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State v Jerry [2022] PGNC 427; N9769 (17 June 2022)

N9769

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR No. 645 & 646 OF 2019

THE STATE

V

DONALD VINCENT JERRY

Wewak: Miviri J
2022: 07^th, 08^th , 17^th June

CRIMINAL LAW – PRACTICE AND PROCEDURE – Robbery – Trial – House Aggravated Armed Robbery – Two Homemade Guns & Knives – Accompany of Others – Serious Injuries To Victims – Aggravated Rape x2 Victims – Large Value of Properties Stolen – Offences Committed at Night – Prevalent Offence – First-time Offender – Whether Sentences concurrent or cumulative – Totality Principle – Rape Sentences concurrent – Robbery Sentence Cumulative – Reduction on Totality Principal – Strong Punitive & Deterrent Sentences.

Facts
Accused was part of a group of men who were armed with two homemade guns and knives who held up the victims in their house at night in the early hours of the morning and stole assorted personal items & properties with Electronic Goods to the assorted value of K1, 999.00 loaded on their wheelbarrow and escaped. They also assaulted them and committed rape upon two female members of that family before they escaped.

Held
Aggravated Armed Robbery cumulative sentence to Rape.
Aggravated Rape of two victims concurrent.
Totality Principal
Prevalent offence
Home invasion at night-time.
Other criminal offences committed.
Strong Deterrent & punitive Sentences.

Cases Cited:
Public Prosecutor v Hale [1998] PGSC 26; SC564
Anis v The State [2000] PGSC 12; SC642
Gimble v The State [1988-89] PNGLR 271
Aubuku v The State [1987] PNGLR 267
Maima v State [2016] PGSC 19; SC1504
Marase v The State [1994] PNGLR 415
Gorop v The State [2003] PGSC 1; SC732
Setep v The State [2001] PGSC 14; SC666
Acting Public Prosecutor v Haha [1981] PNGLR 205
Kerua and Kerua, Public Prosecutor v [1985] PNGLR 85

Counsel:

F.K. Popeu, for the State
B Jim, for the Defendant

SENTENCE

17^th June, 2022

1. MIVIRI J: This is the sentence upon Donald Vincent Jerry of Kreer village, Wewak, East Sepik Province for the crime of Aggravated Armed Robbery and Two counts of Aggravated Rape committed upon the victims after trial.
   
2. He was charged pursuant to Section 386 (1) (2) (a) (b) (c) Criminal Code Act, firstly, that he stole from Agnes Hembiwasi and others with actual violence K300.00 in cash and a Toshiba Laptop valued at K 5, 099.00, 4 touch screen Samsung mobile phones valued each at K499.00 altogether valued at K1996.00, an electric fan valued at K75.00, a wheel barrow valued at K529.00 and other electrical appliances valued at K556.00 all the properties of the said Agnes Hembiwasi and others. And at this time, he was armed with two homemade guns dangerous and offensive weapons and was accompanied by others and wounded Agnes Hembiwasi.
   
3. Secondly, he was charged pursuant to section 347 (1) and (2) of the Criminal Code Act that he on the 08^th day of December 2018 at Kreer village, Wewak in Papua New Guinea sexually penetrated Agnes Hembiwasi by inserting his penis into her vagina without her consent. And at this time, he was armed with two (2) homemade guns dangerous and offensive weapons and was accompanied by others and wounded Agnes Hembiwasi.
   
4. Thirdly, he was charged pursuant to section 347 (1) and (2) of the Criminal Code Act that he on the 08^th day of December 2018 at Kreer village, Wewak in Papua New Guinea sexually penetrated Hodilia Pori by inserting his penis into her vagina without her consent. And at this time, he was armed with two (2) homemade guns dangerous and offensive weapons and was accompanied by others.
   
5. After the guilty verdict the prisoner recounted in allocutus, “I say sorry to God sorry to all the Victims for what happened to them. Sorry to the Honourable Court, State Lawyer, and my Lawyer for your time. I ask the mercy of the Court. My first time in Court. Compensation to the complainant. It is a very big offence mercy on me and give me small time.”
   
