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State v Giru [2018] PGNC 367; N7478 (24 September 2018)


N7478


PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]


CR No. 920 & 921 OF 2017


THE STATE


V


NORMAN GIRU & LOI EDWARD KINGSLEY


Kimbe: Miviri AJ
2018: 21 August & 21, 24 September


CRIMINAL LAW – PRACTICE AND PROCEDURE – Attempted Robbery – Plea – Street robbery – first offender – PSR MAR favourable to prisoners – serious and prevalent offence – active participants in crime – deterrent sentence.


Facts


Accused were with others who were armed with bush knives and homemade guns. They tried to stop the PMV in which the victim was. They intended to steal but vehicle did not stop one of the prisoners shot at it and injured a person on the vehicle.


Held


Early Guilty plea
First offender
Serious and prevalent offence
Deterrent sentence
5 years IHL


Cases Cited:


The State v Lahui, Hetau, Noho, and Eki, [1992] PNGLR 325
The State v Simbago [2006] PGSC 23; SC849
The State v Kama [2004] PGSC 32; SC740
The State v Gimble [1988-89] PNGLR 271
The State v Thress Kumbamong (2008) SC 1017
The State vAnis [2000] PGSC 12 SC642
Public Prosecutor v Don Hale [1998] SC 564
The State v Malo [2006] PGNC 231; N4520
The State v Marase [1994] PGSC 11; [1994] PNGLR 415
The State v Gorop [2003] PGSC 1; SC732


Counsel:


A Bray, for the State
E Yavisa, for the Defendant

SENTENCE


24th September, 2018


  1. MIVIRI AJ: Norman Giru and Loi Edward Kingsley were charged with Attempted Armed Robbery committed on the 16th April, 2016 at Walupai. They were drunk with others armed with homemade guns and bush knives and set up a road block on the highway. An Isuzu PMV truck registered number P6039 came driving through the road block where upon three co-accused of accused fired three shots at it. First was a warning the second penetrated injuring Blasius Reu who was the off sider on the PMV. The third hit the fuel tank. Accused were there and assisted these persons trying to steal but unsuccessful.
  2. Both defendants entered guilty pleas confirming their admissions initially to the police in their respective records of interviews.

Charge


  1. The charge was contrary to Section 387 (1) (2) (a) (b) (c) Criminal Code Act prescribing a maximum penalty of life imprisonment. The facts circumstances did not disclose that this was the worst case of attempted robbery therefore the maximum was in view. But a determinate term was in order given.

Allocutus


  1. Norman Giru “I am a first time offender and I want to apologise to the court for what we have done. The guy we have shot we have reconciled and paid him 100 param and a mature pig valued at K500. I would like to apologise to the complainant and my family who have suffered with me. I ask to be placed on probation.”
  2. Loi Kingsley Edward “I apologise for what we have done. I did not expect what happened. I am a first time offender and I am a student in grade 8 at Bitokara Community School. I ask for the courts mercy to put me on probation”
  3. Defence Counsel made application pursuant to Sections 13 and 25 of the Probation Act for pre-sentence reports and means assessment reports to be given to assist in the determination of sentence upon them. It was adjourned to allow to Friday 7th September 2018.

Mitigation


  1. Norman Giru is 19 years old and Loi Kingsley Edward is 18 years old both are originally from Bamba village Ward 5 Talasea. Both do not have any record of prior convictions known to the law. The former is educated to grade 7 at Bitokara Primary School whilst the latter is to grade 8 also at the same school. The report recommends both for probation.
  2. Both prisoners have pleaded guilty to the offence and have since expressed remorse. This is particularly so in the light of the presentence and means assessment reports that evidence in particular payment of K1000.00, 20 fathoms of traditional shell money and 20 Karukas to the victim his family and relatives by both prisoners. The injury to the leg of the victim has healed with no major residual injuries.
  3. According to the presentence report both are not threats to the community. Their guilty pleas have saved court time and resources. And in so doing both have been honest as it was made initially when both was apprehended by police in their confessional and then record of interview 31st May 2017. Coupled with the restitution made and their age an alternative to imprisonment is viable also with the roles that each played in the offence.

Aggravation


  1. It is a crime of violence in this particular case the prisoners accompanied others who were armed with homemade guns and bush knives all dangerous weapons. The gun were discharged three times the vehicle was hit so too a passenger in the cabin. The accompaniment of both prisoners to the group gave it numbers to be able to commit the crime. Both played a very important part in the robbery because their roles gave their accomplices comfort to do what they did threaten and attempt to steal.
  2. The immediate area of the robbery a public road that is frequented into Kimbe town by those in Talasea including the prisoners. It is an area frequented by people who live there together with the victim who were intent on trying to make a living. By going as they did prisoners and those who were with then put the lives of both those who were on that road on the vehicle in danger. And it does not need to be looked far to see the grave result of robbery: Lahui, Hetau, Noho, and Eki, The State v [1992] PNGLR 325 (August 1992); Simbago v The State [2006] PGSC 23; SC849 (31 August 2006). There are many others reported of such magnitude to state fundamentally that it is not the proceeds of the robbery, but the way in which the crime is perpetrated. Here was a serious attempt. Guns are lethal and dangerous weapons together with bush knives and have in many instances killed in the course of robberies. It is even more lethal with homemade guns that do not have safety in the weapons as in the case of factory made ones. The production is with anticipation that there will be resistance as was demonstrated here. It is therefore well planned to time to execute with as little resistance and in the event of to have weapons ready as demonstrated here. And the roles of the prisoners are important in this regard.
  3. Lawlessness in this way seriously effects economic activities and the welfare of the province and the country. People of Talasea who use the PMVs to come into Kimbe and to do their daily businesses are effected. Recently the penalty provision of aggravated robbery was amended to the maximum penalty of death from life years to the death penalty, Criminal Code amendment No. 6 of 2013. It reflects situations like Kama v The State [2004] PGSC 32; SC740 (1 April 2004) that have become prevalent so an attempted robbery as here is very serious in that light.
  4. Their action must be punished and denounced rehabilitation upon education is likely though both do not have specific evidence from the Bitokara Primary School. But will be encouraged in that regard to realize reformation and rehabilitation. It may be an alternative for their case. In accordance with Gimble’s case (supra) I determine this robbery to be likened to robbery of a store club vehicle on the road drawing a starting point term of 5 years. It is aggravated for the reasons that I have set out above fitting this tariff and range. It is a prevalent offence. That guidelines were set in 1988-89 and since that time to the present this offence has not gone down it is prevalent as ever. But each case must be determined and sentence passed based on its own facts and circumstances. Tariff and range are amongst matters for and against that are considered in determining an appropriate penalty in a given case: Thress Kumbamong v The State (2008) SC1017. It is an attempted robbery the prevalence of which denotes a strong punitive and deterrent sentence upon the prisoners and any like or similar inclination by others.
  5. You are sentenced to 5 years IHL. The time that you have spent in custody 1 year 4 months 2 weeks 2 days will be deducted forthwith. The other remaining time 3 years 7 months 1 week 5 days will be suspended on the same period on a Probation order for the same period on the following conditions:

Orders Accordingly,
__________________________________________________________________Public Prosecutor: Lawyer for the State
Public Solicitor : Lawyer for the Defendant


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