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State v Wartia [2018] PGNC 200; N7293 (13 June 2018)

N7293

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR. N0. 795 OF 2016

THE STATE

V

HENRY WARTIA

Kokopo: Susame, AJ
2018: 16 May, 8 & 13 June

CRIMINAL LAW – sentence on plea- offence of arm robbery, s 386(1) (2) criminal code – robbery on the street – use of offensive weapons – life threatening crime –offence prevelant- record of prior conviction – need for gradual increase in sentence – 5 years sentence imposed

Cases cited:
Acting Public Prosecutor v Uname Aumane [1980] PNGLR 510
Gimble -v- The State [1988-89] PNGLR 271
Golu Golu v The State [1988-89] PNGLR 653
Rex Liau v The State [1990] PNGLR 487
Public Prosecutor v Don Dale (1998) SC564

Counsel:
Mr. L. Ragan, for the State
Miss. PulaPula, for the Prisoner

JUDGMENT ON SENTENCE

13^th June, 2018

1. SUSAME, AJ: Prisoner pleaded guilty on arraignment of indictment and facts charging him of arm robbery under s 386(1) (2) (b) of the Criminal Code. Provisional plea was entered subject to the court reading the evidence in the committal file. Court considered the witness’ statements and noted the admission by the prisoner in committing the crime in the record of interview. On that basis court accepted the plea as unequivocal and found the prisoner guilty of the charge. Judgment on sentence was reserved until hearing of submissions. That has been done.
   

FACTS

2. I set out the facts on which, prisoner was convicted. Prisoner and his two other companions were having drinks at the Kokopo Golf Field between 2pm & 3pm on Saturday 30^th January 2016. Brothers Elias Tom and Josiah Tom were also at the golf club having snacks and relaxing under a tree few meters away. Prisoner and his two companions saw them and decided to rob the brothers. They approached the two brothers and the prisoner pointed a kitchen knife at Josiah Tom. Prisoner swore at Josiah and removed a scone and a can drink from him. While one of prisoner’s companion threatened Elias with a long tramontina bush knife and removed a basket off him. The brothers lost the following items in the robbery:
   1. A Basket
   2. A Samsung galaxy phone worth K199.00,
   3. A 4GB memory card
   4. A Sim card
   5. A Westpec Bank credit card.
   6. A Body spray
   7. K57.00 cash
      
3. After robbing the two brothers the prisoner and his two companions ran away, chased after by the complainants. Two of the robbers got away through Ralum Club premises while the prisoner was caught by the members of the public assisting. He was handed over to a police unit from Warangoi passing through the Williams Road and was flagged down outside of Vavagil Guest House. Prisoner was taken to Kokopo Police Station and subsequently charged.
   

SENTENCING CONSIDERATIONS

4. Sentencing is another important task of the court. It is a matter of judicial discretion. Exercise of that discretion must be guided by proper principles.
   
5. Kapi DCJ (as he then was) constituting the Supreme Court bench in Rex Liau v The State [1990] PNGLR 487 at 489 in his wisdom perhaps expressed it nicely when he said;
   

“The exercise of the sentencing discretion must be guided by proper principles. These include the characteristics of the offence or the offender which may aggravate or mitigate the seriousness of the crime taken together with all other relevant considerations. In this regard, it is desirable that the courts must be consistent in the application of these principles. These principles of sentence do not necessarily resolve the difficult task of fixing a particular term of sentence for any one particular case. The reason is clear and it has been pointed out in previous cases that there is no mathematical or scientific formula for arriving at a particular specific sentence from the general principles.”

6. Prisoner was invited to speak at the allocutus prior to court hearing submissions. He expressed remorse for the wrong he committed. He stated has never done this sort of thing in the past. He said his other two companions influenced him to commit the crime. He comes from a poor family. He plans to find employment to raise money to go back to school. He asked the court to be lenient and place him on good behavior bond.
   
7. Pre-sentence and means assessment reports filed by the Senior Community Based Correctional Officer (Probation Officer) contains additional information about the prisoner. Apart from other personal information about the prisoner the report generally is not favorable of him. He has been through court in the past. He has an uncontrolled drinking habit. The report does not recommend probation as an alternative sentence.
   
8. FACTORS OF AGGRAVATION
   1. Use of offensive weapon and threats
   2. Offence committed while under the influence of alcohol.
   3. Prisoner was in company of other two persons
   4. Properties stolen have not been returned.
   5. Prisoner has a record of prior conviction.
      
9. FACTORS OF MITIGATION
   
   1. Prisoner pleaded guilty
   2. No physical injuries sustained by the victims.
      
10. PENALTY

“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)–

1. is armed with a dangerous or offensive weapon or instrument; or
2. is in company with one or more other persons; or

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

11. However, Parliament has in its wisdom by amendment N0.6 of 2013 which came into operation on 18^th September 2013 made changes to sub-section (2) by repealing the words, “subject to section 19, imprisonment for life” and replacing with the words: “to be sentenced to death.”
    
12. The amended sub-section (2) should now read;

If a person charged with an offence against Subsection (1)–

a) is armed with a dangerous or offensive weapon or instrument; or

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

(c) at, immediately before or immediately after, the time of the robbery, wounds or uses any other personal violence to any person, he is liable to be sentenced to death.”

