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Gimble v The State [1988-89] PNGLR 271 (27 July 1989)

Papua New Guinea Law Reports - 1988-89

[1988-89] PNGLR 271 - William Ukukul Gimble v The State�

[1988-89] PNGLR 271

SC369

PAPUA NEW GUINEA

[SUPREME COURT OF JUSTICE]

GIMBLE

V

THE STATE

Waigani

Bredmeyer Los Hinchliffe JJ

28 June 1989

27 July 1989

CRIMINAL LAW - Sentence - Aggravated robbery - Guidelines for tariffs - Young first offenders - Criminal Code (Ch No 262), s 386(2).

CRIMINAL LAW - Sentence - Appeal - Aggravated robbery - First offender aged 29 - Armed gang of five - Robbery of social club - Manager knocked unconscious - Employees locked up - Liquor stolen - Sentence of nine years reduced to seven years - Criminal Code (Ch No 262), s 386(2).

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.

On appeal against a sentence of nine years for aggravated robbery contrary to s 386(2) of the Criminal Code (Ch No 262), where the offence was perpetrated by a group of five men who robbed a social club while armed with weapons and wearing masks, the appellant being the watchman for the group, where shots were fired, employees were locked up and the club manager knocked unconscious, and where the appellant pleaded not guilty,

Held

In the circumstances, the sentence of nine years was manifestly excessive for a first offender and a sentence of seven years should be substituted.

Cases Cited

John Aubuku v The State [1987] PNGLR 267.

Norris v The State [1979] PNGLR 605.

Appeal against Sentence

This was an appeal against a sentence of nine years imposed on a conviction for the offence of aggravated robbery contrary to s 386(2) of the Criminal Code (Ch No 262).

Counsel

M Gene and E Batari, for the appellant.

V Noka, for the respondent.

Cur adv vult

27 July 1989

BREDMEYER LOS HINCHLIFFE JJ: This is an appeal against sentence. The appellant was one of four or five men who robbed the San Remo Club at Kimbe on the night of 20 March 1987. At about 11.45 pm three or four masked men smashed glass louvres and burst into the club. One of them was holding a shotgun, one of them a pistol, and one of them a knife or a bayonet. They pointed the gun at the club manager and asked for the keys. He then tried to explain that if they opened the bar door the alarm would be set off. He was told to shut up and was knocked unconscious to the floor. Other robbers forced the other employees present at the time into the kitchen and locked them in that room. One of the robbers fired a pistol at the roof. They thereupon stole liquor from the club to the value of K1,135. The appellant pleaded not guilty and contested the admissibility of his record of interview. The trial judge, Woods J, ruled the record of interview admissible. There is no admission in the record of interview that the appellant went into the club nor is there any other evidence on that point. We must conclude therefore that he was standing outside on watch. The appellant was aged 29, was married with two children, and had no prior convictions. The trial judge sentenced him to nine years imprisonment with hard labour and allowed for nine months on remand pre-trial and thus ordered him to serve eight years three months.

Mr Gene, for the appellant, cited a passage from Kearney J in Norris v The State [1979] PNGLR 605 at 612-613 and we agree that this passage is a classic statement of the relevant principles on considering an appeal against sentence:

�So the question in practice on a sentence appeal is usually this � has the appellant shown that an error occurred which has the effect of vitiating the trial judge�s discretion on sentencing? Such an error may be identifiable: thus, the trial judge may have made a mistake as to the facts; or acted on a wrong principle of law; or taken into account matters which he should not have taken into account; or failed to take into account matters which he should have taken into account; or clearly given not enough weight or too much weight to a matter he properly took into account. There will also be vitiating error if upon the proved facts and making the fullest allowance for the advantaged position of the trial judge, the sentence is obviously (and not merely arguably) excessive, although no identifiable error can be shown; for, if a sentence is out of reasonable proportion to the circumstances of the crime, even though no particular error can be identified, this Court will infer that some error must have occurred in the exercise of the sentencing discretion.�

Mr Gene argued that there were a number of identifiable errors in the trial judge�s remarks on sentence. He said that the trial judge gave too much weight to the fact that the club manager was knocked unconscious. We do not think that this argument is correct. Most robberies involve only the threat of violence. In this case the manager was knocked unconscious, probably with the butt of the gun, despite the fact that he made no real attempt to resist the robbers. We think the trial judge was correct in regarding that as an important aggravating factor. Mr Gene next argued that the trial judge did not distinguish the accused�s lesser role; did not give proper weight to the fact that the accused was a watchman and not one of those who went inside and committed the assault. Again we do not think that the trial judge erred on this. The general rule is that all active participants in the crime should be sentenced on the same basis. The court does not normally stop to consider whether a particular prisoner actually held up the victim, or held the gun, or the iron bar, or was a watchman outside, or was the driver of the get-away vehicle. All are equally guilty because without each playing his full part the crime could not be perpetrated. Mr Gene next argued that the learned trial judge erred when he said, �I must give you a very heavy penalty and there is no special reason why I should be easy on you because you have not helped the court at all�. We disagree with that submission. We think the trial judge is here saying that the appellant is not entitled to any reduction in sentence which would otherwise have been given if he had pleaded guilty. It is wrong for a court to increase the sentence because an accused has pleaded not guilty. Nevertheless the fact is that, if an accused chooses to plead not guilty, he loses the benefit of the reduction which is normally granted to an accused who pleads guilty. We consider that the learned trial judge made no identifiable errors in his remarks on sentence.

Mr Gene�s next argument has more substance. He argued in the alternative that, even if no identifiable error can be shown in the judge�s remarks on sentence, this particular sentence is out of proportion to the circumstances of the crime and to the range of sentences being imposed on similar offenders, so that we should infer that some error must have occurred in the exercise of the sentencing discretion. Mr Gene cited a range of sentences which are imposed by judges for different kinds of robberies and we have found those figures helpful and accurate. They agree with our experience. There are no recent relevant Supreme Court authorities on sentence for robbery.

