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State v Nanguan [2009] PGNC 82; N3689 (24 July 2009)

N3689

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR NO 145 0F 2009

THE STATE

V

MAXON NANGUAN

Madang: Cannings J
2009: 20, 24 July

SENTENCE

CRIMINAL LAW – sentence – armed robbery – Criminal Code, Section 386(1), (2)(a), (c) – guilty plea – young offender held up woman on street, stole bilum at knifepoint, inflicted stab wounds on victim – K777.00 cash and property stolen – sentence of 5 years.

The offender pleaded guilty to holding up a woman on the street at knifepoint, stabbing her twice, inflicting superficial wounds, and stealing her bilum containing cash and property worth K777.00.

Held:

(1) The starting point for armed robbery of a person on the street is six years imprisonment.

(2) Mitigating factors are: offender motivated by insults to commit the offence; acted alone, not in a gang; co-operated with police and made early admissions; some compensation paid to victim; pleaded guilty; first-time offender; young offender; stolen property recovered.

(3) Aggravating factors: serious physical violence involved; victim traumatised by the incident.

(4) The court imposed a sentence of five years imprisonment. The pre-sentence period in custody was deducted and none of the sentence was suspended.

Cases cited

The following cases are cited in the judgment:

Gimble v The State [1988-1989] PNGLR 271
Phillip Kassman v The State (2004) SC759
Public Prosecutor v Don Hale (1998) SC564
Saperus Yalibakut v The State (2006) SC890
Tau Jim Anis v The State (2000) SC642
The State v A Juvenile "KIB" CR 982/2008, 09.04.09
The State v A Juvenile "KM" CR 998/2007, 18.10.08
The State v A Juvenile "NBM" CR 589/2008, 27.10.08
The State v A Juvenile, "TAA" (2006) N3017
The State v Kevin Knox and Alex Ambi (2008) N3339
The State v Luke Yauwe & David Marcus (2006) N3158
The State v Odei Boromake (2006) N3139

SENTENCE

This is a judgment on sentence for armed robbery.

Counsel

N Goodenough, for the State
J Kolkia, for the offender

24 July, 2009

1. CANNINGS J: This is the sentence for a young man who pleaded guilty to armed robbery. He held up a woman on the street at knifepoint, stabbed her twice, the first time on her left breast and the second time on her right thigh. He also attempted to stab her two more times but the victim repelled him. He stole the victim’s bilum containing K18.00 cash, two wallets, a set of keys, two mobile phones and a rosary, worth a total of K777.00. The offence was committed near the Trilain Store, Modilon Road, Madang at 6.00 am on Saturday 26 July 2008.

2. A conviction has been entered under Sections 386(1), (2) (a) and (c) of the Criminal Code.

ANTECEDENTS

3. The offender has no prior convictions.

ALLOCUTUS

4. The offender was given the opportunity to address the court. He said:

This is my first time to appear before the National Court. I apologise to the court and to the victim. My family has paid compensation to the victim consisting of K200.00 cash, a pig and some foodstuff. I ask for the court’s mercy.

OTHER MATTERS OF FACT

5. 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).

6. A strong mitigating factor arising from this material is that the offender cooperated with the police and made admissions when he was formally interviewed. More contentious is the claim that he made to the police that he committed the offence out of frustration as the victim insulted him by calling him an "idiot" and a "beggar" when he greeted her in the early morning just before he committed the offence. I am prepared to regard this as a fact as it had been conceded to by the prosecution but it is only a mild mitigating factor, as the offender acted way out of proportion to such provocation.

PERSONAL PARTICULARS

7. Maxon Nanguan is 20 years old and single. He is from Yenchen in the Ambunti district of East Sepik Province but was born and raised in Madang. His parents are still alive and he comes from a large family. He lives at the PHD compound in Madang. He has a grade 3 education.

