty to armed robbery. They held up a truck carrying cargo on a public road. They had guns and bushknives and were in the company of two convicted criminals. This is the judgment on sentence.

Held:

(1) The starting point for sentencing for armed robbery of a vehicle on the road is eight years imprisonment.

(2) Each offender had an equal level of involvement in the crime and the manner in which they have conducted themselves since committing the crime and their personal circumstances are similar. Therefore they are treated the same for sentencing purposes.

(3) Mitigating factors are: the offenders co-operated with police; pleaded guilty; first offenders; changed their lives; assaulted by police and protracted delay in dealing with their cases.

(4) Aggravating factors are: actual violence committed; victims threatened; real danger of people being killed; no regard for vulnerable victims; large amount of money stolen; offenders did not play minor roles; no compensation or apology; no remorse expressed.

(5) Each offender was given a head sentence of five years imprisonment. The pre-sentence period in custody was deducted from the time to serve; and no part of the sentences were suspended.

Cases cited

Gimble v The State [1988-1989] PNGLR 271
Public Prosecutor v Don Hale (1998) SC56
Saperus Yalibakut v The State SCRA No 52 of 2005, 27.04.06
Tau Jim Anis v The State (2000) SC642; and Phillip Kassman v The State (2004) SC759
The State v A Juvenile "ET" CR No 1012/ 2003, 09.04.05
The State v A Juvenile, "TAA" (2006) N3017
The State v Aaron Lahu (2005) N2798
The State v Alphonse Polpolio and Jeffery Baru CR No 865 + 701/2006, 14.07.06
The State v David Bandi CR No 729/2003, 20.04.05
The State v Dickson Kauboi CR No 495/2001, 07.06.06
The State v Francis Vau Kamo CR 663-664/1998, 06.04.06
The State v Jacky Vutnamur & Kaki Kialo (No 3) (2005) N2919
The State v James Negol (2005) N2801
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
The State v Lucas Soroken Sembengo, Bob Alois Wafu & Raphael Lawrence Mandal (2006) N2801
The State v Mogi Konda CR No 1316/2005, 19.04.05
The State v Two Juveniles, "MK" & "PSA" CR No 372/2005, 25.08.05

PLEAS

Three 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

21 March, 2007

SENTENCE

1. CANNINGS J: This is a decision on sentence for three young men who pleaded guilty to armed robbery committed at Barema, in the Bialla area of West New Britain Province.

CONVICTION

2. They pleaded guilty to the following facts:

• At 3.00 pm on 2 November 2006 Leo Nantoto and two other persons were travelling in a truck along the main road from Bialla, past Barema. The truck was carrying cargo belonging to the Gilo oil palm estate.
  
• As the truck was travelling up a small mountain the three accused and two others ran onto the road and pointed guns at the driver. They were armed with two homemade guns and two bushknives.
  
• They forcefully removed the driver and the two passengers from the truck and used the bushknives to inflict injuries. Leo was wounded on his ear and one of the others, Ben, was cut on the hand.
  
• The three accused got into the vehicle with their accomplices, and drove the truck away with cargo on board.
  
• They stole the cargo, worth K600.00, but it was later recovered.
  

3. I entered provisional pleas of guilty and then, after reading the District Court depositions, confirmed the pleas and convicted each of them on one count of armed robbery under Section 386(1), (2)(a), (b) and (c) of the Criminal Code, as charged.

ANTECEDENTS

4. None has any prior conviction.

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. A paraphrased summary of their responses follows.

John Carl Endekra

This is my first time to be before the court. We were forced to do this by Raphael and Bob [two convicted criminals who have escaped from Lakiemata Jail]. I apologise to the court, to the owner of the company and to God. I will not do anything like this again. I am concerned about what will happen to my family if I go to jail. Conditions at the jail are not good. There have been outbreaks of disease. Please consider me for a good behaviour bond or probation so that I can compensate the victims for what I have taken.

Wilson Isaiah

This is my first time to be before the court. We were forced to do this by Raphael and Bob [two convicted criminals who have escaped from Lakiemata Jail]. I apologise to the court, to the owner of the company and his relatives and to God. I promise I will not do anything like this again. I am concerned about what will happen to my family if I go to jail. Conditions at the jail are not good. There have been outbreaks of disease. Please show mercy, consider me for a good behaviour bond or probation so that I can compensate the victims for what I have taken.

Albert Martin Klembasa

This is my first time to be before the court. We were forced to do this by Raphael and Bob [two convicted criminals who have escaped from Lakiemata Jail]. I apologise to the court, to the owner of the company and to God. I promise I will not do anything like this again. I am concerned about what will happen to my family if I go to jail. Conditions at the jail are not good. There have been outbreaks of disease. I am a sick person and the doctors have advised me to have an operation. Please show mercy, consider me for a good behaviour bond or probation so that I can compensate the victims for what I have taken.

