The State v James Negol (2005) N2801

• Jurisdiction: Papua New Guinea
• Judge: Cannings J
• Judgment Date: 25 February 2005
• Citation: (2005) N2801
• Docket Number: Cr No 971 of 2001
• Court: National Court
• Year: 2005
• Judgement Number: N2801

Full Title: Cr No 971 of 2001; The State v James Negol (2005) N2801

National Court: Cannings J

Judgment Delivered: 25 February 2005

N2801

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]

CR NO 971 0F 2001

THE STATE

V

JAMES NEGOL

KIMBE : CANNINGS J

10, 25 FEBRUARY 2005

SENTENCE

Criminal law – indictable offence – Criminal Code, Subdivision VI.1.D (stealing with violence: extortion by threats) – Section 386 (the offence of robbery) – sentence – sentencing guidelines – home invasion – gang of robbers – use of firearms – 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.

Cases cited

Gimble v The State [1988-1989] PNGLR 271

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 Edward Toude and Others (2001) N2299

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

The incident giving rise to the charge took place at Gigo in Kimbe, West New Britain, on the night of Monday 24 July 2000. It is alleged that the accused, James Negol, and three other persons armed themselves with a factory-made shotgun and bush-knives and forcibly entered the family home of the Kimbe branch manager of Lae Biscuit Company.

The accused’s gang used bolt-cutters to cut through the fence and then broke into the house and held up the manager and his family. They pointed the gun at the manager. The gang demanded money, whilst threatening to take away the manager’s young daughter. The manager acceded to the gang’s demands and handed over a company moneybag with K5,000.00 cash in it and his wallet, which contained another K300.00. The gang then fled without causing further harm to the family.

In October 2000 the accused was arrested and charged. He co-operated with the police and made a confessional statement.

In May 2001 he was brought before the District Court at Kimbe and remanded in custody. In July 2001 he was committed to stand trial in the National Court. He was in custody for some time and then escaped. On 12 March 2003 Batari J issued a warrant for his arrest. On 28 January 2005 he was again remanded.

On 10 February 2005 he was brought before the National Court and faced the following indictment:

James Negol of Tuam, Siassi, Morobe Province, stands charged that he on the 24th day of July 2000 at Kimbe in Papua New Guinea stole from one Hugh Rorigo with threats of actual violence K5,000.00 in cash and personal properties valued at K300.00 belonging to the said Hugh Rorigo.

And at this time the said James Negol was armed with a factory made shotgun, three bolt cutters, a bush knife and a pocket knife being dangerous and offensive weapons and was in company with three other persons.

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

Mr Popeu tendered an antecedents report, which indicates whether the prisoner has any prior convictions. I administered the allocutus, ie the prisoner was given the chance to tell the court anything relevant to the penalty to be imposed. He told his story. Submissions were made by defence counsel and the prosecutor and then I adjourned to consider sentence.

RELEVANT LAW

Section 386 of the Criminal Code states:

(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.

Mr Popeu indicated that the State was relying on Sections 386(2)(a) and 386(2)(b). I was satisfied that the elements of those provisions were adequately set out in the indictment, that the prisoner was aware of their significance and that the summary of the facts pleaded to by the prisoner supported those elements.

The prisoner is therefore liable to a penalty of imprisonment for life.

That is the maximum penalty. The court has a considerable discretion whether to impose the maximum penalty by virtue of Section 19 of the Criminal Code. For example:

· a shorter term of imprisonment may be imposed (Section 19(1)(a)); or

· a fine up to K2,000.00 may be imposed instead of or in addition to a term of imprisonment and the prisoner can be imprisoned until the fine is paid (Sections 19(1)(b), 19(1)(c)); or

· the prisoner may be given a ‘good behaviour bond’ (Section 19(1)(d)); or

· the prisoner can be discharged and the sentence postponed (Section 19(1)(f)); or

· the court can suspend all or any portion of the sentence imposed, subject to conditions (Section 19(6)).

ANTECEDENTS

The prisoner has one prior conviction. In 1998 he was convicted by the District Court at Kimbe of being in possession of dangerous drugs.

ALLOCUTUS

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 have pleaded guilty. I live at home. Most of my family are unemployed. My mother sells betel-nut and provides for us and pays school fees. I was going to school but can no longer afford to pay school fees. While I was at home, the other boys involved in this crime approached me and I thought that this was the only way I could get money to pay for school fees. I committed the offence when I was young. I am now married, with an 18-month old girl. When I am in custody I worry about my wife and child. They are living in an urban area and life is very hard for them. I apologise to everyone in the courtroom for committing this offence. I ask the court to give me a good behaviour bond and put me on probation. I ask for mercy. Thank you.

SUBMISSIONS BY DEFENCE COUNSEL

Mitigating factors

Mr Oiveka referred to a number of mitigating factors. The prisoner has pleaded guilty, saving the trouble and expense of a trial. He admitted to the police at the outset what he had done. He accepts responsibility for his actions. He committed the offence at a tender age. He was only 17. He is the only person to have been charged.

Personal particulars

He is now 22 with a family to look after. He still lives in Kimbe, Section 10. He is a member of the Lutheran Church. His parents are alive. He is the oldest of five children.

Precedents

Mr Oiveka asked me to consider three Supreme Court decisions:

· Gimble v The State [1988-1989] PNGLR 271, Bredmeyer J, Los J, Hinchliffe J. The court suggested sentencing guidelines for cases of aggravated armed robbery on a plea of not guilty by a young first offender carrying weapons and threatening violence. The court considered that a family home, when compared to other places such as a bank, a store or a street, was the most serious place in which an armed robbery can occur. The following starting points were suggested:

Ø robbery of a house – seven years;

Ø robbery of a bank – six years;

Ø robbery of a store, hotel, club, vehicle, on the road etc – five years;

Ø robbery of a person on the street – three years.

· Public Prosecutor v Don Hale (1998) SC564, Amet CJ, Woods J, Kirriwom J. The court upheld an appeal by the Public Prosecutor against a sentence of five years imposed on a man who was part of a gang, which broke into a house at Nine Mile, Lae, and threatened the family with a shotgun and fired shots. The court stated:

We feel that the starting point to an appropriate sentence involving the robbery of home owners at night with the use of firearms to threaten victims should be ten years.

· Tau Jim Anis v The State (2000) SC642, Sheehan J, Jalina J, Kirriwom J. The court upheld an appeal against a sentence of 10 years imposed by Injia J. The offenders robbed a coffee factory of K20,000.00. They were young (aged 15) first offenders, there was little physical violence and they pleaded guilty. The Supreme Court felt that the sentence imposed by the trial judge had involved too big a jump in the applicable tariffs. The court felt that the Gimble categories (which set different starting points depending on where the robbery took place) were still valid. As this robbery happened at a factory, it fell into the third category. The Gimble starting point was five years. But the court said it should now be eight. The court felt that the trial judge had not given sufficient consideration to mitigating factors, eg the age of the offenders and their guilty plea. It substituted a sentence of 7 years.

Mr Oiveka submitted that though the present robbery occurred in a dwelling house and this made it a serious case, there was no aggravated violence and, in view of the youthful age of the prisoner, a low-range custodial sentence should be considered.

SUBMISSIONS BY THE...