|
|
Home
| Databases
| WorldLII
| Search
| Feedback
National Court of Papua New Guinea |
PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]
CR 925 OF 2008
BETWEEN
STATE
AND
CHAN ALOIS AND AUGUSTINE TUTUT
Kokopo: Lay J.
2008: 18th November, 8th and 12th December
CRIMINAL LAW-Criminal Code s386 ─ aggravated armed robbery ─ early admission and plea of guilty ─ first-time offenders ─ robbery of a vehicle on the street ─ K45,000 stolen ─ very little recovered ─ head sentence of 12 years on a trial appropriate ─ 25% reduction for early admission and guilty plea ─ sentence of eight years hard labour imposed, one-year suspended on terms.
Facts
The offenders pleaded guilty to one count of aggravated robbery, theft from a motor vehicle on the street of K45,000 with assistance of accomplices, guns and knives. They were not the planners of the robbery.
Held
Cases Cited:
Papua New Guinean Cases
SCRA 9 of 2006 Richard Liri v The State unreported judgment of the 22nd February 2007 per Sevua and Kandakasi J. J
SCR No. 59 of 2005 Bobolan Mebu Peter v The State Mogish Manuhu and Hartshorn J. J
Gimble v The State [1988-89] PNGLR 271
Public Prosecutor v Don Hale (1998) SC564
Tau Jim Anis v The State (2000) SC642
State v Michael Amuna Koupa [1978] PNGLR 208
The State v Morobet Awui Koma [1987] PNGLR 262
State v Albert Monja [1987] PNGLR 447
The State v Bill Baru (1997) N1546
State v Foxy Awonipa (1999) N1910
State v Fano Kuromu [1999] PNGLR 553
Acting Public Prosecutor v John Airi (1981) SC214
Wellington Belewa v State [1988-89] PNGLR 496,
Ignatius Natu Pomaloh v The State (2006) SC834
Overseas Cases
The Queen v David Dickson Jabaltjari (1989) 64 NTR 1; [1989] NTSC 38
References
Thomas on Sentencing 2nd Ed.
Counsel
F. Popeu and L. Rangan, for the State
M. Kadai, for the offenders
12th December 2008
1. LAY J.: You have each pleaded guilty to one count of aggravated armed robbery.
2. On the 22nd of February 2008 the two of you and eight others stopped a PMV truck. The group was armed with a factory made shotgun, three homemade shotguns and bush knives. A disabled man was removed from the vehicle by the group, over his protests, and left by the roadside. You Chan Alois then drove the truck to a location near Vunapalading police barracks, where the passengers were robbed of a total of K45,000.
3. Chan Alois, you made a full admission of your involvement on the 6th of March 2008 and you Augustine Tutut made a full admission to the Police on the 2nd of March 2008.
4. On your allocutus both of you said you were sorry, asked for mercy and a good behaviour bond.
5. Chan Alois your pre-sentence report notes that you have a supportive family at Napapar. Your father is a strong believer that people must be responsible for their actions and it was he who reported you to the police and arranged for the return of K800 of the K1200 you received from the proceeds of the robbery. It must have been a very hard thing for him to have to do to his 28-year-old son.
6. Your presentence report also notes that you are an active, but obviously not committed, member of the SDA church. The community program co-ordinator and leader with the SDA church at Napapar is prepared to provide counselling and involve you in church community programs should the court order any period or probation.
7. You have no independent financial means and rely on your parents for financial support.
8. Augustine Tutut your pre-sentence report records that your mother died when you were a child. You have been living at a small Vudal block in the Baining LLG to Gazelle since childhood. Your father said he paid K600 in part repayment of the money stolen. You are married with two young daughters. You received K300 from the proceeds of the robbery. You are a member of Ratongor Catholic church and a church leader would be prepared to accept you into a youth program if the court ordered any probation period. The ward councillor would also be prepared to supervise you in community work. You also have no independent financial means.
The law
9. Armed robbery, particularly aggravated armed robbery, is a very serious crime. That is why the parliament has provided for a maximum penalty of life imprisonment: Criminal Code Section 386 (1) & (2). Armed robbery is also a prevalent offence, there is far too much of it occurring in our country. That is why the Supreme Court has observed that sentences are on the increase. See SCRA 9 of 2006, Richard Liri v The State unreported judgment of the 22nd February 2007 per Sevua and Kandakasi J. J. at [27-36].
10. In that case a serving police officer was convicted after a trial of stealing a motor vehicle at night by pointing a pump action shotgun at the victim. On appeal against the severity of sentence a sentence of 8 years with 3 years suspended was quashed and substituted by a sentence of 15 years with no part of that sentence suspended. The Supreme Court considered that the appropriate head sentence in the case, after a trial, was one of 13 to 15 years (see [45]).
