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State v Sakumai [2022] PGNC 260; N9718 (2 June 2022)

N9718

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR NO. 636 OF 2019

BETWEEN:
THE STATE

AND:
JUNIOR STEVEN SAKUMAI

Wewak: Rei, J
2022: 2^nd, 4^th, 9^th, 10^th, 27^th May & 2^nd June

CRIMINAL LAW- Practice and Procedure – sentence – robbery of a bank – prisoner driver of a motor vehicle – acting under force – principal offenders at large – prisoner took no active role – married – wife left – 2 young children – youthful offender – 6 years imprisonment – suspension of sentence with conditions.

Cases Cited:

Papua New Guinean Cases

Goli Golu -v- The State [1979] PNGLR 653
Ure Hane -v- The State [1984] PNGLR 105
Simbe -v- The State [1994] PNGLR 38
Passingan -v- Beaton [1971-72] PNGLR 206
Urugitaru -v- Regina [1974] PNGLR 283
William Ukukul Gimble -v- The State [1988-89] PNGLR 271; SC369
Anis -v- The State [2000] PGSC 12; SC642
Kassman -v- The State [2004] SC759
Liri -v- The State [2007] SC883
The State -v- Chris Nigis, Junior Butzere & John Beno Peros [2013] PNGC 119; N5331
Norris -v- The State [1979] PNGLR 605; SC171

Overseas Cases

R -v- Ball (1951) 35 Cr App R 164

R -v- Richards (1955) 39 Cr App 191 at 192

R -v- Coe (1969) Cr App R 66

R -v- Pitson (1972) 56 Cr App R 391

R -v- D’OrtenZio [1961] VicRp 68; [1961] VR 432

R -v- Goldberg [1959] VicRp 52; [1959] VR 311

Legislation:

Section 386(1) and (2) (b) of the Criminal Code
Section 19 of the Criminal Code
Section 7 of the Criminal Code

Section 16, 17, 18 & 20 Probation Act 1979

Counsel:

Ms. D. Ambuk, for the State
Mr. A. Kana, for the Accused

2^nd June, 2022

1. REI AJ: This matter comes before the Court today for sentencing as a decision on verdict was handed down on 30^th March 2022 and is numbered N9533.
   
2. Briefly the facts are that the prisoner was in the company of three (3) other accused persons who are the principal offenders. On the 6^th day of November, 2017 they attended at the MiBank Ltd at Wewak town and stole the sum of K21,000.00. The prisoner was the driver of the vehicle.
   
3. The whole of the evidence was circumstantial as the prisoner said that he was not involved in the planning of the robbery, he did not carry a weapon, he was the driver forced to participate in the commission of the crime and that he drove the vehicle in which the principal offenders got on and transported them to the MiBank Ltd where they satisfied their evil desires to rob and did rob the MiBank Ltd of some K21,000.00.
   
4. The prisoner was found guilty of the crime of armed robbery on the basis that he knew the offence of armed robbery was unfolding underneath his nose as the driver of the vehicle, he took no reasonable steps to avoid it until the plans of the perpetrators had been accomplished.
   
5. These facts as well as the fact that all principal offenders have not been brought to face the law and the youthfulness of the prisoner will feature strongly in sentencing.
   

ANTECEDENT

6. No prior conviction.
   

ALLOCUTUS

7. Allocutus was administered on the 5^th of May 2022 in which the prisoner expressed his genuine remorse.
   
8. He did not deny his involvement and freely said he was indeed part of the group and in the company of the others on the 6^th of February 2017.
   
9. He said he is 24 years of age and married from which marriage two (2) young children were born who are now 5 years and 2 years of age respectively.
   
10. He, however, said the marriage had broken down after the wife heard of the involvement of the prisoner in the crime. He also said he has an aging mother who stays with him in Wewak. He is from Manus.
    
11. He pleaded that the sentence imposed should reflect those factors and that the Court be lenient.
    

MITIGATING FACTORS

12. In mitigation, the prisoner:
    

* apologised and relented what he did;

* surrendered to the police;

* has no prior convictions;

* no pre-planning;

* acted under coercion or threats; and

* did not benefit from the whole exercise.

