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State v Magani [2011] PGNC 210; N4555 (12 December 2011)

N4555

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR 994 of 2010

THE STATE

V

TAI MAGANI

Lae: Batari J
2011: 10 October
: 12 December

CRIMINAL LAW– Sentence – Robbery – Robbery of vehicle – Group of armed men held up driver and stole vehicle at settlement – Plea – Effect of - Threats of violence – Mitigation – Accomplice sentenced to 5 years on plea –- Principles of sentencing applied - Disparity of sentence not applicable - Sentence of 5 years appropriate.

Cases Cited

Gimble v The State [1988-89] PNGLR, 271
Public Prosecutor v Don Hale (1998) SC564,
Tau Jim Anis v The State (2000) SC642,
Phillip Kassman v The State (2004) SC759
Bobolan Mebu Peter v The State (2007) SC894
Alex Pori v The State (2007) SC912

Counsel

J. Done, for the State
L. Vava Jnr., for the Accused

12 December, 2011

1. BATARI J: Overview: The accused, then 17 years old, was part of a group of youths who held up a motorist and stole from him, the vehicle he was driving. He pleaded guilty to armed robbery and was remanded for sentence subject to presentence report ordered from the Community Based Correction Office (the CBC) under s. 13 of the Probation Act (Ch 381). The court is now in receipt of and has the benefit of that report.

Background

2. The facts supporting the charge are that, on the morning of 26 January 2010 one Apelis Wesley, an employee of Mapai Transport Company drove to 4Mile Settlement, Lae in a Toyota 10 Seater Land Cruiser registration no. MAD 976, to pick up another company employee driver. He was confronted and threatened by youths, the prisoner amongst them, armed with a homemade gun. They stole the vehicle and drove it away. The vehicle owned by Mapai Transport Company was valued at K140,000.00. The next day, police located and detained the prisoner and his cohorts of robbers at Wau Township. The vehicle was recovered at the same time, in good condition.

The Offence

3. The offence of armed robbery under s .386 (1)(2) of the Criminal Code carries the maximum sentence of life imprisonment. This maximum penalty is a profound statement of Parliament's view that, armed robbery is such a serious crime of violence that severe punishment will be meted out by the Court to convicted offenders.

4. The maximum penalty is not mandatory. It is nevertheless, a guide for the Court in the exercise of its sentencing powers under s.19 of the Criminal Code. Where the Court considers a particular sentencing option is open on the facts of the case, it will also be guided by settled sentencing guidelines so as to maintain a consistent sentencing pattern or tendency for the particular offence. The current sentencing tendency for robbery cases is relevant in that consideration.

5. This is a typical armed robbery of a vehicle that so frequently occurs along the main as well as residential streets of our towns and cities, along highways and feeder roads. It is invariably committed by young men from the neighbourhood or the surrounding settlements, camps or villages, who seem to have nothing better to do then prey upon unsuspecting motorists to steal from them.

6. In general, armed robbery has become the most prevalent offence and feared crime of violence confronting our people today. It is a very serious crime as it attacks the very essence of constitutional guarantees for every man, woman and children in this country to have the freedom to live, move around and go about his or her lawful business anywhere and at any time of the day, without fear or apprehension of unwarranted attacks. People should feel safe in their homes, at their work places, on the streets and roads, without fear as many do, of prowling armed robbers threatening and stealing from them.

7. The conduct of the prisoner and his cohorts is most serious as it threatened the lawful presence of the victim on the street. The victim, Apelis Wesley must have felt badly shaken and apprehensive. The potential for serious injury in an armed hold-up is so real and most intimidating. Fortunately, there was no personal injury caused to the victim. But this does not help the prisoner.

8. These considerations favour tough measures against the crime of robbery within the legal limits of what is in the powers of the Court to do.

9. The effect of the sentence that may be imposed should be aimed at discouraging young urban dwellers and village youths against this criminal activity. The sentence should be aimed at punishing the offender personally as well as have the effect of warning would-be young offenders that they risk being imprisoned for a long time when caught. The imposition of tougher punitive measures is also warranted by the prevalence of the offence.

10. Sentences for robbery cases are now guided by four main categories. The accepted norm and practice has been to maintain those separate categories in the imposition of appropriate sentence and that the maximum sentence is reserved for the worst type of robbery. These categories with suggested starting points were enunciated by the Supreme Court in Gimble v The State [1988-89] PNGLR, 271 as:

(i) robbery of a house – a starting point of seven years;
(ii) robbery of a bank – a starting point of six years;
(iii) Robbery of a store, hotel, club, vehicle on the road or the like – a starting point of five years; and
(iv) Robbery of a person on the street – a starting point of three years.

11. The recommended starting points are relevant where young first offenders carrying weapons and threatening violence are convicted following a trial. Where actual violence was used or other features of aggravation like a loss of substantial amount of money was present or where the robbery was committed in breach of trust, a higher sentence may be justified. On the other hand, a plea of guilty with special mitigating factors may justify a lower sentence.

