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State v Timothy [2023] PGNC 143; N10251 (12 May 2023)

N10251

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR No. 231, 232, 233 OF 2023

THE STATE

V

MICHAEL TIMOTHY & HENRY GILSON & DANIEL SAKANE

Ialibu: Miviri J
2023: 11^th May

CRIMINAL LAW – PRACTICE AND PROCEDURE – Robbery – Store – Trial – First time Offenders – Remorseful – Well Planned – Actual Violence – Victim Stabbed – Prevalent Offence – Strong Deterrent Sentence.

Facts:

The three accused were part of a group armed with guns and knives who held up the shop Sinkwong Trading Ialibu and stole cash and properties valued at K 38, 000.00 and in the course, victim was stabbed.

Held
Store Robbery.
First Offenders.
Well Planned.
Actual violence.
Victim stabbed.
Prevalent Offence.
20 years IHL.
Remand deducted.

Cases Cited:
Anis v The State [2000] PGSC 12; SC642
Ala Peter Utieng v. The State (23rd of November 2000) SCRA 15 of 2000.
Golu v The State [1979] PNGLR 653
Gimble v The State [1988-89] PNGLR 271
Gorop v The State [2003] PGSC 1; SC732
Kumbamong v State [2008] PGSC 51; SC1017
Kama v The State [2004] PGSC 32; SC740
Keru; Public Prosecutor v Aia Moroi, Public Prosecutor v [1985] PNGLR 78
Lahui, Hetau, Noho, and Eki, -v-The State [1992] PNGLR 325
Marase v The State [1994] PNGLR 415
Nimagi v State [2004] PGSC 31; SC741
Public Prosecutor v Hale [1998] PGSC 26; SC564
State v Daniel [2003] PGNC 26; N2476
State v Malo [2006] PGNC 231; N4520
Simbe v The State [1994] PNGLR 38
State v Hahuahoru (No 2) [2002] PGNC 136; N2186
Simbago v The State [2006] PGSC 23; SC849
Wani v The State [1979] PNGLR 593

Counsel:
P. Tengdui, for the State
J. John, for the Defendant

SENTENCE

12^th May, 2023

1. MIVIRI J: This is the sentence after conviction of Aggravated Armed Robbery of Michael Timothy of Wara Mil Block Bulolo Morobe Province with Henry Gilson from Karkar Island Madang Province and Daniel Sakane of Yaramanda Enga Province.
   
2. They were convicted that on the 03^rd December 2021 in company with others they, Michael Timothy, Henry Gilson, and Daniel Sakane were in Ialibu town. At about 2.00pm together with 7 others they entered the Sinkwong Trading store armed with automatic weapons, handguns, and knives. They held up the store manager and his assistant. They took K25,000.00 in cash kept by the Manager upstairs. They took another cash amount of K5000.00 from the till downstairs as well as store goods to the value of K8000.00. And during the robbery the Manager of the store James Zheng and his assistant Kai Zheng were both stabbed. The robbery in progress was observed by members of the public who alerted others of the robbery, and the commotion caused one of the robbers to fire a shot in panic. The shot alerted those who were inside to run out with the money and the goods and made their escape. They left four of their members behind who tried to make their getaway on foot but were captured by the public at Ialibu and handed over to the police. One escaped whilst in CIS custody whilst the three now remaining have been convicted.
   
3. The conviction is pursuant to section 386 (1) (2) (a) (b) (c) of the Criminal Code which is as follows:
   

“(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 the robbery,

wounds or uses any other personal violence to any person,

he is liable subject to Section 19, to imprisonment for life.” [Criminal Code (Amendment) Act 2022(certified 12 April 2022)]

4. Robbery simplicitor will attract a minimum sentence of 14 years imprisonment. But if it is aggravated where there are dangerous and offensive weapons used, guns and knives here, and is committed in company or as a gang, and immediately after or at the time of the robbery, violence is used, here stabbing of the victim James Zheng, then the offenders can be sentenced to the maximum of life imprisonment. That is what is due the offenders here by the facts set out above, the maximum of life imprisonment for the aggravated robbery convicted here. But the maximum is reserved for the worst case of aggravated armed robbery: Golu v The State [1979] PGSC 9; [1979] PNGLR 653 (14 December 1979). Here a determinate time will be accorded. And that will be a balancing of the aggravating, the mitigating, and any extenuating circumstances for a proportionate sentence to be accorded.
   
