The State v Fabian Kenny (2002) N2237

• Jurisdiction: Papua New Guinea
• Citation: (2002) N2237
• Date: 16 May 2002
• Court: National Court
• Year: 2002

Full Title: The State v Fabian Kenny (2002) N2237

National Court: Kandakasi J

Judgment Delivered: 16 May 2002

1 CRIMINAL LAW—PRACTICE AND PROCEDURE—Sentencing—Need to be guided by the purposes of sentencing—Sentence must reflect the seriousness of the offence and its effect on the victim and society—The effects of past sentences must also be considered—Failure of previous sentences to deter calls for higher penalties.

2 CRIMINAL LAW—SENTENCING—Armed robbery of a PMV on a highway—By gang of three—Use of weapons and threats of violence—No evidence of recovery of stole properties—Estimate value of cash and goods totaling K579.00—Although value of cash and goods stolen not substantial they may be all that the victims may have had—Prisoner with no prior conviction but not young—No other factor in his mitigation—Sentence of 9 years less time spent in custody awaiting trail imposed—Criminal Code s386(1) and (2) and s19.

3 Gimble v The State [1988–89] PNGLR 271, The State v Abel Airi (2000) N2007, The State v Nickson Pari (No 2) (2001) N2033, Andrew Uramani v The State [1996] PNGLR 287, Thomas Waim v The State (1997) SC519, Tau Jim Anis v The State (2000) SC642, The State v Tony Pandau Hahuahori (No 2) (2002) N2186, The State v Vincent Malara (2002) N2188, Allan Peter Utieng v The State (2000) SCR15 of 2000 (Unreported and unnumbered judgment of the Supreme Court delivered in Wewak on 23 November 2000), The State v Jimmy Yasasa Lep (1996) N1495 referred to

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Kandakasi J: Yesterday you pleaded guilty to one charge of armed robbery contrary to s386(1) and (2) of the Criminal Code.

In your address before sentence, you said sorry for what you have done and asked the Court to exercise mercy toward you. Your lawyer asked for a sentence between 3 and 4 years. He did not refer me to any authority to support his submission. The State on the other hand drew my attention to the Supreme Court decision in Gimble v The State [1988–89] PNGLR 271, which sets out sentencing guidelines and set a starting sentence of 5 years for robbery of shops, on streets and highways. Counsel for the State also pointed out that recent Supreme Court judgments have now increased the starting sentence of 5 years by 3 years to bring the starting sentence to 8 years.

The law requires a sentencing judge to carefully consider the circumstances in which an offence has been committed as well as the effect of that on the victim and the community. The sentence must reflect the particular facts of the case as well as the competing interest of the community to punish offenders and the interest of an offender to be treated fairly and be given an opportunity to reform. I alluded to those competing interest in a number of cases starting with the case of The State v Abel Airi (2000) N2007.

Hence, to determine an appropriate sentence for you in this case I need to first consider the circumstances surrounding the commission of the offence. I must also consider the prevalence of the offence and the effect of that on the community. Further, I must have regard to the sentencing trends and the effect of that on this kind of offences, particularly as to whether it has deterred people like you from committing this kind of offences.

The Facts

The facts in your case are straightforward. On the Tuesday 19 December 2000, you with two others planned a robbery of a PMV along the Maprik and Pagwi road here in the East Sepik Province. The planning took place in your house. For the purpose of that robbery, you armed yourself with a shotgun, and two bush knives.

On the same afternoon about 5:00 p.m. you held up a PMV truck driven by a John Petau between Apusit and Kunjigini villages on the Maprik/Pagwi road. The PMV was on motion at the time. The driver speaks of being shocked and stopped the vehicle. At that time, you and one of your other gang members armed with a bush knife while the another was armed with the shotgun. The man with the shotgun held up the driver while you and the other went to the back of the truck and stole with threats of violence cash and property belonging to the driver and his passengers. The estimated value of both cash and goods taken was K579.00. After the robbery, you ran away to your village. However, due...