6. The court granted the application of his lawyer for a Presentence Report as well as a Means Assessment Report to be furnished into court in the determination of his sentence. The matter was called returnable on the 17^th June 2022. The presentence report confirmed that carrying on from his antecedent report that he was 34 years old, married with two girls, one aged eight and the other five years old. Both of whom were in school at the Kreer Primary school. His wife, one Petra Atikain was employed with a company, OutSpan Agriculture Company, and left work in 2018, because their house was burnt down by Police. The fire also destroyed their school certificates. She stated that he was responsible and provided for her with her two girls. He was a good person in the community and helped well. And was seen as a leader. He was resident at Kreer, Wewak born and raised there. Both parents were alive living there. His father was from Kreer, Wewak, East Sepik whilst mother was from East New Britain.
   
7. He was educated to grade 10 at Saint Mary’s Vunakanau Secondary School in Rabaul in 2007. And in 2016 to 2018 was employed with South Sea Canary in Wewak but left work when he was arrested by Police for this offence. He had a rental house where people rented in which was burnt down by police in 2018 upon the commission of this offence. The wife conducts informal market to sustain life for the family. He consumes alcohol and this was an alcohol related crime. He is of the Catholic Church and leads others in church to play musical instruments and has been doing that whilst in custody at the prison. And in this regard Corporal Teme Keas of Reception & discharge up to the Boram Corrective Institution confirms this fact.
   
8. He has further character reference from the Wewak Rural Local Level Government by Jeffrey Yapog who states prisoner is a neutral person contributes to the Community. He has attributes as a youth leader. He is humble and obedient and has ability to make critical decisions. This reference is dated the 15^th June 2022. And the last is a Family Assurance for compensation in the sum of K 10, 000.00 and a live pig valued at K 1000. 00. The letter is signed by Petra Atikain wife of the prisoner on behalf of the family and the community that they are prepared to pay compensation. It is also dated the 15^th June 2022. But the complainant Anita Kambun states that they do not want any compensation, that the prisoner go to jail.
   
9. This material do not assist as to where the prisoner will go from the offence back into the Community. Even compensation proposed is more to do with avoiding jail then a genuine position to settle a matter. There is no immediate source to draw to make good that proposition. And so, it will not entail any material difference to the sentence upon him. In the same the references do not make heads or tails as to how the prisoner will make amends in his life from where he has offended the complainants. He has nothing back in the community useful to occupy his life in. He states his house was burnt down by Police. There is no evidence to this effect independently to verify that he once upon a time had a house and it is now burnt down by Police. It is a serious allegation which could be more to the scale in favour of the prisoner if it is supported verified independently. As it is it is in the air without any substance to the sentence. It does not affect the sentence due the prisoner. Material that are collected by the Probation report are not necessarily evidence in its pure form by the Evidence Act. Prisoner was on bail he never took the initiative there and then to settle the matter with the victim’s complainants.
   
10. The presentence report recommends that the prisoner is suitable for probation and recommends that he be placed on probation. Without what is raised set out above, this is a recommendation that does not hold water in favour of the prisoner. His antecedent report was tendered by the State affirming that he had no prior convictions known to the law. He was a first offender originally from Kreer village, Wewak East Sepik Province. The means assessment report says the prisoner is willing to pay compensation and needs at least one year to do that. But is a matter in the discretion of the court.
    
