Acting Public Prosecutor v Andrew Lalaiva of Honi and Angelo Ume of Kivori

• Jurisdiction: Papua New Guinea
• Court: Supreme Court
• Citation: (1981) SC201
• Date: 03 July 1981
• Year: 1981

Full Title: Acting Public Prosecutor v Andrew Lalaiva of Honi and Angelo Ume of Kivori

Supreme Court: Greville–Smith J, Kapi J, Miles J

Judgment Delivered: 3 July 1981

1 Criminal law—State appeal against sentence—robbery with violence in company—18–year–old first offenders—sentence of 1 year IHL manifestly insufficient—increased to 1 year 9 months IHL—prevalence of offences of violence taken into account—protection of community versus rehabilitation of offenders and danger of young offenders being further corrupted by long sentences

2 ROBBERY WITH VIOLENCE IN COMPANY—eighteen year old first offenders—sentence of one year IHL manifestly insufficient and increased to one year nine months IHL—prevalence of offences of violence taken into account—protection of community versus rehabilitation of offenders and danger of young offenders being further corrupted by long sentences—relevance of fact that respondents not personally aware of appeal until close to end of sentence—relevance of delay in setting down appeal for hearing.

R v Radich [1945] NZLR 86, R v Lancastle (1978) Crim LR at 367 and R v Gruffydd (1972) 56 CAR 585 referred to

The Public Prosecutor v Willy Moke Soki [1977] PNGLR 165, Tenge Kai Ulo v Acting Public Prosecutor [1981] PNGLR 148 and Acting Public Prosecutor v Uname Aumane [1980] PNGLR 510 referred to

Order of the Court

Appeals allowed. Sentences appealed against set aside. In substitution each respondent sentenced to imprisonment with hard labour on each count for a period of 1 year nine months, sentences to be served concurrently.

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Greville–Smith J:

This is an appeal by the Acting Public Prosecutor, on the ground of inadequacy, against sentences imposed in the National Court upon the respondents, as co–defendants, on two charges to which the respondents had pleaded guilty, one of robbery with violence in company, and the other simply of robbery in company.

The events of which the two offences consisted constituted one episode. These were that at a spot in the Hohola Markets in Port Moresby the two accused, both aged eighteen years, acting in concert with two other young men and with each other, accosted as the darkness of night was falling two further young men who were together and robbed them, taking from one K17.00 in cash and one fish, and from the other a Seiko bracelet watch of seventeen jewels and one piece of fish meat. One of their victims was only held whilst his pockets were rifled and his possessions taken from him but the other, in addition to being held and robbed, was also kicked.

The two accused had no prior relevant convictions. The maximum penalty prescribed for robbery of the kinds involved in each of the two charges is imprisonment with hard labour for life (s398 Criminal Code). Each respondent had been at the time of sentencing in custody for three months, and each was sentenced, in effect, upon each relevant count, to imprisonment with hard labour for nine months to be served concurrently.

His Honour the learned sentencing judge gave careful and full reasons for the sentences he imposed and appears to have perhaps overlooked only one relevant factual matter, namely the kicking which he does not mention. His Honour took into account, 'inter alia', the youth of the offenders, that each was a first offender, and that no physical injuries were suffered by the victims. His Honour was cognizant of the terrifying effect of this sort of offence, upon all but the most stouthearted of victims, and observed that individual as well as general deterrent sentences were called for, sentences which were severe but not crushing.

With those observations of His Honour I respectfully agree. However, again with respect, I cannot escape the impression that the sentences passed upon the respondents were inadequate, and manifestly so. This was a bold robbery...