OTHER MATTERS OF FACT

6. As the offenders have pleaded guilty, they are entitled to the benefit of the doubt on mitigating factors that are apparent from the depositions, the allocutus or matters raised by defence counsel that are not contested by the prosecutor (Saperus Yalibakut v The State SCRA No 52 of 2005, 27.04.06, Supreme Court, Jalina J, Mogish J, Cannings J). This provides an incentive for accused persons to plead guilty and is a benefit accorded to them for saving the State extra resources that would have been committed to the case if a trial were necessary.

7. It is apparent that none of them planned the robbery. It was the two people they each mentioned in allocutus who were the ringleaders. None of them physically injured anyone. The victims were stabbed with a bushknife by one of the two ringleaders. Further, upon being arrested, they all made admissions and co-operated with the police.

PRE-SENTENCE REPORTS

8. To help me make a decision on the appropriate sentence I requested and received pre-sentence reports in relation to the offenders. The reports were prepared by the Kimbe office of the Community Corrections and Rehabilitation Service. A summary of the reports follows.

JOHN CARL ENDEKRA

Age: 23-year-old male.

Family background: parents are from Nuku, WSP – born and raised in WNB, at Barema – youngest in family of three – lives on the family block at Barema, Section 17, with his father.

Marital status: single.

Education: grade 10, Moramora Technical School.

Employment: never employed in formal sector.

Health: OK.

Financial status: earns income from the oil palm block.

Plans: develop the block.

Apology/reconciliation/compensation: Nil.

Victim’s attitude: leave it to the court – no apology or compensation has been forthcoming – Leo and his family have been the victims of armed hold-ups three times in the Barema area.

Attitude of community to the offence: unknown.

Family’s attitude: father and brother don’t want to see him go to jail.

Recommendation: nil – leave it to discretion of court.

WILSON ISAIAH

Age: 26-year-old male.

Family background: parents are from Sepik (father) and Bali, WNB (mother) – oldest in family of six – lives on the family block at Barema, Section 19, with his parents.

Marital status: married with two children.

Education: grade 9, Bialla High School.

Employment: never employed in formal sector.

Health: OK.

Financial status: earns income from the oil palm block.

Plans: develop the block.

Apology/reconciliation/compensation: Nil.

Victim’s attitude: leave it to the court – no apology or compensation has been forthcoming – Leo and his family have been the victims of armed hold-ups three times in the Barema area.

Family’s attitude: supportive – don’t want to see him go to jail.

Community background: music leader, Catholic Church, Barema.

Recommendation: nil – leave it to discretion of court.

ALBERT MARTIN KLEMBASA

Age: 24-year-old male.

Family background: parents are from Nuku, WSP– born and raised in WNB, at Barema – oldest in family of five – lives on the family block at Barema, Section 19, with his parents and siblings with the exception of brother Henry who is serving a five-year sentence at Lakiemata Jail for arson.

Marital status: married with one child.

Education: Moramora Technical School (certificate in mechanics).

Employment: never employed in formal sector.

Health: OK.

Financial status: earns income from the oil palm block.

Plans: develop the block.

Apology/reconciliation/compensation: Nil.

Victim’s attitude: leave it to the court – no apology or compensation has been forthcoming – Leo and his family have been the victims of armed hold-ups three times in the Barema area.

Family’s attitude: father and brother don’t want to see him go to jail.

Community background: has never caused problems in the community before.

Recommendation: nil – leave it to discretion of court.

9. The pre-sentence reports for the offenders are very similar. They are young men, born and raised in the Bialla area, at the Barema oil palm settlement. They have not been in trouble with the law before. The similarity in their personal circumstances, together with their equal involvement in the crime, means that they will be treated the same for sentencing purposes.

SUBMISSIONS BY DEFENCE COUNSEL

10. Mr Oiveka submitted that a light sentence was warranted in view of the number of mitigating factors, especially the guilty pleas, early admissions to the police and the fact that no one was seriously injured in the robbery.

SUBMISSIONS BY THE STATE

11. Mr Popeu submitted that though the value of the goods stolen in the robbery was not high, the court must consider the terrifying effect of such an event on the victims. Armed robbery is prevalent around Barema and strong, deterrent sentences are required.

DECISION MAKING PROCESS

12. 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 other sentences have been imposed recently in West New Britain for equivalent offences?
  
• step 4: what are the considerations that should be taken into account in determining the head sentence, in terms of years; and what is the head sentence?
  
• step 5: should the pre-sentence periods in custody be deducted from the term of imprisonment?
  
• step 6: should all or part of the sentences be suspended?
  

STEP 1: WHAT IS THE MAXIMUM PENALTY?

13. Armed robbery, with circumstances of aggravation, has a maximum sentence of life imprisonment.

14. 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?

