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State v Wangi [2018] PGNC 393; N7505 (15 October 2018)

N7505

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR No. 1336 OF 2016

THE STATE

V

RODNEY WANGI

Kimbe: Miviri AJ
2018: 25 September & 15 October

CRIMINAL LAW – PRACTICE AND PROCEDURE – Armed Robbery – Plea – vehicle robbery – first offender – PSR and MAR favourable – serious and prevalent offence –armed with a knife – deterrent sentence.

Facts
Prisoner held the knife pointed it at the off side whilst accomplices pointed homemade gun at the PMV driver and they stole K500 with a mobile phone and ran away.

Held
Early Guilty plea
First offender
Serious and prevalent offence
Deterrent sentence

Cases Cited:
Public Prosecutor v Don Hale [1998] SC 564
The State v Anis [2000] PGSC 12 SC642
The State v Gimble [1988-89] PNGLR 271
The State v Gorop [2003] PGSC 1; SC732
The State v Herman Eliakim Sai & Mori Joe Simbu [2018] N7309
The State v Kama [2004] PGSC 32; SC740
The State v Lahui, Hetau, Noho, and Eki, [1992] PNGLR 325
The State v Lawrence Simbe [1994] PNGLR 38;
The State v Malo [2006] PGNC 231; N4520
The State v Marase [1994] PGSC 11; [1994] PNGLR 415
The State v Nimagi [2004] PGSC 31; SC741
The State v Simbago [2006] PGSC 23; SC849
The State v Thress Kumbamong [SCRA 29 of 2007] SC1017

Counsel:

D Kuvi, for the State
B Takua, for the Defendant

SENTENCE

15^th October, 2018

1. MIVIRI AJ: This is the Sentence of Rodney Wangi of Sarkim village, Wosera, East Sepik Province convicted on a guilty plea that he accompanied three others armed with a knife and homemade guns held up a route 3B bus and stole it of its takings of the day of K500 in cash a Huawei mobile phone valued at K299 and then ran away into nearby oil palm block where he was pursued and apprehended.
   

Brief Facts

2. Prisoner and three accomplices pretended to be genuine passengers on the 23^rd June, 2016 hoping on PMV bus route 3B travelling to Mai Junction where they stopped the bus and got off. As they did prisoner took out a knife and pointed it at the PMV off sider whilst his accomplices pointed a homemade gun at the driver. They took K500 in cash and a huawei mobile telephone valued at K299 property of the driver. The off sider of the bus ran away with the prisoner chasing him who turned and hit him with an umbrella prompting youths from neighbouring Mai to join in assaulting him drawing a village councillor to intervene and to take the prisoner to the nearby Police Station of Buluma where he was arrested and charged for the crime.
   

Charge

3. The charge was pursuant to Section 386 (1) (2) (a) (b) (c) Criminal Code Act prescribing a maximum penalty of death drawing upon a worst case. The facts in the present case did not draw but indeed a determinate term of years given the aggravating mitigating and extenuating circumstances, if any apparent or identifiable of the case.
   

Aggravation

4. It was a crime of violence wherein the prisoner was armed and did use a knife accompanied others who were armed with homemade guns all dangerous weapons. His accompaniment of the group gave it numbers to be able to commit the crime. And the role he played was significant because he set the path way for his accomplices to be able to get off point the homemade gun at the driver holding him at bay so that the cash and mobile phone could be taken off him. His role immobilized the off sider. It was a very well planned robbery giving the impression to any others and the off sider and driver of the PMV bus that prisoner and accomplices were just ordinary passengers travelling. They took advantage and executed the robbery.
   
