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State v Krahambu [2024] PGNC 53; N10700 (19 March 2024)

N10700

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR No. 575, 576 & 577 OF 2023

THE STATE

V

ABRAHAM KRAHAMBU, GLAN WANIRE & ANGELO UME

Waigani: Miviri J
2024: 18^th & 19^th March

CRIMINAL LAW – PRACTICE AND PROCEDURE – Attempted Armed Robbery Section 387 (1) (a) (2) (a) (b) CCA – Section 7 (1) (a)(b) aiding Abetting – Plea x 3 – Armed with Piece of Iron – In company of Others – Car Window Smashed – First Time Offenders – PSR – First Offenders – Guilty Plea – Drunkenness Voluntary Intoxication No Excuse –Violent Offence – Public Street – Protection of the Law – Prevalent Offence – Strong Punitive & Deterrent Sentences – 5 years IHL.

Facts
Accused were part of a group of men who were armed with a piece of iron that was used to smash the car window of one Terence Tokaoson at Gerehu Stage 5 intending to steal from him his vehicle but were chased by the public who identified, and police arrested all.

Held
Plea
First time Offenders
PSR
Protection of the Law
Prevalent Offence
Strong Deterrent & punitive Sentences.
5 Years IHL x 3

Cases Cited:
Avia Aihi v The State (No 3) [1982] PNGLR 92
Gimble v The State [1988-89] PNGLR 271
Karani and Aimondi v The State [1997] PGSC 19; SC540 (31 December 1997)
Lulip v The State [2000] PGSC 3; SC636 (31 March 2000)
Tardrew, Public Prosecutor v [1986] PNGLR 91
Anis v The State [2000] PGSC 12; SC642 (25 May 2000)
Kumbamong v State [2008] PGSC 51; SC1017 (29 September 2008)
Peter v State [2007] PGSC 28; SC894 (27 June 2007)

Counsel:
A. Bray & S. Suwae, for the State
T. Yapao, for the Defence

SENTENCE

19^th March 2024

1. MIVIRI J: This is the sentence upon Abraham Krahambu of Maramanger Village Yangoru, East Sepik, Glen Wanire of Nawaeb village, Boana Morobe Province, and Angelo Ume of Nabuapaka, Kairuku Central Province for the crime of Attempted Armed Robbery committed upon Terence Tokaoson committed at Stage 5 Gerehu, Port Moresby, National Capital District.
   
2. All accused have been charged pursuant to section 387. ATTEMPTED ROBBERY ACCOMPANIED BY WOUNDING, OR IN COMPANY which is in the following terms:

“(1) A person who assaults a person with intent to steal anything, and, at, immediately before or immediately after, the time of the assault, uses or threatens to use actual violence to any person or property in order–

(a) to obtain the thing intended to be stolen; or
(b) to prevent or overcome resistance to its being stolen,

is guilty of a crime.

Penalty: Imprisonment for a term not exceeding seven years.

(2) If the offender–

(a) is armed with a dangerous or offensive weapon or instrument; or
(b) is in company with one or more other persons,

he is liable to imprisonment for a term not exceeding 14 years.

(3) If the offender–

(a) is armed with any loaded arms; and
(b) at, immediately before or immediately after, the time of the assault wounds any person by discharging the loaded arms,

he is liable subject to Section 19, to imprisonment for life.

3. The facts on arraignment giving rise were that on the 12^th August 2021 at Waikele Market, Gerehu Stage five (5), the accused had been drinking alcohol the day before continuing to daybreak. In that state they walked down to the road coming across the victim Terence Tokaoson who was in his white Mazda double cabin registered number BGB 619 in front of the clinic at Waikele Market Gerehu Stage five (5) to drop off his two children. Accused approached the vehicle Victim upon seeing them attempted to escape but the accused Abraham Krahambu broke the left front door glass with an iron bar that he was armed with. This was as the victim complainant sped off. Public who was at the market saw what was happening and chased the accused and identified them. Two were taken to the Police Station except for Abraham Krahambu who was arrested two days later. All accused had intended to steal the vehicle and so their actions contravened the section set out above.
   
