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State v Leo (No.2) [2015] PGNC 190; N6096 (21 September 2015)

N6096

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR.NO.747 & 764 OF 2014

THE STATE

V

MANUEL LEO & MATTHEW DAVID
(NO.2)

Kokopo: Lenalia, J.
2015: 8th, 17th & 21st September

CRIMINAL LAW – Armed robbery – Criminal Code s.386 (1) & (2)

CRIMINAL LAW – Crime of armed robbery – Sentence after finding of guilty to each and severally.

Held:

1. The role played by the two accused were passive such as talking in support of a beggar who demanded money from the bus driver and its crew.
   
2. Appropriate penalty should be a suspended sentence with a set of probation orders to allow the parties living in the settlement reconcile.
   

Cases cited:

Gimble v The State [1988-89] PNGLR 271
Kennedy Kara v the State (2006) SCR 51 of 2005
McKenzie Bonny v The State (2003) SCRA 78 of 2002
Public Prosecutor v Don Hale (1998) SC564
Tau Jim Anis v The State (2000) SC642
The State v Terrence Yabok Hiafrie (No.2) (25.4.08) N3366

Counsel:

Mr. L. Rangan, for the State
Mr. P. Kaluwin, for the Accused

21st September, 2015

1. LENALIA, J: On 8th this month, the two offenders were found guilty on the crime of armed robbery contrary to s.386 (1) (2) (a) (b) of the Criminal Code. The offence was committed at Raniola settlement situated some few kilometers away from the Kokopo town. The offence was committed on 29th March 2014 upon the bus driver as he was dropping off passengers at the settlement at about 5.30 pm.

Addresses on Sentence.

2. On 17th this month, the parties addressed the Court on sentence. Prior to administration of allocutus, Mr. Rangan made submission on the two offenders' prior convictions. They each have prior convictions in case of Manuel Leo for a charge of drunk and disorderly and on the second offender, a conviction of assault. Both were District Court convictions. Allocutus was administered to the two prisoners. They each and severally said that they wanted to remain silent and would live it up to their lawyer to talk on their behalf.

3. Counsel representing the two prisoners made submission on what should be the appropriate penalty saying the court should consider the two did not benefit from the proceeds of the offence and the fact that his clients played very passive roles on commission of the offence. Counsel acknowledged and confirmed his clients' prior District Court convictions.

4. For the prosecution, Mr. Rangan submitted that as the court had found the two offenders guilty of armed robbery, they be sentenced according to what the court has found. Counsel submitted that, the court should consider compensation of K200.00 as the complainant has forgiven the two offenders.

Law.

5. The tow offenders were found guilty of the charge of armed robbery under s.386 (2) (a) (b) (c) of the Criminal Code which was committed with aggravations. The prescribed maximum penalty for Subsection (1) is 14 years imprisonment. Where such crime is committed with aggravations as defined by Subsection (2) (a) (b) and (c) of the above Section, the maximum penalty is life imprisonment but which has been amended to death. The Court has discretion to sentence a person to a term of years by applying the sentencing discretion given it by s.19 of the Code.

6. The prisoners' case falls into Subsection (2) of the Section charged. I quote the whole Section in the following terms:

"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;

(b) is in company with one or more other persons; or

(c) at, immediately before or immediately after, the time the robbery, wounds or uses any other personal violence to any person, he is liable subject to Section 19, to imprisonment for life."

7. I note the definition of aggravated robbery in Subsection (2), as the offence you committed was aggravated by two factors. First, the offenders were in company of other persons on the scene. Secondly, Mathew David you were armed with a dangerous offensive weapon namely a bush-knife. The third element requires that out of the robbery, someone is injured. On the instant case, nobody was injured.

8. On the evidence of your case, the robbery falls under the category that took place on a vehicle on the road which according to Gimble v The State [1988-89] PNGLR 271 would attract the starting point of five years in a plea of guilty. However, the starting point in that case was increased by three years in Public Prosecutor v Don Hale (1998) SC564. Such increased was reaffirmed the Supreme Court case of Tau Jim Anis v The State (2000) SC642.