11. A defendant has rights to challenge that the State prove the allegation against it. But where the evidence is strong especially where identification is bound to come the way of the victim or the complainants. It is well for a defendant who is genuine to tell the truth. On the eve of sentence to offer compensation is in my view not a genuine attempt to pay. It is more an attempt to avoid incarceration. And in my view is the case of the prisoner here. His attempt to pay compensation is not genuine. Even then the Charges of aggravated armed robbery of the house of an individual is very serious matter. The home is where privacy lies for any individual as was the case of the complainants. This was in the early hours of the morning when the slumber of sleep was sweet. It was the world where no one would have invited what the prisoner and accomplices did. To be rudely woken up and to be beaten up in one’s own house no fault of oneself. It was supposed to be the safest place for anybody. Here that was not so for the complainants’ victims. They were rudely awoken up and properties were stolen and placed on a wheelbarrow and taken out without their objection because the prisoner and accomplices were armed with homemade gun and bush knives.
    
12. In sentencing the Courts have been very protective of the home, be it a castle or a shack, The minimum sentence armed robbery simplicitor is a minimum of 14 years imprisonment. But the maximum due is life imprisonment. The Supreme Court increased the sentence up when together with time in custody a fine was also imposed. In setting aside, the sentence at first instance the Court voiced, “We first of all find that the trial judge erred in considering the appropriate tariff to start with in considering the appropriate sentence. Gimble’s case suggests starting with 7 years but the trial judge started even lower than that. We find that with the prevalence of violent crime involving the use of guns the ranges of sentences recommended in Gimble’ case are having no effect and are no longer relevant. Gimble’s case was decided in 1989 and crimes of violence have definitely increased with the use of guns being more prevalent and the community is calling for heavier punishments as a deterrence. We feel that the starting point to an appropriate sentence involving the robbery of homeowners at night with the use of firearms to threaten victims should be 10 years, ”Public Prosecutor v Hale [1998] PGSC 26; SC564 (27 August 1998).
    
13. In my view that is confirmed by the facts of the present case, this is a robbery of a dwelling house, therefore the prisoner is looking at the sentence of 10 years imprisonment. And this is an aggravated armed robbery that is committed at night-time. And the prisoner is not the same as observed by the Supreme Court in Anis v The State [2000] PGSC 12; SC642 (25 May 2000). He is not a youthful offender. Here he is aged 34 years old, married with two girls, one aged eight and the other five years old. He is a mature person and his sentence will be a lot different given. And it will also come out with the role that he played in the offence. He was the leader armed with a homemade gun that he used to break down the door with, when he went into the room where the properties of doctor was in. Further he also used that to assault Anita Kambun whose head was bleeding, so that she was washed in her own blood. Her blouse was torn from the side.
    
14. And he was physically in the room where his accomplice committed rape upon Odila Pori. Who was also hit with a gun butt on the back of her head so much so that she was physically abused as well as sexually abused. And if that was not enough, he went downstairs to where Agnes Hembiwasi’s room was. With that gun butt he hit opening the door. He entered inside the room committed rape upon her. She was an elderly woman who was sick at that time. Then he hit her with that gun butt on her head caused her head to be swollen with a laceration to her left hand. All wounds were sutured at the hospital. The medical report concluded that she had been physical abused as well as sexually abused. The prisoner was leading with injuries that were resulted from his conduct. This is not just plain robbery but further acts of violence that come from him. All are unjustified and not warranted, considering also that a gun, be it a factory made, or homemade, has the real propensity to kill at the squeeze of a trigger. Therefore, it was no light matter. It is the most serious category of robbery set out by Gimble v The State [1988-89] PNGLR 271, which imposes 7 years starting point. That was in 1988 to 1989 this is 2022 and robbery of a dwelling house is as prevalent as ever. Therefore, Hales case (supra) voices 10 years imprisonment. In my view as with Aubuku v The State [1987] PNGLR 267 where there are aggravation that increases the sentence. In my view robbery is a crime of violence as is rape and therefore it would be not erroneous to take account of serious aggravation that would increase the sentence due an offender. Some of which are highlighted here which need not be repeated.
    