SUBMISSIONS BY DEFENCE COUNSEL

8. Mr Kolkia submitted that the court should put considerable weight on the guilty plea and the fact that the offender, though not a juvenile, is a young man with no prior convictions. He cited several decisions where young, first-time offenders who pleaded guilty had been given sentences of three to five years imprisonment, reflecting those mitigating considerations:

• The State v A Juvenile, "TAA" (2006) N3017, Kimbe, Cannings J: five years for armed, gang supermarket robbery, K47,000.00 stolen, offender aged 17;
  
• The State v Luke Yauwe & David Marcus (2006) N3158, Lae, Kirriwom J: four years each for armed, gang, street robbery, K150.00 stolen, offenders aged 15, 20 years;
  
• The State v Odei Boromake (2006) N3139, Lae, Kirriwom J: 3 years for armed, gang, street (bush track) robbery, K1, 500.00 stolen, offender aged 15 years.
  

9. Mr Kolkia submitted that a sentence of four years imprisonment would be appropriate.

SUBMISSIONS BY THE STATE

10. Mr Goodenough acknowledged that the guilty plea and the offender’s lack of prior convictions were mitigating factors but stressed that this was a serious case because there was actual physical violence involved. A sentence providing both personal and general deterrence is required. The offender should not receive a lenient sentence just because of his age. He referred to The State v Kevin Knox and Alex Ambi (2008) N3339 as an example of a case where juvenile offenders were not afforded leniency because of their age. They were members of an armed gang who held up and stabbed a Japanese man at Port Moresby Golf Club and stole property worth K17, 000.00. They were sentenced to seven and six years imprisonment respectively. Mr Goodenough submitted that a sentence of eight to ten years imprisonment would be appropriate.

DECISION MAKING PROCESS

11. 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?

12. For armed robbery the maximum penalty is life imprisonment. However, I have discretion to impose less than the maximum term and suspend part or all of the sentence under Section 19 of the Criminal Code.

STEP 2: WHAT IS A PROPER STARTING POINT?

13. 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.

14. 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.
  

15. The present case falls within the fourth category. The starting point is six years.

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

16. All of the cases cited by the defence counsel and the prosecutor are relevant as they deal with young, first-time offenders. Also relevant are three recent Madang cases I have dealt with involving juvenile offenders, summarised in the following table.

TABLE 1: ARMED ROBBERY SENTENCES, JUVENILE OFFENDERS, MADANG PROVINCE, CANNINGS J, 2008-2009

STEP 4: WHAT IS THE HEAD SENTENCE?

17. The head sentence will reflect the following mitigating and aggravating factors.

18. Mitigating factors:

• was motivated by insults to commit the offence;
  
• acted alone, not in a gang;
  
• co-operated with police and made early admissions;
  
• some compensation has been paid to the victim;
  
• pleaded guilty;
  
• first-time offender;
  
• young offender (but not a juvenile);
  
• stolen property was recovered.
  

19. Aggravating factors are:

• serious physical violence involved;
  
• victim traumatised by the incident.
  

20. Though there are more mitigating than aggravating factors, this is a more serious case than the two Lae cases referred to by Mr Kolkia, which resulted in sentences of three and four years. It is also more than the Madang case of "NBM", where the sentence was three years.

21. I agree with the prosecutor that a very serious aspect of this case is that the offender stabbed the victim twice. Though the wounds were only superficial, the victim had to go to the emergency department of Modilon General Hospital for treatment. It could easily have been worse.

22. It has some similarities with Knox and Ambi, but it is not as serious as that case due to the extent of the injuries suffered by the victim and the value of the property stolen. A sentence of eight to ten years, proposed by the State, would not adequately reflect the guilty plea and the young, first-time offender status of the offender and the other mitigating factors.

23. Having regard to all those matters, I fix a head sentence of five years imprisonment.

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

24. 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 11 months, three weeks, five days.

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

25. No. There is no pre-sentence report before the court to warrant a consideration of probation (Public Prosecutor v Don Hale (1998) SC564).

SENTENCE

26. Maxon Nanguan, having been convicted of one count of armed robbery under Sections 386(1), (2) (a) and (c) of the Criminal Code is sentenced as follows:

Sentenced accordingly.

_________________________________________
Public Prosecutor: Lawyer for the State
Paul Paraka Lawyers: Lawyers for the offender