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State v Thaddeus [2014] PGNC 234; N5795 (23 August 2014)

N5795

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR NO 1007 OF 2013

THE STATE

V

LUVI THADDEUS
Defendant

Kimbe: Cannings J
2014: 13, 22, 23 August

CRIMINAL LAW – sentence – armed robbery – Criminal Code, Sections 386(1), (2)(a) – guilty plea – street robbery.

A man pleaded guilty to committing armed robbery of a company employee on a public street in an urban setting. The offender approached the employee who was waiting on the road to catch a bus, he threatened her with a bushknife, stole a bilum containing K9,064.00 cash + K6,814.00 cheques = total K15,878.00. This is the judgment on sentence.

Held:

(1) The maximum sentence for armed robbery (Criminal Code, Sections 386(1), (2), (a) and (b)) is life imprisonment.

(2) Mitigating factors are: the offender pleaded guilty; he has no prior convictions; he acted alone, not in a gang; though violence was threatened, no actual physical violence was inflicted.

(3) Aggravating factors are: a large amount of money stolen, which has not been recovered; the robbery was committed in public place, recklessly putting many people at risk of injury or death; victim inevitably traumatised by the incident.

(4) A sentence of five years was imposed, the pre-sentence period in custody was deducted and no part 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 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 Luvi Thaddeus who pleaded guilty to one count of armed robbery and has been convicted of that offence under Sections 386(1) and (2)(a) of the Criminal Code. The robbery was committed on the morning of 11 June 2013 on the street at Morokea, in Kimbe. The offender approached a female employee of Farmset Ltd who was waiting on the road to catch a PMV into Kimbe. She had possession of cash and cheques, doing a bank run. He approached her with a bushknife, threatened her, stole a billum containing K9, 064.00 cash + K6, 814.00 cheques, a total of K15, 878.00.

Antecedents

2. The offender has no prior convictions.

Allocutus

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

"This is my first time in court. I am married with six children, though one died while I was in custody. I have blocks of coconut and oil palm but I am the only one in the family who can work them".

Other Matters of Fact

4. As the offender has pleaded guilty he will be given the benefit of reasonable 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 take into account that he made admissions to Police when interviewed on 15 June 2013.

Pre-Sentence Report

5. The court was presented with a report prepared by the Kimbe office of the Community Based Corrections Service.

Personal details of Luvi Thaddeus

Submissions by Defence Counsel

6. Mr Kari put forward a number of mitigating factors: the guilty plea, the lack of prior conviction, no one physically injured. He submitted that a sentence of no more than five years imprisonment is warranted, which should be suspended because of the strong mitigating factors.

Submissions by the State

7. Mr Popeu agreed with five years but pointed out that the money has not been recovered.

Decision Making Process

8. 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?

9. 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?

10. 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?

11. 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?

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

Mitigating factors:

• the offender pleaded guilty;
• he has no prior convictions;
• he acted alone, not in a gang;
• though violence was threatened, no actual physical violence was inflicted.
  

Aggravating factors:

• a large amount of money stolen, which has not been recovered;
• the robbery was committed in public place, recklessly putting many people at risk of injury or death;
• victim inevitably traumatised by the incident.
  

13. The aggravating and mitigating factors are fairly evenly matched. This was a serious robbery. Comparing this case with the precedents referred to I uphold the position of the State and impose a sentence of five years imprisonment.

Step 5: Should The Pre-Sentence Period In Custody Be Deducted From The Term Of Imprisonment?

14. 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 six months.

Step 6: Should All or Part of the Sentence Be Suspended?

15. This offender has a reasonable pre-sentence report but ultimately the seriousness of this major armed robbery, committed in the middle of town in broad daylight, means that a suspended sentence is not justified.

Sentence

16. Luvi Thaddeus, having been convicted of one count of robbery contrary to Section 386(1) of the Criminal Code in circumstances of aggravation under Section 386(2)(a), namely he was armed with a dangerous and offensive weapon, is sentenced as follows:

Sentenced accordingly,

_____________________________________________________________
Public Prosecutor: Lawyer for the State
Public Solicitor: Lawyer for the offender