15. It is similar to the case of Maima v State [2016] PGSC 19; SC1504 (27 April 2016) where the applicant sought review against the sentence of 53 years imprisonment for armed robbery and two counts of rape. He argued that the sentences were excessive and there was identifiable error on the face of the sentence. The sentencing discretion was erroneously exercised. The Supreme Court granted the application and substituted, for the sentence imposed by the National Court, a total sentence of 30 years imprisonment, 10 years (count 1) + 10 years (count 2) + 20 years (count 3) = 40 years, to be served cumulatively, – 10 years (totality principle) = 30 years – 2 years (PSPIC) = 28 years in custody from the date of sentence (17 March 2008).
    
16. The facts of that case are similar to the present. Applicant was convicted after trial on the 19^th November 2007 in his involvement in an incident at Six Mile, near Lae, on the night of 15 March 2006. A man, Tom Matai, and his wife, Maria Tom, and their 19-year-old daughter, Edna Tom, had travelled in their vehicle that day from Menyamya, heading to Lae, with a load of coffee bags to sell. They also had cash in the vehicle. At 10.00 pm the vehicle broke down, they could not fix it, so they decided to sleep in the vehicle overnight at what they thought was a safe place. At around midnight, after they had all gone to sleep, they were held up by an armed gang of which the applicant was a member. Tom Matai was the victim of an armed robbery and both Maria Tom and Edna Tom were dragged away and raped.
    
17. In another case Marase v The State [1994] PNGLR 415 7 years IHL was imposed for robbery, and 12 years IHL was imposed for rape both sentences were made cumulative giving 19 years. The Supreme Court confirmed the sentence on appeal dismissing the appeal. It was also a case of abduction and unlawful use of a motor vehicle. The supreme court described it "a worst case" category. In yet another case of aggravated robbery were the one of the victims was beaten to almost dying the sentence was reduced from 20 years to 18 years IHL, Gorop v The State [2003] PGSC 1; SC732 (3 October 2003). Yet in another case where the appellant was a convicted prisoner of the State serving 30 years for another offence prior. He was convicted of abduction and rape and sentenced to life imprisonment concurrent with the 30 years for wilful murder. The supreme Court determined that it was discretion erroneously exercised. It imposed 25 years IHL for the abduction and rape made cumulative to the wilful murder. And so, the head sentence was 55 years IHL in jail. The earlier sentence could not be in law made concurrent to the present, Setep v The State [2001] PGSC 14; SC666 (18 May 2001).
    
18. In this regard I take due account of the case of Acting Public Prosecutor v Haha [1981] PNGLR 205 in particular the principles of cumulative and concurrent sentences. Which is illuminated in this way, “Where two or more offences are committed in the course of a single transaction all sentences in respect of the offences should be concurrent. Where the offences are different in character, or in relation to different victims, the sentences should normally be cumulative. When a court has arrived at appropriate sentences and decided whether they should be concurrent or cumulative, it must then look at the total sentence to see if it is just and appropriate. If it is not, it must vary one or more sentences to get a just total,” Kerua and Kerua, Public Prosecutor v [1985] PGSC 8; [1985] PNGLR 85 (1 April 1985). And in the discretion here relating that will be accorded in the sentence passed upon the prisoner for the crimes of firstly the aggravated armed robbery and secondly the second and third counts of rape committed upon the two women of that house.
    
19. Therefore, in my view having considered all the above, the aggregate is the prisoner is sentenced to 15 years IHL for the first count of aggravated armed robbery.
    
20. And in respect to the second count of Rape of Agnes Hembiwasi he is sentenced to 18 years imprisonment in hard labour which is cumulative to the first count of aggravated armed robbery.
    
21. In respect of the third count of aggravated Rape committed upon Odila Pori he is sentenced to 18 years IHL cumulative to the first and second counts on the indictment.
    
22. The total sentence of all sentences is 51 years IHL. 11 years IHL is deducted on the principles of totality, he will serve 40 years IHL. Time in custody will be deducted from that head sentence, he will serve the balance in jail forthwith.
    

Orders Accordingly

_________________________________________________________________

Public Prosecutor: Lawyer for the State

Kaman Lawyers: Lawyer for the Defendant