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State v Steven (No 2) [2018] PGNC 501; N7612 (12 December 2018)

N7612

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR No. 648 & 649 OF 2018

THE STATE

V

DONATUS STEVEN & SAMSON PAULUS
(No 2)

Kimbe: Miviri AJ
2018 : 06 & 12 December

CRIMINAL LAW – PRACTICE AND PROCEDURE – Robbery – Trial – store adjacent to dwelling – prevalent offence – protection of victim – honest citizens making living – first time offenders – youthful offenders – Juveniles no basis for diversion – PSR & MAR not in favour – no material alternatives to imprisonment – deterrent & punitive sentence.

Facts
Both prisoners with a third not before court went to the trade store of the victim, held her up with homemade guns and bush knives, stole K4100 in cash and goods and escaped.

Held
Robbery of a store
Located at dwelling
Protection of honest citizens
Deterrent and punitive sentence appropriate

Cases Cited:

Acting Public Prosecutor v Don Hale [1998] PGSC 26; SC 564

The State v Anis [2000] PGSC 12; SC642

The State v Boromake [2006] PGNC 142; N3159

The State v Gimble [1988-89] PNGLR 271

The State v Golu [1979] PNGLR 653

The State v Gorop [2003] PGSC 1; SC732

The State v John (No 2) [2007] PGNC 84; N3197

The State v Kama [2004] PGSC 32; SC740

The State v Kara [2006] PGSC 14; SCRA 51 of 2005

The State v Liri [2007] PGSC 3; SC883

The State v Malara [2002] PGNC 135; N2188

The State v Nimagi [2004] PGSC 31; SC741

The State v Polpolio [2006] PGNC 16; CR 865 & 701 of 2006

The State v Sai [2018] PGNC 229; N7309

Counsel:

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

SENTENCE
12^th December, 2018

1. MIVIRI AJ: This is the Sentence after trial of the prisoners both of whom were found guilty of aggravated Armed Robbery after trial.
   

Brief Facts

2. Milker Muing was looking after the trade store of her husband Bomase Muing on the 26^th February, 2018 between 6 and 7 0’clock pm at Kabaiya Section 1 Block 1992, Bialla when Donatus Steven and Samson Paulus accompanied by one George Steven under pretext of buying goods from the store held her up with homemade guns each and bush knives. George Steven pointed the gun to her head and threatened her with it to not do anything. Donatus Steven and Samson Paulus went into the store and stole K3000 cash in a biscuit box, K300 in cash from her wallet, and K800 in store goods altogether valued at K4100 the property of Bomase Muing. Then they came out Donatus Steven cut her head with the knife and said she should not do anything or her stomach will be disembowelled.
   

Charge

3. Prisoners were indicted with aggravated Armed Robbery contrary to Section 386, which read, “(1) A person who commits robbery is guilty of a crime.
   

Penalty: Subject to subsection (2), imprisonment for a term no 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; 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”, Criminal Code amendment No. 6 of 2013.

4. The facts here establish that both prisoners were in company and were armed with dangerous and offensive weapons, homemade guns and knives and that they threatened and used personal violence upon Milker Muing. As they came out after stealing Donatus Steven hit Milker Muing on the head with the knife he had and she bled from it. It is not the worst case of its kind so that the maximum penalty of death is not drawn: Golu v The State [1979] PNGLR 653 (14 December 1997). Rather a determinate term of imprisonment is appropriate given the facts, aggravating and mitigating including any extenuating circumstances.
   

Aggravation

5. The offence is aggravated by the fact that the prisoners were in company of each other aided and abetted each other in the robbery. One of the principle offenders is at large yet to be charged with the offence. And as set out above were armed with dangerous and offensive weapons. And that the knife was used upon the victim who received bleeding to the head. The extent of the injuries is not established by evidence. At the highest the knife was used with injuries to the victim. K4, 100 worth of cash and properties were stolen. It is a large sum of money by ordinary standards of those who live in the oil palm blocks in Bialla and Kimbe.
   
