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National Court of Papua New Guinea |
PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]
CR NOS. 102, 103 & 104 OF 2020
THE STATE
V
NOEL UMANI
SHEDRICK IMANI
KASMIR NUMIORE
Kimbe: Numapo, J
2021: 17th May & 20th July
CRIMINAL LAW – Particular Offence – Armed Robbery – Armed with Dangerous Weapons and in Company of Others – Aggravating and Mitigating factors – Extenuating circumstances - Sentencing Tariffs – Maximum penalty – Sentencing Discretion - Sections 386 & 19 of Criminal Code.
Held:
(i) A person or persons armed with dangerous objects or weapons and in the company of others when committing a robbery makes it an aggravated armed robbery.
(ii) The appropriate sentence will be determined from factual circumstances of the case being; the aggravating and mitigating factors and the extenuating circumstances.
(iii) Offenders’ young age is a consideration that favours a lesser sentence including non-custodial sentence to promote reformation and rehabilitation.
(iv) Prisoners sentenced to five (5) years imprisonment to be partially suspended with conditions.
Cases Cited:
Goli Golu v The State [1979] PNGLR 653
Public Prosecutor v William Bruce Tardrew [1986] PNGLR 91
Gimble v The State [1988-89] PNGLR 271, SC369
Public Prosecutor v Don Hale (1998) SC564
Tau Jim Anis and Others v The State (2000) SC546
The State v Iori Veraga (2005) N2921
State v Maia Sabas (2018) N7248
State v Dominic [2014] 286; N5823 (21 November 2014)
State v Rat [2014] PGNC 230; N5783
State v Thomas Jeffrey Amos & Belden Thomas Bisket CR. No. 944 & 947 of 2015.
Counsel:
A. Bray, for the State
D. Kari, for the Defence
SENTENCE
20th July, 2021
1. NUMAPO J: This is a decision on sentence. The accused persons each and severally pleaded guilty to one count of Armed Robbery contrary to Section 386 (1) (2) (a) (b) & (c) of the Criminal Code.
2. On the 24th of August 2019 at around 2:00 am the three offenders were at the border of Aling and Kumbango with other people along the Kimbe – Hoskins highway.
3. A white Toyota Hilux Surf registration number BFA 057 driven by the victim (Emmanuel Germis) towards a group of people standing on the road. The offenders blocked off the road and stopped the vehicle and they smashed the left side glass on the door and pulled the victim out of the car. They then damaged the vehicle and assaulted the victim who fled and ran back to Aling double bridge where he met a group of people and asked them for help.
4. The State alleges that the three offenders and others pretended to assist the victim but then threatened him and forced him to call his family to bring some money to pay them for rescuing him.
5. The offenders were armed with a sharp cassowary bone and assaulted him. They then robbed the victim of his bilum which contained K6000 in both cheques and cash.
6. Section 386 (1) (2) (a), (b) & (c) of the Criminal Code. It reads:
Section 386
(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) –
(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 robbery, wounds or uses any other personal violence to any person,
He is liable to subject to Section 19, to imprisonment for life.
7. The maximum penalty for armed robbery is life imprisonment under section 386 (2) of the Criminal Code however, the provision has been repealed and now replaced with a death sentence as the maximum penalty for aggravated armed robbery under the new Criminal Code (Amendment No. 6) of 2013. Section 19 of the Criminal Code however, gives the Court a wider sentencing discretion to impose a lesser sentence in place of the prescribed maximum penalty. Furthermore, the Supreme Court in the famous wilful murder case of Goli Golu v The State [1979] PNGLR 653 held that maximum penalty should be reserved only for worst type of offence. This has become a trite law and also applies to other offences as well.
8. Sentencing tariffs for armed robbery developed over the years by the Courts through the relevant case laws provides a useful guide.
9. In Gimble v The State [1988-1989] PNGLR 271, SC369 the following tariffs were set for armed robbery:
10. The sentencing tariffs were further increased by an additional 3 years by the Supreme Court in the subsequent case of Public Prosecutor v Don Hale (1998) SC 564. The increase was reaffirmed in a later case of Tau Jim Anis and Others v The State (2000) SC 546 when the Appellants appealed against a sentence of 10 years imposed for robbery of a factory.
11. The rationale behind the two subsequent decisions of the Supreme Court is that given the high incidences of armed robbery cases in recent times it was necessary to increase the sentence by another 3 years. The new tariffs were as follows:
(a) Robbery of a house – a starting point of 10 years.
(b) Robbery of a bank – a starting point of 9 years.
(c) Robbery of a store, hotel, club, vehicle on the road and like – starting point of 8 years.
12. Applying the new tariffs, the present case falls under the third category and therefore, the starting point is 8 years.
