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National Court of Papua New Guinea |
PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]
CR. No. 637 OF 2009
BETWEEN:
THE STATE
V
PETER YANDI
Prisoner
Mendi: David, J
2010: 11 & 16 June
CRIMINAL LAW – sentence - highway robbery – two-man gang robbery – prisoner and accomplice armed with a bush knife and a pistol – passenger wounded - property and cash relatively of substantial value stolen and not recovered - prisoner and accomplice travelling with others on vehicle for a long distance – identity not concealed - robbery conducted at end of journey - some pre-planning involved – prevalence of offence – guilty plea - first time offender – prisoner illiterate and unsophisticated – cooperation with police – prisoner remorseful – custodial sentence of ten years in hard labour less period of pre-trial custody - Criminal Code ss. 19 and 386 (1)(2)(a)(b) and (c).
Cases cited:
Goli Golu v. The State [1979] PNGLR 653
Avia Aihi v. The State (No.3) [1982] PNGLR 92
Public Prosecutor v. Vangu’u Ame [1983] PNGLR 424
Ure Hane v. The State [1984] PNGLR 105
Gimble v. The State (1988-89) PNGLR 271
Ivoro Kaumin Lupu v. The State, SCRA No.2 of 1997, Unreported & Unnumbered Judgment dated 13 June 1997 (Kapi, DCJ, Los & Jalina, JJ)
Public Prosecutor v. Don Hale (1998) SC564
The State v. Steward Pariwan (1999) N1834
Tau Jim Anis & Ors v. The State (2000) SC642
The State v. Kennedy Arus (2001) N2081
The State v. Tony Pandau Hahuahori (No.2) (2002) N2186
The State v. Fabian Kenny (2002) N2237
The State v. Lucas Yovura (2003) N2366
The State v. Graham Chris (2003) N2575
The State v. Sunny Kaupa, CR 480 of 2003 (2003)
The State v. Paul Maima Yogol (2004) N2583
The State v. Chris Banban (2004) N2645
The State v. Warip Mondol (2004) N2707
The State v. Tommy Yare & Anor, CR 1828 of 2003 (2004)
The State v. Honenu Kinzong (2005) N2942
Saperus Yalibakut v. The State (2006) SC890
The State v. Jackson Nimai (2008) N3355
The State v. Jonathan Sengi (2009) N3692
Counsel:
Mr. Joe Waine, for the State
Mr. Peter Kumo, for the Prisoner
DECISION ON SENTENCE
16 June 2010
1. DAVID, J: INTRODUCTION: The prisoner pleaded guilty to one charge of aggravated robbery in which the State alleged that on 31 October 2008 at Erave in the Southern Highlands Province in Papua New Guinea he stole from Noami Loya and others with actual violence store goods valued at K2,000.00 and cash in the amount of K1,040.00 the property of Noami Loya and others contrary to s.386 (1) and (2)(a)(b) and (c) of the Criminal Code. Upon arraignment, the prisoner pleaded guilty. I accepted the plea and convicted him of the charge after reading the depositions and having been satisfied that there was sufficient evidence to support the charge.
BRIEF FACTS
2. For purposes of arraignment, the following brief facts were put to the prisoner.
3. On 31 October 2008, the prisoner and his accomplice boarded a PMV at Ialibu which was travelling to Erave in the Southern Highlands Province. On the vehicle were Noami Loya and her family and other passengers together with their store goods and other personal belongings. When they reached the Batri junction which is at the boarder of Kagua and Erave, the vehicle stopped to drop off the prisoner and his colleague.
4. Unknown to the passengers and the driver at the time, the prisoner had a bush knife and pulled it out. He swung the bush knife at the passengers and in the course struck Noami Loya’s daughter namely, Kerani Loya, inflicting a cut to her nose.
5. The prisoner’s colleague pulled out a pistol and pointed it at the driver.
6. The prisoner robbed Noami Loya and the other passengers of their property including store goods and personal belongings valued at K2,000.00 and cash in the amount of K1,040.00.