6. The use of the homemade guns posed very serious threat to life and limb of the victim and those who were there immediately. Whether or not it was factory made or homemade, the threat of eliminating injuring life was there immediate, particularly in the light of the fact that it was loaded in full view of the victim before being pointed at the victim and the prisoners set into stealing the money and properties. Both were 17 year old juveniles who paid no heed that as in Kama v The State [2004] PGSC 32; SC740 (1 April 2004); State v Sai [2018] PGNC 229; N7309 (20 June 2018) death and injury would culminate from the crime. Life of citizens who aspire to make a living contributing to their communities, towns, provinces and the country must be protected from those who offend the law in this way. Violent crimes have no place amongst society. Strong deterrent sentences must be imposed to enforce the rule of law. Commission of aggravated armed robbery whether it is on a public street, in a bank, or a store or dwelling house poses immediate inconceivable danger to the people there. The people through parliament taking due regard amended the penalty provision to read death from the initial of life years. The many adverse effects of this crime to the economy the image of the country have prompted parliament to take this decisive action to put a stop to this circle of violence. It is the will of the people and must be respected and due credence in the sentence called of its case by its own facts and circumstances. That will be the case upon the prisoners here intent of parliament will be acceded to. The minimum is 14 years and the maximum is the ultimate penalty of death. There is nothing on the materials before me to defer other than what is due. Criminals who pay no heed to public authority, public safety and respect for the lives and property of all law abiding honest citizens of society must face stern sentences to deter and to punish them and others with similar inclinations. The courts will not condone nor deal lightly with crimes of violence perpetrated against citizens who strive to live and earn honestly and contribute to the good of the town province and the country. Here that is what the victims were ordinary citizens in their own block trying to make a living by setting up a small store to help themselves with life. In fact the K3000 stolen was for bride price of the victim saved by her husband in a biscuit box within the store. Not only were you content with this but you went ahead also to empty her purse of K300 and properties and goods in the store to the value of K800.
   
7. Both prisoners are the subject of the Juvenile Justice Act as they are 17 years old respectively. That Act defines a juvenile as a person under 18 years (S3 (b)). The particular section that is relevant in this respects is section 28 Juveniles be considered for Diversion. Here the Juvenile must accept responsibility for the offence. That is not the case in respect of both prisoners. That they consent to the diversion and the options for it are given. In the presentence report both do not impose that they will compensate the victim and reconcile with her. In fact both do not accept any responsibility for the wrong and are not prepared to pay any compensation and to reconcile with the victim. The presentence report clarifies that attempts to mediate three times and to solve the matter did not eventuate in that way as the prisoners were not cooperative. And so the police took over to charge both. Both are first time offenders but the attitude displayed show that compliance with certain standards to supervise, monitor and guide their behaviour is not there in the presentence and the means assessment reports. These include payment of compensation with conditions for non-custodial term. There are no alternatives posed in the presentence and means assessment reports for both. And the court can only consider alternatives to imprisonment if there are proper materials before it not without: Liri v State [2007] PGSC 3; SC883 (22 February 2007). That is the law and this court will follow accordingly:
   

“The Courts are bound under the philosophy of the Constitution to be in touch with the aspirations and attitudes of the people of PNG and the punishment of criminals definitely has an effect on the ordinary people. So community involvement with the punishment of offenders should be considered especially if the court wishes to return an offender to the community instead of imposing imprisonment. And we note here the relevance of the Criminal Law (Compensation) Act 1991. A return to the community should mean an appropriate report of the attitude of the community and whether the community is prepared to take some responsibility for their own offending members and supervise any alternate punishment”
Acting Public Prosecutor v Don Hale [1998] PGSC 26; SC 564 (27 August 1998). On the basis of this in the determination of sentence upon both prisoners the Juvenile Justice Act is inapplicable both prisoners will be sentenced without the benefit of that Act.

