State v Yapoi [2021] PGNC 227; N9097 (30 August 2021)

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CRIMINAL LAW – SENTENCE– AGGRAVATED ROBBERY – s386(1)(2)(a)(b) of the Criminal Code - Offender in company with others, and armed with firearm, robbed a vehicle on the road - – sentence of 8 years imposed, less time spent in custody.

Goli Golu v The State [1979] PNGLR 653
The State v Tardrew [1986] PNGLR 91
The State v Frank Kagai [1987] PNGLR 320
Gimble v The State [1988-89] PNGLR 271
Lawrence Simbe v The State [1994] PNGLR 38
The State v Lasi Mauwe & Maki Onopika [1998] NC 933
The State v Pakai [1999] PGNC 10
The State v Kennedy Arus (2001) N2081
Tau Jim Anis and Others v The State (2002) SC564
The State v Doriga & Ors (2003) N2575
Phillip Kassman v The State (2004) SC759
State v Ago (2004) N2673
The State v Chris Banban & Nare Steri Banban (2004) N2645
The State v Paul Maima Yogol & Dama Teiyei (2004) N2583
The State v Malo (2006) N4520
State v Jackson Nimai (2008) N3355
State v Fabian Kenny (2010) N2237
Kaya & Kuman v The State (2020) SC2026
The State v Bobby Andrew Don (2021) N8889

Sections 19, 386(1)(2)(a)(b) of the Criminal Code (Ch. 262) (the Criminal Code)

“I am sorry for wasting the time of the honourable court. I say sorry to the complainants as well for committing the robbery against them. I am a first time offender. Since I went up to Bomana I have converted and starting going to church again. In addition to that I have a baptism certificate and character reference. I can be a good citizen of this country and be proud of it. Thank you.”

4. The maximum penalty under s 386(1)(2)(a)(b) is death: see The State v Bobby Andrew Don (2021) N8889 at [4] to [11].

5. Having regard to Gimble v The State [1988-89] PNGLR 271, and the Supreme Court decisions in Tau Jim Anis and Others v The State (2002) SC564 and Phillip Kassman v The State (2004) SC759 the following may be regarded as appropriate starting points on sentence on a plea of not guilty by young first offenders carrying weapons and threatening violence for:

6. Features of aggravation such as actual violence, a 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.

7. Through its 2013 amendment Parliament has clearly indicated that aggravated robbery is a very serious offence which must be met with strong punishment: see the discussion regarding amendment to s 383A of the Criminal Code in Kaya & Kuman v The State (2020) SC 2026 per Batari J at [3] to [5], and Berrigan J at [107]. The necessary corollary of the grave increase in the maximum penalty is that all sentences imposed under s 386(1)(2), regardless of whether or not in the worst category, should, in general terms, increase: Bobby Andrew Don (supra) at [16].

8. Defence counsel conceded that the offence was serious and prevalent, involved a weapon and was conducted in company, at night. In mitigation the offender pleaded guilty, “surrendered and waited for police to go and apprehend him”, cooperated with police, is a first time offender and the vehicle was recovered. The offender has since tried to change his ways whilst in prison and was baptised into the SDA Church on 5 December 2020 at Bomana. In extenuation, the robbery wasn’t planned, they were drinking and decided to steal a vehicle at the time. He tried to stop his accomplices but it was too late.

9. The offence fell into the third category of Gimble, but that having regard to the mitigating factors a head sentence of five years was appropriate (counsel is reminded that a range and not a specific sentence should be suggested to the court). Counsel relied upon the following cases in support of her submissions:

CASE AUTHORITY	PARTICULARS	SENTENCE
The State v Lasi Mauwe & Maki Onopika [1998] NC 933	Conviction after trial-Robbery of vehicle on the highway in Goroka * First Time-Offenders-matured * No prior convictions * Use of dangerous weapons-home-made shot gun & other offensive weapons * Use of personal threat and violence * Stolen money and other personal items Robbery in the middle of the night No permanent injury to victims Coram: Kirriwom, J	8 years imprisonment in hard labour. Less 1 year and one and a half month in custody. Balance to be served – 6 years, 10 months and 2 weeks.
The State v Pakai [1999] PGNC 10	Guilty Plea. Robbery of vehicle in Wewak * First time offender-matured * Use of offensive weapon-gun * In the company of two others * Threatened the victim Coram: Sawong, J	9 years imprisonment in hard labour. Less 3 months 1 week spent in custody. Balance to be served -8 years 8 months and 3 weeks
State v Fabian Kenny (2010) N2237	Guilty Plea. Robbery of PMV * First time offender-matured * In the company of 2 others armed with a shot gun and 2 bush knives * Actual violence inflicted on driver & passengers to steal money & other personal items. Coram: Kandakasi, J	9 years imprisonment in hard labour less time already spent in custody.
The State v Kennedy Arus (2001) N2081	Guilty Plea. Robbery of PMV bus in motion with passengers along Sepik Highway * First time offender-matured * In the company of others and used actual violence with two home-made guns-searched passengers on gun-point * Reckless driving endangering lives * Stole K350.00 in cash and various personal items. Coram: Kandakasi, J	8 years in hard labour. Less 5 months and 2 weeks and 5 days spent in custody. Prisoner was to serve the balance of 7 years, 6 months, 1 week and 2 days in hard labour.
The State v Doriga & Ors (2003) N2575	Guilty Plea. Robbery of PMV carrying passengers along Sepik Highway * Young Offenders below the age of 18. Only two of them above the age of 18 * Use of actual violence & threat with two home made guns and bus knives * Stole money and personal properties of driver & passengers * Assaulted driver who sustained injuries Coram: Kandakasi, J	9 years in hard labour. Less period spent in custody for all 5 offenders.
State v Jackson Nimai (2008) N3355	Guilty Plea. Robbery of PMV carrying passengers along Okuk Highway * First time offender -19 years * In the company of 4 others robbed passengers of money and personal items with actual violence armed with two shotguns and 2 bush knives. Coram: Makail, AJ	8 years imprisonment. In light of good behaviour and character, 2 years were suspended and further deduction of time spent in custody. Balance of 5 years, 5 months and 14 days in hard labour.