11. Your case is quite similar to the Richard Liri case with the exception that you are not a policemen and there is consequently not that serious breach of the public trust which was involved in that case. You were not charged with the theft of the vehicle and I do not take that into account. However the sum of money stolen was substantial. I do not think that the value of what was stolen differentiates your case from Richard Liri's case.
12. In the case of SCR No. 59 of 2005, Bobolan Mebu Peter v The State Mogish Manuhu and Hartshorn J. J. unreported decision delivered at Wewak on 26 June 2007 the court reaffirmed the sentencing guidelines contained in Gimble v The State [1988-89] PNGLR 271, and Public Prosecutor v Don Hale (1998) SC 564 which was subsequently reaffirmed by Tau Jim Anis v The State (2000) SC 642. That is that the starting point for robbery of a vehicle on the street is eight years but said that a sentence of 10 years is not outside the judge's discretion.
13. In the Bobolan Mebu Peter Case the offender and his accomplices were armed with guns and knives and threatened innocent passengers stealing K2200 intended as salaries for a college. On a plea of guilty the trial judge had imposed a sentence of 13 years which the Supreme Court reduced to eight years.
14. I consider the appropriate sentence in your case after a trial would be one of 12 years. You are entitled to a reduction in your sentence because of your early admissions to the offence and plea of guilty.
15. There appears to have been no comprehensive discussion in our case law on the reasons given for a discount for a plea of guilty or of the measure of that discount. It has generally been accepted that a plea of guilty, if timely, entitles the offender to a discount on the head sentence because it:
16. Chief Justice Asche of the Supreme Court of the Northern Territory of Australia closely examined a number of authorities on the topic in the appeal case of The Queen v David Dickson Jabaltjari (1989) 64 NTR 1; [1989] NTSC 38, where the court was invited to give some guideline on what, if any, discount should be given from any otherwise proper sentence, for a plea of guilty. His Honour noted that the issue had been discussed at length in Courts of Criminal Appeal in New South Wales, Victoria, South Australia and Queensland. The survey revealed what is to my mind an over sensitivity to the possibility that a discount on sentence for no other reason that there is a plea of guilty, will give the impression that a person receives a greater punishment for insisting on a trial, which is their constitutional right. Quite clearly both offenders face the same head sentence, one simply is not eligible for the discount to which a plea would have entitled him. To say that the offender found guilty after a trial faces a higher sentence ignores the sentencing process, whereby the judge starts with an appropriate head sentence then applies the aggravating and mitigating factors. His Honour concludes, at [61], that:
"I can see no reason why a person who chooses to plead "not guilty" should not clearly understand that he runs the risk, if found guilty, that he may be deprived of certain mitigating factors upon which he could have relied if he pleaded guilty. Nor do I see any injustice of unfairness in the position."
17. His Honour does however reject any notion that the court should set a tariff of discounts, because he considers it would interfere with the great width of the sentencing discretion. His Honour also rejected any notion that a discount for a plea should focus on the administrative convenience the plea of for the court, because such a consideration would bring additional pressure to bear on an accused person to plead guilty. He said, also at [61]:
"the point is that however he pleads the Court's attention ultimately must focus on the practice personal to him in determining whether to mitigate the objective sentence. It should not focus on whether he has or has not saved, the community trouble or expense".
18. What is meant by "focus on factors personal to him" is explained at [60]:
60. The rationale for taking into account a plea of guilty should therefore concentrate upon the individual and, unless outweighed by other factors, should operate favourably to the individual if true remorse is shown, or circumstances from which, from a realistic point of view, remorse may be inferred; or because the plea represents a realistic appraisal by the accused that he knows that he has done wrong and must be punished, and therefore exhibits prospects of rehabilitation through self knowledge, i.e., "an honest plea of guilty". In my view most pleas of guilty could be placed in one or other of these categories (and often in both) and it is neither necessary nor desirable to accept that a plea of guilty will lead to mitigation if that mitigation is only on the basis that the courts will be spared expense and will function more efficiently. The fact that witnesses, particularly witnesses in sexual cases, may be spared the humiliation of giving evidence can, I think, be placed under the broad category of contrition, as a recognition that suffering has already been caused and should not be continued.
19. England has not taken the same view and a somewhat more pragmatic and I say with the greatest respect, less academic approach has been taken; at least in principle if not in quantum, more in keeping with the case observations in Papua New Guinea.
20. The English text Thomas - Principles of Sentencing Second Edition page 52 provides:
"These cases suggest that a mere plea of guilty without any further mitigation may justify a reduction of sentence of between one quarter and one third of the net figures established by reference to the facts of the offence".
21. In this Province pleas of guilty appear to be less in number as a percentage of total criminal cases than in other Provinces, resulting in the State's resources and the courts time being consumed with trials and delays in the accused coming to trial. While on an intellectual level it is pleasing to see the confidence that the accused place in the judicial system and that the accused believe that they can test the evidence produced by the State, the fact is the resources of the State which it can devote the judicial system are substantially less than is available in developed countries such as Australia. Consequently the practical results of an accused person electing to have a trial in the face of a strong State case or subsequent to clear confessions or admissions, or upon fabricated alibi evidence, is that other offenders must wait longer for their cases to be dealt with.