Antecedents

8. I start now with the personal antecedents of both prisoners. Donatus Steven is 17 years old from Makopin, Wewak, East Sepik Province. He is a first time offender. He is resident before the offence at Soi Section 6 Bialla. He left school and is no longer in school in grade seven at the Soi Community School. He is dependent for his upkeep on his family who own a hectare of oil palm. It is confirmed in the presentence report of the failure at mediation three times attempted. Failure due on the part of the prisoners who did not want to accept responsibility and to settle the matter there. Family concerns for a non-custodial term have been that only without any proper basis conditioning. And this is echoed in the means assessment report prisoner does not admit liability and the victim refuse compensation outright after the three attempts failed.
   
9. Samson Paulus alias Lumis is 17 years old originally from Woginara No. 1, Dagua, East Sepik Province. He has been resident also at Soi section 6 (c) village oil palm block. Prisoner is the eldest of six siblings was doing grade 8 at Soi Primary School in Bialla when he got involved in the crime. This is not verified by that school. And again this prisoner refuses to pay compensation to the victim. His father pleas for a non-custodial term but poses no alternatives accepted by the prisoner. The victim has foregone any compensation as three attempts at mediation has been fruitless.
   

Issue

10. What is an appropriate sentence for the prisoner given?
    
11. I start with the Guidelines set of Gimble v The State [1988-89] PNGLR 271. If it were to be followed this offence given its facts and circumstances will fall into a robbery of a store. But the location of the Store here is in a block holder’s block. His residence is just within that block where the store is. Robbery is committed where he lives. It would draw 10 years to flag consistency and coherence. Whether a victim survives out of a robbery minus their property cannot be a mitigating factor. Because, “What I am unable to comprehend easily is, how does 8 years compare to the suffering and the loss a robbery brings upon the victims specifically or the society at large as described in that case or even Tau Jim Anis v. The State (supra). This in, my view, does not compare and or reflect easily to the pain and suffering both physically and psychologically such frightening experiences and loss, offences like armed robbery or rape brings upon, the immediate victims and the society at large. Logically, if all it would take is a few short years, one could afford to commit such serious crimes because the offender would know that, they would get away lightly. This in my view is partly contributing to the increase in this kind of offences” State v Malara [2002] PGNC 135; N2188 (20 February 2002).
    
12. Violence as here accompanied by dangerous and offensive weapons is not a light matter in a robbery. Because an armed robbery whether or not it is committed in a store, a dwelling house, a bank, or on the street, or as here at a block holders store and dwelling will curtail the same, properties will be stolen and the lives of those who are the victims will be put at risk of injury or death. So to make a distinction on the basis of where it is committed and to put a sentence on it is analogous in my view to legislating. That is not the domain of the court. It is also not in accordance with the dictate of parliament of recent in (No.6 of 2013 Criminal Code Amendment Act 2013 certified on 18 September 2013.) where this offence draws the death penalty. Aggravated armed robbery is no longer a light matter and will not be treated lightly. Following the guideline strictly is departing with reality where time has moved with life and the law has accorded moving abreast with it. The Supreme Court saw this even before the amendment in Gorop v The State [2003] PGSC 1; SC732 (3 October 2003) where sentence of 20 years was reduced to 18 years imprisonment. Expatriate couple was attacked with a hockey Stick repeatedly to the head seriously injuring both. They were medivac to Cairns Australia where both underwent emergency medical treatment that left them with very serious residual injuries. Their personal properties including valuable camera, K150 in cash were stolen. Comparably the facts there are much more serious than the present. Certainly it would not be proportion to impose 18 years imprisonment in respect of the present offence. There is violence over and above necessary to perpetrate the offence. Here what has occurred is that victim was hit on the head with a knife by Donatus Steven and bled. It does not exceed over and above necessary to commit the crime. But it is not light as in State v Boromake [2006] PGNC 142; N3159 (18 August 2006) where the prisoner aged 15 years old juvenile pleaded guilty that he was with four other young boys armed with two homemade shot guns and a bush knife and stole from another person, one Gideon Sauiet, by threatening him and using actual violence on him and another with him, K1, 500 in cash, property taken from his person. Shortly after the robbery when confronted he admitted and returned his share of the money K200 to the complainant and relatives. The court sentenced him to 3 years imprisonment to serve at Erap Boys town outside Lae.
    
