The State v Chris Baili (2007) N5040

• Jurisdiction: Papua New Guinea
• Judge: Cannings J
• Judgment Date: 17 August 2007
• Citation: (2007) N5040
• Docket Number: CR NO 1396 0F 2006
• Court: National Court
• Year: 2007
• Judgement Number: N5040

Full Title: CR NO 1396 0F 2006; The State v Chris Baili (2007) N5040

National Court: Cannings J

Judgment Delivered: 17 August 2007

N5040

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]

CR NO 1396 0F 2006

THE STATE

V

CHRIS BAILI

Kimbe: Cannings J

2007: 11 July, 7, 17 August

CRIMINAL LAW – sentence – one count of conspiracy to commit armed robbery – one count of armed robbery of a vehicle on the road – guilty plea to each charge – whether sentences concurrent or cumulative – totality principle.

The offender conspired with a number of other young men to hold up a company truck that was doing a payroll run in a remote location. The offender’s role was to get on the truck and make it easier for his accomplices to stage the hold up, which they did with firearms and bushknives, stealing K22,400.00 cash. The offender pleaded guilty to both conspiracy to commit armed robbery and armed robbery. This is the judgment on sentence.

Held:

(1) When sentencing an offender for multiple offences, the court should first pass a notional sentence for each offence, then determine whether the sentences are to be served cumulatively or concurrently, then apply the totality principle.

(2) The following notional sentences were passed:

· count 1 (conspiracy): 3 years;

· count 2 (armed robbery): 7 years;

resulting in a total potential sentence of 10 years.

(3) The offences were part of the one transaction, which means the sentences should be served concurrently, ie a total term of 7 years. The totality principle does not require any reduction in the total sentence. Accordingly the court imposed a total head sentence of 7 years. The pre-sentence period in custody was deducted, and one year of the sentence was suspended.

Cases cited

The following cases are cited in the judgment:

Gimble v The State [1988-1989] PNGLR 271

Mase v The State [1991] PNGLR 88

Phillip Kassman v The State (2004) SC759

Public Prosecutor v Don Hale (1998) SC56

Public Prosecutor v Kerua [1985] PNGLR 85

Saperus Yalibakut v The State (2006) SC890

Tau Jim Anis v The State (2000) SC642

The State v A Juvenile “ET” CR 1012/ 2003, 09.04.05

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

The State v Alphonse Polpolio and Jeffery Baru CR 865 + 701/2006, 14.07.06

The State v Dickson Kauboi CR 495/2001, 07.06.06

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

The State v Jethro Paul Matu CR No 314/2007, 13.07.07

The State v John Carl Endekra, Wilson Isaiah & Albert Martin Klembasa CR 70-72/2007, 14.07.06

The State v Justin Komboli (2005) N2891

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

The State v Lesley Cletus Malo 379/2005, 19.12.06

SENTENCE

This is a judgment on sentence for conspiracy and armed robbery.

Counsel

F Popeu, for the State

B Tanewan, for the offender

17th August, 2007

1. CANNINGS J: This is a decision on sentence for a young man who pleaded guilty to one count of conspiracy and one count of armed robbery arising from the following facts. On 12 July 2006 the offender was at his village at Nut, West Kove, West New Britain Province. Francis Kago approached him and planned with him to commit an arm robbery on a truck that was to do a payroll run for the Tzen Niugini Company Limited, a logging company operating in the area. They planned that the offender would keep watch for the truck and when the payroll truck came through headed to the company’s Aria Banu base camp, the offender would get on it, then send a signal to the others and that would enable the others to commit the robbery. Three days later, on Saturday 15 July 2006, the payroll truck came through the area on its way to the base camp. The offender, as planned, climbed aboard and was travelling on the back of the truck. As the truck was about to climb a steep mountain, the offender gave the signal and Francis Kago and two other men, with the assistance of the offender and in accordance with their plan, held up the vehicle using home-made guns and bush knives. They smashed the windscreen of the truck, forced the two occupants outside and stole the company’s payroll of K22,400.00 cash. The offender aided and abetted those who committed the robbery.

