Tau Jim Anis, Warana George Anis and Emies Giamsiling [Emias Giamsing] v The State (2000) SC642

• Jurisdiction: Papua New Guinea
• Judge: Sheehan J, Jalina J, Kirriwom J
• Judgment Date: 25 May 2000
• Citation: (2000) SC642
• Docket Number: SCRA No 1 of 2000
• Court: Supreme Court
• Year: 2000
• Judgement Number: SC642

Full Title: SCRA No 1 of 2000; Tau Jim Anis, Warana George Anis and Emies Giamsiling [Emias Giamsing] v The State (2000) SC642

Supreme Court: Sheehan J, Jalina J, Kirriwom J

Judgment Delivered: 25 May 2000

SC642

PAPUA NEW GUINEA

IN THE SUPREME COURT OF JUSTICE

SCRA NO. 01 OF 2000

BETWEEN:

TAU JIM ANIS,

WARANA GEORGE ANIS

and EMIAS GIAMSING

- Appellants-

AND:

THE STATE

- Respondent -

LAE: SHEEHAN, JALINA AND KIRRIWOM, JJ.

2000: 22 & 25 MAY

CRIMINAL LAW — Appeal against severity of sentence — Armed Roberry — Plea of Guilty — Sentence of 10 years — Sentence excessive — Robbery of a factory — Group of armed first time young offenders — substantial mitigating circumstances — error in the exercise of sentencing discretion — Appeal upheld.

Cases cited:

Public Prosecutor v Don Hale SC564 (SCRA 33 of 1996)

Gimble v The State [1988-89] PNGLR 271

Norris v The State [1979] PNGLR 605

Counsel:

Mr. Auka for the Respondent

Appellants in person

DECISION

BY THE COURT: This is an appeal against severity of sentence. The appellants were convicted of armed robbery and each sentenced to ten (10) years imprisonment in hard labour.

The appellants were charged with stealing with actual violence from one Rumba Anis and others a sum of K20,234.04 in cash whilst armed with home-made shot-guns and axes, the property of Yahauka Coffee Pty. Ltd. The corporate victim of the robbery was Yahauka Coffee Mill owned by Yahauka Coffee Pty. Ltd and situated at Aseki in the Menyamya District of Morobe Province. At the time of the offence on the 11th of December, 1999 Rumba Anis and others were at work when the three appellants and one Mesaia Yapet went to the coffee factory whilst armed with guns and an axe held them up demanding money and threatening to shoot them. In so doing one of them kicked one Thomas Tom and urged him to hand the money over quickly and which they did eventually. The appellants took the money and ran away.

The appellants pleaded guilty and were convicted by Injia, J. and were each sentenced to ten (10) years imprisonment. In appealing against the sentence the appellants claim that the sentence imposed upon each of them is manifestly execessive in the circumstances in that the trial judge erred in not giving due consideration to the reasons for their action and also, in so far as Warana George Anis and Giamsilin Emies are concerned, he failed to give sufficient weight to their youthfulness in that they were 15 at the time they came before the court.

The appellant Tau Jim Anis appears to be the more matured of the two younger appellants. There were four people allegedly involved in the trouble and it was claimed in the National Court and before this Court that these three were only carrying out instructions of a plan that was already masterminded by an insider who was a company worker. The story about an insider seems to be an afterthought because in the record of interview Tau Jim Anis claimed that it was his plan to rob the company and he led the other co-offenders to join him in this robbery. This story appears to be consistent with the general trend of the evidence where this appellant appears to be the more active of them who is breaking into the offices and breaking open the boxes with his axe searching for money. Even Warana says in his record of interview that it was Jim's plan for them to rob the factory. He says he was given some K2200 which he shared with his uncle and his wife. He gave his age as 20 to the police in his record of interview. He claimed the factory made shot-gun that was carried by the co-offender Yapet to be his. He said he bought the gun from a person in Wau for hunting. Emies Giamsiling also told the police that it was Jim's idea for them to rob the factory. At the time of interview with the police he was 17 years old and he said he had completed Grade 3.

All three appellants have now shifted their defence strategy by blaming someone else whom they say was a company workman who planned the robbery. They say they only carried out the plan. They also claim that all the money stolen had been recovered however there is no clear evidence of such restitution being made and his honour did make note of this although there was mention of some money being recovered from Tau Jim Anis. Apart from this the appellants contend that the trial judge made no concession in their sentences for their pleas of guilty and the fact that they were entirely honest and truthful since the time of their arrest by cooperating with the police.

We note that the appellants were quite ably represented by counsel who presented to the court in mitigation of penalty those possible factors he obtained by way of instructions the most obvious one being the young age of Warana and Emies Giamsiling. Against the opposing view of the trial judge as to his estimate of the ages of Warana and Emies, counsel strongly maintained his belief of his clients's instructions that they were both 15 years of age. But his honour's estimate was otherwise and he disbelieved them. His Honour was entitled to come to his own conclusion as to their age by judging from their physical...