9. In McKenzie Bonny v The State (2003) SCRA 78 of 2002 an aggravated case of armed robbery in Madang. The present case may be similar to the above case because in the above appeal, the appellant claimed to be a watchman only. The appellant in that case was sentenced to 8 years imprisonment. He appealed on the basis that because he was only a watchman for those who held up the occupant of the house and he should not have been imprisoned like his co-accused and secondly that he was a student. He said the trial court did not consider those factors. His appeal was dismissed as the Court found that the appeal had no merits. It confirmed the sentence of 8 years.

10. In The State v Terrence Yabok Hiafrie (No.2) (2008) N3366 Davani J, sentence the offender after a trial to 8 years imprisonment. The prisoner and one person were armed with a bush knife. They accosted and held up 2 female employees of Wewak Haus Bet Ltd. They made off with K19, 360.00. The employees were walking to the ANZ Bank to bank the monies when they were held up. That case was a street robbery.

11. In another street robbery case, The Supreme Court in Kennedy Kara v the State (2006) SCR 51 of 2005 reduced 11 years sentence by the National Court to 7. It was a guilty plea. In that case, a sum of K30.00 in cash, a pair of sandals, a wrist watch, a towel and other personal belongings were taken. The accused in that case was armed with a bush knife and was in the company of other persons. They exhibited violence by pointing the bush knife at the victim's neck and struggled with him before they escaped.

Pre-Sentence and Means Assessment Reports

12. I have considered the terms of the Pre-Sentence Reports. In case of prisoner Manuel Leo, he is mixed Sepik and Namatanai. Both parents died some years back. He is married to Janet form Henganofi District, Eastern Highlands Province, Goroka. They have six children. His elder sister Mrs. Sintia Pukakia, expressed similar comments. They expressed their willingness to assist whatever way the court orders and either in cash or kind.

13. In case of David Matthew, he comes from Eastern Highlands Province. His father died here in Raniola in 2012. His mother is still alive about sixty years old now. He is married with three children. The wife of the prisoner Mrs. Alice David and the prisoner's eldest sister Mrs. Serah David will support the prisoner in whatever way they can to bring normalcy to the parties.

14. Two Ward Committee Members Mr. Ben Wak Samson and Mr. Ben Simbu were contacted by the writer of the reports. The two expressed their eagerness for the parties to immediately settle because they live in Raniola settlement and the community would like to see the two offenders and the victim to immediately settle.

15. On sentencing the two offenders, I consider the fact that two did not benefit from the proceeds of the robbery. Whether they benefited at all was not revealed in the prosecution evidence. I consider the part they played on their demand to assist the man Jebuma. I consider counsels' submission on sentence and the contents of the pre-sentence and means assessment reports. I consider that a term of years should be appropriate in the circumstances of this case and the two offenders will also pay some compensation to the victim.

16. The prisoners are sentenced to a term of eight (8) years imprisonment in hard labour. The custody period be deducted and the remaining balance is fully suspended on the following conditions:

1. You two shall enter into a recognizance without sureties to keep the peace and be of good behavior for 2 years.
   
2. Each of you shall pay K200.00 toward the compensation payment to the owner of the bush for the loss of K400.00 including loss of business.
   
3. The total amount of you shall pay in compensation is K400.00 to the vehicle owner.
   
4. The court further orders that you each shall pay K100.00 each to the driver and his off-sider of the bus due to the trauma caused to them.
   
5. The total amount payable for compensation is K200.00
   
6. The orders that the two Committee Ward Members Mr. Ben Wak Samson and Mr. Ben Simbu shall supervise the payments of compensation and report to the Community Base Correction Officer which Office shall assist the Probationers to file reports at the National Court Registry Office here in Kokopo declaring completion of payments on such compensation.
   
7. Above payments shall be made within two (2) weeks.
   

________________________________________________________________
The Public Prosecutor: Lawyer for the State
The Public solicitor: Lawyer for the Accused