22. I therefore consider that it is important, to encourage early pleas of guilty in appropriate cases, that is in cases where the accused is guilty, for the court to have a clearly enunciated policy so that the accused person can know with some certainty what the advantage is of an early plea. Except in cases of horrific personal violence, I propose to adopt the English practice of making a reduction of 25% to 33% from the appropriate head sentence where there is an early admission to police and a subsequent plea of guilty, without any intention of creating a binding strict mathematical formula.
23. I propose therefore in your case to reduce the sentence I consider would be appropriate on a trial, of 12 years, by 25% and start with a head sentence of 9 years.
24. The Supreme Court has said that I should consider the individual participation of each offender in the crime: Ignatius Natu Pomaloh v The State (2006) SC 834. You Chan Alois drove the PMV after it was stopped. You have made a belated attempt in the interview conducted for the purposes of the pre-sentence report to suggest that you were coerced under threat of a gun to drive the vehicle. You did not suggest that in your allocutus nor did your counsel submit that. It is completely inconsistent with the statement that you made to the police (see question and answer 16 record of interview of the 6 March 2008) when you said you were told in advance that you would be driving the vehicle, and I do not accept it or take into account.
25. Augustine Tutut you attempted to minimise your participation in the crime in your record of interview. However, you did admit knowing of the plans to commit the crime sometime in January 2008, roughly a month before its actual commission. Unfortunately you made an early decision to side with criminality rather than law and order.
26. Neither of you were the planners or initiators of the offence.
27. Over all I do not find the particular circumstances of your respective participations to be reason to differentiate in the sentence which I impose.
28. You have both asked for probation. In serious crimes probation is generally considered appropriate for younger offenders around the ages of 17 to 19 years provided that the court is assisted with appropriate reports from the community: Acting Public Prosecutor v Don Hale (1998) SC 564. You are not boys although you may think of yourselves as boys. One of you is married and both of you are over the age of 25 years when the community would be justified in expecting a level of maturity and responsibility from you. I therefore do not think it appropriate to consider a substantial period of probation. However, to ensure that you have some form of order and accountability in your lives at the end of your sentence, when you are integrating back into the community, I propose to suspend one year of the sentence on probation terms.
29. Chan Alois you are a first-time offender. Augustine Tutut you have a conviction for assault as a juvenile which I will not take into account, so that I will sentence you as a first-time offender. Taking into account everything that your lawyer has had to say on your behalf and your co-operation with the police from the time of your arrest, I considered the appropriate sentence is one of eight years imprisonment in hard labour for each of you, with one-year suspended on probation terms.
30. From your sentences, there will be deducted the time that you have spent in pre-trial custody which in the case of Chan Alois is nine months two weeks one day and in the case of Augustine Tutut eight months three weeks six days leaving Chan Alois with six years, two months and two weeks to serve and one-year suspended and Augustine Tutut with six years three months and one day to serve and one-year suspended.
31. The terms of probation for Chan Alois for the 12 months of your probation shall be as follows:
a) you shall reside at your father's residence area at Napapar No.5;
b) you shall not consume alcohol or any other intoxicating substance, betel nuts excepted;
c) one half day a week, not being a Saturday, you will make yourself available for whatever work on behalf of the SDA church John Wartovo, SDA church elder at Napapar, requires of you;
d) each month you shall prepare a one-page report of what you have been doing for the past month, have it signed by your father and John Wartovo and personally deliver it to a probation officer at Kokopo;
e) you are to make yourself available one-day a month for interview by a probation officer at Kokopo on a day convenient to the probation officer;
f) you are not at any time during the period of your probation to associate with any of the person named by you as being involved in the commission of the offence of which you have been convicted.
32. Augustine Tutut the terms of your 12 months probation shall be as follows:
a) you shall reside at your Fathers residential area at small Vudal block, Kerevat;
b) you shall not consume alcohol or any other intoxicating substance, betel nut excepted;
c) one half day a week, not being a Sunday, you will make yourself available for whatever work on behalf of the Catholic church Robert Bata requires of you;
d) each month you shall prepare a one-page report of what you have been doing for the past month, have it signed by your father and Robert Bata and personally deliver it to a probation officer at Kokopo;
e) you are to make yourself available one-day a month for interview by a probation officer at Kokopo on a day convenient to the probation officer;
f) you are not at any time during the period of your probation to associate with any of the persons named by you as being involved
in the commission of the offence of which you have been convicted.
_______________________________________________________________
Public Prosecutor: Lawyer for the State
Paraka Lawyers: Lawyer for the Offenders
PacLII:
Copyright Policy
|
Disclaimers
|
Privacy Policy
|
Feedback
URL: http://www.paclii.org/pg/cases/PGNC/2008/180.html