15. 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) SC56; Tau Jim Anis v The State (2000) SC642; and Phillip Kassman v The State (2004) SC759.

16. 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.
  

17. The present case falls within the third category. The starting point is therefore eight years.

STEP 3: WHAT OTHER SENTENCES HAVE BEEN IMPOSED RECENTLY IN WEST NEW BRITAIN FOR EQUIVALENT OFFENCES?

18. Before I fix a sentence, I will consider other armed robbery sentences I have imposed in recent times in West New Britain. These cases are shown in the following table.

TABLE 1: NATIONAL COURT SENTENCES FOR ARMED ROBBERY,
WEST NEW BRITAIN, CANNINGS J, 2005-2006

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

19. 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.

20. However, sentencing is not an exact science. It is a discretionary process. When a factor is marked as mitigating or aggravating it does not mean necessarily that it is given the same weight as another mitigating or aggravating factor. Some mitigating factors may be ‘strongly mitigating’. Others may be ‘mildly mitigating’. The same goes for aggravating factors.

21. 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 offenders and other members of their gang not commit actual violence during the course of the robbery? No.
   
2. Did the offenders and other members of their gang not threaten the victims of the robbery with violence? No.
   
3. Did the offenders and other members of their gang not put the victims or innocent bystanders in real danger of being injured or killed? No.
   
4. Did the offenders and other members of their gang ensure that especially vulnerable victims such as children, women or older people were not threatened or treated badly? Neutral.
   
5. Did the offenders and other members of their gang steal money or property of a relatively small value? Yes.
   
6. Did the offenders play a relatively minor role in the robbery? No.
   
7. Did the offenders give themselves up after the robbery? No.
   
8. Did the offenders cooperate with the police in their investigations? Yes.
   
9. Have the offenders done anything tangible towards repairing their wrongs, eg offering compensation to the victims, repaying what they have stolen, personally or publicly apologising for what they did? No.
   
10. Have they pleaded guilty? Yes.
    
11. Have they genuinely expressed remorse? Yes.
    
12. Is this the first offence for each offender? Yes.
    
13. Can any of the offenders be regarded as youthful or are their personal circumstances such that they should mitigate the sentence? Neutral.
    
14. Are there any other circumstances of the robbery or the offenders that warrant mitigation of the head sentence? Neutral.
    

22. To recap, mitigating factors are:

• No 5 – relatively small amount stolen;
• No 8 – co-operated with police;
• No 10 – pleaded guilty;
• No 11 – expressed remorse;
• No 12 – first offenders.
  

23. Aggravating factors are:

• No 1 – actual violence committed;
• No 2 – victims threatened;
• No 3 – real danger of people being killed;
• No 6 – did not play minor role;
• No 7 – did not surrender;
• No 9 – no compensation or apology;
• No 10 – no remorse expressed.
  

24. There are more aggravating factors than mitigating factors so it could be argued that a sentence above the starting point of eight years is warranted. This was a serious armed robbery in a part of the province, Barema, where there is far too much criminal activity. Hold-ups have become common on the main road around Barema. Were it not for the early admissions, co-operation with the police and the guilty plea, a sentence of 10 to 12 years imprisonment each would be warranted. However, I will give substantial credit to the offenders for coming clean. I fix a head sentence of five years imprisonment each.

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

25. The offenders have spent time in custody in connexion with this offence and it is proper that those periods be deducted from the total sentence. I decide under Section 3(2) of the Criminal Justice (Sentences) Act that there will be deducted from the terms of imprisonment the whole of the pre-sentence periods in custody, as shown in the following tables.

TABLE 2: CALCULATION OF FINAL SENTENCE
JOHN CARL ENDEKRA

TABLE 3: CALCULATION OF FINAL SENTENCE
WILSON ISAIAH

TABLE 4: CALCULATION OF FINAL SENTENCE
ALBERT MARTIN KLEMBASA

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

26. No. I will not suspend any part of the sentences. Armed robbery is a serious crime and the People of Papua New Guinea are fed up with it. Whether it happens in Port Moresby or Kimbe or Barema, an armed robbery is a traumatic event for the whole community and for every person who is a victim or an innocent bystander. In this case two innocent men were driving along a public road minding their own business when they were forced to stop by a group of gun-wielding and knife-wielding thugs. Innocent people in this position do not know how much longer their lives will last. The terror and emotional scar of such an event can last forever.

27. The community expects raskols who are convicted of armed robbery to be sent to prison. Suspended sentences for armed robbery should be reserved for only special or exceptional cases. This is not such a case.

SENTENCES

28. John Carl Endekra, having been convicted of the crime of armed robbery, is sentenced as follows:

29. Wilson Isaiah, having been convicted of the crime of armed robbery, is sentenced as follows:

30. Albert Martin Klembasa, having been convicted of the crime of armed robbery, is sentenced as follows:

Sentenced accordingly.
_________________________

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