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State v Billy [2021] PGNC 261; N8976 (15 March 2021)

N8976

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]

CR NO (JJ) 16 OF 2020

THE STATE

V

LUCAS BILLY

Lae: Kangwia J.

2021: 11^th & 15^th March

CRIMINAL LAW – Sentence- Armed Robbery – Guilty plea – Parity in sentencing - Sentenced as sentence imposed earlier on co-accused.

Cases Cited

Gimble v the State [1988-89] PNGLR 271
State v Don Hale (1988) SC564
State v Carl Endekara and Others (2007) N3185
State v Junior Samuel John; CR 721 of 2020.

Counsel

P. Matana, for the State
G. Peu, for the Defence

15^th March, 2021

1. KANGWIA J: The prisoner appears for sentence. He pleaded guilty to one count of Armed Robbery pursuant to s 386 of the Criminal Code. The maximum prescribed penalty for Armed Robbery is imprisonment for life.

2. The Prisoner was involved in a hold-up of a coaster bus where its occupants were robbed, and driver injured. Soon after, the prisoner and his accomplice were caught, and the stolen items recovered.

3. On his allocatus, the prisoner said,” The items were retrieved soon after the incident. It’ s true I committed the offence. I apologise and ask for the mercy of the Court. If sentenced I ask to be transferred near to where my family are living.”

4. On his behalf by counsel, the following antecedent were presented. The prisoner was 16 years old when he committed the offence.
He hails from Simbu Province and his parents are living at wildlife in Port Moresby. He attended a few schools up to grade 7 but left due to problems with school fees.

5. In mitigation Ms Peu submitted that the prisoner was a first-time youthful offender who pleaded guilty early. He expressed remorse and sought leniency. The stolen items were all retrieved, and he did not benefit from the robbery. The driver who was injured had recovered. The prisoner had been in custody for 01 year 02 months and 02 weeks.

6. In line with the sentence of 06 years with deductions imposed on his co-accused Junior Samuel John, he should also be sentenced accordingly with deductions for time in custody for purposes of parity in sentencing. The Court was also asked to apply the sentencing provisions of the Juvenile Justices Act.

7. For the State Ms. Matana while conceding that the sentence imposed earlier on his co-accused was appropriate, stressed that the offender played the most part with injury caused to the driver with a knife. The commission of the offence was sophisticated with proper planning and execution. The offence was also prevalent, and a deterrence should be factored in the sentence.

8. I am grateful of Ms Matana’s detailed written submission handed up and spoken to. Sentencing principles are now well established. Counsels have adequately made reference to them in their submissions. I reiterate on two common principles.

9. Foremost is that sentencing is an exercise of the Court’ s discretion. It provides a central point from which adequacy of sentence emanates. It prevents possibilities of excessive or too low sentences.

10. Secondly, in this jurisdiction the maximum prescribed penalty has been reserved for the worst type of the offence charged. (See Ure Hane v the State).
11. Despite that principle, Courts in this Country have in several cases and in the exercise of discretion under the given circumstances of certain cases, imposed the maximum prescribed penalty including death for what the Court presumed to fall into the worst category.

12. The position of the Court imposing the maximum prescribed penalties reflects the view that it can impose the maximum prescribed penalty for cases it deemed as falling into the worst category in the exercise of discretion and the circumstances prevailing in each case. However, the Court also has unfettered discretion conferred on it by s 19 of the Criminal Code.

13. This case involves acts of violence from an armed, youthful first-time offender which attracts life imprisonment. Despite his age his action and involvement are equated with a crime committed by an adult. The present case reflects a new trend in Armed Robbery cases. I agree with Ms Matana that the case centred around sophistication and proper planning. If juveniles can do this it is a foregone conclusion that adults can do better. Adequate sentences must be imposed for purposes of deterrence and most importantly the safety and security of the population at large.

14. Sentencing guidelines for Armed Robbery set in the case of Gimble v the State [1988-89] PNGLR 271 have been ruled outdated by the Supreme Court in the State v Don Hale (1988) SC564. These guidelines are varied and still relevant in sentencing. However, owing mainly to the prevalence of the offence, the Court starting with the Don Hale case increased the sentence imposed therein and since then sentences in armed robbery cases have varied.

15. In the more recent case of the State v Carl Endekara and Others (2007) N3185 Cannings J suggested tariffs for the guidelines suggested in the Gimble case.

16. For the Armed Robbery of a vehicle as in the present case eight years was suggested as a starting point. In my view tariffs interfere with the discretion of the Court and must be guides only.

17. In juvenile cases Courts in view of the Juvenile Justices Act have imposed lesser sentences than those suggested in the Carl Endekara case.

18. Ms Matana has in her submissions on sentence elaborately referred to the numerous cases identifying the sentences imposed for Armed Robbery cases by Juvenile offenders ranging from four (04) to six (06) years which are adopted here as further guides.
19. In the present case, I agree with both Counsels that for purposes of parity in sentencing, the same sentence imposed on his co-accused was appropriate.
Therefore, the sentence imposed on the prisoner’s co-accused in the case of the State v Junior Samuel John CR 721 of 2020 is adopted with variations.

20. Formal Orders are:

1. The prisoner is sentenced to six (06) years imprisonment.
2. The period spent in custody awaiting sentence shall be deducted.
3. The Prisoner shall serve the balance of the sentence at Buimo Correctional Institution Services.

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