EVIDENCE
7. Amongst the documents contained in the depositions are the following:-
Remarks on evidence and findings
8. The effect of a plea of guilty is that an accused person pleads to the constituent elements of the offence. It is therefore the duty of a judge to examine the depositions to check if there is any evidence of the constituent elements of the offence with which the accused is charged: Saperus Yalibakut v. The State (2006) SC890. The constituent elements for the offence of aggravated robbery which had to be proven by the prosecution beyond reasonable doubt in the present case are:
1. the accused stole something;
2. immediately before or immediately after the time of stealing it, he used or threatened to use actual violence to a person or property;
3. in order to obtain the thing stolen or to prevent or overcome resistance to it being stolen;
4. the accused was armed with a dangerous or offensive weapon or instrument (s.386(2)(a)); or
5. the accused was in company with at least one other person (s.386(2)(b)); or
6. at, immediately before or immediately after, the time of the robbery, wounds or uses personal violence to any person (s.386(2)(c)).
9. The circumstances giving rise to the prisoner committing the offence are as set out in the statements of various State witnesses which are contained in the court depositions I have noted above.
10. It is clear from the evidence that on 31 October 2008, the prisoner and his accomplice were passengers on a Land Cruiser, open back, white in colour bearing registration number BCF198 travelling to Erave in the Southern Highlands Province. They actually boarded the vehicle at Mt. Hagen and not from Ialibu as was alleged in the brief facts. The vehicle was used as a PMV and it was driven by a Kiap Atu. Amongst other passengers on the vehicle were Noami Loya and her two small children one of whom is Kirane Loya, Wi Wina and Gie Thomas, the ‘bos kru’. The prisoner and his accomplice had indicated to the driver when getting on the vehicle that they were to be dropped off at the Sumbra market at Kagua. When they arrived at the Sumbra market at about 07:30 pm, the vehicle stopped for the prisoner and his accomplice to get off. Instead of getting off there, the prisoner and his accomplice decided to be dropped off at the Batri junction which is somewhere at the boarder of Kagua and Erave. They arrived at the Batri junction at about 8:00 pm.
11. When they stopped, the prisoner’s accomplice went to the driver’s side and pointed a home made pistol at the driver. He then ordered the driver to switch off the engine and get out of the vehicle. The driver complied. He got out and ran away in fear. The prisoner swung his knife menacingly at the passengers and in the course wounded Kirane Loya. The prisoner and his accomplice then stole with threats of violence property and cash belonging to the passengers. After the robbery, the prisoner and his accomplice ran away into the bush.
12. The medical report confirms that Kerani Loya suffered a superficial knife wound which did not require suturing. Appropriate treatment was administered.
13. All the constituent elements of the offence of aggravated robbery having been substantiated by evidence, I accepted the prisoner’s plea of guilty and convicted him of the charge.
ANTECEDENTS
14. The prisoner has no prior convictions.
15. The prisoner is now aged twenty six years, married to one wife with one child. He is from Sumbra village, Kagua in the Southern Highlands Province. Both his parents are alive. According to the Antecedent Report, he was resident at Mt. Hagen in the Western Highlands Province and employed as a plantation labourer earning K60.00 per fortnight at the time he committed the offence. He has a Grade One formal education and is a member of the ECP Church.
ALLOCATUS
16. The prisoner requested the Court to take into account in his favour that; he has no prior convictions, but was a first time offender; his parents were old and needed someone to look after them; he was married with a child; and he has been in custody for over one year and six months waiting to be brought to his trial. In the circumstances, the prisoner pleaded for leniency and mercy from the Court.
PRE-TRIAL CUSTODY
17. The prisoner has been in custody since 14 November 2008. According to my calculation, he has been in custody for a period of one year, seven months and two days as at the date of sentence.
SUBMISSIONS FOR THE PRISONER
18. Mr. Kumo of counsel for the prisoner submitted that a sentence in the vicinity of eight years partly suspended would be appropriate given the competing mitigating and aggravating factors present in the present case.
19. Counsel referred the Court to a couple of cases where sentences between nine years and twelve years were imposed for armed robbery. They include The State v. Fabian Kenny (2002) N2237 and The State v. Lucas Yovura (2003) N2366.