13. Counsels cited some case law precedence which I found very useful for purposes of consistency and parity in sentencing. I refer to some of them below:
(i) State v Maia Sabas (2018) N7248
14. The offender was in company of two other persons and they were armed with slingshots and homemade firearms. They used the weapons to hold up employees of a company (Stettin Bay Lumber Company) at Galai No. 2, Kimbe, WNBP and stole a chain saw.
15. This was guilty plea and the chain saw was returned to the owners. They were sentenced to 8 years imprisonment with partial suspension.
(ii) State v Dominic [2014] 286; N5823 (21 November 2014)
16. The offender pleaded guilty to one count of armed robbery. The offender and five of his accomplices held up a shop, Yuvi Trading in Lorengau, Manus and stole cash and store goods valued at K45, 000.00.
17. The court held that 8 years was the starting point and set the head sentence at 7 years. The court deducted 4 years pre-trial custody period and a further one year for police brutality. The balance of 2 years was wholly suspended with conditions.
(iii) State v Rat [2014] PGNC 230; N5783
18. The offender pleaded guilty to aggravated armed robbery of a shop. He stole cash and store goods worth K18, 500.00 whilst in the company of others.
19. The head sentence was 4 years less 6 months pre-trial custody period. None of his sentence was suspended.
(iv) State v Thomas Jeffrey Amos & Belden Thomas Bisket CR. No. 944 & 947 of 2015
20. The prisoners in the company of others were armed with dangerous weapons, held up one Elizabeth Kaminiel at Eriku Service Station in Lae and stole flex cards, top up cards valued at K13, 575.00. They tried to escape in a getaway vehicle stolen earlier at Hunter Bus stop but the engine failed. They were apprehended by the public and the security guards.
21. They all pleaded guilty and were sentenced to 4 years imprisonment.
22. The appropriate sentence will be determined from the factual circumstances of the case being; the aggravating and mitigating factors and circumstances and the extenuating circumstances. In addition, considerations such as prevalence of the offence and the public’s perception about the particular offending are also taken into consideration. All these have to be properly weighed up in deciding the appropriate sentence. See: The State v Iori Veraga (2005) N2921.
23. In the present case the aggravating factors and circumstances and the mitigating factors are as follows:
(a) Aggravating factors and circumstances
- (i) The prisoners were armed with a dangerous object to wit, a cassowary bone.
- (ii) The prisoners were in the company of other people.
- (iii) Substantial amount of cash (K6000) was stolen.
- (iv) Threats were issued to the victim to call his family and bring some money
- (v) Actual violence were perpetrated against the victim when they assaulted him
- (vi) Prevalence of the offence.
(b) Mitigating factors
- (i) Prisoners pleaded guilty early thereby saving Court’s time and resources.
- (ii) Prisoners are first time offenders
- (iii) They expressed remorse.
24. Section 19 (6) of the Criminal Code provides for suspended sentence that can be given at the discretion of the court. The grounds under which suspended sentence is given is also discussed in the Supreme Court case of Public Prosecutor v William Bruce Tardrew [1986] PNGLR 91. In that case the Supreme Court sets out three (3) broad categories on suspended sentence. The categories are not exhaustive and are as follows:
(i) Where suspension will promote personal deterrence, reformation or rehabilitation of the offender.
(ii) Where suspension will promote repayment or restitution of stolen money or goods; and
(iii) Where imprisonment would cause an excessive degree of suffering to
a particular offender, for example because of his bad physical or mental condition.
25. I consider category (i) and (ii) of Tardrew (supra) applicable to the present case. And I say this because the prisoners in their pre-sentence report stated that they are willing to pay compensation to the victim if ordered by the Court. The victim also said he wants to be compensated for the property he lost including the damage caused to his vehicle. Furthermore, the offenders are young and have expressed genuine remorse. There is a chance for rehabilitation given their young age.
26. I make the following Orders:
(i) I sentenced the prisoners each and severally to Five (5) years IHL.
(ii) Pursuant to section 3 (2) of the Criminal Justice (Sentences) Act, I deduct Three (3) months for the pre-trial custody period leaving a balance of four (4) years and Nine (9) months to be served in prison.
(iii) I suspend Two (2) years from the total term of four (4) years imprisonment period on the condition that the prisoners pay a sum of K3000 each as compensation, a total of K9, 000, to the victim within 3 months of the date of this Order pursuant to s 5 of the Criminal Law (Compensation) Act 1991.
(iv) I further order that One (1) year from the 4-year term of imprisonment is to be suspended on the condition that the prisoners each and severally are placed on probation under the supervision of the Probation Office with strict conditions for a period of two (2) years.
(v) Prisoners each and severally to serve the remaining balance of One (1) year and Nine (9) months IHL.
(vi) In default of compensation payment the prisoners each and severally will be required to serve a total of Three (3) years and nine (9) months IHL.
(vii) Bails to be refunded forthwith.
Orders Accordingly.
Public Prosecutor: Lawyer for the State
Public Solicitor: Lawyer for the Defence
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