5. In this regard aggravated Robbery has become prevalent, fearless with planning to military precision. How long to be in the site of the robbery and to get out as fast as is mastered. That is clear here because the defendants convicted are not from Ialibu. Michael Timothy is from Wara Mil Block Bulolo Morobe Province, with Henry Gilson from Karkar Island Madang Province, and Daniel Sakane of Yaramanda Enga Province. It is a risk they have individually taken to come out here to Ialibu not their home or locality to commit this crime. They have no fear that they will be caught. And particularly here where the location is in the heart of this little peaceful town. Shattered by the gun fire from their robbery on a crowded Friday 03^rd December 2021. It was not at the back of their mind that the weapons they had would injure someone within. And as here James Zheng was stabbed with the knife, exhibit P4 by Doctor Carolyn U Kema of the Ialibu Rural Hospital dated 11^th March 2022. Affirming treatment mastered at admission number 258019 on the 04^th December 2021 at Nazarene General Hospital. He had hemopneumothorax of his right lung. And underwent surgery on the 04^th December 2021, and was discharged on the 06^th December 2021. He sustained significant injury to his air box his lungs following the ordeal with the robbers. This is clearly a major and important part of the body. He could have been a dead man as a direct result of the aggravated armed robbery committed by the prisoners. No man lives without air to his body. They were immediately responsible for that injury because it was in their hands that he suffered that injury, which nearly cost his life. He was led upstairs ushered unceremoniously with force by them. It was very clear he sustained the injury in their hands. And the sentence will reflect this against all three prisoners. Their action in the injury is aiding and abetting each other in stabbing him with the bayonet type knife photograph Exhibit P5 and the Knife itself Exhibit P9.
   
6. He minded his own business and was in no way hurting, tormenting anyone but earning an honest upkeep employing Papua New Guineans, local persons from Ialibu as Akula Karo and Lamech Lawa, giving them a sense of working and living for themselves. All to be held up with dangerous weapons at 2.00pm to 2.30pm when the place was frequented and packed with the towns people. And that is clear from the reactions of the people leading to their arrests. It was therefore time in view to lay sentence that would reflect that where criminals took the risk to commit serious criminal offences as was the case here, they would face stiff and punitive sentences reflecting and saying that the law would not tolerate such anymore. Enough was enough. Tariff and range did not deter would be offenders. Fairness and Equity in passage of sentence: Gimble v The State [1988-89] PNGLR 271, was stepping into the domain of legislating. That is not the function of the Courts. Even then times have changed robberies as was the case here are now daring as ever. Which decision was made in 1988 now 35 years old. It is clear classification to proportion penalty sentence has not seen justice for the law abiding. The staggering arm of this crime can be seen out by its tentacles in armed security guards, in the grills and bars that are put up in business establishments drawing kina in millions, that is undoubtedly passed to the consumers in the public domain. Discretion of the Court is stifled by this domain of tariff range and classification of robberies and all other crimes that have become the subject of categories as they are referred. The theme is good, but the spirit is not since there are distinct roles, one by the Legislature, the Peoples will, and the interpretation by the Court. Armed robbery has not desisted by any measure of hope given the length and breadth of that decision. It has become even more daring as can be seen in this commission.
   
7. Applying the law to the facts and circumstances peculiar to a case and coming out with an appropriate sentence is the function of the Courts: Kumbamong v State [2008] PGSC 51; SC1017 (29 September 2008). Individually constituted Courts in their wisdom derived from the immediate facts and circumstances before them have passed sentences that have been distorted in the name of parity and tariff. This is defeating the reality that is out in the real world, age is no longer a barrier to committing serious and aggravating armed robberies: Anis v The State [2000] PGSC 12; SC642 (25 May 2000), where sentence of 10 years was reduced upon first offenders who had robbed a factory. In reducing the court held that the youthfulness of the offenders was not given due consideration and so reduced to 5 years. That was in 2000 this is 2023, age is not a barrier to criminal offences which the Supreme Court saw in Nimagi v State [ 2004] PGSC 31; SC741 (1 April 2004). Appeal was dismissed and the sentence of 50 years IHL was confirmed. The appellant’s contention of youthfulness was brushed aside and orders at first instance confirmed with remarks that it was wilful murder and should have attracted the death penalty. In the case now prisoners are aged Henry Gilson is 33 years old. Michael Timothy is 29 years old. Daniel Sakane is 28 years old. All are first time offenders. And it would be the case that with maturity as is the case of all they would know better. Crime and its enterprise does not pay. And for all, it is worth should never be fostered nor followed. Given their age they chose its domain and hand. They cannot be lightly treated here.
   