10. The State agreed in mitigation that the offender had no prior convictions, cooperated with police, pleaded guilty, and expressed remorse. In addition to the matters raised in aggravation by the defence it noted that the offence took place under the influence of alcohol and involved dangerous weapons and threats of violence. It submitted that a sentence of 8 to 10 years was appropriate.

c. The State v Malo (2006) N4520: Guilty plea. The offender and five others held up a vehicle as it was leaving a liquor company to go to the bank with factory-made and homemade guns and several bush knives. The vehicle was carrying K165, 924.17 in cash and cheques belonging to the company. The offender and his accomplices smashed the driver’s side window and forced the driver and his off-sider out of the vehicle. They removed the driver forcefully as he had his seat belt on. There was a scuffle and the driver was assaulted. The offender and his accomplices got into the vehicle and drove towards Section 21, Kimbe. On the outskirts of the Section 21 settlement, they abandoned the vehicle, got the money and ran away into the bush. The police, having been notified of the robbery, gave chase and apprehended two suspects, one of whom was the offender. He was charged with armed robbery and unlawful use of a motor vehicle and sentence to 8 and 3 years, respectively, to be served concurrently, less time spent in custody;

12. It is well established that the maximum penalty is reserved for the most serious instances of the offence: Goli Golu v The State [1979] PNGLR 653. Whilst this case does not fall within that category, it remains very serious.

13. Having regard to Gimble, Tau Kim Anis and Kassman (supra), this case falls into category three and the appropriate starting point is eight years of imprisonment.

14. In my view, however, the penalties set out in Gimble, Tau Jim Anis and Kassman must be regarded as out of date not only because of the prevalence of aggravated robbery but having regard to the 2013 amendment.

15. Section 19 of the Criminal Code provides the Court with broad discretion on sentence. I remind myself when considering the guidelines and comparative cases that whilst they are relevant, every sentence must be determined according to its own facts and circumstances: Lawrence Simbe v The State [1994] PNGLR 38.

16. Having identified the starting point it is necessary to consider the aggravating and mitigating factors.

17. In mitigation this is the offender’s first offence. The offender co-operated with police and made early admissions. He pleaded guilty at the National Court. I take that into account as reflecting his genuine remorse, as well as for the fact that it has saved the Court, State and its witnesses the time, inconvenience and trauma of reliving the offence during a trial.

18. I reject entirely defence counsel’s submission that the offender should receive any benefit in mitigation for the fact that he “surrendered and waited for the police to arrest him”. He did not surrender – that would be a matter in mitigation. He does not get any benefit for waiting for the police to find him, or in fact the victim’s family as it was in this case.

19. Nor do I accept as an extenuating factor that the offence was unplanned or that he tried to stop his accomplices but it was too late.

20. Firstly, just because a person says something in their record of interview does not establish it as a matter in mitigation. Unless agreed with the State, it has to be established on the balance of probabilities. Moreover, the depositions do not support those contentions and nor does the record of interview.

21. It is clear from the record of interview that the offender and his accomplices were drinking, and armed, and waiting for a car to “jack”, as he himself said in his record of interview. The offender might not have intended to rob Dr Lano of his vehicle but that is entirely beside the point, he intended to rob a vehicle, and did so, and then he realised it was Dr Lano’s. Furthermore, he did not try to stop the robbery. The robbery was complete at the time he and his accomplices acting together took control of the vehicle with the intention of permanently depriving the victim of it (ss 7 and 365(3) of the Criminal Code; Ikalom v State (2019) SC1888 at [15] and [16]. Moreover, it is clear that the offender took a leading role in the robbery. It was he who held up the driver of the vehicle.