20. In Fabian Kenny, the prisoner was charged for armed gang robbery of a PMV along a public highway namely the Maprik/Pagwi Road in the East Sepik Province. The prisoner with two others armed with a shotgun and a bush knife stole with threats of violence cash and property belonging to the driver and the passengers with an estimated value of K579.00. On a guilty plea and as a first time offender, the prisoner was sentenced to nine years imprisonment in hard labour less time spent in custody.
21. In Lucas Yovura, the Court sentenced the prisoner to twelve years for a gang armed robbery on a guilty plea in which the gang stole a total sum of K10,950.00. The incident occurred in Wewak in the East Sepik Province. The employees of a company had driven to a service station in a company motor vehicle to refuel after having collected the money from their employer’s office when the driver who had remained in the vehicle while his two colleagues had gone into a store to buy some food and cigarettes was held up by the prisoner with a 9mm pistol. The driver was ordered out of the vehicle. The prisoner and his accomplices then commandeered the motor vehicle and drove off with the K10,950.00 cash still in the vehicle. A police motorist patrol driving by the crime scene was alerted and gave chase. An exchange of gun fire ensued which resulted in the police shooting the prisoner on his legs and eventual apprehension. Only the sum of K600.00 was recovered.
SUBMISSIONS FOR THE STATE
22. Mr. Waine of counsel for the State submitted that aggravating factors operating against the prisoner were; the use of dangerous weapons; that the prisoner was acting in concert with his accomplice when making threats of violence to the driver and passengers of the vehicle; that Kirane Loya, the female child passenger was wounded; none of the stolen goods and money was recovered; and that the offence was prevalent.
23. As to penalty, counsel submitted that despite there being an increase in sentences for aggravated robbery since the tariff in Gimble v. The State (1988-89) PNGLR 271 was suggested and varied to an extent by Public Prosecutor v. Don Hale (1998) SC564 because of the prevalence of the offence, it seemed to have no deterrent effect on the prisoner. Counsel therefore submitted that a deterrent sentence suggesting ten years as the starting point should be imposed.
THE LAW
24. The Prisoner was charged under s.386 (1) and (2)(a)(b) and (c) of the Code. Section 386 (1) and (2) of the Code creates the offence and prescribes the penalty for simple and aggravated robbery. I set out the relevant provision as follows:-
"386. The offence of robbery
(1) A person who commits robbery is guilty of a crime.
Penalty: Subject to Subsection (2), imprisonment for a term not exceeding 14 years.
(2) If a person charged with an offence against Subsection (1) –
(a) is armed with a dangerous or offensive weapon or instrument; or
(b) is in company with one or more other persons; or
(c) at, immediately before or immediately after, the time of the robbery, wounds or uses any other personal violence to any person,
he is liable subject to Section 19, to imprisonment for life."
25. In Gimble, the Supreme Court prescribed sentencing guidelines for aggravated robbery cases. The guidelines are set out below (from the head note):-
"On a plea of not guilty by young first offenders carrying weapons and threatening violence for:-
(a) robbery of a house – a starting point of seven years;
(b) robbery of a bank – a starting point of six years;
(c) robbery of a store, hotel, club, vehicle on the road or the like – a starting point of five years; and
(d) robbery of a person on the street – a starting point of three years;
Features of aggravation such as actual violence, large amount stolen or where the robber is in a position of trust towards the victim may justify a higher sentence; a plea of guilty may justify a lower sentence."
26. These guidelines were varied in Tau Jim Anis & Ors v. The State (2000) SC 642 where the Supreme Court held that while the sentencing guidelines were still useful, the tariff was not which resulted in the increase of the recommended sentences for each category by three years. The Supreme Court was influenced by Don Hale where the Supreme Court held that with the prevalence of violent crimes involving the use of guns, the tariff recommended in Gimble had no effect and was no longer relevant. The Supreme Court in Don Hale felt that the starting point to an appropriate sentence for armed robbery of a house at night should be ten years, an additional three years above the tariff set. The Supreme Court in Tau Jim Anis also said there was a need to increase the sentencing tariff for all categories of armed robberies, but that it is done progressively and not by leaps and bounds.
