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State v Kevin [2011] PGNC 214; N4675 (18 November 2011)

N4675

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]

CR 856 OF 2011

THE STATE

V

THOMPSON KEVIN,
EDWIN SAKI MORRIS

Alotau: Batari J
2011: 18 November

CRIMINAL LAW – sentence – armed robbery – robbery of boat and passengers at night by armed youths – plea – seriousness of – sentencing principles applied – robbery akin to robbery of home and piracy – starting points – use of – whether mandatory - mitigating factors – sentence of 8 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 Peter v The State (2007) SC894
Alex Pori v The State (2007) SC912

Counsel

J.W. Tamate, for the State
G. Pipike, for the Accused

SENTENCE

18 November, 2011

1. BATARI, J: Thompson Kevin and Edwin Saki Morris, you pleaded guilty this morning to one count of armed robbery on allegations that you and others whilst armed with firearms entered an anchored boat and stole from the occupants with threats of violence. This is your punishment.
   
2. The facts supporting your conviction and sentence are that, on the early morning of 17 March 2011 between the hours of 1.00am and 3.00am the two of you with two others paddled out on a canoe to a boat, MV Kwadima II which was then anchored off-shore Mapamoiwa Bay, Easa'ala, Milne Bay Province. You boarded the boat and pretended to those passengers on board you were security men. You then held up one, Richard Daniel with threats of violence and took from him, K1,666.30 in cash and other items namely, 13 CDs, a mobile phone, a pair of binoculars, store goods and two fishing lines totaling K2,856.30, the properties of Summer Institute of Linguistic (SIL) based in Alotau. The robbery was executed with use of pipes resembling guns and a bush knife.
   
3. It is clear from the facts that, you and your friends had purposely set out to steal from the boat. You waited until after midnight to carry out your evil plan. You used two canoes to get to the boat and pretended to some of the passengers still awake then that you were there to guard the boat. Your real intentions were revealed when you asked to be shown to cabin of the boat's cargo-supervisor Richard Daniel. You threatened and held Richard with firearm replicas and demanded that he surrender the boat's money bag. The passengers were not spared. You also threatened them and stole personal items of goods.
   
4. Your victims were sitting ducks, so to speak. They were trapped on a boat surrounded by waters. They had nowhere to escape. That provided an easy target for you. But for your victims, you placed their lives in grave danger because of the confines of space and the surrounding sea. They were completely at your mercy. What you did is akin to intrusion into the privacy and safety of homes and stealing from the occupants with threats of violence and more often than not, actual violence. Robbery of homes is the most serious type of armed robbery.
   
5. Your offence also resembles piracy, one of the most serious offences of violent crimes that carry the death penalty in this country. Piracy involves use of threats or actual violence to steal from ships on the high seas which act if committed on land would constitute robbery as defined in s. 384 of the Criminal Code.
   
6. So, your conduct in my view falls into the most serious category of armed robbery. This type of robbery has become common occurrence particularly in coastal areas where sea is the common mode of transport. It is being committed in increasing frequency, violence and sometimes unfortunate loss of life.
   
7. 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.
   
8. Sentences for robbery are now guided by four main categories. The practice has been to maintain those separate categories 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.
     
9. The sentencing guideline in Gimble's case remains useful, subject to the plus three year increase sanctioned by the Supreme Court in Public Prosecutor v Don Hale (1998) SC564, (Amet CJ, Woods J, Kirriwom J); Tau Jim Anis v The State (2000) SC642, (Sheehan J, Jalina J, Kirriwom J); and Phillip Kassman v The State (2004) SC759, (Jalina J, Sawong J, Batari J).
   
10. In Don Hale's case, the Supreme Court considered the starting point in Gimble's case to be outdated and suggested a term of 10 years for robbery of a home in the night by first young offenders armed with firearm. That increase was only for the first category of robbery cases. The Supreme Court did not review the starting points for the other categories.
    
11. The Supreme Court in Tau Jim Anis case adopted the 3 year factor increase for a case involving robbery of a factory which is the third category of robbery. The Court reduced a sentence of 10 years imposed by the National Court to 7 years. There were mitigating factors like young first offenders and guilty plea which the appellate Court held were not properly taken into account by the trial judge.
    
