The State v Danny Pakai (2001) N2174

• Jurisdiction: Papua New Guinea
• Judge: Kandakasi J
• Judgment Date: 17 December 2001
• Citation: (2001) N2174
• Court: National Court
• Year: 2001
• Judgement Number: N2174

Full Title: The State v Danny Pakai (2001) N2174

National Court: Kandakasi J

Judgment Delivered: 17 December 2001

N2174

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]

CR NO. 765 of 2001

THE STATE

-V-

DANNY PAKAI

WEWAK: KANDAKASI, J.

2001: 13th and 17th December

CRIMINAL LAW & PRACTICE — Sentencing a co-accused of one already convicted — Need to avoid disparity of sentence unless exceptional circumstances exist — Co-accused already sentenced to 8 years — Not clear whether on plea of guilty or after a trial and whether co-accused had any prior convictions — 8 years sentence given.

CRIMINAL LAW — Sentence — Armed gang robbery — Armed with two homemade shot guns, a bush knife and a bolt cutter — Value of property stolen totaling K2, 023.84 — Part of property stolen recovered — Guilty plea — One prior conviction — expression of remorse — 8 years imprisonment imposed — Criminal Code ss. 386 (1) and (2) (a) and (b), 7, 8 & 19.

Cases cited:

Gimle v The State [1988 — 89] PNGLR 271

Public Prosecutor v. Don Hale (1998) SC 564

Tau Jim Anis & Others v. The State SC 642

The State v. Abel Airi (20/11/00) N2007

The State v. Lawrie Patrick & Ors [1995] PNGLR 195

The State v. Edward Toude & Ors (CR 964 of 2001)

Counsel

M. Ruarri for the State

G. Korei for the Accused

DECISION ON SENTENCE

17th December, 2001

KANDAKASI J: You pleaded guilty on Thursday the 13th of this month to one count of armed robbery contrary to section 386 (1) and (2) (a) and (b) of the Criminal Code.

The Facts

The facts leading to your charge and plea of guilty are straightforward. On the 27th of May 2000, around midnight, you were in the company of four others. You were armed with two home made shotguns, a bush knife and a bolt cutter. You went to the Shell Deport here in Wewak and gained excess to the premises using the bolt cutter to cut your way through the fence. Once inside the premises, you held up three security guards that were guarding the premises that night. You then got into the office and stole from there a computer set with a monitor and a keyboard and other items including personal items the three security men had with them that night. The monitor was valued K1, 500.00 and the keyboard was valued K350.00. The total value of all of the items you stole was K2, 023.84.

Following good police work, most of your accomplices were arrested and were eventually sentenced to 8 years imprisonment. Also, some of the items stolen were recovered.

The Law

The offence of armed robbery is prescribe by section 386(1) and (2) of the Criminal Code in these terms:

"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 Supreme Court in the much celebrated case of Gimle v The State [1988 — 89] PNGLR 271 at pp. 274 — 275, set out the guidelines for sentencing in armed robbery cases. In so doing, it set out the following four categories:

1. Robbery of a dwelling house with a starting point of seven years imprisonment;

2. Robbery of a bank with a starting point of six years imprisonment;

3. Robbery of a store, hotel, club, vehicle on the road or the like with a starting point of five years imprisonment; and

4. Robbery of a person on the street with a starting point of three years imprisonment.

Those guidelines were set more than ten years ago. They were for uncontested or guilty plea cases. The Court left open the discretion to impose sentences both below and above those guidelines in appropriate cases. In its own words, the Supreme Court said at page 275:

"In suggesting sentencing tariffs in the above four categories of robbery, we have been considering young first offenders, eighteen 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."

In the case before it, the Supreme Court found that, the case fell into the third category where the victim...