27. The guidelines in Gimble as varied are merely guidelines and do not take away the trial judge’s discretion that is vested in him or her under s.19 of the Code: see The State v. Steward Pariwan (1999) N1834.
28. It is a trite principle of law on sentencing that the maximum penalty is usually reserved for the worst cases for the particular offence under consideration and that each case must be considered on its own merits: Goli Golu v. The State [1979] PNGLR 653; Avia Aihi v. The State (No.3) [1982] PNGLR 92; Ure Hane v. The State [1984] PNGLR 105.
THE PRESENT CASE
29. I have convicted the prisoner for aggravated robbery. The prisoner is therefore liable to imprisonment for life subject of course to the Court’s discretion to impose a lesser sentence under the various options available to it under s.19 of the Code.
30. The present case falls under the third category of the guidelines in Gimble, being robbery involving a vehicle on the road. The starting point is eight years. The starting point can be adjusted downwards or upwards or remain at the starting point depending on whether mitigating factors outweigh aggravating factors and by how many and vice versa or they are on par.
31. I will have regard to the following aggravated robbery cases involving PMVs and other motor vehicles held up on roads where the prisoners were convicted and sentenced on their guilty pleas when determining an appropriate sentence for the prisoner in the present case. The varying sentences demonstrate the particular circumstances under which those cases were committed.
32. These cases show that the offence of aggravated robbery occurring on roads is prevalent throughout the country and the Highlands region is no exception. It is almost an everyday occurrence. Travel by the public whether on vehicles or on foot is therefore becoming unsafe and risky because of the ubiquity of the threat of being held up and threatened with violence. There are even instances where deaths have occurred both in successful and unsuccessful robberies: see for example, The State v. Tony Pandau Hahuahori (No.2) (2002) N2186. As the commission of the offence is alarmingly on the increase, the Court must try to counter the trend by imposing tougher sentences. I consider therefore that a strong, punitive and deterrent sentence is warranted in the present case.
33. In The State v. Kennedy Arus (2001) N2081, on a guilty plea, the Court sentenced the prisoner to eight years imprisonment in hard labour less time spent in pre-trial custody. There, the prisoner and five other accomplices boarded a bus travelling to Lae at Goroka pretending to be passengers travelling there. After the bus had been driven out of Goroka and on its way to Lae, somewhere at Korofeigu in the Benabena area in the Eastern Highlands Province, the prisoner and his accomplices held up the driver and the passengers with two homemade guns whilst it was still in motion. One of the accomplices then took over the driving of the bus by force from the driver and drove it off the Okuk Highway onto the Benabena High School road with the driver and passengers still inside. The prisoner and his accomplices drove past the Benabena High School and stopped some distance away. They ordered everybody in the bus to step out and then searched them at gunpoint. They then stole from the driver and the passengers, money totalling K350.00 in cash, a pair of shoes and a wrist watch. After robbing the driver and his passengers, the prisoner and his accomplices abandoned them and drove away in the bus towards Goroka. Police were alerted and later arrested the prisoner and three of the five accomplices. The bus which was valued at about K107,000.00 at the time of the offence was recovered, but it was uncertain whether the cash and the other items stolen from the passengers and the driver were recovered.
34. In The State v. Sunny Kaupa, CR 480 of 2003 (2003), on a guilty plea, the Court sentenced the prisoner to five years imprisonment in hard labour less time spent in custody. The Court suspended two years of the term and the prisoner was placed on a good behaviour bond for three years after serving two years one month and three weeks in prison. There, the prisoner, who was a youthful first time offender and in the company of others held up the victim while driving his motor vehicle along the Sogeri Road towards Port Moresby. The prisoner and his accomplices were armed with home made guns and a bush knife. The victim and his passengers were robbed of K1,500.00 in cash and property valued at K190.00 out of which the prisoner only received K50.00 in cash.
35. In The State v. Graham Chris (2003) N2575 the prisoners pleaded guilty to one count of armed gang robbery of a PMV along the Maprik and Wewak Highway in the East Sepik Province where firearms and other weapons were used. There were threats and actual violence used and cash and goods were stolen totalling K1,105.00. Some prisoners were with no prior conviction and because a village Councillor was prepared to supervise any community based correction for the prisoners, the Court sentenced all of them to nine years imprisonment, but suspended part of the sentence less time spent in custody awaiting trial.