22. For completeness I note that it is not contended, nor do the depositions support any contention that the accused wished to withdraw his involvement in the offence and took action to undo the effect of his previous encouragement or participation prior to its completion: Imiyo Wamela v The State [1982] PNGLR 269. He regretted that it was the doctor’s vehicle he and his accomplices robbed.

23. Based on the description from the witnesses and the statements of the offender in his record of interview, however, I am prepared to accept that the offender, having robbed the vehicle with his accomplices, and realising that he had been identified by Dr Lano, his neighbour and a person who was very well known in the community, did stop threatening Dr Lano and then follow after the vehicle as it was driven down the road. Furthermore, that his accomplices, perhaps upon realising that the offender had been identified, abandoned the vehicle at Morata, and that the offender having found it, reported that to one of the victim’s relatives. The vehicle was recovered an hour later at Morata, apparently unharmed. The offender was later apprehended by the doctor’s relatives, to whom he apologised, and handed over to police on 20 December 2019.

24. The offender is 28 years of age from Sembirigi Village in Kagua/Erave District, Southern Highlands. He has lived in the Wild Life Erima settlement with his parents since he was a child. He is the fifth born of seven children. He completed high school but was previously unemployed. He has a young daughter, who is with his partner, who previously left him.

25. The impact of the offence on the offender has been and will continue to be serious. He is separated from his family and child. The offender was relatively young at the time of the offence, 25 years of age, but not so youthful as to make it a matter of special mitigation.

27. Firstly, a vehicle, a thing of substantial value, was stolen. I do take into account here, however, that the vehicle was recovered with the assistance of the offender, albeit as a consequence of him being identified.

28. The fact that a dangerous weapon was used and the offence was committed in company of others is already reflected in the starting point I have identified. It is relevant, however, that the offender himself was armed and that he played a key role. The offence was conducted at night and whilst under the influence of alcohol. At the same time I am conscious of the fact that the offence was over quickly and no-one was physically harmed.

29. The particular type of offence in this case is one often referred to as “car-jacking”. It is a term that many Papua New Guineans are all too familiar with, and something they fear might happen, as it did in this case, when the victim was driving home. Despite numerous attempts, Probation Services was unable to contact the victims affected. Dr Lano has since moved to live somewhere else and could not be contacted in time for the report. The witnesses speak of the fear they felt at the time of the offence in their police statements, however, and I have no doubt that the impact of the offence will stay with the victims for a long time to come, especially as these types of offence remain prevalent.

30. The penalty imposed in this case must be strong enough to ensure both specific and general deterrence.

31. Having regard to the general circumstances of the case, the personal circumstances of the offender, the aggravating and mitigating factors, the submissions of counsel, the guidelines contained in Gimble, Tau Jim Anis and Kassman, and comparative cases, I sentence the offender to 8 years of imprisonment.

32. The question remains whether any or all of the sentence should be suspended.

33. In The State v Tardrew [1986] PNGLR 91 the Supreme Court set out three broad, but not exhaustive, categories in which it may be appropriate to suspend a sentence, namely: where it will promote the general deterrence or rehabilitation of the offender; where it will promote the repayment or restitution of stolen money or goods; or where imprisonment would cause an excessive degree of suffering to the particular offender, for example because of bad physical or mental health. Suspension is not an act in leniency but a form of punishment that is to be served outside the prison system in the community interest to promote restitution or rehabilitation: The State v Tardrew [1986] PNGLR 91; The State v Frank Kagai [1987] PNGLR 320.

34. Probation Services regard the offender as suitable for probation. It is clear that he has good support from a loving family, including his parents and older brother who have promised to closely monitor him if released. The Pastor of his local church says that he does not know the offender closely but is generally regarded as a quiet and respectful boy in the community. There was nothing in writing to support the submission that the offender has become an active member of the Seventh Day Adventist Church but I will accept it on this occasion. He did make efforts to recover the vehicle and apologised when he was caught by the victim’s relatives, almost a month later. He also cooperated with police and admitted his wrongdoing. Whilst I am concerned about his statements to police that he would not have robbed the vehicle if he had known it was the doctor’s, rather than real regret about the offence itself, his cooperation and remorse nevertheless spoke in favour of his prospects for rehabilitation. I am however, very concerned about the offender’s recent statements to Probation Services trying to distance himself from the offence. Those statements are not consistent with his plea nor are they supported by the depositions. He can’t blame others for his own conduct. He needs to take responsibility for it. It is clear to me that he still does not fully appreciate the gravity of his offending. Suspension is not appropriate in the circumstances. In any event, it is also my view that given the nature, seriousness and prevalence of the offence, suspension is not warranted in this case.

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Public Prosecutor: Lawyers for the State
Public Solicitor: Lawyers for the Accused

National Court of Papua New Guinea

State v Yapoi [2021] PGNC 227; N9097 (30 August 2021)