Robbery is defined in s 384 of the Criminal Code (Ch No 262) as follows:

�384.�� Definition of robbery

A person who steals any thing, and, at, immediately before or immediately after, the time of stealing it, uses or threatens to use actual violence to any person or property in order to obtain the thing stolen or to prevent or overcome resistance to its being stolen is said to be guilty of robbery.�

Note that robbery can occur by the use of violence or the threat of violence.

The offence of robbery is created by s 386.

�386.�� The offence of robbery

(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.�

The robbery described in sub-section (1) is known as simple robbery; that described in sub-section (2) as aggravated robbery. Other related offences are s 387, �Attempted robbery accompanied by wounding, or in company�, and s 388, �Assault with intent to steal�.

Counsel for the State has asked us to give some guidelines as to the appropriate sentences for different kinds of robbery. The Supreme Court gave that guidance in relation to the offence of rape in John Aubuku v The State [1987] PNGLR 267 and Mr Noka said that counsel have found that helpful. With the assistance given to us by the range of sentences quoted to us by Mr Gene, we propose to accede to that request. We think the following range of sentences is appropriate for different kinds of aggravated robbery under s 386(2) of the Criminal Code:

1. ROBBERY OF A HOUSE

Where a group of young first offenders, carrying weapons, invade a house and use the threat of violence to rob the occupants, we consider that a sentence of around seven years imprisonment is appropriate in a contested case. A lesser sentence can be imposed in an uncontested case, that is, where the offender pleads guilty. When actual violence is used, for example if one of the victims is bashed or stabbed or shot, a higher sentence would be justified. If actual violence is attempted even though it fails, for example, if a shot is fired at a victim but it misses, that is an aggravated feature which would justify a higher sentence. We consider that the robbery of the occupant of a house is more serious than the robbery of a store or business because it is an invasion of privacy and family life. One of the basic rights enshrined in the Constitution is �protection for the privacy of their homes�. A man�s home, whether it is a mansion or a shack, is his castle and we think the punishment for robbery of a home should reflect those community values.

2. ROBBERY OF A BANK

Where a group of young first offenders, carrying weapons, use the threat of violence to rob a bank, we consider that a sentence of around six years imprisonment is appropriate in a contested case. A lesser sentence can be imposed where the offender pleads guilty. We consider that a sentence of around six years is justified in a contested case because bank staff are very vulnerable. They are only employees, they do not own the bank. Tellers are required to handle large sums of money every day of the week and they are readily accessible to the public. These factors make them a tempting target for robbers. We believe that bank staff deserve the protection of a sentence adequate enough to deter potential robbers. If aggravating features are present, a sentence of more than six years can be imposed; for example, if actual violence is used.

3. ROBBERY OF A STORE, A VEHICLE ETC

In this category we lump together the robbery of a store, a hotel, a club, a vehicle on the road, and the like. We consider that this is a less serious category than the first two categories. Where a group of young first offenders, carrying weapons, use the threat of violence to rob a store, etc, we consider that a sentence of five years imprisonment is appropriate in a contested case. A lesser sentence should be imposed in an uncontested case. If certain aggravating factors are present, a sentence of more than five years imprisonment is appropriate. These include if actual violence is used, if the sum stolen is large, or if the robber is in a position of trust towards the victim, for example, if the robber is the manager or other employee of the victim.

4. A STREET ROBBERY

Where a group of young first offenders carrying a weapon or weapons use the threat of violence to rob a person on the street, we consider that a sentence of about three years is appropriate in a contested case. A lesser sentence can be imposed on a plea of guilty. In this kind of case, usually the amount of property stolen is small, such as a handbag, a camera, a wrist watch, or a wallet containing a few kina. However, in circumstances of aggravation, for example, where a large sum of money such as a pay-roll is taken, or where actual violence is used, a sentence of more than three years would be justified.

In suggesting sentencing tariffs in the above four categories of robbery, we have been considering young first offenders, 18 years and above, and in those cases we do not consider that a suspension of any part of those sentences is appropriate. If, however, the offender is very young or there are special circumstances, a suspended sentence may be considered. If the offender has a prior conviction, then the suggested tariffs may be exceeded and suspension of any part would rarely be appropriate.

Applying these suggested principles to the facts of the present case, this robbery falls into the third category. It was a gang robbery of a club. The men wore masks, they were armed with guns and other weapons and actual violence was used. The manager was knocked unconscious. This was a contested case. We therefore consider that a sentence of seven years imprisonment with hard labour would be appropriate. The manager did not give evidence because, although the case was contested, his affidavit was tendered without objection. There is thus no evidence as to how long he was unconscious, whether he received medical treatment, and whether he suffered any permanent injuries as a result of the assault on the head. In those circumstances, we must assume in favour of the appellant that the assault merely knocked the victim unconscious for a while and that thereafter he made a full recovery. In those circumstances, we are unable to impose a sentence of more than seven years. If the victim suffered some permanent injury, then a sentence of more than seven years may have been justified. The trial judge imposed a sentence of nine years. We think the appropriate sentence should have been seven years and the difference is considerable so that we are able to say that the sentence imposed was manifestly excessive.

We therefore grant leave to appeal against sentence and allow the appeal. We substitute a sentence of seven years imprisonment with hard labour. As the accused had already spent nine months in custody on remand, we will now issue a warrant for six years three months imprisonment.

Leave to appeal granted Appeal against sentence allowed

Lawyer for the appellant: E Kariko, Public Solicitor.

Lawyer for the respondent: K Bona, Public Prosecutor.