8. It is really now the execution of the robbery rather than the proceeds of it: State v Malo [2006] PGNC 231; N4520 (19^th December 2006), a store was robbed of K 165,924.17 with use of guns and firearms, a vehicle was also stolen in that robbery. Police pursued and apprehended the prisoner who was slashed with a knife when apprehended. He pleaded guilty and was sentenced to 8 years IHL. In Marase v The State [1994] PNGLR 415, The appeal was dismissed and the 19 and half year IHL was confirmed for rape and robbery. In Gorop v The State [2003] PGSC 1; SC732 (3^rd October 2003) 20 years sentence for robbery was reduced to 18 years because the National court did not accede to current sentencing trend and tariff. Appellant had badly assaulted a tourist couple with a hockey Stick injuring both seriously and then stealing their properties.
   
9. The lives of the victims, fellow human beings are not a joke, or boxing bag, or target practice on a range to be shot at, poked and stabbed, given sentence that do not reflect the life, pain and suffering at the pleasure of the robber, as is the case here. Serious stance must be taken through the will of the people encompassed in the penalty prescribed. The sentence must be proportionate and not disproportionate: Keru; Public Prosecutor v Aia Moroi, Public Prosecutor v [1985] PGSC 7; [1985] PNGLR 78 (1 April 1985). Here the sentences were increased to 15 years and life imprisonment respectively considering all the factors set out above on an appeal by the Public Prosecutor. It ought to be given as dictated by its own facts, its circumstances. That should be the empowerment of the sentence proportionate and due the prisoners, as is the case here: Simbe v The State [1994] PGSC 18; [1994] PNGLR 38 (2 March 1994).
   
10. There is real prospect and propensity lurking that serious injury will result or death, turned violent and serious to the extreme of a murder. And reported cases Kama v The State [2004] PGSC 32; SC740 (1^st April 2004); State v Hahuahoru (No 2) [2002] PGNC 136; N2186 (21^st February 2002) and Lahui, Hetau, Noho, and Eki, The State v [1992] PNGLR 325 ; Simbago v The State [2006] PGSC 23; SC 849 (31^st August 2006) evidence the run that a robbery will more than probable run into homicide and very serious injuries to the victims and robbers alike. It is therefore not a light matter that will be dictated by a tariff or range set. It must draw from its own facts and circumstances.
    
11. Michael Timothy, Henry Gilson, and Daniel Sakane were in company with Asaia Paul who has escaped. But they were the four who took James Zheng upstairs to get the K25, 000.00. His honestly earned money which they had no right or authority to take as they did, and to reward him with pain and suffering that almost caused his life with a stab in his own store. And they were armed with a pistol and a bayonet knife preparedness for this cause. And whilst he was up there with them, he was stabbed there. So, they are responsible for stabbing him jointly and severely by section 7 and 8 of the Criminal Code read in the light of Wani v The State [1979] PNGLR 593. And this is clear by the Statement of the witness, Lamech Lawa who sets out their roles clearly; “Accused Henry Gilson, Michael Timothy, Asaia Paul and Daniel Sakane who were responsible for rounding up the Chinese Manager James Zheng by putting the knife to his neck and taking him upstairs where the money is usually kept. And on the ground floor he saw the 5 cult Gang accomplices armed with three pistols force open the till Machine and removed K 5000.00 cash from the daily cash takings.
    
12. I then heard the public gathering and charging outside the shop after they were alerted to the call of the woman. The public begun to throw sticks and stones on the building and I heard a gunshot fired outside the shop and saw the five accomplices rushing out of the shop. The five accomplices escaped and drove away in their waiting vehicle HAT-725 but left the four (4) accused on the top floor of the shop trapped for police and the public. The four (4) Accused then ran down with the money on foot and tried to run away but was chased and caught by the Public. Few minutes later I saw Ialibu Police vehicle arriving at the scene and all four accused were handed over to the police in good faith.”
    
13. I am satisfied beyond all reasonable doubt that all three Prisoners were active participant as opposed to an innocent bystander aiding each other in the offence, and therefore convicted of the crime of aggravated armed robbery pursuant to section 386 (1) (2) (a) (b) (c) of the Criminal Code as charged: Wani (supra). Their sentences likewise will follow suit in equal proportion to that fact and all will receive the same. There is no distinction between all.
    
