The State v Aaron Lahu (2005) N2798

• Jurisdiction: Papua New Guinea
• Judge: Cannings J
• Judgment Date: 25 February 2005
• Citation: (2005) N2798
• Docket Number: CR No 184 of 2005
• Court: National Court
• Year: 2005
• Judgement Number: N2798

Full Title: CR No 184 of 2005; The State v Aaron Lahu (2005) N2798

National Court: Cannings J

Judgment Delivered: 25 February 2005

N2798

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]

CR NO 184 OF 2005

THE STATE

V

AARON LAHU

KIMBE : CANNINGS J

21, 25 FEBRUARY 2005

SENTENCE

Criminal law – indictable offence – Criminal Code, Subdivision VI.1.D (stealing with violence etc) – Section 386 (the offence of robbery) – sentence on plea of guilty – claims made in allocutus that may be significant mitigating factors for sentence – claims not addressed in prosecutor’s summary of facts, to which accused pleaded guilty – claims seemed far-fetched – no applicable and appropriate law as to how to deal with such claims – formulation of appropriate rule – National Court’s duty to develop underlying law – acceptance of claims in allocutus – combined home invasion and store robbery – guilty plea – gang of robbers – actual violence committed during robbery – use of firearms and other offensive weapons – threats made – victims put in real danger of being killed or injured – no attempt to shield vulnerable victims – cash and goods stolen worth K18,500.00 – offender played minor role in robbery – offender gave himself up – cooperated with police – nothing tangible done re compensation etc – starting point for head sentence – identification of relevant considerations – application of relevant considerations – whether appropriate to suspend whole or part of sentence – need for properly documented pre-sentence report – sentence of 3 years – 1 year must be served – balance of 2 years may be suspended on application to the National Court.

Cases cited

Agiru Aieni and Others v Paul T Tahain [1978] PNGLR 37

Gimble v The State [1988-1989] PNGLR 271

Michael Gende v The State (1999) SC626

Moses Aikaba and Others v Tami [1971-72] PNGLR 155

Phillip Kassman v The State (2004) SC759

Public Prosecutor v Don Hale (1998) SC564

Tau Jim Anis v The State (2000) SC642

The State v Bafe Quati and Others [1990] PNGLR 57

The State v Edward Toude and Others (2001) N2299

The State v Joe Ivoro and Gemora Yavura [1980] PNGLR 1

The State v Mark Kanupio and Others (2005) CR Nos 238-242 of 2003, 25.02.05, unreported

The State v Nickson Pari (No 1) (2000) N2037

The State v Steward Pariwan (1999) N1834

F Popeu for the State

O Oiveka for the accused

CANNINGS J:

INTRODUCTION

This is a decision on the sentence for a man who pleaded guilty to armed robbery.

BACKGROUND

Incident

The incident giving rise to the charge took place at Hoskins, West New Britain, on the night of 5 March 2004. It was alleged that the accused was a member of an armed gang that robbed a store and house at gunpoint.

Indictment

On 20 January 2005 the accused was committed by the District Court and remanded in custody. On 21 February 2005 he was brought before the National Court and faced the following indictment:

Aaron Buka Laho of Duwusei, Siwai, North Solomons Province, stands charged that he on the 5th day of March 2004 at Hoskins … stole from one Leila Thiagen with actual violence K3,500.00 in cash and assorted store goods valued at K15,000.00 the property of Centre Point Trading Ltd. And at the same time [he] was armed with 3 homemade guns, 2 pinch bars, 4 bushknives and stones, being dangerous and offensive weapons and was in company with other persons and wounded one Norbert Pologau.

The indictment was presented under Section 386 of the Criminal Code.

FACTS

Allegations

The following allegations were put to the accused for the purpose of obtaining a plea.

On the evening of Friday 5 March 2004 the accused and his gang of about 10 to 15 other men travelled in a dinghy from Gigo beach, Kimbe, to Hoskins beach. They had armed themselves for a robbery. They took three homemade guns, two pinchbars, one crowbar, four bushknives and stones. By 8.30 pm they arrived at Hoskins and went to a large store, the Hoskins Mart, and held up the store manager, Leila Thiagen, her family and the store’s security guards. They threatened physical violence with the weapons that they were carrying. The gang stole K3,500.00 cash and store goods worth K15,000.00. In the course of the robbery one of the security guards, Norbert Pologau, was cut with a bush knife, sustaining a wound to his right shoulder. The gang then ran back to the Hoskins beach and escaped in the dinghy.

