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State v Jerry [2014] PGNC 153; N5796 (23 August 2014)

N5796

PAPUA NEW GUINEA
IN THE NATIONAL COURT OF JUSTICE

CR NOS 1142 & 1143 OF 2013

THE STATE

V

FALCON JERRY AND PETER ANDREW

Kimbe: Cannings J
2014: 11, 22, 23 August

CRIMINAL LAW – sentence – armed robbery – Criminal Code, Sections 386(1) and (2)(a) and (b) – guilty plea – offenders held up group of men who had sat down for a quiet drink – street robbery.

Two men pleaded guilty to committing armed robbery of a group of people who had settled down for a quiet drink on the edge of town. The offenders and their three accomplices approached the victims, held them up with knives and other weapons and stole from them K450.00 cash, a mobile phone and a bilum, the total value of property stolen being K590.00. This is the judgment on sentence.

Held:

(1) The maximum sentence for armed robbery is life imprisonment.

(2) Mitigating factors are: the offenders pleaded guilty, they have no prior convictions, though violence was threatened, no actual physical violence was inflicted.

(3) Aggravating factors are: the offenders acted in a gang, victims inevitably traumatised by the incident.

(4) A sentence of four years each was imposed, the pre-sentence periods in custody were deducted and no parts of the sentences were 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 Manu Tuangi CR No 726 of 2011, 05.10.11
The State v Nigel Kopper Kingsley (2011) N4465
The State v Owen Gabriel Koud CR No 312 of 2010, 20.05.10

SENTENCE

This was a judgment on sentence for armed robbery.

Counsel

F K Popeu, for the State
D Kari, for the offender

23rd August, 2014

1. CANNINGS J: This is the sentence for Falcon Jerry and Peter Andrew who pleaded guilty to one count of armed robbery and have been convicted of that offence under Sections 386(1), (2)(a) and (b) of the Criminal Code. The robbery was committed at Bialla on 20 June 2013. They were in company with three other young men. They saw the victims, Gende Nime and Stalon John, go into the oil palm trees on the edge of town, with a bottle of rum. They were intending to have a quiet drink. The offenders and their accomplices approached the victims, held them up with knives and other weapons, and stole from them K450.00 cash, a mobile phone and a bilum, the total value of the stolen property being K590.00.

ANTECEDENTS

2. Neither offender has prior convictions.

ALLOCUTUS

3. The offenders were given the opportunity to say what matters the court should take into account when deciding on punishment:

Falcon Jerry: I am sincerely sorry for what I did. One of the victims was my uncle. He and my father have spoken and want to settle it out of court. I ask for mercy and a non custodial sentence.

Peter Andrew: I am sorry for what I did to these people. This is my first time in court. I ask for mercy and a non custodial sentence.

OTHER MATTERS OF FACT

4. As the offenders pleaded guilty each 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). I will take into account that they each made admissions to Police when interviewed on 9 July 2013, they did not instigate the robbery, they did not assault or cut the victims.

PERSONAL PARTICULARS

Falcon Jerry
Age : 18
Origin : Chimbu
Upbringing : Bialla
Marital status : Unknown
Family : father alive
Education : Grade 7, was doing grade 8 at time of offence
Employment : no formal employment
Occupation : student
Health : OK

Peter Andrew
Age : 20
Origin : Menyamya
Upbringing : Bialla
Marital status : married with 1 child
Family : unknown
Education : nil
Employment : no formal employment
Occupation : settler
Health : OK

SUBMISSIONS BY DEFENCE COUNSEL

5. Mr Kari put forward a number of mitigating factors: the guilty plea, the lack of prior conviction, the expression of remorse. He submitted that a sentence of no more than four years imprisonment is warranted, as a co-offender was given a 4-year sentence by Batari J, which should be suspended because of the strong mitigating factors.

SUBMISSIONS BY THE STATE

6. Mr Popeu agreed with 4 years but as their co-offender is in custody they should get the same treatment.

DECISION MAKING PROCESS

7. 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?

8. For armed robbery (Criminal Code, Sections 386(1), (2), (a) and (b)) – the maximum penalty is life imprisonment. However I have discretion to impose less than the maximum term and suspend part or the entire sentence under Section 19 of the Criminal Code.

STEP 2: WHAT IS A PROPER STARTING POINT?

9. 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) SC564; Tau Jim Anis v The State (2000) SC642; and Phillip Kassman v The State (2004) SC759. 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: eight years; robbery of a person on the street: six years. This was a street robbery. The starting point is six years.

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

10. Two recent Madang street robbery cases provide a useful point of comparison. In The State v Manu Tuangi CR No 726 of 2011, 05.10.11 the offender joined with two others and held up a man at knifepoint in the Botanic Gardens Madang. The victim was stabbed and received superficial injuries and the offender had stolen from him a bilum containing K50.00 cash and two cell batteries. The offender made full admissions to the Police and made an early guilty plea and the stolen property was returned to the victim. The sentence was five years imprisonment, none of which was suspended. In The State v Nigel Kopper Kingsley (2011) N4465 the offender pleaded guilty to joining with one other person in holding up the victim on the street, threatening him with a hammer deliberately disguised as a home-made gun, and stealing his bilum containing two mobile phones and other personal items. No actual physical violence was done to victim, the stolen property was recovered soon afterwards, the offender co-operated with Police and made early admissions. The sentence was three years imprisonment, none of which was suspended.

STEP 4: WHAT IS THE HEAD SENTENCE?

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

Mitigating factors:

• the offenders pleaded guilty,
• they have no prior convictions,
• though violence was threatened, no actual physical violence was inflicted.
  

Aggravating factors:

• the offenders acted in a gang,
• victims inevitably traumatised by the incident.
  

12. Applying the principle of parity of sentencing (The State v Philip Bira (2009) N3633) I uphold the position of the State and impose a sentence of four years imprisonment.

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

13. 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.

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

14. No. The court has been advised that the co-offender is serving his time in custody. The principle of parity also applies to the question of suspension. There is in any event no strong case for suspension.

SENTENCE

15. Falcon Jerry and Peter Andrew, having each been convicted of one count of robbery contrary to Section 386(1) of the Criminal Code in circumstances of aggravation under Sections 386(2)(a) and (b) of the Criminal Code, namely they were armed with a dangerous and offensive weapon and in company with other persons, are sentenced as follows:

Sentenced accordingly.
______________________________________________________
Public Prosecutor: Lawyer for the State
Public Solicitor: Lawyer for the offender