The State v Nigel Kopper Kingsley

• Jurisdiction: Papua New Guinea
• Judge: Cannings J
• Judgment Date: 15 December 2011
• Citation: (2011) N4465
• Court: National Court
• Year: 2011
• Judgement Number: N4465

Full : CR NO 463 OF 2011; The State v Nigel Kopper Kingsley (2011) N4465

National Court: Cannings J

Judgment Delivered: 15 December 2011

N4465

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]

CR NO 463 OF 2011

THE STATE

V

NIGEL KOPPER KINGSLEY

Madang: Cannings J

2011: 12 September, 21 November, 7, 15 December

CRIMINAL LAW – sentencing – armed robbery, Criminal Code, Section 386 – guilty plea – street robbery, threatened use of imitation firearm – sentence of 3 years

The offender pleaded guilty to joining with one other person in holding up the victim on the street, threatening him with a hammer deliberately disguised as a home-made gun, and stealing his bilum containing two mobile phones and other personal items.

Held:

(1) The starting point for sentencing for this sort of street robbery is 6 years imprisonment.

(2) Mitigating factors were: no actual physical violence done to victim, stolen property recovered soon afterwards, co-operated with police and made early admissions; pleaded guilty; apology conveyed to victim, remorse.

(3) The major aggravating factor was that the victim was traumatised by the incident. A sentence of 3 years imprisonment was imposed. The pre-sentence period in custody was deducted but there was no suspension as the offender broke bail and a warrant for his arrest had to be issued, thus showing that he cannot be trusted to comply with conditions of probation.

Cases cited

The following cases are cited in the judgment:

Gimble v The State [1988-1989] PNGLR 271

Phillip Kassman v The State (2004) SC759

Public Prosecutor v Don Hale (1998) SC56

Saperus Yalibakut v The State (2006) SC890

Tau Jim Anis v The State (2000) SC642

The State v Manu Tuangi CR No 726 of 2011, 05.10.11

SENTENCE

This was a judgment on sentence for armed robbery.

Counsel

A Kupmain & M Pil, for the State

M Mwawesi, for the offender

15 December, 2011

1. CANNINGS J: This is a decision on sentence for a young man, Nigel Kopper Kingsley, who pleaded guilty to one count of armed robbery. The robbery took place at 7.00 pm on Sunday 24 April 2011 on Modilon Road, Madang, near its intersection with Nabasa Road. The victim was walking by himself on the footpath when the offender and one other person held him up, threatening him with what appeared to be a home-made gun. The weapon was, in fact, a hammer, partly hidden by a bilum. The victim did not know that, however and he was put in fear of his life. His bilum, containing two mobile phones and other personal property, was stolen from him. The offender and his accomplice fled the scene and were arrested later that night by the police, and the stolen property was returned to the victim.

2. In most respects this is a routine case but it has one special feature: after spending some time in custody, on remand, in connection with the offence, the offender was granted bail, pending sentence, and then absconded. He broke bail and a warrant for his arrest had to be issued and then his two bail guarantors were summoned to court and they brought him in; and he was again remanded in custody.

ANTECEDENTS

3. The offender has no prior convictions.

ALLOCUTUS

4. The offender was given the opportunity to address the court and stated:

I apologise for what I have done and I know I was wrong. I ask for a non-custodial sentence so that I can continue with my studies.

OTHER MATTERS OF FACT

5. As the offender has pleaded guilty he will be given the benefit of the doubt on mitigating matters raised in the depositions, the allocutus or in submissions that are not contested by the prosecution (Saperus Yalibakut v The State (2006) SC890). In that regard I take into account that the offender’s mother compensated the victim with K200.00 shortly after the robbery and that the victim made a written statement to a probation officer acknowledging receipt of the money and the fact that the stolen property was returned to him. He accepted the offender’s family’s apology and has no further complaint against the offender. The offender was interviewed by the police within a week of the robbery and made full admissions.

