The State v Chan Alois and Augustine Tutut (2008) N3538

• Jurisdiction: Papua New Guinea
• Judge: Lay J
• Judgment Date: 12 December 2008
• Docket Number: CR 925 of 2008
• Court: National Court
• Judgement Number: N3538

Full Title: CR 925 of 2008; The State v Chan Alois and Augustine Tutut (2008) N3538

National Court: Lay J

Judgment Delivered: 12 December 2008

N3538

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]

CR 925 of 2008

STATE

V

CHAN ALOIS AND AUGUSTINE TUTUT

Kokopo: Lay J.

2008: 18 November,

8 and 12 December

CRIMINAL LAW - Criminal Code s386 - aggravated armed robbery - early admission and plea of guilty - first-time offenders - robbery of a vehicle on the street - K45,000 stolen - very little recovered - head sentence of 12 years on a trial appropriate - 25% reduction for early admission and guilty plea - sentence of eight years hard labour imposed, one-year suspended on terms.

Facts

The offenders pleaded guilty to one count of aggravated robbery, theft from a motor vehicle on the street of K45,000 with assistance of accomplices, guns and knives. They were not the planners of the robbery.

Held

1. The Court will as a general rule in all but cases of horrific personal violence, apply a discount of 25% to 33% from the appropriate head sentence where there has been a guilty plea;

2. Sentence of 8 years in hard labour imposed, 1 year suspended on probation terms to assist with re-integration into the community.

Cases Cited:

PNG Cases Cited

Richard Liri v The State, SCRA 9 of 2006, unreported judgment of the 22nd February 2007 per Sevua and Kandakasi J. J

Bobolan Mebu Peter v The State, SCR No. 59 of 2005, Mogish, Manuhu and Hartshorn J. J

Gimble v The State [1988-89] PNGLR 271

Public Prosecutor v Don Hale (1998) SC 564

Tau Jim Anis v The State (2000) SC 642

State v Michael Amuna Koupa [1978] PNGLR 208

The State v Morobet Awui Koma [1987] PNGLR 262

State v Albert Monja [1987] PNGLR 447

The State v Bill Baru (1997) N1546

State v Foxy Awonipa (1999) N1910

State v Fano Kuromu [1999] PNGLR 553

Acting Public Prosecutor v John Airi (1981) SC241

Wellington Belewa v State [1988-89] PNGLR 496,

Ignatius Natu Pomaloh v The State (2006) SC 834

Overseas Cases Cited

The Queen v David Dickson Jabaltjari (1989) 64 NTR 1; [1989] NTSC 38

References

Thomas on Sentencing 2nd Ed.

Counsel

F. Popeu and L. Rangan, for the State

M. Kadai, for the offenders

12 December, 2008

1. LAY J.: You have each pleaded guilty to one count of aggravated armed robbery.

2. On the 22nd of February 2008, the two of you and eight others stopped a PMV truck. The group was armed with a factory made shotgun, three homemade shotguns and bush knives. A disabled man was removed from the vehicle by the group, over his protests, and left by the roadside. You Chan Alois then drove the truck to and near Vunapalading police barracks, where the passengers were robbed of a total of K45,000.

3. Chan Alois, you made a full admission of your involvement on the 6th of March 2008 and you Augustine Tutut made a full admission to the Police on the 2nd of March 2008.

4. On your allocutus both of you said you were sorry, asked for mercy and a good behaviour bond.

5. Chan Alois your presentence report notes that you have a supportive family at Napapar. Your father is a strong believer that people must be responsible for their actions and it was he who reported you to the police and arranged for the return of K800 of the K1200 you received from the proceeds of the robbery. It must have been a very hard thing for him to have to do to his 28-year-old son.

6. Your presentence report also notes that you are an active, but obviously not committed, member of the SDA church. The community program co-ordinator and leader with the SDA church at Napapar is prepared to provide counselling and involve you in church community programs should the court order any period of probation.

7. You have no independent financial means and rely on your parents for financial support.

8. Augustine Tutut your presentence report records that your mother died when you were a child. You have been living at small Vudal block in the Baining LLG Gazelle since childhood. Your father said he paid K600 in part repayment of the money stolen. You are married with two young daughters. You received K300 from the proceeds of the robbery. You are a member of Ratongor Catholic church and a church leader would be prepared to accept you into a youth program if the court ordered any probation period. The ward councillor would also be prepared to supervise you in community work. You also have no independent financial means.

