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State v Mark [2017] PGNC 140; N6805 (10 May 2017)

N6805

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR NO. 638 of 2013

BETWEEN:

THE STATE

V

GERALD MARK
Defendant

Popondetta: Liosi, AJ

2017: 5^th & 10^th May

CRIMINAL LAW – Armed Robbery – S.386(1)(2)(a)(b) Criminal Code Act – Offender in company of 5 others – Sentencing categories in Gimble and Don Hale discussed – Stealing Nokia phone and K300 cash – Mitigating and Aggravating factors considered – Sentence of 2 years – Prisoner served 2 years 9 months in custody – Sentenced to rising of the Court.

Cases Cited:

Avia Aihi v. The State (No.3) [1982] PNGLR 92
Gimble v. The State [1988-89] PNGLR 271
Goli Golu v. The State [1979] PNGLR 653
Public Prosecutor v. Don Hale [1998] SC564
State v. Alphonse Polpolio & Jeffrey Baru CR.701&865 of 2006
Tau Jim Anis v. The State [2000] SC642
The State v. Magani (N455
Ure Hane v. The State [1984] PNGLR 105

Counsel:

K. Umpake, for the State
L. Mamu, for the Prisoner

DECISION

10^th May, 2017

1. LIOSI AJ: On 5^th May 2017, I convicted the offender on 1 count of stealing with threats of violence a Nokia phone valued at K284.00 and K300.00 cash the property of Eddie Basiangiam after he pleaded guilty.

2. You pleaded guilty to the following facts on arraignment. At about 4 pm. on 30^th November 2012, the victim Eddie Basingiam dropped off passengers at Isivini Primary School and was driving back to Popondetta. As he reached Isivini Bridge, you and 5 others came out from the bushes and held up the victim at gunpoint. You and the others were armed with 4 guns and 2 bush knives. You personally ordered the victim out of the vehicle and told him to lie face down on the ground. You then stole from him a Nokia brand mobile phone valued at K284.00 and K300.00 in cash the property of the said Eddie Basingiam.

3. The offence of aggravated armed robbery for which you have been convicted carries a maximum of life imprisonment under s.386(1)(2) of the Criminal Code. However, the law also states that maximum penalties are reserved for the worst category offences as held in the case of Goli Golu and Ure Hane (Supra).

4. I now have to decide the appropriate penalty for you. I begin by determining whether circumstances of your case justify the imposition of a maximum penalty of life imprisonment or whether you should get something less.

5. I do this by considering various matters including your personal particulars, your allocatus, submissions by your lawyer and State lawyer, circumstances of the offence, mitigating and aggravating factors and past decided similar cases.

6. You are 31 years old, single and hail from Ambari village, Ijivitari District, Oro. You were educated up to grade 8 and a follower of Anglican faith.

7. On allocatus you said, “I say sorry to God, creator of Heaven and Earth, citizens of Oro and the Court staff. I am the only boy with 3 sisters in the family who are all married except for one who is living with my parents. My father was admitted in 1997 as a TB patient when I was 12 years old. Doctors have advised him not to do hard work so I do all the family work. Now as I stand as a prisoner, I am also disabled as I received injuries to my hand. While in prison I can’t do little jobs like my laundry and washing my plate and cup. I say sorry once again and ask the Court to consider my disability.”

8. Your lawyer submits your case does not fall into the worst category case of its kind and so the maximum penalty does not apply to you. This he submits is because of the following mitigating factors. They include your guilty plea, you cooperated with the Police saving Court’s time and you have no prior convictions. He submits this factors land your case at the lower end of the category of armed robbery.

9. He submits the case of Gimble -v- The State (supra) remains to be a relevant guide when determining sentence for armed robbery and so your case falls into category C attracting 5 years as a starting point. Considering the amount and that no injuries were sustained, a lower sentence is warranted. He submits a sentence of 1 year is appropriate as you have spent 2 years 9 months in pre-trial custody and so you should be sentenced to the rising of the Court.

10. In response the State submits this is a serious and prevalent offence. The offence is complete irrespective of the value of the property taken. It submits the current sentencing guide lines are set out in the Don Hale case (supra) which has a starting point of 8 years.

11. The case of Gimble -v- The State (supra) has set out and remains to be a guide when sentencing offenders in armed robbery cases. On a plea of guilty by young first offenders carrying weapons and threatening violence. Sentencing guidelines are as follows:

1. Robbery of a house – starting point of 7 years
2. Robbery of a bank – starting point of 6 years

100. Robbery of a store, hotel, club, vehicle – starting point of 5 years

4. Robbery of a person on the street – starting point of 3 years
   

12. In the case of State -v- Don Hale (supra) the Supreme Court considered that the range of sentences suggested in Gimble’s case may no longer be appropriate. However, in Anis -v- The State (2000) SC642, the Supreme Court still suggested that Gimble’s case was still good law as far as categories were concerned but while actual sentences recommended maybe out of date the Court should not increase sentences by leaps and bounds.

13. Bearing those pronouncements in mind I also note that maximum penalties are reserved for the worst category cases and the Court still has an unfettered discretion under s.19 of the Criminal Code.

14. The factors of been in possession of weapons and in company of others during the commission of the offence brings it within the aggravated category of armed robbery. However, this should be considered in light of other prevailing circumstances of the case including violence and the amount stolen as they act as aggravating factors: Public Prosecutor -v- Don Hale (supra).

15. In this case, the properties stolen was a Nokia mobile phone valued at K284.00 and cash of K300.00. Furthermore, the victim suffered no injuries. I also note that you have pleaded guilty and you have no prior convictions. All this factors land your case in the lower end of category C of armed robbery in Gimble’s case.

16. Considering all the above, your case falls into category C of Gimble’s case attracting 5 years as a starting point. Your lawyer has submitted a sentence of 1 year. Given the circumstances of the case, I impose a sentence of 2 years imprisonment in hard labour. I deduct 2 years 9 months for the pre-sentence period you have spent in custody. The resultant sentence is that you are sentenced to the rising of the Court.

Ruling accordingly
____________________________________________________________
The Public Prosecutor: Lawyer for the State
The Public Solicitor: Lawyer for the Accused