The State v Alphonse Polpolio and Jeffery Baru (2006) N4514

• Jurisdiction: Papua New Guinea
• Judge: Cannings J
• Judgment Date: 14 July 2006
• Court: National Court
• Citation: (2006) N4514
• Docket Number: CR NOS 865 & 701 of 2006
• Year: 2006
• Judgement Number: N4514

Full Title: CR NOS 865 & 701 of 2006; The State v Alphonse Polpolio and Jeffery Baru (2006) N4514

National Court: Cannings J

Judgment Delivered: 14 July 2006

N4514

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]

CR NOS 865 & 701 0F 2006

THE STATE

V

ALPHONSE POLPOLIO AND JEFFERY BARU

Kandrian : Cannings J

2006: 12, 14 July

SENTENCE

CRIMINAL LAW – sentences – armed robbery – guilty plea by two co-offenders – two different robberies of stores – gang robberies – use of firearms and bushknives – innocent people threatened – robberies committed in government station, Kandrian – K2,807.00 stolen in first robbery – K21,530.00 stolen in second robbery.

Two men pleaded guilty to two counts of armed robbery committed at Kandrian government station, West New Britain Province. A store/supermarket was robbed on each occasion. A firearm and bushknives were used to threaten innocent people. In the first robbery the co-offenders were accompanied by one other person. In the second robbery there was a large group of people also involved. Cash and store goods valued at K2,087.00 were stolen in the first robbery. K21,530.00 was stolen in the second robbery. The second robbery was committed several weeks after the first. It was agreed that cumulative sentences were necessary. Application of the totality principle was a major issue.

Held:

(1) The starting point for sentencing for armed robbery of a store is eight years imprisonment.

(2) Both offenders had an equal level of involvement. Strong mitigating factors identified were: nobody was physically harmed; they co-operated with the police (making an early confession); they pleaded guilty; they expressed remorse.

(3) Strong aggravating factors were: threats of violence; use of firearms and bushknives; no compensation to victims.

(4) The second robbery was more serious than the first as it led to looting and the value of stolen property was higher.

(5) Each of the offenders had an equal level of involvement and the head sentence for the first robbery was five (5) years imprisonment; and for the second robbery nine (9) years imprisonment.

(6) The sentences are to be served cumulatively as there were two separate robberies committed at different times, with different victims. Potentially the total sentence is fourteen (14) years each.

(7) On application of the totality principle this was reduced to 10 years each.

(8) Armed robbery is a very serious offence and community expectations are that offenders will be imprisoned. Therefore it is not appropriate to suspend any part of the sentences at this stage.

(9) However, as there is good community or family support for each of the offenders, and they have pleaded guilty, they will get the benefit of serving a minimum time in custody of 6 years, after which each will be eligible for early release and suspension of the remainder of the sentence on conditions.

Cases cited

The following cases are cited in the judgment:

Gimble v The State [1988-89] PNGLR 271

Phillip Kassman v The State (2004) SC759

Public Prosecutor v Don Hale (1998) SC564

Saperus Yalibakut v The State SCRA No 52 of 2005, 27.04.06

Tau Jim Anis v The State (2000) SC642

The State v A Juvenile “ET” CR No 1012/ 2003, 09.04.05

The State v A Juvenile, “TAA” (2006) N3017

The State v Aaron Lahu (2005) N2798

The State v David Bandi CR No 729/2003, 20.04.05

The State v Dickson Kauboi CR No 495/2001, 07.06.06

The State v Francis Vau Kamo CR 663-664/1998, 06.04.06

The State v Jacky Vutnamur and Kaki Kialo (No 3) (2005) N2919

The State v James Negol (2005) N2801

The State v Justin Komboli (2005) N2891

The State v Kia Tala Moksy CR 785/2005, 12.08.05

The State v Lucas Soroken Sembengo, Bob Alois Wafu & Raphael Lawrence Mandal (2006) N2801

The State v Mark Kanupio and Others (2005) N2800

The State v Mogi Konda CR No 1316/2005, 19.04.05

The State v Two Juveniles, “MK” & “PSA” CR No 372/2005, 25.08.05

Abbreviations

The following abbreviations appear in the judgment:

CJ – Chief Justice

CR – Criminal

DCJ – Deputy Chief Justice

J – Justice

K – kina

N – National Court judgments

OK – okay; all right

No – number

PNG – Papua New Guinea

PNGLR – Papua New Guinea Law Reports

PSR – pre-sentence report

SC – Supreme Court Judgment

SCRA – Supreme Court Criminal Appeal

WNBP – West New Britain Province

v – versus

PLEA

Two co-accused pleaded guilty to two counts of armed robbery and the following reasons for sentence were given.