14. Each has in allocutus stated; Michael Timothy;-“I say thank you for the time to be give to talk. I say thank you for the accusations by the State with the Police. I honour the Heavenly authority and the Honourable Court. I respect and honour the Staff of the Court and the Government. I am telling all my facts on the paper given to my Lawyer.”
    
15. Henry Gilson; “Thank you to the Righteous one in Heaven. I also say thank to You the Court. I accept the decision you make and accept it. Consider my views and what is behind me. I have a wife and two children. Consider my family.”
    
16. Daniel Sakane: “Thank you to GOD nothing is hidden. Secondly, I respect Court of the Land. My father left me when I was young. I am with my mother who brought me up. She is a subsistent farmer. Thank you to Court. Whatever decision you make GOD is witness to you witnessed on earth.
    
17. In mitigation defence counsel urged sentences between 8 to 10 years IHL. Because each case was to be sentenced by its own facts and circumstances. That all had no prior convictions. And were remorseful for the offence committed. And that the maximum sentence was reserved for the worst offence, which wasn’t the case here. He submitted that State v Daniel [2003] PGNC 26; N2476 (14 July 2003) was comparable to the present case. With the greatest respect that case was not in a shop and therefore inapplicable given the facts here. In Public Prosecutor v Hale [1998] PGSC 26; SC564 (27 August 1998) was a robbery of a home, and the appeal was upheld and the sentence was increased to 10 years. That was in 1998. This is about an offence on 03^rd December 2021, for which sentence is to be passed 12^th May 2023. Three years later and the offence is prevalent as ever.
    
18. And the submission of the State counsel is square that the culpability is high in that they were brought into Ialibu to do a job evidenced by where each is from in the Country, Wabag, Madang, and Morobe. That removes them from the normal robbers, who do for hunger and the like. This is organized robbery that must be stamped out. They are motivated by gain. Innocent people threatened and the peace of the Town disturbed violently. Because it was in the heart of town in company and in strength to meet and deal with any opposition. There was grievous bodily harm committed in the course of the robbery in that the victim was seriously stabbed and wounded, only to be revived by professional medical care. They did not hesitate to commit the injury. They were driven by gain coming in from a different Province here to commit the crime. It is organized and must be stamped out. Substantial amount of money was stolen and not recovered. A sentence in the vicinity of 15 to 20 years should be imposed. There is no real remorse.
    
19. In my considered view the submission of the State has very strong bearing and reality to both the facts of the case itself and to the trend of this crime of aggravated armed robbery and many of the aspects I have covered all set out above. There is in my view real justification to impose a sentence that is befitting the facts and circumstances here. And that tariff and range for the reasons I have highlighted above have marked considerations. But the heart is the facts that are rampant here depicted out by the evidence called. I will sentence on the basis of that evidence. I agree no real remorse has been expressed to the victim especially of the crime. He suffered and the least is acknowledgement of the wrong committed to him and apologies for that in the name of the Heavenly Host most High. That has not happened out of the mouth of each of the prisoners. Personal circumstances for two will be too late to be considered now with reference to Ala Peter Utieng v. The State (23rd of November 2000) SCRA 15 of 2000. Which stands for the proposition that personal circumstances ought to have been considered even before the crime was committed. It is late to put it as mitigation in the face of a serious conviction and sentence. I do not consider that the sentence I now impose is a jump out of the ordinary. I am compelled by the facts and circumstances and the evidence be facing to go this way so called. I sentence on the basis of reality and life that is now 12^th May 2023 looking at events in this case of the 03^rd December 2021. It is justified by the trend and the prevalence of this offence.
    
20. The aggregate of all set out above is that for the crime of aggravated armed robbery pursuant to section 386 (1) (2) (a) (b) (c) of the Criminal Code Act, against Michael Timothy of Wara Mil Block Bulolo Morobe Province, and Henry Gilson from Karkar Island Madang Province, and Daniel Sakane of Yaramanda Enga Province is 20 years imprisonment in Hard Labour.
    
21. Time in custody will be deducted forthwith. They will all serve the balance in jail forthwith.
    

Orders Accordingly

__________________________________________________________________

Public Prosecutor: Lawyer for the State

Public Solicitor: Lawyer for the Defendant