13. Hence, the maximum penalty for the offence is no longer life imprisonment but death.
14. The law is settled on imposing of maximum mandatory penalty for any particular offence. Both counsels have rightly reminded the court on that point. Maximum penalty is reserved for the worst category of cases. (Golu Golu v The State [1988-89] PNGLR 653.)
15. The amendment to the penalty however does not remove the court’s power to impose a lesser sentence in the exercise of its judicial sentencing power under s19 of the Criminal Code. (Acting Public Prosecutor v Uname Aumane [1980] PNGLR 510). I consider therefore, circumstances of case before me, does not fall within the worst category bracket to attract the maximum death sentence.
16. What alternative sentence should the court impose on the prisoner?
17. In their respective submissions both counsels have made reference to various decided cases one of which is the leading case of Gimble -v- The State [1988-89] PNGLR 271 in which the Supreme Court set down sentencing guidelines by recommending different head sentences based on where robberies are committed.
    
18. In the head notes of the judgment the court decided;

“The following guidelines are to be taken as appropriate to sentencing for aggravated robbery contrary to s 386(2) of the Criminal Code (Ch No 262), for which the maximum prescribed penalty is life imprisonment:

On a plea of not guilty by young first offenders carrying weapons and threatening violence for:

(a) robbery of a house — a starting point of seven years;

(b) robbery of a bank — a starting point of six years;

(c) robbery of a store, hotel, club, vehicle on the road or the like — a starting point of five years; and

(d) robbery of a person on the street — a starting point of three years;

features of aggravation such as actual violence, the large amount stolen, or where the robber is in a position of trust towards the victim may justify a higher sentence; a plea of guilty may justify a lower sentence.”

19. Going by the authority of Gimble, the prisoner’s case falls within category (d).
20. In another Supreme Court case of Public Prosecutor v Don Dale (1998) SC564 the court expressed these comments;

“We find that with the prevalence of violent crimes involving the use of guns the ranges of sentence recommended in Gimble’s case are having no effect and are no longer relevant. Gimble’s case was decided in 1989 and crimes of violence have definitely increased with the use of guns being more prevalent and the community is calling for heavier punishments as a deterrence. We feel that the starting point to an appropriate sentence involving the robbery of home owners at night with the use of firearms to threaten victims should be 10 years".

21. I cannot agree more. While 10 years head sentence was recommended for robbery of homes at night with the use of firearms for reasons expressed I think there should be a gradual increase in the head sentence in the other categories of armed robbery cases enumerated in Gimble’s case. In recent times some judges have started imposing sentences over and above the recommended tariffs in Gimble’s case. That case was decided some 29 years back and no longer appropriate in our day.
22. Court has been referred to few of these judgments by both counsels. It is not necessary to cite them. But of the cases cited, judgments that are more appropriate to serve as valuable guide are those involving robberies committed on the street. I note that sentences ranged between 3 to 5 years in both plea and after trial cases.
23. Prisoner has expressed some remorse for the crime he committed. He asked court to be lenient on him and place him on good behavior bond. Prisoner’s lawyer had not made any further submission in support of his plea to be placed on good behavior bond. She has however, pleaded for a three years sentence to be imposed taking into account the mitigating factors.
24. Prisoner’s early plea should go in his favor. He did express some remorse of the wrong he committed. However, I consider that just saying sorry to the court is not enough and has very little weight in the absence of any tangible act done as an expression of his true remorse (John Elipa Kalabus v The State [1988] PNGLR 193). It would have been more favorable to the prisoner if he and his two companions returned the stolen properties as a gesture of true remorse. Prisoner cannot now come to the court and place blame on his other two companions who are still at large. They were together drinking and decided to rob the complainants. Court is therefore not moved to accepting his remorse as genuine.
25. Prisoner has a prior conviction record not from this court but from the District Court 12 years back in 2006. He was convicted and sentenced to 8 months by District Court Kokopo for possession of marijuana. This plus other factors outlined earlier in the discussions, outweighs factors that favors the prisoner. So there is a slim chance of him getting a conditional release sentence under s 19 of Criminal Code or under the Probation Act.
26. Robbery in whatever mode adapted and executed, pre-planned or not is a serious crime, violating people’s rights, freedom and liberty guaranteed in the Constitution. It is a life threatening crime particularly when dangerous or offensive weapons are used. People whether they are rich or poor must enjoy the freedom to move around freely anytime, anywhere in our villages, towns and cities without being harassed, intimidated, threatened and robbed by anyone with the use of dangerous or offensive weapons. Kokopo town if not the entire East New Britain Province is no exception. It is therefore everybody’s business in promoting a safe, secure and healthy East New Britain society for people to come and visit and live in.
27. Sentence imposed should be between 3 years and 5 years as much as possible to maintain consistency in tariffs. Any sentence over 5 years sentence would be excessive and below 3 years would be very low outside of the current sentencing trend. It is hoped that sentence should not only serve as deterrence but also allow the prisoner an opportunity to attend Prison Fellowship Ministry programs and other rehabilitation programs run in jails in the country including the Kerevat jail.
28. For reasons of the discussions held the court shall impose this sentence:
    1. Prisoner is sentenced to 5 years sentence to be served with hard labour at Kerevat jail.
    2. In the exercise of court’s discretion under the Criminal Justice (Sentences) Act 1986 a rebate shall be given for pre-sentence period of 2 years 3 months 13 days commencing 4^th February 2016 to 13^th June 2018.
    3. The resultant length of 2 years 8 months 17 days sentence to be served out in full at the Kerevat jail subject to further remission of sentence to be considered at the discretion of Kerevat jail Command pursuant to s 120 (1) of the Correctional Services Act.
    4. A commitment warrant to be issued forthwith to hold the prisoner in jail to serve his sentence.

__________________________________________________________________
Public Prosecutor: Lawyer for the State

Public Solicitor: Lawyer for the Prisoner