The State v Vincent Malara (2002) N2188

• Jurisdiction: Papua New Guinea
• Judge: Kandakasi J
• Judgment Date: 20 February 2002
• Citation: (2002) N2188
• Court: National Court
• Year: 2002
• Judgement Number: N2188

Full Title: The State v Vincent Malara (2002) N2188

National Court: Kandakasi J

Judgment Delivered: 20 February 2002

N2188

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]

CR. NO. 58 of 2002

THE STATE

-V-

VINCENT MALARA

WEWAK: KANDAKASI, J.

2002: 14th, 20th February

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 – Allegations or pleas in the prisoner’s allocutus must be considered and if not consistent with evidence they can be rejected.

CRIMINAL LAW – SENTENCING – Armed robbery – By gang of about 12 men-Willful damage to property to execute the robbery – Actual and threats of violence used against victims of offence-Large sums of money and property of substantial value stolen – No evidence of any of the stolen items recovered expect for a very small portion – Prisoner with prior conviction and not a young first time offender – Criminal Code section 386(1).

Facts:

The prisoner pleaded guilty to one count of armed 12 men gang robbery contrary to s.306(1) and (2) of the Criminal Code. A gun, crow bar, a pinch bar and other weapons were used to execute the robbery. The crow and the pinch bars were used to break down the doors to a supermarket and its office. Total of all that was stolen in cash, cheques and goods added to over K26,000.00. Save for only K500.00, none of the items stolen were recovered.

The prisoner had a prior conviction for arson. As such he was not a first time offender. His claims in allocutus of circumstances forcing him to commit the offence was in conflict with evidence in Court.

Held:

1. The crime of robbery has taken a quantum leap and as such sentences must also take a quantum leap.

2. A sentencing judge should not be restricted by principles such as “no quantum leaps” but must be guided by he purposes of criminal sentencing.

3. A sentence must be responsive to the wishes or calls for stiffer sentences for the kind of offence under consideration in the exercise of the people’s judicial power under our constitutional framework but within the limits of the law.

4. Robbery by such a large number of 12 men and being armed with heavy tools like crow bars and pinch bars and guns is indicative of robbers getting more sophisticated, so sentences must be one that is considered to serve as a personal and general deterrence.

5. Parliament has prescribed the maximum of life imprisonment but having regard to sentencing tariff and the prisoner’s guilty plea, a sentence of 15 years is appropriate. The prisoner is therefore sentenced to 15 years in hard labour less time spent awaiting his trial.

Cases cited:

The State v. Jimmy Yasasa Lep (unreported judgement) N 1495.

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

M. Ruari for the State

M. Mwawesi for the Accused

Decision on Sentence

20th February 2002

KANDAKASI, J: You pleaded guilty to one charge of armed robbery contrary to s.386 (1) and (2) of the Criminal Code, on the 14th of this month here in Wewak. I reserved a ruling on you sentence to carefully consider your reasons for committing the offence, the facts and the law on sentencing in this type of cases.

In your address before sentence, you said you were forced to commit the offence by circumstances you were placed in. You blamed the prison system for failing to send you back to your home province of Manus, after you completed serving a sentence of fours years given by the National Court for arson at the Boystown here in Wewak. You claimed having gone and seen the relevant office and officers for assistance back to your home province without success. You said, being from Manus, you had no friends or wantoks to turn to here in Wewak for assistance. You therefore, turned to committing the offence to get some money to go back to your home province. In the circumstances, you asked this Court to exercise mercy in your favour and give a lighter sentence.

I am required as a matter of law to consider what you say in the light of the circumstances surrounding the commission of the offence to which you have pleaded guilty and the relevant law on sentencing in this type of cases. I will therefore first consider the facts then discuss the law on point and finally apply the law to the facts of your case and arrive at a sentence which the facts and the law dictate.

The facts from the evidence on file are this: On the 26th of August 2001, you and your accomplishes numbering about 12 men planned a robbery of Tang Mow Supermarket by arming yourselves with a gun, bush knives, a crow bar, and a pinch bar. The gun came from a cousin brother of yours, namely Junior who lives at number 10 Street. The next day, the 27th of August 2001, in the early morning hours you and your armed gang went to the Tang Mow Supermarket and held up the security guards that were there. One of the guards was cut on the head twice to get him to comply with your orders. You and your accomplishes then forced open the supermarket’s door and gained entry using the crow bar and the pinch bar. You also entered the office of the supermarket using the same technique to gain entry. You then stole K18,228.80 in cash, K2,660.46 in cheques and K5,831.08 in cigarettes and made off with them.

According to the evidence of one of your accomplices, Mr. Benny Nambak, you carried the gun and used it against the security guards. Also after having stolen the money and the goods you, a Sebastian Kami and Robin Dambui took them to the latter’s house and had them shared. In your submissions, you claim to have received only K500.00, which was eventually recovered. However, according to the statement of Philo Robert he saw “plenty of money” inside your bag. Out of that, you counted K500.00 and gave it to him. Other evidence on file, also shows that you went to a local club and bought a lot of alcoholic drinks for yourself and others and openly talked about the robbery, particularly the way in which the proceeds were distributed.

Clearly on these facts, I immediately reject your claim of circumstances forcing you to commit the offence. You said you got involved in the offence to get some money so you could go back to your home province of Manus. You also said you have no relatives or wantoks in Wewak and were therefore, moving from place to place before committing the offence. The facts show however that, you had a cousin brother, Junior from whom came the gun used in the robbery. Further, after the successful robbery of the supermarket, you received “plenty of money” and even gave away K500.00 apart from buying a lot of alcoholic drinks for you and others. I therefore proceed to consider sentence for you as another armed robbery case on its own facts.

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 set out the 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 is 7 years;

(b) bank is 6 years;

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

(d) person on the street is 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...