ANTECEDENTS

2. The offender has no prior convictions.

ALLOCUTUS

3. I administered the allocutus, ie the offender was given the opportunity to say what matters the court should take into account when deciding on punishment. A paraphrased summary of his response follows:

It is true that I did these things. I was apprehended on the same day of the robbery. I did not use any of the money from our enterprise. This is my first time to be before the court. I say sorry for what I have done.

OTHER MATTERS OF FACT

4. As the offender has pleaded guilty he will be given the benefit of the doubt on mitigating matters raised in the depositions, the allocutus or in submissions that are not contested by the prosecution (Saperus Yalibakut v The State (2006) SC890). The main mitigating factors arising from depositions are that the offender was not the ring leader, played a relatively minor role in the robbery and co-operated fully with the police when he was apprehended.

PRE-SENTENCE REPORT

5. I received a favourable pre-sentence report from the Community Corrections and Rehabilitation Service, which is summarised below.

CHRIS BAILI: male, aged 24 years.

Residence: Nut village, WNBP.

Family background: Both parents are from the East Kove (Kombe) area of Talasea in WNB – his father is deceased but his mother lives in the village – the offender is the third born in a family of four boys.

Marital status: Single.

Education: Grade 10, Kimbe Secondary School, 2004.

Employment: Never formally employed.

Health: OK.

Financial status: Has been receiving timber royalties and land rentals from the Aria Vanu Logging Company – has no other cash or assets – unable to pay compensation.

Plans: Pursue his education.

Victim’s attitude: Unclear – but the robbery proceeds have never been recovered.

Offender’s family’s attitude: Unknown – as Nut village is accessible only by boat and no family members have made themselves known to the Community Based Corrections Office.

Attitude of community: Unknown.

Assessment: No known community or family support.

Recommendation: Not recommended for probation.

SUBMISSIONS BY DEFENCE COUNSEL

6. Mr Tanewan submitted that the court should put considerable weight on the fact that the offender played only a minor role in the robbery and he was apprehended soon afterwards. He did not benefit from the proceeds, whereas others who played a major role are still on the run. The two sentences were part of the one transaction and should be served concurrently, Mr Tanewan submitted.

SUBMISSIONS BY THE STATE

7. Mr Pope submitted that the court should impose sentences of 4 years for conspiracy, 6 years for arm robbery and they should be served cumulatively, but reduced from 10 years to 8 years under that totality principle.

DECISION MAKING PROCESS

8. To determine the appropriate penalty I will adopt the following decision making process:

· step 1: what is the maximum penalty for each offence?

· step 2: what is a proper starting point for each offence?

· step 3: what sentences have been imposed for equivalent offences?

· step 4: what is the head sentence for each offence?

· step 5: should the sentences be served concurrently or cumulatively?

· step 6: what is the effect of the totality principle?

· step 7: should the pre-sentence period in custody be deducted?

· step 8: should all or part of the sentence be suspended?

STEP 1: WHAT IS THE MAXIMUM PENALTY?

9. For count 1 – conspiracy (Criminal Code, Section 515 – the maximum penalty is seven years imprisonment. For count 2 – armed robbery (Criminal Code, Sections 386(1), (2), (a) and (b)) – the maximum penalty is life imprisonment. However I have discretion to impose less than the maximum term and suspend part or all of the sentences under Section 19 of the Criminal Code.

STEP 2: WHAT IS A PROPER STARTING POINT FOR EACH OFFENCE?

10. For count 1, I will use a starting point in the middle of the available range, ie 42 months imprisonment. For count 2, armed robbery, the Supreme Court has given sentencing guidelines in a number of leading cases: Gimble v The State [1988-1989] PNGLR 271; Public Prosecutor v Don Hale (1998) SC56; Tau Jim Anis v The State (2000) SC642; and Phillip Kassman v The State (2004) SC759. Nowadays the starting points are:

· robbery of a house – ten years;

· robbery of a bank – nine years;

· robbery of a store, hotel, club, vehicle on the road etc – eight years;

· robbery of a person on the street – six years.

11. The present case falls within the third category. The starting point is therefore eight years.

STEP 3: WHAT OTHER SENTENCES HAVE BEEN IMPOSED RECENTLY IN WEST NEW BRITAIN FOR EQUIVALENT OFFENCES?

12. There are no recent cases on conspiracy to commit armed robbery. However, there are plenty of cases involving armed robbery of stores and...