AGGRAVATING FACTORS

13. The aggravating factors are that the prisoner:
    

* was in the company of others who were in possession of dangerous weapons; and

* violence and threats were involved.

DECISION

14. Section 386(1) & (2)(b) provides that a person who commits robbery in the company of others is guilty of a crime and is liable, subject to Section 19, to life imprisonment.
    
15. However, the maximum penalty should be reserved for the worst scenario: Goli Golu -v- The State [1979] PNGLR 653, Ure Hane -v- The State [1984] PNGLR 105 and that each case should be decided on its own peculiar facts and circumstances Simbe -v- The State [1984] PNGLR 38.
    
16. This is a strange case in which the prisoner pleaded not guilty and a trial had to be conducted on the basis that he was not involved in the planning and execution of the crime and that he was forced by the principal offenders to carry out orders resulting in the commission of the crime.
    
17. The evidence does not suggest that he benefitted from the fruits of the crime. The evidence is that he was the conduit in the whole episode as the driver necessitating the commission of the crime.
    
18. Most importantly, none of the principal perpetrators of the serious crime of robbery which carry the penalty of life imprisonment had ever been brought to justice. No undertaking was given by the State through its witnesses during trial whether they will ever be apprehended and brought to justice. This has become thin mist.
    
19. The question therefore is what sentence is to be imposed.
    

YOUTHFULNESS

20. The prisoner is a youthful offender whose age is 24 and has two (2) children whose mother left the prisoner because of the prisoner’s involvement in this crime. Sentence imposed in this case will not only crush his life Passingan -v- Beaton [1971-72] PNGLR 206 but the lives of two (2) young children whose lives will be endangered if the prisoner is imprisoned for a term. They will grow up as orphans for a time.
    
21. Considering that the principal offenders have not been brought to answer for their involvement in this crime, injustice the question is whether or will justice be done to the prisoner should he be imprisoned for a term.
    
22. He was charged as principal offender when in fact he only aided and abetted and that his conviction was merely by operation of Section 7 of the Criminal Code as a principal.
    
23. It would seem unfair that the prisoner be incarcerated under the circumstances of this case for taking no active role in the commission of the crime except being forced as the driver of the motor vehicle.
    

PARITY OF SENTENCE

24. In this respect, I refer to authorities dealing with parity of sentences although the principal offenders have not been tried and sentenced.
    
25. I do so for the mere reason that justice cannot be fully done if principal offenders are not dealt with and yet those not directly involved in the commission of crimes are dealt with and punished by the Courts of Law.
    
26. The case of Urugitaru -v- Regina [1974] PNGLR 283 deals with this issue where the full Court said:
    

“It is, of course, accepted that the court is justified in differentiating in the treatment of persons for the same crime if in considering the public interest, it has regard to the differences in the characters and antecedents of the convicted men, and discriminates between them because of these differences: R -v- Ball (1951) 35 Cr App R 164, per Hilbery J. The Court may also have regard to factors connected with the actual commission of the crime. But the fact that one of several prisoners jointly indicted has received too short a sentence is not a ground to lead a court necessarily to interfere with a longer sentence passed on to others. What generally has to be shown is that the applicant on appeal has received too long a sentence: R -v- Richards (1955) 39 Cr App 191 at 192, per Lord Goddard. But as it also appears from that case if there is a very considerable disparity between the sentences, an appellate court may take it into account.

Since that case Lord Parker has said that the Court of Appeal has on many occasions reduced a sentence to bring it more into line to the sentence imposed on a co accused, upon the basis, “that only thereby can a sense of grievance be averted.”: R -v- Coe (1969) Cr App R 66. See also R -v- Pitson (1972) 56 Cr App R 391. ... “Such discrepancies cannot fail to give use to dissatisfaction and a feeling of injustice done by those concerned”: R -v- D’OrtenZio [1961] VicRp 68; [1961] VR 432. See also R -v- Goldberg [1959] VicRp 52; [1959] VR 311.