5. The lives of both the driver and off sider with all passengers were put at serious risk of injury and harm by the actions of the prisoner and accomplices. And examples of instances of this in the jurisprudence were clear that death had resulted: Lahui, Hetau, Noho, and Eki, The State v [1992] PNGLR 325 (August 1992); Simbago v The State [2006] PGSC 23; SC849 (31 August 2006). In one such incident likened to the present case Kama v The State [2004] PGSC 32; SC740 (1 April 2004), an appeal was lodged against the sentence of 25 years on a guilty plea to a charge of murder on grounds of excessiveness and failure to take into account the appellant’s guilty plea and not allowing him to address the Court on sentence. The offence was committed in the course of conducting a planned armed robbery with the use of three firearms on a highway. The deceased, then a driver of a motor vehicle, slowed down to stop and the appellant shot the deceased on the head killing him instantly. The vehicle ended up in a drain with passengers in it who managed to run away as the appellants and his co-offenders attempted to shoot them too. Unfortunately, the appellant and his co-offenders pulled down a female passenger and robbed of her a sum of K50.00. On the presentation of an indictment charging him with murder, the appellant pleaded guilty while one of his co-offenders denied the allegation. After his sentence and the lodgement of his appeal, the appellant claimed that his co-offender received a lesser sentence of 15 years after a trial and so he asked for the same sentence but provided no evidence supporting this claim. His appeal was dismissed and the sentence of 25 years was confirmed. It was wilful murder committed in the course of an armed robbery and should have been more than the 25 years imposed.
   
6. This is a similar situation and will not be a light matter against the prisoner. It must be deterred and punitive punishment imposed as the highways and roads must be safe. Traveller’s men, women, children all persons of all walks who use PMVs as a mode of transport must feel safe and be protected against persons likened to the prisoner. The Kimbe Hoskins road is accessible by many and must be protected and its safety guaranteed. And those who operate PMVs must be allowed freedom to move and to develop in their own right. And the Province prospers to, life is only lived once and therefore the law in its might and wisdom to protect must be allowed all spheres to ensure. Aggravated armed robbery will almost inevitably lead to serious injuries to life, limb, property and disorder unlawfulness in society, it must be stopped where and against those who so defy the law and the will of the people imbedded in law the Criminal Code and the Constitution, State v Herman Eliakim Sai & Mori Joe Simbu [2018] N7309 (20 June 2018). To accede completely to the defence submission on mitigation without balance and heed to the Prosecution will not serve justice fair and square. Complete suspension of sentence will not be acceding to the call of the legislature in particular by the recent amendment to the penalty provision of armed robbery now of death an amendment from the initial life imprisonment, Criminal Code amendment No. 6 of 2013. Of course each case is governed in what is drawn in law by its own facts and circumstances: Lawrence Simbe v State [1994] PNGLR 38; Thress Kumbamong v The State [SCRA 29 of 2007] SC1017. And it would be no different to the present the facts and circumstances will determine what is an appropriate proportionate sentence upon the prisoner here.
   
7. By the same youth and youthfulness must not be used as a barrier to the enforcement of law and order against those who defy as here. It must be balanced out with the life of the Community Province and the Country who also are entitled to the full protection of the law: Nimagi v The State [2004] PGSC 31; SC741 (1 April 2004). Pre-sentence and Means Assessment Report show prisoner is 18 years old and in 2016 he could have been either 16 or 17 years old, a student a first time offender involved in a very serious offence. Parents who pledge as here in a presentence and means assessment report to help and assist their children must be educated by the sentence here that care, custody and well being of one’s child does not start when such a child is in the hands of the law as here. Every care and diligence must be exercised to ensure children or young adults do not fall head on into breaches of the law as here. By going as they did prisoner and those who were with him must be shown that the court will sentence to avoid youth taking freedom without heed to law, as in Lahui, Hetau, Noho, and Eki, The State (supra); Simbago v The State (supra). This is the intent of parliament when it amended the maximum penalty of this offence from life years to the death penalty, Criminal Code amendment No. 6 of 2013.
   
8. The offence is also a very prevalent. The people at Mai and the surroundings must also be commended they did not stand back and watch but took active participation to apprehend those who were involved leading eventually to the apprehension and arrest of the prisoner.
   

Mitigation

9. In his favour is his guilty plea made to Police when apprehended which he has maintained in court. It is overt of his intent to change and be a better person. In allocutus, He remained silent. He must show that he will change and be a better person if given an opportunity as suspension of sentence is by law dependent on material that is placed before the court. In the pre-sentence and means assessment reports presented, Prisoner has intention to pay compensation which the victim driver of the bus is prepared to accept. K500 and a mobile phone valued at K299 were stolen. But he does not have the means will be depended on his mother and other relatives to assist in the payment. What is clear in law is that these family members are innocent of any criminal charges or conviction as here. In law the responsibility is of the prisoner not them. He must settle what he has caused in law. He must bear responsibility in law for the wrong he has committed. He will not ride that out by the pain of his family.
   
