The State v Timothy Thomas Moriloma (No 2) (2003) N2395

• Jurisdiction: Papua New Guinea
• Citation: (2003) N2395
• Date: 23 May 2003
• Court: National Court
• Year: 2003

Full Title: The State v Timothy Thomas Moriloma (No 2) (2003) N2395

National Court: Manuhu AJ

Judgment Delivered: 23 May 2003

1 CRIMINAL LAW—Particular offence—Armed robbery—Sentencing considerations in contested case—'Accidental' killing in the course of robbery.

2 Andrew Uramani v The State [1996] PNGLR 287, Anna Max Marangi v The State (2002) SC702, Gimble v The State [1988–89] PNGLR 271, Jerry Wasu v The State (2002) SC697, Public Prosecutor v Don Hale (1998) SC564, Tau Jim Anis v The State (2000) SC642, The State v Abel Airi (2000) N2007, The State v Danny Pakai (2001) N2174, The State v Frank Suwari (2001) N2173, The State v Gore Yogal (2001) N2080, The State v Jimmy Yasasa Lep (1996) N1495, The State v Kennedy Arus (2001) N2081, The State v Marety Ame Gaidi (No 2) (2002) N2279, The State v Steward Pariwan (1999) N1834, The State v Mek Keroa Nentepa (1990) N878 and The State v Wallen Yamevi and Kem Dano (1990) N949 referred to

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Manuhu AJ: The prisoner, Timothy Thomas Moriloma ("The prisoner"), was convicted on two related counts of armed robbery on 5 May after a trial. (See judgment on verdict in The State v Timothy Thomas Moriloma (No 1) (2003) N2394.) I must now sentence him.

Relevantly, the facts are as follows. On 13 August 2001, at about 2.30pm, the accused and five accomplices went to Mangola Street, Lae, where the business premises of Lings Freezers were situated. They were armed with a factory made pistol and some knives. They held up a cashier forcefully took about K2,000.00 in cash and rushed out of the store. They then pointed a pistol at a driver and his crew, and ordered them to get out of their security–firm vehicle. The prisoner and his accomplices then got into the vehicle and drove away from the scene. As the stolen vehicle made its getaway, a shootout took place between the robbers and a James Wong. The stolen vehicle was eventually abandoned and the robbers fled in various directions.

About one hour and fifteen minutes later, following a search, the prisoner was located within the search area from underneath the pallets at the back of Laurabada Secondhand Clothing. He had been wounded and was bleeding from the face. An accomplice was also found wounded in the abdomen. He later died in the hospital. An innocent bystander also lost his life from a stray bullet during the shootout. The prisoner was taken to the police station and then the hospital. The prisoner escaped from the hospital in the evening of 14 August. He was later apprehended on 27 October and charged for the armed robberies.

The appropriate sentence may be ascertained firstly by ascertaining the current sentencing trend in like offences. In that regard, the oft–cited Supreme Court case of Gimble v The State [1988–89] PNGLR 271 ("Gimble") sets the course for the apportionment of sentences in various categories of armed robbery cases. This case falls in the third category, which fixes a sentence of five years in a contested case, where a group of young first offenders, carrying weapons, use threats of violence and rob a store, a vehicle, etc. A lesser sentence may be imposed in a plea of guilty but a higher penalty may be imposed if aggravating factors are found.

From mid–nineties, however, Gimble v The State [1988–89] PNGLR 271 came under pressure when repeated calls were made to increase sentences for armed robbery. See for instance The State v Jimmy Yasasa Lep (1996) N1495 ("Jimmy Lep"), Public Prosecutor v Don Hale (1998) SC564 (1998) SC564. ("Don Hale"), and The State v Steward Pariwan (1999) N1834 ("Steward Pariwan"). In Public Prosecutor v Don Hale (1998) SC564, for instance, the Supreme Court said:

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

Eventually, in Tau Jim Anis v The State (2000) SC642 ("Tau Jim Anis"), the Supreme Court reaffirmed and applied the suggested denominator in Public Prosecutor v Don Hale (1998) SC564. Using the same denominator, the Supreme Court, in upholding the appeal, reduced the sentence in Tau Jim Anis v The State (2000) SC642 for robbery of a store from ten years to eight years. That is an increase of three years from Gimble's five years (Gimble v The State [1988–89] PNGLR 271) in the relevant category.

All these could mean that, using the same denominator, the new sentencing guidelines for armed robbery should now be ten years for robbery of a house in a contested case; robbery of a bank should be nine years; robbery of a store, a vehicle, etc, should be eight years, and; a street robbery should be six years. In each category, a lesser sentence may be imposed in a plea of guilty but a higher penalty may be imposed if aggravating factors are found. Unfortunately (or fortunately), the Supreme Court in Tau Jim Anis v The State (2000) SC642 just fell short of increasing the tariffs set in Gimble v The State [1988–89] PNGLR 271.

In any event, the mood in Public Prosecutor v Don Hale (1998) SC564 and Tau Jim Anis v The State (2000) SC642 became evident in subsequent decisions. Under the category relevant to this case, in The State v Gore Yogal (2001) N2080 ("Gore Yogal"), the defendant was sentenced to seven years upon a plea of guilty when he robbed PNG Motors in West Goroka. The defendant was armed with a gun and was in the company of another. The defendant stole about K5,000.00 in cash and cheques. In The State v Kennedy Arus (2001) N2081 ("Kennedy Arus"), a sentence of eight years was imposed after the defendant pleaded guilty to an armed robbery of a PMV bus in motion on a highway. In The State v Frank Suwari (2001) N2173 ("Frank Suwari"), a sentence of six years was imposed after the defendant pleaded guilty to an armed gang robbery. A shotgun was used and various properties were stolen. In The State v Danny Pakai (2001) N2174 ("Danny Pakai"), after a plea of guilty, the defendant was sentenced to eight years. The defendant was in the company of others...