36. In The State v. Paul Maima Yogol (2004) N2583, the prisoners were charged with the armed gang robbery of a motor vehicle. They were first time offenders and had no prior convictions. They were in the company of ten other young men when they set up an illegal road block at about 11:00pm at Five Mile, Goroka along the Vanima road leading to the Highlands Highway in the Eastern Highlands Province. They held up and robbed the driver of the motor vehicle and his passengers of cash and property with an estimated total value of K1,300.00. The prisoners and their accomplices were armed with three home-made shotguns and bush knives at the time. On a guilty plea, the Court imposed a sentence of twelve years in hard labour less the time spent in custody.
37. In The State v. Tommy Yare & Anor, CR 1828 of 2003 (2004), the prisoners were charged for armed robbery and for unlawful use of a motor vehicle. On a guilty plea, the Court sentenced them to a term of six years on the charge for armed robbery. In that case, the prisoners held up the driver of the motor vehicle with a gun, got the keys and drove off in the motor vehicle, but nothing of value was taken.
38. In The State v. Chris Banban (2004) N2645, the prisoners and other accomplices armed with a grass knife and two home made guns held up a motor vehicle at Yangola Creek, Kabwum in the Morobe Province. They assaulted the driver and the passengers and then robbed them of K2,445.00 in cash and other personal items. Upon entering guilty pleas, the prisoners were sentenced to seven years in hard labour less time spent in custody.
39. In The State v. Warip Mondol (2004) N2707, upon guilty pleas having been entered by the five prisoners, the Court sentenced each of them to twelve years imprisonment in hard labour less time spent in custody awaiting their trial. They were charged for armed robbery of a vehicle on a public highway which occurred somewhere past the Nipa Station while travelling to Mendi in the Southern Highlands Province. There was actual violence as the victim, the driver was cut with bush knives and threatened to be shot with guns. The passengers were harassed and stripped naked in search of valuables. A total cash amount of K19,659.00 was stolen. The total value of other properties stolen from the driver and his passengers was about K12,496.00.
40. In The State v. Honenu Kinzong (2005) N2942, the prisoner pleaded guilty to one count of stealing with actual violence whilst in company of others and armed with dangerous weapons namely bush knives and home made guns. The prisoner and his accomplices held up a vehicle travelling along the Finschafen– Pindiu Road and on its way to Pindiu in the Morobe Province. Upon seeing the vehicle approaching, the prisoner and his accomplices jumped onto the road and blocked it from proceeding any further with their guns. The driver stopped the vehicle. After ordering the passengers out of the vehicle and ordering them to lie on the ground, the prisoner and his accomplices searched the vehicle. Amongst the passengers was a businessman from Pindiu with supplies for his trade store. Those goods were stolen from the vehicle together with K1,500.00 in cash belonging to that businessman and other passengers on the vehicle. The total value of cash and goods stolen was K4,500.00. On a guilty plea, the Court sentenced the prisoner to seven years imprisonment in hard labour less time spent in pre-trial custody.
41. In The State v Jackson Nimai (2008) N3355, the prisoner and four of his accomplices held up a vehicle as it was being driven along the Highlands Highway at Waratampa in the Simbu Province and robbed the driver and his passengers of their money and personal belongings. A sum of K120.00 was taken from one of the passengers. The prisoner was positioned as a spy some distance away along the road to keep a look out for oncoming vehicles and people. The gang was armed with two shot guns and two bush knives. On a guilty plea, a sentence of eight years was imposed less time spent in pre-trial custody. Two years of the term was suspended with strict conditions applying.
42. In The State v. Jonathan Sengi (2009) N3692, the prisoner joined with others in holding up a PMV on which he was a passenger at Mero along the North Coast Road in the Madang Province. Four men were involved in the gang, knives were used to threaten bus crew and K15.00 cash was stolen. The offender played a minimal role in the robbery. Mitigating factors considered in favour of the prisoner there were that; there was no actual physical violence; the prisoner did not threaten anyone; the prisoner played a minimal role in the robbery; the prisoner pleaded guilty; the prisoner was a first-time offender; the prisoner was a young offender; and a small amount of money was stolen. Aggravating factors taken against the prisoner were that he acted in a gang and no compensation was paid or apologies were extended to the victims. The Court imposed a sentence of four years imprisonment.