12. In Phillip Kassman's case, the appellant and others robbed the victim - a Bank customer, at the bank car park of more than K120,000.00 in cash. He was sentenced to 10 years. The Supreme Court noted that if the Gimble categories were used, the starting point would be five years. The Court adopted the approach in the cases of Hale and Anis and applied the "three year increase denominator" to a case that falls between street robbery and robbery of a bank. The appellate Court considered the sentence of 10 years was outside the starting point but held it was appropriated in all the circumstances of the case.
    
13. That meant the starting point was eight years subject to the judge's discretion to impose a higher or lower term on the facts of each case. See, Bobolan Peter v The State (2007) SC894 (Mogish, Manuhu & Hartshorn, JJ); Alex Pori v The State (2007) SC912 (Davani, Mogish & David, JJ).
    
14. With respect, it is in my view, good practice and proper sentencing approach, to first determine where the seriousness of the robbery at hands falls and then apply a sentencing range for the particular category of robbery, using suggested starting points as a guide. This is to avoid any misapprehension of starting points being mandatory terms. If that were to be so, it will offend against the court's sentencing powers in Section 19 and settled principles of law that each case must be sentenced on its own facts and that the maximum sentence must be reserved for the worst type of case.
    
15. For your sentence, your lawyer has suggested that your case falls into the third category namely, robbery store, hotel, club, vehicle on the road, etc.
    
16. In my view, this type of robbery is more serious than that. People and sometimes animals as well, not only travel but they also live on boats. Boats (excluding banana boats) to the crew members are their home away from home. They live, eat and sleep on boats while traversing the seas and calling in at ports. Travelling passengers are also treated to appropriate amenities for comfort, convenience and safe travel. Your conduct fall into the most serious type of robbery as I have alluded to earlier. It falls into the category of robbery of a home.
    
17. Adopting a sentencing range approach together with the usual starting points as a guide in this sentencing process, the range for robbery case may be as follows:
    
    • (1) Robbery of a home etc - 7 to 20 years with the starting point at 10 years for a contested case.
    • (2) Robbery of a bank - 6 to 18 years on a starting point of 9 years for a contested case.
    • (3) Robbery of a store, hotel, club, vehicle on the road or the like, 5 years to 16 years on a starting point of 8 years.
    • (4) Robbery of a person on the street - Non-custodial sentence to 12 years on a starting point of 6 years.
      
18. The recommended starting points are relevant where young first offenders carrying weapons and threatening violence are convicted following a trial. Lower or higher sentences within the range may be imposed to meet the justice of each case.
    
19. Higher terms of years to life imprisonment have occasionally been imposed on cases with severe or multiple aggravating factors where actual violence was used or loss of substantial amount of money was present or where the robbery was committed in breach of trust. On the other hand, a plea of guilty with special and exceptional mitigating factors like very old age, very young age or health concerns may justify a lower sentence.
    
20. In this case, your offence falls into the first category. It has circumstances of aggravation in that:
    
    • (i) You were armed with pipes to resemble a firearm and a bush knife.
    • (ii) You were in the company of other persons.
    • (iii) You committed offence in the night when the element of fear and risk to the victims are far greater.
    • (iv) The robbery was committed on a passenger boat against the crew and travelers. It resembles robbery of a home.
      
21. Against those factors, you have pleaded guilty at the earliest opportunity following your committal by the District Court on 15/8/11. This is in your favour. You have also expressed remorse and this is your first offence. You were both young at the time of the offence.
    
22. From the circumstances of your conduct, I accept your lawyer's submission that, this was a crime of opportunity. It was committed with minimum threat and no actual violence was used. For you Thompson, you were manning the canoes while Edwin and the others carried out the robbery. Your role was just as important. The robbery would not have succeeded without your participation. For you Edwin, you returned your share of the robbery upon detection.
    
23. Taking all those matters for and against you - the circumstances of the offence, you personal circumstances and plea of guilty, a term of years at the lower end of a possible scale of 7 years to 20 years is warranted.
    
24. The effect of the sentence that I am about to impose is aimed at discouraging young urban dwellers and villagers against this type of criminal activity. The sentence is also aimed at punishing you personally and to demonstrate to 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.
    
25. I have considered whether I should suspend the whole or any part of your sentence. There is no good reason for the court to take that course.
    
26. You are each sentenced to 8 Years IHL. Your times in custody are deducted. Hence, the balance to serve is, Thompson Kevin 7 years, 6 months IHL and Edwin Saki Morris, 7 years 8 months.
    

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