13. That is not the facts of the present case not one of the prisoners has owed out with honesty and returned that money to the victim and husband. Who are simple block holders trying to make an honest living out from the little they acquire in life there. There is continued stubbornness and defiance even in the face of overwhelming evidence of their involvement. It is not what the Supreme Court found in Anis v The State [2000] PGSC 12; SC642 (25 May 2000) the appellants pleaded guilty and were convicted by Injia, J. (as he then was), and were each sentenced to ten (10) years imprisonment. In appealing against the sentence the appellants claim that the sentence imposed upon each of them is manifestly excessive in the circumstances in that the trial judge erred in not giving due consideration to the reasons for their action and also, in so far as Warana George Anis and Giamsilin Emies are concerned, he failed to give sufficient weight to their youthfulness in that they were 15 at the time they came before the court. The Supreme Court upheld their appeal and reduced the sentence for each of them to 5 years imprisonment based on the fact that they were youthful offenders 15 years old, it was a big jump from the 5 years set in Gimble. With the greatest respect this would be a totally different setting given what is discussed above. And the prevalence and involvement of the legislature in the amendment to the penalty provision is an indication that what was seen in Gimble is no longer the situation now. The clear dictate of the legislature speaks otherwise.
    
14. Which views are parallel with Nimagi v State [2004] PGSC 31; SC741 (1 April 2004) where the Supreme Court viewed that youthfulness was no longer a relevant consideration in serious violent offences. Here is a very serious and violent offence. It is aggravated by the continued stubbornness and attitude of the prisoner’s coupled with the negative stance taken by them in the presentence and means assessment reports filed in each case. The sentence was 50 years imprisonment confirmed on the appeal. It would be not on par to impose that upon the prisoners here given that the facts here are not as serious and aggravated as compared. But comparison with Kara v The State [2006] PGSC 14; SCRA 51 of 2005 (30 August 2006) is closer being a robbery committed on a street where prisoner was 16 years old and who pleaded guilty but was sentenced to 11 year imprisonment. The Supreme Court upheld the appeal overturned the sentence and substituted with 7 years as appropriate. Here is a trial and the offence is committed by 17 year old prisoners with no material in support for an alternative to imprisonment.
    
15. In State v John (No 2) [2007] PGNC 84; N3197 (2 April 2007) a sentence of 12 years imprisonment was imposed upon the prisoner armed with a bush knife who was found guilty of accompanying another with a gun into Tropicana trading store in robbery cutting the cord to the cash register and firing the gun and stealing K1, 118.00 . Here the homemade gun is loaded and the victim is threatened with it. But the knife is used to cut her head. It is a trial. The sentence of 12 years would be excessive in view of their age 17 year old. But the intent of parliament now 5 years old and the offence of aggravated armed robbery is prevalent as ever despite. Therefore deterrence must be stressed in so passing. There is no material before me to stress rehabilitation and reformation of the prisoners. In particular material in the presentence and means assessment of allowing the education, training, or employment of the child to continue without interruption or disturbance or compensation and reconciliation between prisoners and victims. But the crime must be denounced and the community protected. There will be no suspension of sentence as this is not a guilty plea: State v Polpolio [2006] PGNC 16; CR 865 & 701 of 2006 (14 July 2006).
    
16. Accordingly the Sentence of the Court upon Donatus Steven and Samson Paulus both of Woginera No.2, Dagua, East Sepik Province for the crime of Armed Robbery contrary to Section 386 committed on the 26^th day of February, 2018 at Kabaiya Section 1 Block No. 1992, Bialla town is 8 years imprisonment in Hard Labour and I so impose that upon them both. The time both have spent on remand is deducted forthwith and they will serve the balance in jail.
    

Orders Accordingly,

__________________________________________________________________Public Prosecutor: Lawyer for the State

Public Solicitor : Lawyer for the Prisoners