Counsel

D Mark, for the State

O Oiveka, for the co-accused

14 July, 2006

1. CANNINGS J: INTRODUCTION: This is a decision on the sentences for two men who pleaded guilty to committing two armed robberies at Kandrian, West New Britain Province, in March and April 2006.

BACKGROUND

2. On 12 July 2006 the co-accused were brought before the National Court, at its first sittings in Kandrian in history, and faced the following indictment, containing two charges:

Count 1

Jeffery Baru of Awar, Bogia, Madang Province and Alphonse Polpolio of Apungi, Kandrian, West New Britain Province, stand charged that they on the 23rd day of March 2006 at Kandrian in Papua New Guinea stole from Tobias Taube and others with actual violence cash and assorted store goods valued at K2,807.00 the property of PC & EH Trading; and at that time they were armed with a home-made gun and bush knives, being offensive weapons and were in company with other persons.

Count 2

Jeffery Baru of Awar, Bogia, Madang Province and Alphonse Polpolio of Apungi, Kandrian, West New Britain Province, stand charged that they on the 12th day of April 2006 at Kandrian in Papua New Guinea stole from Tobias Taube and others with actual violence cash and assorted store goods valued at K21,530.00 the property of Peter & PNG Group; and at that time they were armed with a home-made gun and bush knives, being dangerous weapons and were in company with other persons.

3. Both charges were laid under Sections 386(1), (2) (a) and (b) of the Criminal Code.

FACTS

Allegations

4. The following allegations were put to the accused for the purpose of obtaining a plea.

5. The first robbery took place at 4.00 pm on 23 March 2006. The two co-accused, accompanied by one other person, entered the PC & EH Trading store at Kandrian. Alphonse Polpolio was armed with a home-made gun. Jeffery Baru had a bushknife. Their accomplice pointed a knife at the cashier, jumped over the counter, threatened her, then put his hand into the cash box and removed K1,120.00 cash. The two co-accused stood watch and stole various items, including radios and a kitchen knife, on their way out. Those other items were worth K967.00, making the total value of the property stolen K2,087.00.

6. The second robbery took place at 3.15 pm on 12 April 2006. The two co-accused, accompanied by other persons, entered the Peter & PNG store at Kandrian. They were armed with a home-made gun and bush-knives. The gun was pointed at the cashier. Other people walked into the store and helped them steal property worth K21,530.00.

Conviction

7. The co-accused pleaded guilty to those facts. I entered provisional pleas of guilty and then, after reading the District Court depositions, confirmed their plea and convicted them, as charged. They are now referred to as offenders or prisoners.

ANTECEDENTS

8. Alphonse Polpolio has a prior conviction for armed robbery committed at Kimbe in 2001. He was given a fully suspended sentence, the term of which expired before he committed the two armed robberies for which he is now being sentenced.

ALLOCUTUS

9. I administered the allocutus, ie each offender was given the opportunity to say what matters the court should take into account when deciding on punishment. This was done on two occasions: immediately after they were convicted, then later, after their pre-sentence reports were presented. A paraphrased summary of their responses follows:

Alphonse Polpolio

I apologise to those who I have committed these offences against. I apologise to the people in court here today. I apologise to the court.

Both my parents are deceased. I am the second-born of four children and I have to look after my younger brother and younger sister.

Since I have been in custody, I have changed my life and turned to God. I have converted to the Baptist Church.

I plead for the mercy of the court. Please put me on probation.

Jeffery Baru

I apologise to Peter PNG and his employees for what I did to their business and to them. I promise I will never commit any offence again.

When I was in custody, the police went to my place, assaulted my wife, and put her and one of my children in the cells. The police burned down my houses plus the houses of innocent village people who had nothing to do with the robberies.

I have a wife and five children to care for. I ask for mercy and a non-custodial sentence.

I sustained serious injuries when I was caught. My left hand is now useless and I can no longer work properly. I...