4. All three accused pleaded guilty to the indictment that was preferred against all. Because violence was used upon the victim, they were looking at imprisonment for a term not exceeding seven years. And it increased because they were in company and armed with the piece of iron an offensive weapon, it was imprisonment for a term not exceeding fourteen (14) years. Which is the clear explicit and express intentions of the legislature against this offence, classed in the way set out above. The three prisoners can be sentenced to the maximum term of imprisonment of a term not exceeding 14 years in each case given their individual facts and circumstances. But the fourteen years per se is if their offence is classed as worst offence of an attempted armed robbery. Which will draw that sentence. Here the facts circumstances depict a determinate term of years imprisonment because it is not the worst case: Avia Aihi v The State (No 3) [1982] PNGLR 92. In my view there is no distinction between all three prisoners because there is equal participation in the offence: Gimble v The State [1988-89] PNGLR 271. All will be sentenced the same because all aided and abetted in that common offence to steal that vehicle off the complainant victim. The application of section 7 (1) (a)(b) of the Code does not see any difference in the sentence due all: Karani and Aimondi v The State [1997] PGSC 19; SC540 (31 December 1997).
   
5. Each prisoner has pleaded guilty. All are first offenders. And have expressed genuine remorse apologising to the victim, the court stating that they each committed the offence whilst under the influence of alcohol. All three stated that they had learnt their lesson whilst on remand awaiting their day in court. It was a painful lesson and that each did not want to repeat again. One Angelo Ume said he would not commit the offence again. In my view this is genuine because in the record of interview of the 15^th August 2021 with Police at Gerehu CID motor squad office, Abraham Krahambu made very detailed admissions. He admitted that he was armed with the piece of iron which he used to break the left side front glass of the subject vehicle. He was under pressure because he was not happy with some payments not given and shared equally at by the other defendants for work done at their place of work. In the case of Gland Wanire, he also expressed similar views and sentiments in his record of interview also conducted on that same day 15^th August 2021. Angelo Ume also expressed similar views and sentiments. Primarily all accused admitted outright to police and maintained the same upon arraignment in Court. By that fact each was prepared to take responsibility for their individual actions in the commission of the offence. That is a first step that every prisoner must take to right a wrong. And genuine remorse with strong intention to amend from old to new must be encouraged with sentences reflective of the same.
   
6. It must be understood that every person including the victim must work to ensure he lives as he does daily. Nothing falls from the sky at the convenience of man. This vehicle that was damaged with its window glass broken because of the actions of Abraham Krahambu supported by the two and others will cost money to be fixed no fault of the complainant. He must sacrifice to fix it. He did not ask that his windows be smashed in that manner by the prisoners. He had no blame for the problems that were encountered by the prisoners. And it was not the way to settle a problem, consume alcohol and take it out on the next person who parked his vehicle where the prisoners were at Waikele Market Gerehu, Port Moresby. These are public frequented areas that must be protected by the law. This Court has a duty to ensure that is done and maintained at the highest. Strong and deterrent sentences will be imposed against those who see fit to defy and breach the rule of law. Crimes of violence have no place in an orderly society, 49 years into its anniversary of Independence and nationhood. Individual citizens will not draw this country to its knees because of greed violence as seen for instance of the 10^th January 2024 must be avoided at all costs.
   
7. Abraham Krahambu is 25 years old originally from Maramanger Yangoru East Sepik Province. He is resident with his family at Gerehu Stage 6 since 2007 and is the second born in a family of two brothers and three sisters. He is single educated at St Paul’s Primary School Gerehu from grades 1 to 8 but did not further that and has no employment records except that he refills air conditioning in motor vehicles having allowances paid for it. He is a first time offender.
   
8. Glen Wanire is 28 years old resident also at Gerehu stage 6 Ura Street Toleman Circuit, Originally from Boana, Nawaeb Morobe Province he is educated at Ward strip Primary School from grades 1 to 7, then continued grade 8 at Sogeri Primary School, where he was selected to go onto Iarowari High School doing grade 9 to 10. He did grade 10 and 11 at Kilakila Secondary School but due to school fee problems did not complete. He has no formal employment experience except like the others does air-condition gas refills for allowances. He is also a first time offender.
   
9. Angelo Ume is 23 years old originally from Nabuapaka, Kairuku, Central Province. He is educated from primary School at St Paul’s Gerehu Stage 5 from grades 1 to 8 continuing secondary education with Koiari Park Adventist Secondary doing grades 9 to 12 after which he enrolled at the UPNG open campus to upgrade his marks when he encountered this offence. Like the others he too does the odd air condition gas refill, but he is supported by his uncle and parents. He drinks alcohol and the crime was because of that fact. He is considered suitable for a non-custodial term together with the other co prisoners set out above. Like his co prisoners he too is a first offender. All Prisoners have been on remand since the commission of the offence and when they were apprehended which time will be deducted from the head sentence to be imposed.
   