PRE-SENTENCE REPORT

6. Nigel Kopper Kingsley is 18 years old and single. He is from Kanganamun village in the Ambunti area of East Sepik Province but has lived all his life at the Gov Stoa settlement in the Nabasa area of Madang town. He lives with his biological mother and his step-father. He has five brothers and sisters who also live in the family home. He is strongly supported by his mother. He has a grade 7 education and was doing grade 8 at Sagalau School at the time of commission of the offence. He wants to continue his education. He claims to have had lung surgery and that his health is poor but there is no medical evidence in support of this claim and he shows no signs of being unwell so this will not be regarded as a mitigating factor. He is a member of the Seventh-Day Adventist Church and claims to attend Church regularly. The pre-sentence report confirms that the attitude of the victim is favourable to the offender. He supports the idea of a non-custodial sentence as he understands the difficulties being faced by the offender’s family and how this might have forced the offender to act in the way that he did.

SUBMISSIONS BY DEFENCE COUNSEL

7. Mr Mwawesi submitted that the court should impose a sentence that reflects the offender’s co-operation with the police and the fact that the victim has forgiven the offender, who has expressed remorse and deserves to be given a second chance. It should not be held against him that he broke bail as he left town and went elsewhere in the province to engage in youth activities and he forgot about the need to comply with the conditions of his bail. A sentence of three to five years would be sufficient, all of which should be suspended.

SUBMISSIONS BY THE STATE

8. Mr Kupmain submitted that this was a serious street robbery as the victim was not to know that he was being held up with an imitation firearm. He was put in genuine fear of his life. Street crimes of this nature are a blight in the community and are too prevalent. A strong deterrent sentence of 10 to 12 years imprisonment is warranted.

DECISION MAKING PROCESS

9. To determine the appropriate penalty I will adopt the following decision making process:

· step 1: what is the maximum penalty?

· step 2: what is a proper starting point?

· step 3: what sentences have been imposed for equivalent offences?

· step 4: what is the head sentence?

· step 5: should the pre-sentence period in custody be deducted?

· step 6: should all or part of the sentence be suspended?

STEP 1: WHAT IS THE MAXIMUM PENALTY?

10. For armed robbery (Criminal Code, Sections 386(1), (2), (a) and (b)) – the maximum penalty is life imprisonment. However the court may impose less than the maximum term and/or suspend part or the entire sentence under Section 19 of the Criminal Code.

STEP 2: WHAT IS A PROPER STARTING POINT?

11. The Supreme Court has given sentencing guidelines in a number of leading cases: Gimble v The State [1988-1989] PNGLR 271; Public Prosecutor v Don Hale (1998) SC56; Tau Jim Anis v The State (2000) SC642; and Phillip Kassman v The State (2004) SC759.

12. Nowadays the starting points are:

· robbery of a house – ten years;

· robbery of a bank – nine years;

· robbery of a store, hotel, club, vehicle on the road etc – eight years;

· robbery of a person on the street – six years.

13. This was a street robbery, so the starting point is six years.

STEP 3: WHAT OTHER SENTENCES HAVE BEEN IMPOSED FOR EQUIVALENT OFFENCES?

14. A recent Madang case provides a useful point of comparison, The State v Manu Tuangi CR No 726 of 2011, 05.10.11. The offender joined with two others and held up a man at knifepoint in the Botanic Gardens Madang. The victim was stabbed and received superficial injuries and the offender had stolen from him a bilum containing K50.00 cash and two cell batteries. The offender made full admissions to the police and made an early guilty plea and the stolen property was returned to the victim. The sentence was five years imprisonment, none of which was suspended.

STEP 4: WHAT IS THE HEAD SENTENCE?

15. The head sentence will reflect the following mitigating and aggravating factors.

16. Mitigating factors:

· no physical violence was done to the victim;

· stolen property recovered soon afterwards;

· offender co-operated with police and made early admissions;

· compensation paid and apology made to the victim, which have been accepted;

· pleaded guilty;

· early guilty plea;

· first-time offender;

· young offender (but not a juvenile);

· remorse expressed.

17. Aggravating factors are:

· acted with an accomplice;

· victim put in fear of his life and traumatised by the incident;

· broke bail and absconded from the jurisdiction of the court.

18. There are more mitigating than aggravating factors, so it is appropriate to sentence below the starting point. It was a serious case, but less serious than that of Tuangi (which involved actual physical violence). I fix a head sentence of three years...