27. As I said, the principal offenders have not been brought to justice and that the prisoner was the mere “conduit” as driver of the motor vehicle who received no benefit from the fruits of the crime. I have reproduced the ratio descidendi of the above case in its entirety for reasons that it deals with co-offenders who have been tried and found guilty together in which case the principles of parity was applied. This is not the scenario here where the principal offenders have not been arrested and tried together with the prisoner and who now stands before me to be sentenced such that parity in sentencing be not considered. I do not think so. The principles on parity of sentence should still be applied irrespective of the fact that principal offenders have not been brought to justice.
    
28. The case of Simbe -v- The State (Supra) clearly states that sentences be determined on their own facts and circumstances. These principles are equally applicable here.
    
29. I do appreciate that the offence of robbery is a very serious offence and sentences imposed must reflect the gravity and seriousness of the offence. But applying the principles in Simbe -v- The State (Supra) and the above principles, an appropriate sentence be imposed in this case reflecting the mitigating matters inherent in this case.
    
30. Sentence in this case, when considering the degree and extent of the involvement and participation of the prisoner, should not be crushing considering the youthfulness of the prisoner and the extenuating circumstances attending thereto.
    
31. I have been referred to the case of William Ukukul Gimble -v- The State [1988-89] PNGLR 271 SC369 by Mr. Kana which case contains the sentencing guidelines. The Supreme Court said as follows:
    

“The following guidelines are to be taken as appropriate to sentencing for aggravated robbery contrary to s 386(2) of the Criminal Code (Ch No 262), for which the maximum prescribed penalty is life imprisonment:

On a plea of not guilty by young first offenders carrying weapons and threatening violence for:

(a) robbery of a house – a starting point of seven years;
(b) robbery of a bank – a starting point of six years;
(c) robbery of a store, hotel, club, vehicle on the road or the like – a starting point of five years; and
(d) robbery of a person on the street – a starting point of three years;

features of aggravation such as actual violence, the 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.”

32. The Supreme Court reconsidered these sentencing guidelines in Liri -v- The State [2007] SC 883 and came up with the following guidelines:
    

robbery of a house - ten years

robbery of a bank - nine years

robbery of a store, hotel, club,

vehicle on the road etc. - eight years

robbery of a person on the street - six years

33. I was also referred to the following cases in considering the range of sentence here:
    
    • (i) ANIS -V- THE STATE [2000] PGSC 12; SC642 - The Supreme Court observed that 8 years was more appropriate for role principal offender, 7 and 6 years were more appropriate for the two accomplices, who were led astray by Anis. The SC then quashed the 10 year sentence and substituted with respective head sentences, less the deductions, and the resultant terms of Tau Jim Anis is 5 years 6 months 3 weeks and 1 day and both Warana and Emies will serve further terms of 4 years 6 months and 2 weeks.
      
    • (ii) KASSMAN -V- THE STATE [2004] SC759 - The Supreme Court confirms the 10 years sentence imposed by the trial court as not being manifestly excessive. The SC did not apply the 8 year head sentence

guidelines in Don Hale’s case and held that 10 years is slightly above the 8 year mark, however in their Honours view it is not excessive, and dismissed the appeal. This is a case of aggravated armed robbery of ANZ bank by prisoner. It was deliberate and intentional and use of fire arms was involved.

34. Ms. Ambuk of Counsel referred to me the case of The State -v- Chris Nigis, Junior Butzere & John Beno Peros [2013] PNGC 119; N5331 which involved 10 counts of kidnapping and one count of robbery. It was decided by His Honour Salika DCJ as he then was.
    
35. His Honour in that case imposed a sentence of 12 years for armed robbery and kidnapping.
    
36. The circumstances in this case are somewhat unique which do not involve kidnapping. It involves armed robbery but for which the prisoner played no significant role. He was unarmed at all material times. He is a youthful offender and has a young family.
    