The law

9. Armed robbery, particularly aggravated armed robbery, is a very serious crime. That is why the Parliament has provided for a maximum penalty of life imprisonment: Criminal Code Section 386 (1) & (2). Armed robbery is also a prevalent offence, there is far too much of it occurring in our country. That is why the Supreme Court has observed that sentences are on the increase. See SCRA 9 of 2006, Richard Liri v The State, unreported judgment of the 22nd February 2007 per Sevua and Kandakasi J. J. at [27-36].

10. In that case a serving police officer was convicted after a trial of stealing a motor vehicle at night by pointing a pump action shotgun at the victim. On appeal against the severity of sentence a sentence of 8 years with 3 years suspended was quashed and substituted by a sentence of 15 years with no part of that sentence suspended. The Supreme Court considered that the appropriate head sentence in that case, after a trial, was one of 13 to 15 years (see [45]).

11. Your case is quite similar to Richard Liri’s case with the exception that you are not policemen and there is consequently not that serious breach of the public trust which was involved in that case. You were not charged with the theft of the vehicle and I do not take that into account. However the sum of money stolen was substantial. I do not think that the value of what was stolen differentiates your case from Richard Liri's case.

12. In the case of SCR No. 59 of 2005, Bobolan Mebu Peter v The State Mogish Manuhu and Hartshorn J. J. unreported decision delivered at Wewak on 26 June 2007, the court reaffirmed the sentencing guidelines contained in Gimble v The State [1988-89] PNGLR 271, and Public Prosecutor v Don Hale (1998) SC 564 which was subsequently reaffirmed by Tau Jim Anis v The State (2000) SC 642. That is that the starting point for robbery of a vehicle on the street is eight years, but the court said that a sentence of 10 years is not outside the judge's discretion.

13. In the Bobolan Mebu Peter Case the offender and his accomplices were armed with guns and knives and threatened innocent passengers stealing K2200 intended as salaries for a college. On a plea of guilty the trial judge had imposed a sentence of 13 years which the Supreme Court reduced to eight years.

14. I consider the appropriate sentence in your case after a trial would be one of 12 years. You are entitled to a reduction in your sentence because of your early admissions to the offence and plea of guilty.

15. There appears to have been no comprehensive discussion in our case law on the reasons given for a discount for a plea of guilty or of the measure of that discount. It has generally been accepted that a plea of guilty, if timely, entitles the offender to a discount on the head sentence because it:

a) saves the court time;

b) avoids the stress of victims giving evidence;

c) is in some cases evidence of remorse. See for example State v Michael Amuna Koupa [1978] PNGLR 208 Wilson J; The State v Morobet Awui Koma [1987] PNGLR 262 Wilson J; State v Albert Monja [1987] PNGLR 447; The State v Bill Baru (1997) N1546 Batari AJ; State v Foxy Awonipa (1999) N1910; State v Fano Kuromu [1999] PNGLR 553; Acting Public Prosecutor v John Airi (1981) SC241 Andrew, Miles and Bredmeyer JJ.; Wellington Belewa v State [1988-89] PNGLR 496, Bredmeyer, Woods & Barnett JJ.

16. Chief Justice Asche of the Supreme Court of the Northern Territory of Australia closely examined a number of authorities on the topic in the appeal case of The Queen v David Dickson Jabaltjari (1989) 64 NTR 1; [1989] NTSC 38, where the court was invited to give some guideline on what, if any, discount should be given from any otherwise proper sentence, for a plea of guilty. His Honour noted that the issue had been discussed at length in Courts of Criminal Appeal in New South Wales, Victoria, South Australia and Queensland. The survey revealed what is to my mind an over sensitivity to the possibility that a discount on sentence for no other reason that there is a plea of guilty, will give the impression that a person receives a greater punishment for insisting on a trial, which is their constitutional right. Quite clearly both offenders face the same head sentence, one simply is not eligible for the discount to which a plea would have entitled him. To say that the offender found guilty after a trial faces a higher sentence ignores the sentencing process,...