The State v Fabian Kenny (2002) N2237

• Jurisdiction: Papua New Guinea
• Judge: Kandakasi J
• Judgment Date: 16 May 2002
• Citation: (2002) N2237
• Court: National Court
• Year: 2002
• Judgement Number: N2237

Full Title: The State v Fabian Kenny (2002) N2237

National Court: Kandakasi J

Judgment Delivered: 16 May 2002

N2237

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]

CR. NO. 281 of 2001

THE STATE

-V-

FABIAN KENNY

WEWAK: KANDAKASI, J.

2002: 15th and 16th May

CRIMINAL LAW – PRACTICE & PROCEDURE – Sentencing – Need to be guided by the purposes of sentencing – The sentence must reflect the seriousness of the offence and its effect on the victim and society - The effects of past sentences must also be consider - Failure by previous sentences to deter calls for higher penalties.

CRIMINAL LAW – SENTENCING – Armed robbery of a PMV on a highway – By gang of three – Use of weapons and threats of violence – No evidence of recovery of stole properties – Estimate value of cash and goods totaling K579.00 – Although value of cash and goods stolen not substantial they may be all that the victims may have had – Prisoner with no prior conviction but not young – No other factor in his mitigation – Sentence of 9 years less time spent in custody awaiting trail imposed - Criminal Code section 386(1) and (2) and 19.

Cases cited:

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

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

The State v. Jimmy Yasasa Lep N 1495.

The State v. Vincent Malara (20/02/02) N2188.

Tau Jim Anis & Others v. The State SC642.

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

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

Thomas Waim v. The State (unreported judgement) SC519.

Ala Peter Utieng v. The State (unreported and unnumbered judgement of the Supreme Court delivered in Wewak on the 23rd of November 2000) SCRA 15 of 2000.

The State v. Tony Pandua Huahahori (N0.2) (21/02/02) N2186.

The State v. Max Charles & Anor (18/10/01) N2187..

Counsel

Mr. M. Ruari for the State

Mr. R. Saulep for the Accused

Decision on Sentence

16th May 2002

KANDAKASI, J: Yesterday you pleaded guilty to one charge of armed robbery contrary to s.386 (1) and (2) of the Criminal Code.

In your address before sentence, you said sorry for what you have done and asked the Court to exercise mercy toward you. Your lawyer asked for a sentence between 3 and 4 years. He did not refer me to any authority to support his submission. The State on the other hand drew my attention to the Supreme Court decision in Gimble v. The State [1988-89] PNGLR 27, which sets out sentencing guidelines and set a starting sentence of 5 years for robbery of shops, on streets and highways. Counsel for the State also pointed out that recent Supreme Court judgements have now increased the starting sentence of 5 years by 3 years to bring the starting sentence to 8 years.

The law requires a sentencing judge to carefully consider the circumstances in which an offence has been committed as well as the effect of that on the victim and the community. The sentence must reflect the particular facts of the case as well as the competing interest of the community to punish offenders and the interest of an offender to be treated fairly and be given an opportunity to reform. I alluded to those competing interest in a number of cases starting with the case of The State v. Abel Airi (unreported judgement delivered 28/11/00) N2007.

Hence, to determine an appropriate sentence for you in this case I need to first consider the circumstances surrounding the commission of the offence. I must also consider the prevalence of the offence and the effect of that on the community. Further, I must have regard to the sentencing trends and the effect of that on this kind of offences, particularly as to whether it has deterred people like you from committing this kind of offences.

The Facts

The facts in your case are straightforward. On the Tuesday the 19th of December 2000, you with two others planned a robbery of a PMV along the Maprik and Pagwi road here in the East Sepik Province. The planning took place in your house. For the purpose of that robbery, you armed yourself with a shotgun, and two bush knives.

On the same afternoon about 5:00 p.m. you held up a PMV truck driven by a John Petau between Apusit and Kunjigini villages on the Maprik/Pagwi road. The PMV was on motion at the time. The driver speaks of being shocked and stopped the vehicle. At that time, you and one of your other gang members armed with a bush knife while the another was armed with the shotgun. The man with the shotgun held up the driver while you and the other went to the back of the truck and stole with threats of violence cash and property belonging to the driver and his passengers. The estimated value of both cash and goods taken was K579.00. After the robbery, you ran away to your village. However, due to good community help, you and your gang was caught and later arrested by police.

It is not clear, whether the cash and goods you stole were returned to their respective owners. In the absence of any evidence to that effect, I find that they were not recovered. There is also no evidence of either you or any of your gang members ever saying sorry and making it right with any of the victims of your offence. I consider this critical, given your call for mercy from this Court in your address before sentence.

There is not much information about you. Based on your lawyer’s submissions all there is, is that you are a grade 6 lever and unemployed. You are a first time offender and come from the village Gunigi in the Wosera area of this Province and aged 24 now. So you must have been 23 years or so old at the time of the commission of the offence.

The Law

The offence of armed robbery carries a maximum of life imprisonment. In the much celebrated case of Gimble v. The State (supra), the Supreme Court however, set sentencing guidelines for armed robbery cases lower than that in the exercise of the sentencing discretion vested in the Courts by s.19 of the Criminal Code. 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 should be 7 years;

(b) bank should be 6 years;

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

(d) person on the street should be 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, a higher sentence may be justified. On the other hand, 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 N1495. In The State v. Abel Airi (supra), I examined the sentencing trends in armed robbery cases on a guilty plea starting with the Gimble (supra) case and ended up with the Supreme Court decision in Tau Jim Anis & Others v. The State SC642. In that case, the Supreme Court increased 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.

As I recently observed in The State v. Vincent Malara (20/02/02) N2188, here in Wewak, 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 or 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) (10/01/01) N2033, offences such as “armed robberies are on the increase.” They are every day occurrences throughout the country. As of this circuit, the total number of pending armed robbery cases here on the Wewak circuit alone have not significantly dropped since the last circuit. Instead it is on the increase. I noted in some of my recent judgements as in The State v. Max Charles & Anor...