12. The sentencing guideline in Gimble's case remains useful, subject to the plus three year increase sanctioned by the Supreme in, Public Prosecutor v Don Hale (1998) SC564, (Amet CJ, Woods J, Kirriwom J) for category 1 robbery of a home; Tau Jim Anis v The State (2000) SC642, (Sheehan J, Jalina J, Kirriwom J) for category 3 robbery of store etc; and Phillip Kassman v The State (2004) SC759, (Jalina J, Sawong J, Batari J) for a robbery that falls within category 2 and 3 .

13. This means for category 3 robbery of a store, hotel, club, vehicle on the road or the like, the Court may start at a mid range of eight years subject to the judge's discretion to impose a higher or lower term depending on the facts of each case. That is the principle applied in Tau Jim Anis v The State and Phillip Kassman v The State. See also, Bobolan Peter v The State (2007) SC894 (Mogish, Manuhu & Hartshorn, JJ); Alex Pori v The State (2007) SC912 (Davani, Mogish & David, JJ).

14. The case before this Court falls within category 3. It has no aggravating features beside that which is alleged under s.386 (2)(a)(b) of the Criminal Code namely, that the accused was armed with a dangerous weapon and that he was in the company of others. The stolen vehicle was recovered intact and no doubt returned to its owner.

15. The Court's sentencing discretion is also made easier by the sentence earlier passed on the offender's associate. The question which arises for determination is whether the prisoner in this case should be given a different sentence to that imposed on his accomplice.

16. It is trite law that, disparity of sentence may be justified to reflect the offender's degree of participation in the commission of the offence. The ring leader, who planned, directed and played an active role in committing the offence or the person who pulled the trigger injuring or killing the victim in an armed hold-up may deserve a higher sentence to that of his convicted accomplice who played a lesser active role.

17. The prisoner's accomplice; 28 year old Tim Waka is currently serving a five year wholly suspended sentence on probation orders following his plea of guilty before Justice Manuhu in CR 1030 of 2010, on 20 March 2011. Waka was much older than the prisoner at the time of the robbery. There is nothing else known about that prisoner's personal circumstances except that he pleaded guilty.

18. In this case, the offender was possibly the youngest in the group and played a less important role in being present. I consider that his age and his role warrant a lesser sentence to that of his older accomplices. However, because the sentence imposed on his accomplice is already in the lower end of an acceptable range for this category of armed robbery, there is in my view no reason to treat him differently.

19. I have also considered whether to suspend all or part of the sentence. For that purpose, those matters usefully set out in a commendably comprehensive Presentence Report by Mrs. Nablu, Senior Probation Officer of the CBC Office is of relevance. The assessment supports probation as a viable alternative to imprisonment.

20. I have considered extending the prisoner that sentencing option for the following reasons:

(i) The term of 23 months he has served in prison waiting for his trial and sentence is sufficient to have impressed upon him the ugly side of his conduct. Crime is evil, it does not pay and that he would have learned hard lessons from the severe restrictions on individual freedom and choices in prison.

(ii) Punishment is not all about punitive or "mekim save" imprisonment. Where rehabilitation and reformation of the individual prisoner has a real chance outside prison, the court should take the risk to subject the prisoner to appropriate measures designed to influence his or her future behaviour through supervision, treatment or preventive confinement.

(iii) He is recommended as suitable candidate for probation.

(iv) He is a youthful first offender who can be usefully punished by an alternative to imprisonment so that he is given the chance to redeem his past and pursue the hope for a better and useful member of the community again.

(v) There is no reason to treat him differently from his co-accused.

20. In the upshot, I consider that a term of imprisonment is appropriate. In my view, 7 years imprisonment is warranted on the facts. So that there is no misapprehension of being punished more than his accomplice, I will impose 5 years and suspend the whole term to be served on Probation.

34. To ensure that the prisoner is also effectively punished in the community, I will order community work. He is sentenced as follows:

(i) 5 years imprisonment IHL.

(ii) The pre-custody period of 1 year 11 months is deducted. The balance is wholly suspended and that he be released from custody forthwith to be on probation for 3 years on the usual probation terms under the Probation Act and in addition the probationer shall:

1. Perform 900 hours of community work without pay at a worksite to be nominated and supervised by the CBC Office;
   
2. Within two weeks of his release from prison, join a youth fellowship group of his local church and take active participation in the group activities whilst on probation;
   

100. Undergo three counselling sessions conducted or arranged by his church minister, priest or pastor within two weeks of his release from prison;
     

4. Keep the peace and be of good behaviour whilst on probation;
   
5. Not to take, consume or deal with alcohol, illicit drugs and any form of intoxicating liquor or drug substance whilst on probation;
   
6. Not to leave Lae or Morobe Province without prior notice to the CBC Office and must inform that Office of his change of residential address in Lae;
   

(iii) The CBC office is to compile and file in the National Court Registry with copies to the State Prosecutor and the Police CID, quarterly reports of the probationer's responses and progress on probation.

_____________________________

Public Prosecutor: Lawyer for the State
Paul Paraka Lawyers: Lawyer for the Accused