37. On 25^th November 2019 His Honour Tamate J in unreported decisions handed down in Madang the following sentences were imposed:
    

Miller Kafats – CR No. 498 of 2016

Head sentence 8 Years IHL

Pre-sentence period to be deducted 2 Months & 2 Weeks

Period sentence to be suspended 2 Years

Balance of sentence to be served 5 Years, 9 Months & 2 Weeks IHL

Michael Fefe Mongati – CR No. 499 of 2016

Head sentence 5 Years IHL

Pre-sentence period to be deducted 2 Months & 2 Weeks

Period of sentence to be deducted 3 Years is further suspended because of his age as juvenile & his plea of guilty

Balance of sentence to be served 1 Year, 9 Months & 2 weeks

38. No written decisions were located on these decisions but the sentence in the matter of Michael Fefe Mongati is of relevance to this case where the youthfulness of the prisoner was given weight.
    
39. This case has more mitigating factors in that the prisoner is not only youthful but co-operated with the Police, he played no active role in the commission of the offence and has serious medical conditions together with his two tender children who has asthma. He has served a term of 1 year 7 months 13 days in remand whilst awaiting trial.
    
40. The Pre-Sentence Report filed on 11^th September 2021 strongly recommends that the prisoner is a proper candidate for probation.
    
41. I note that the mitigating factors far outweigh the aggravating factors which are summarised (again) as follows:
    
    • the prisoner has apologised and shown genuine remorse;
    • he is not the principal offender and there is no evidence of him being involved in the pre-planning or pre-mediation of the commission of the crime with common purpose;
    • that he was acting under coercion or threat and his life was in danger;
    • the principle offenders are at large and it would be unfair to the prisoner to be placed in custody for a wrong which he had no intention to commit;
    • the option of restitution is not possible as there is no evidence before the Court as to how much exactly was taken from the bank as it was not established at trial and it is grossly unfair on the prisoner to repay the amount alleged to have been stolen as that the evidence is hearsay and is rejected - Norris -v- The State [1979] PNGLR 605 SC171;
    • that he is a young prisoner, with 2 young children and widow mother, to care for; and
    • that he is an asthmatic patient since childhood and with the advent of Covid-19, there are no facilities at Boram CIS to treat Covid-19 patients by asthma disease whilst in prison.

42. Both Counsels conceded that the prisoner was in remand for 1 year 7 months 13 days which, it is agreed, should be deducted from the head sentence to be imposed herein.
    
43. The starting point is 6 years but considering the factors referred to herein and in the exercise of my discretion under Section 19 of the Criminal Code the following sentence is imposed:
    
    • (i) that the prisoner be sentenced to 6 years IHL in Boram CIS;
      
    • (ii) pre-trial custody period (12^th December 2017 – 25^th July 2019) of 1 year 7 months 13 days be deducted leaving a balance of 4 years 4 months 17 days;
      
    • (iii) that in accordance with Ss 16, 17, 18 & 20 of the Probation Act 1979 the balance of the term of 4 years 4 months and 17 days be wholly suspended on the conditions:
      
      1. there is no possibility of restitution by the offender as there is no evidence of actual money stolen from the bank - Norris -v- The State [1979] PNGLR 605 SC171;
         
      2. that the prisoner enters into his own recognisance to keep peace and be placed on good behaviour bond for the balance of years with strict conditions;
         
      100. that the prisoner shall not consume any alcoholic and illicit or any form of illegal drugs;
           
      4. the prisoner shall do community work in accordance with a work program to be developed by the probation officer and be supervised by the probation officer;
         
      5. the prisoner shall attend Church every Saturday or Sabbath and report to the Senior Elder of the Church in his locality;
         
      6. the prisoner shall not reoffend or cause problems of any sort during the probationary period;
         
      7. the prisoner shall report to the probation office every Monday of each month to sign during the probationary period;
         
      8. the prisoner shall not travel out of Wewak, unless with permission of the probation office;
         
      9. bail of K1,000 be paid as fine; and
         
      10. in the event, the prisoner breaches any of the conditions so imposed by this Court, he shall serve balance of the term in Boram.
          

________________________________________________________
Public Prosecutor: Lawyer for the State
Public Solicitor: Lawyer for the Defendants