43. The sentences in the cases referred to by the defence and those that I have cited range from as low as four years in the case of Jonathan Sengi to twelve years in the cases of Lucas Yovura, Paul Maima Yogol and Warip Mondol. In Jonathan Sengi, the Court was of the view that the circumstances of the robbery made it a less serious case therefore it warranted a sentence lower than the starting point of eight years. The mitigating factors there far outweighed the aggravating factors. The cases of Lucas Yovura, Paul Maima Yogol and Warip Mondol are very serious cases because either the aggravating factors there far outweighed the mitigating factors or that they were gang robberies involving the use of dangerous or offensive weapons with actual physical violence and injuries inflicted upon the victims.
44. In considering an appropriate sentence for the prisoner, I take into account in his favour the following mitigating factors. Firstly, he has pleaded guilty saving substantial time and money that could have been expended in running a contested trial to determine his guilt. Secondly, he is a first time offender with previous good conduct, but not a young offender. Thirdly, he is an illiterate and unsophisticated person. Fourthly, he cooperated with the police investigations by readily making early admissions demonstrating acceptance of criminal responsibility. Finally, he appeared to me to be remorseful.
45. I do not however give any credit to the prisoner’s submission concerning the welfare of his old parents and wife and child because he should not use them to avoid punishment: Public Prosecutor v. Vangu’u Ame [1983] PNGLR 424; Ivoro Kaumin Lupu v. The State, SCRA No.2 of 1997, Unreported & Unnumbered Judgment dated 13 June 1997 (Kapi, DCJ, Los & Jalina, JJ).
46. As to whether the prisoner was provoked in the non legal sense to do what he did because he felt ashamed and ridiculed in the eyes of the other passengers when he was asked by the "bos kru" to pay an extra K5.00 on top of the K15.00 he had already paid as his fare, this is what I say. I do not buy that. This is because I am convinced that by being armed with a bush knife and his accomplice with a pistol which seem to have been concealed and by not alighting at the Sumbra market at Kagua where they had initially indicated to get off upon boarding the vehicle at Mt. Hagen, but instead further up at Batri junction, it is obvious that the prisoner and his accomplice already had a plan to commit the offence which they executed in an area where they could avoid detection by people in the area or the victims getting assistance quickly.
47. A number of factors make the present case a very serious one. Firstly, the prisoner and his accomplice were armed with a bush knife and a pistol which are dangerous and offensive weapons. Secondly, this was a two-man gang robbery. Thirdly, Kirane Loya was wounded on her nose although it was superficial. Fourthly, property and cash relatively of substantial value was stolen. Fifthly, the prisoner and his accomplice had gotten on the vehicle at Mt. Hagen at about midday and had been travelling together with the other passengers for a very long distance all the way to the Batri junction and displaying fully their identity in the course. For them to hold up the vehicle with its driver and passengers right at the end of their journey was a gesture of non appreciation of being transported on the vehicle to their suggested destination whether it was a PMV or otherwise and charging passengers a fare or not and it was indeed a damning indictment on the ability of the laws of the country and their enforcement having any deterrent effect on them. Sixthly, the commission of the offence was not done on the spur of the moment. Some pre-planning was involved. Finally, the offence is prevalent.
48. I consider therefore that under the circumstances, taking into account the seriousness of the offence, the mitigating and aggravating factors, the sentencing trend for this offence and the need to impose a sentence that will act as both a personal and a public deterrence as well to stop like-minded persons from committing the offence, a sentence of ten years in hard labour is appropriate. The period of pre-trial custody of one year, seven months and two days shall be deducted from the head sentence leaving eight years, four months and twenty six days to be served. Incarceration will be at the Bui-iebi CIS.
49. A warrant shall be issued forthwith to execute this sentence.
50. I order accordingly.
____________________________________________________
Acting Public Prosecutor: Lawyer for the State
Public Solicitor: Lawyer for the Prisoner
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