10. He is a first offender aged 16 or 17 years old at time of offence, today at sentence is 18 years old. He has no record of any formal employment as at the date of the offence. His action must be punished and denounced. Emphasising rehabilitation upon education is probable given that he is a grade 10 from Hoskins Secondary who has gone onto Moramora Vocational School in motor mechanics by his mother not independently verified by that School. In accordance with Gimble v The State [1988-89] PNGLR 271 this is a robbery of a vehicle drawing 8 years starting point giving the aggravating and mitigating facts that would be proportionate here.
    
11. Comparably in Anis v The State [2000] PGSC 12 SC642 (25 May 2000) sentence of 10 years was reduced upon first offenders who had robbed a factory. In reducing the court held that the youthfulness of the offenders were not given due consideration and so reduced to 5 years. I take due consideration and adjudge that that was in 2000, this is 2018, age is not a barrier to criminal offences and 16 or 17 years old as here are responsible for the commission of very serious and aggravated robberies and other very serious criminal offences. Here the prisoner is 18 years old at sentence today. He is young offender. The prevalence of the offence warrants that sentence imposed must take account of the changing times and circumstances, in State v Malo [2006] PGNC 231; N4520 (19 December 2006) a store was robbed of K165,924.17 with use of guns and firearms a vehicle was also stolen in that robbery. Police pursued and apprehended the prisoner who was slashed with a knife when apprehended. He pleaded guilty and was sentenced to 8 years IHL. In my view the amount stolen does not weigh heavily in the sentence that is determined it is more to do with the way that the robbery is carried out. And this view is consistent with Marase v The State [1994] PGSC 11; [1994] PNGLR 415 (27 October 1994) where the appeal was dismissed and the 19 and half year IHL was confirmed for rape and robbery. Compared this would be not likened in the seriousness there are no further offences committed. But it is a violent offence and like Gorop v The State [2003] PGSC 1; SC732 (3 October 2003) where the 20 years sentence for robbery was reduced to 18 years because the National Court did not accede to current sentencing trend and tariff. Appellant had badly assaulted a tourist couple with a hockey stick injuring both seriously and then stealing their properties. The level of violence is not comparable with this and therefore the sentence will not be likened.
    
12. In all the circumstances for the crime of aggravated armed robbery you are sentenced to 8 years IHL. Four (4) years IHL in custody, the time that you have spent in custody is deducted forthwith. Four (4) years IHL suspended on a probation order as follows:
    
    1. You shall enter into a probation order for 4 years on the usual terms under the Probation Act.
       
    2. You shall be resident and remain at Buvussi section 6Block 1153 and shall not move residency from there without leave of the National Court.
       
    3. After release from jail after due service of time in jail you shall within 48 hours report to the Probation Officer.
       
    4. You shall perform 600 hours of community work at a worksite to be approved by the Probation Office;
       
    5. You shall keep the peace and be of good behaviour at times;
       
    6. You shall not take liquor or any form of intoxicating substance or drugs during the period of your probation;
       
    7. You shall attend the Buvussi United church every Sunday for service and worship whilst on probation;
       
    8. Within 2 weeks of your release on Probation you shall join your local United church youth group and participate in all its activities during your probation period;
       
    9. You shall undergo counselling from your local United Church Pastor or Pastor John Tangole whoever is there stationed at the time of your release from jail as Pastor for a number of times as may be determined by the counsellor;
       
    10. Upon release within 3 months you shall reconcile and compensate Philip Pira driver of PMV as follows:
        
        • (a) Cash payment of K300
          
    11. The reconciliation and compensation payment are to be attended and witnessed by the Probation Officer, Buvussi village court magistrate and Pastor of the United Church Buvussi.
        
    12. The occasion for the reconciliation and compensation payment is to be recorded and a report filed at the National Court Registry by the Probation Officer;
        
    13. The Probation Officer shall file a report on the responses and progress of the probationer every four months with the first report due after 4 months after release of the prisoner from Jail and at any other time or interval as the National Court may order upon application;
        
    14. In a breach of any of these Probation Orders, your Probation shall lapse and you shall be arrested to serve the whole term of your sentence.
        
    15. Your bail money is refunded forthwith.
        

Orders Accordingly

__________________________________________________________________Public Prosecutor: Lawyer for the State

Public Solicitor : Lawyer for the Defendant