Conviction

The accused pleaded guilty to those facts. I entered a provisional plea of guilty and then, after reading the District Court depositions, confirmed the plea and convicted the accused. He is now referred to as the prisoner.

ANTECEDENTS

The prisoner has one prior conviction. In October 2004 he was convicted by the District Court for conveying dangerous drugs (marijuana) and sentenced to 12 months imprisonment.

ALLOCUTUS

I administered the allocutus, ie the prisoner was given the opportunity to say what matters the court should take into account when deciding on punishment. A paraphrased summary of his response follows:

I was not supposed to commit this trouble. I was not aware of the original plan. I was sitting down at Gigo beach when the main characters involved met me. They told me to get on the boat and come with them to Hoskins to do something. I got in the boat and saw an esky. I thought we were going fishing. After a while, they opened the esky and I saw the guns. They then told me of their plan. It was difficult for me to make a decision not to be involved as we were travelling at sea. After we got to Hoskins I went with the others to the store but I was not holding a gun or a bushknife or anything. I did not threaten anyone. I stayed outside when the others went in. It was only when they came out that I went in and grabbed a schoolbag and six round-necked shirts. On the way back, I was given K20.00 cash. So I did not benefit much. I know that I am wrong and I have broken a law of this country. I apologise to this honourable court. I say sorry to the victims. I promise that I will never do anything like this again. I was with my mother when the police arrested me. I am the only child in the family. My father died in 1996 in the Bougainville crisis. I am in custody and no one is helping my mother. She needs someone to help her do her marketing. It is very easy for disease to spread in the gaol. When the police arrested me I made it very easy for them. Now I am making it easy for the court. So I am asking for the court’s mercy. Please put me on a good behaviour bond or give me probation.

DEALING WITH CLAIMS IN ALLOCUTUS THAT WERE NOT IN PROSECUTOR’S SUMMARY

Claims in mitigation

Before I heard submissions from counsel I pointed out that the prisoner had made claims in his allocutus which, if accepted, may be significant mitigating factors to take into account on sentence. He claimed that he was not the ringleader, he had not planned the robbery, he only got involved by accident, he was at sea when he realised what was happening, he did not use any firearms or offensive weapons, he got little out of it and he cooperated with the police after he was arrested. These things – particularly the extent of his role in the robbery – were not brought out in the prosecutor’s summary. So how should the court deal with them? Ignore them because they have not been proven? Accept them because a person who pleads guilty should be given the benefit of the doubt on sentence? What rules of law are applicable?

I put to counsel that some of the claims – particularly that he was minding his own business on Gigo beach and just happened to be asked to go for a dinghy ride to Hoskins and he thought he was going fishing and only realised on the way that he was part of a gang heading to commit an armed robbery – seemed a bit far fetched. When I pressed Mr Popeu he said that the prosecution did not take issue with them. I had reservations about that approach and decided that I needed to state and apply some clear principles to deal with this situation.

Search for principles

In searching for the applicable and appropriate principles I found nothing expressly on the point in the Constitutional Laws or the relevant statute, which is Section 593 of the Criminal Code.

Section 593 (convicted person to be called on to show cause) states:

Where an accused person—

(a) pleads that he is guilty of an offence; or

(b) on trial, is convicted of any offence,

the proper officer shall ask him whether he has anything to say why sentence should not be passed on him, but an omission to do so does not invalidate the judgement.

Section 593, however, only creates a right for the convicted person to say something. It does not indicate how to deal with claims that may be mitigating factors.

I found nothing in the common law that is applicable and appropriate to the circumstances of the country today. The position at common law immediately before Independence Day, 16 September 1975, apparently was that a convicted person only had the right to address the court on questions of law and had no right to raise matters in mitigation. (See Moses Aikaba and Others v Tami [1971-72] PNGLR 155, pre-Independence Supreme Court, Raine J.) That is substantially at variance with the longstanding practice in the courts of Papua New Guinea which is that the person convicted has almost a free reign to say anything to the judge that might be relevant to the question of...