The State v Edward Toude, Walter Yogana, Tana Barinda and John Taylor Anani (No 2) (2001) N2299

• Jurisdiction: Papua New Guinea
• Judge: Kandakasi J
• Judgment Date: 18 October 2001
• Court: National Court
• Citation: (2001) N2299
• Year: 2001
• Judgement Number: N2299

Full Title: The State v Edward Toude, Walter Yogana, Tana Barinda and John Taylor Anani (No 2) (2001) N2299

National Court: Kandakasi J

Judgment Delivered: 18 October 2001

1 CRIMINAL LAW—PRACTICE AND PROCEDURE—Sentencing—Sentencing need to be guided by the purposes of sentencing—The sentence must reflect the seriousness of the offence and the effects of past sentences—Disparity of sentences between co–offenders not prohibited—Different and an higher sentence imposed against co–offenders following a trial

2 CRIMINAL LAW—SENTENCING—Aiding and abetting armed robbery on a ship or boat—Robbery planned and executed with assistance of crew and employees on the boat—Breach of trust—Vital roles played for offenders—Robbery on a boat, ship or seagoing craft more serious that robbery of a dwelling house—sentence has to be higher than sentences in robbery of a dwelling house because of serious risks to victims' lives—sentence of 20 years of main facilitator and 17 years each for others imposed evidence is admitted by consent—Criminal Code s386(1), s386(2)(a) and s386(2)(b) and s17.

3 The State v Jimmy Yasasa Lep (1996) N1495, The State v Abel Airi (2000) N2007, Gimble v The State [1988–89] PNGLR 271, Tau Jim Anis v The State (2000) SC642, The State v Nickson Pari (No 2) (2001) N2033, The State v Eddie Peter (No 1) (2001) N2296, The State v Foxsy Awonipa (1999) N1910, Andrew Uramani v The State [1996] PNGLR 287, Thomas Waim v The State (1997) SC519 and Public Prosecutor v Don Hale (1998) SC564 and The State v Mitige Neheya [1988–89] PNGLR 174 referred to

___________________________

N2299

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]

CR NO. 964 of 2001

THE STATE

-V-

EDWARD TOUDE, WALTER YOGANA,

TANA BARINDA & JOHN TAYLOR ANANI (No.2)

ALOTAU: KANDAKASI, J.

2001: 18th October

CRIMINAL LAW – PRACTICE & PROCEDURE – Sentencing – Sentencing need to be guided by the purposes of sentencing – The sentence must reflect the seriousness of the offence and the effects of past sentences – Disparity of sentences between co-offenders not prohibited – Different and an higher sentence imposed against co-offenders following a trial

CRIMINAL LAW – SENTENCING – Aiding and abetting armed robbery on a ship or boat – Robbery planned and executed with assistance of crew and employees on the boat – Breach of trust – Vital roles played for offenders – Robbery on a boat, ship or seagoing craft more serious that robbery of a dwelling house – sentence has to be higher than sentences in robbery of a dwelling house because of serious risks to victims’ lives – sentence of 20 years of main facilitator and 17 years each for others imposed evidence is admitted by consent – Criminal Code ss. 386 (1), (2) (a) and (b) and 17.

Cases cited:

The State v. Jimmy Yasasa Lep (unreported judgement) N1495.

The State v. Abel Airi (unreported judgement delivered 28/11/00) N2007.

Gimble v. The State [1988-89] PNGLR 27.

Tau Jim Anis & Others v. The State SC642.

The State v. Nickson Pari (No.2) (unreported judgement 10/01/01) N2033.

The State v. Eddie Peter (unreported judgement delivered 12/10/01) CR 1446 of 1998.

The State v. Foxsy Awonipa (unreported judgement 30/07/99) N1910.

Andrew Uramani & 4 Others v. The State [1996] PNGLR 287.

Thomas Waim v. The State (unreported judgement SC519.

The State v. Don Hale (unreported judgement) SC564.

The State v. Mitige Neheya [1988-89] PNGLR 174.

Counsel

K. Popeu for the State

D. Kari for the Accused

Decision on Sentence

* This is the detailed version of the draft I read out in Court on the 18th of October 2001. This was necessitated by an electricity blackout. That black out meant I could not correct minor errors and print out my judgement and deliver it with copies to the parties on the day of the announcement of my decision. I did promise that I will correct my judgement then in draft and as soon as that is done to make available the final version and this is it.

(

18th October 2001

KANDAKASI, J: Yesterday the Court found all of you guilty on one count each of armed robbery contrary to s. 386 (1), (2), (a) and (b) of the Criminal Code, by virtue of s. 7 also of the Code.

The offence of armed robbery carries a maximum of life imprisonment. In the much-celebrated case of Gimble v. The State [1988-89] PNGLR 27, the Supreme Court enunciated the relevant sentencing guidelines for armed robbery cases. On a plea of not guilty by a young first offender carrying weapons and threatening violence the starting sentence for the robbery of a:

(a) dwelling house 7 years;

(b) bank 6 years;

(c) store, hotel, club, vehicle on the road or the like 5 years; and

(d) person on the street 3 years.

Where there are features of aggravation such as actual violence, the amount stolen or its value is large, or where the robber is in a position of trust towards the victim, may justify a higher sentence. Of course, a plea of guilty may justify a lower sentence.

It is now accepted that these guidelines especially the tariffs are considered well out dated: see The State v. Jimmy Yasasa Lep (unreported judgement) N1495. In The State v. Abel Airi (unreported judgement delivered 28/11/00) N2007, I examined the sentencing trends in armed robbery cases on a guilty plea starting with the Gimble (supra) and ended up with the Supreme Court decision in Tau Jim Anis & Others v. The State SC642. In that case, the Supreme Court increases the guidelines set by the Gimble (supra) case for armed robbery cases falling in the third category to 8 years on an appeal against a sentence of 10 years by the National Court. That was a case of planned robbery of a factory with actual violence involving just over K20,000.00. There were mitigating factors like young first offenders and a guilty plea.

In nearly all of the cases to date, the Courts have expressed hope or considered either expressly or by implication that the sentences they were imposing would deter the offenders and other would be offenders from committing such offences. Unfortunately, as nearly all judgements to date on this kind of offences acknowledge, the kinds of sentences that have been imposed to date have failed to meet that hope. The effect of that is as I said in The State v. Nickson Pari (No.2) (unreported judgement 10/01/01) N2033, offences such as “armed robberies are on the increase.” Yet as I noted just last week in The State v. Eddie Peter (unreported and unnumbered judgement delivered on the 12th of October 2001) CR 1446 of 1998 and The State v. James Donald Keimou (unreported and unnumbered judgement delivered on 12th October 2001) CR 430 of 1999, the Courts to date have failed in my view to also increase sentences to correspond with the increase in the offences. Although I said this in the context of two different offences, they equally apply to armed robbery cases. With the greatest respect a good and recent example of that, in my view, is the case of The State v. Foxsy Awonipa (unreported judgement 30/07/99) N1910. The Court in that case noted:

“This is a very serious case of armed robbery. It is not a case of this prisoner and his accomplices holding the victims and stealing from them some monies amounting to K80.70. It is far worse than that. This is a case of stealing a motor vehicle (although in law this is a separable offence both in the Code and under the Summary Offences Act) and furthermore crashing that vehicle. The vehicle owner therefore not only sustained personal injuries but also suffered huge financial loss as the result. And this is a further aggravating factor that this Court must bear in mind. Sentence in this case must therefore be sufficiently firm to...