10. This is a one-off drinking spree with Alcohol that has paved the way for the offence that each has committed. Time and again the abuse of alcohol has landed persons with serious offences known to the law before this Court. Without which they all would not have committed the offence. It is a very serious offence and must be punished so that it is not committed at will. It is prevalent and must be deterred with a strong and punitive sentence. It is an attempted robbery of a motor vehicle on a public street in full view of all who were there that morning. It shows determination to commit, and the sentence must reflect that fact. It makes no difference that each of the prisoners were intoxicated self-induced and voluntary. They placed themselves in that manner prone as they were. It does not alleviate, nor does it distort what is due given the gravity of the offence. This offence has seen worst as in Lulip v The State [2000] PGSC 3; SC636 (31 March 2000). Death resulted of an offsider of that vehicle when the gun was discharged to rob occupants of a motor vehicle in Kimbe who had received money from oil Palm. 25 years imprisonment was imposed for that crime. Nothing was stolen but a life was taken in that discharge of the gun into the vehicle. It was more than probable that would have resulted here in the iron that was used against the window of the vehicle. The children or the complainant would have suffered serious injuries because of that attack. It is therefore no light matter in determining sentence against all offenders.
    
11. There is no preplanning here. Only one of the prisoners is armed with an iron that is used against the window of the vehicle breaking it. By that fact it can be inferred that the complainant and daughters obviously were shaken by that fact. There is no phycological report but it is violence that will live in the memory of the complainant and children for a long time. It is aggravating to see that public places have become prone to violent crimes such as the present. Persons of like mind of the prisoners must be prevented and stopped. The Court has duties by law to ensure just and proportionate sentences are served persons who take the law into their own hands as is the case here.
    
12. Here each of the prisoners have a presentence report filed by the probation office of the 18^th March 2024 that is favourable to each. And from the educational background of each set out above, each must be given opportunity to use that education to live honestly and fit back into society. That is not to say that the offence is not a serious offence. The circumstances posed here invoke that the prisoners must be punished but must return into the community as a law-abiding citizen. It is not wrong to go along this path because the law accords favourably: Tardrew, Public Prosecutor v [1986] PNGLR 91. In this regard the Court has considered but the presentence report falls short in that there is no alternatives that have been provided at the fingertips of the probation officer to fill the prisoners into. For instance, work experience at an approved worksite to give the prisoners opportunity to fit back into the normal world. Suspension of sentence must be meaningful in that the seriousness of the offence is drawn the prisoner and the complainant or victim sees justice in his cause. There is no material that balances and so time in jail is appropriate here. But will not be as high as a trial or aggravation very serious.
    
13. The prisoners are first offenders and have pleaded guilty from day one when taken into custody. It is an offence that is out of character for each of them. They are not youthful offenders as in Anis v The State [2000] PGSC 12; SC642 (25 May 2000). Each is a mature person and must be given the benefit of the guilty plea entered in the sentence to be passed. In Gimbles case (supra) 3 years was considered as appropriate for young first offenders of a street robbery in a contested case. That was in 1988-89. This is 2024 and this is an attempt to rob not a robbery. The sentence must be less than an armed robbery. Each case will draw its own sentence by its own facts and circumstances, tariff and range are part of the matters to be considered in the determination of an appropriate and proportionate sentence, Kumbamong v State [2008] PGSC 51; SC1017 (29 September 2008). This Court sentenced first offender for the attempted robbery to 3 years imprisonment IHL. The offences of attempted robbery have not decreased but is as prevalent as ever. The Supreme Court reduced 13 years imposed for aggravated armed robbery to 10 years in Peter v State [2007] PGSC 28; SC894 (27 June 2007). I am not considering an aggravated armed robbery but attempted armed robbery by first offenders who have pleaded guilty. My discretion is at the highest 14 years imprisonment by section 387 set out above due the prisoners.
    
14. Given all the discussion set out above, I consider that an appropriate sentence in the case of the prisoners will be five years imprisonment in hard labour. Violent crimes have become the norm. Resort to has become norm in our society. Here is a case of prisoners who are educated and were making a life air condition gas refilling but chose crime because of self-induced intoxication. Whatever grievance they may have did not entail the behaviour aired on the victims.
    
15. The law must protect, and it is the duty of the Court to ensure that happens. And so the sentence upon all three prisoners, Abraham Krahambu of Maramanger Village Yangoru, East Sepik, Glen Wanire of Boana, Nawaeb, Morobe Province, and Angelo Ume of Nabuapaka, Kairuku Central Province for the crime of Attempted Armed Robbery committed upon Terence Tokaoson is five (5) years imprisonment IHL. Time in custody will be deducted from that head sentence. They will serve the balance in jail.
    

Orders Accordingly

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Office of the Public Prosecutor: Lawyers for the State

Office of the Public Solicitor: Lawyers for the Defendant