The State v Frank Suwari (2001) N2173

• Jurisdiction: Papua New Guinea
• Judge: Kandakasi J
• Judgment Date: 24 December 2001
• Citation: (2001) N2173
• Court: National Court
• Year: 2001
• Judgement Number: N2173

Full Title: The State v Frank Suwari (2001) N2173

National Court: Kandakasi J

Judgment Delivered: 24 December 2001

N2173

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]

CR NO. 1602 of 2001

THE STATE

-V-

FRANK SUWARI

VANIMO: KANDAKASI, J.

2001: 21st and 24th 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 6 and 7 years on plea of guilty — Not clear whether co-accused had any prior convictions — 6 years sentence given.

CRIMINAL LAW — Sentence — Armed gang robbery — Armed with one shot gun — Value of property stolen exceeding K1, 500 cash and unspecified amounts of foreign currencies and other items — Guilty plea — No prior conviction — expression of remorse — Robbery in show of frustration and retaliation over damage allegedly caused to accused land due to victims saw-milling operations — 6 years imprisonment imposed — Criminal Code ss. 386 (1) and (2) (a) and (b) and 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 (unreported and unnumbered judgement) CR 964 of 2001

The State v. Danny Pakai (unreported and unnumbered judgement)

Counsel

M. Ruarri for the State

G. Korei for the Accused

DECISION ON SENTENCE

24th December, 2001

KANDAKASI J: You pleaded guilty on Friday last week to one count of armed gang robbery contrary to section 386 (1) and (2) of the Criminal Code.

The Facts

The facts on which you pleaded guilty are these. On the 16th of February 2001, between 12:00 noon and 1:00pm, you went with 5 other men and robbed from a Parol Wan and others at the Vanimo Forest Products ("VFP") camp at Bewani. The total value of items stolen included K1, 500.00 in cash and other items, which included foreign currencies in Indonesian Rupia, US Dollars and PNG Kina. You and your friends were armed with a shotgun, which you used to scare of a lone security guard, Mr. Parol Wan by firing a shot at him.

Upon being shot at, Mr. Parol Wan fled for his life. In the process, he left his bag behind. In the bag was K1, 500 in cash, which you and your accomplishes stole. You then broke into VFP's canteen and stole from there a number of items such as canned food items, rice, soft drinks, batteries and other items. The total estimate of these items is said to be K3, 183.60.

Your robbery was reported to police the same day. Following good police work, most of your accomplices were arrested and were eventually sentenced to 6 and 7 years imprisonment in hard labour.

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."

As can be seen from this section, the offence of armed gang robbery carries a maximum penalty of life imprisonment. That is however subject to section 19 of the Criminal Code, which gives a discretion to the Courts to impose sentences lower than life if the circumstances in which such a crime is committed warrant it.

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 this way:

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 was knocked unconscious and the case was contested. There was no evidence of the victims suffering any permanent injuries. In the circumstances, the Court was of the view that, seven years imprisonment was appropriate. Accordingly, it reduced a sentence of nine years imprisonment by the National Court to seven years.

In Public Prosecutor v. Don Hale (1998) SC 564, the Supreme Court was concerned with a robbery of a dwelling house, which was on the top of the categories, or worse type of robbery cases. The National Court imposed a five years suspended sentence on the condition that the offender pays a fine of K1, 000.00 and return to his home area in Tari in the Southern Highlands Province. The Public Prosecutor appealed against that decision. The Supreme Court upheld the appeal and found amongst others, that the learned trial judge erred in not starting with a term of seven years in line with the guidelines set in the Gimble case (supra). The Court also found that no pre-sentencing report was asked for and considered before imposing the sentence it imposed. Further, the Supreme Court acknowledge that, the guidelines set by the Gimble case (supra) was...