The State v Jackson Nimai (2008) N3355

• Jurisdiction: Papua New Guinea
• Judge: Makail AJ
• Judgment Date: 21 April 2008
• Citation: (2008) N3355
• Docket Number: CR NO 272 OF 2008
• Court: National Court
• Year: 2008
• Judgement Number: N3355

Full Title: CR NO 272 OF 2008; The State v Jackson Nimai (2008) N3355

National Court: Makail AJ

Judgment Delivered: 21 April 2008

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N3355

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]

CR NO 272 OF 2008

THE STATE

v

JACKSON NIMAI

Kundiawa: Makail AJ

2008: 3 April

: 21 April

CRIMINAL LAW - highway armed robbery - sentence - young offender - prevalence of offence by youthful offenders - 19 years old - mitigating factors - first offender - early guilty plea - cooperation with police - passive role in armed robbery - watchman - Criminal Code Ch 262 - section 7 - principal offender - aggravating factors present - threat of violence - armed with two shotguns and two bush knives - cash stolen - highway unsafe and risky for public to travel.

CRIMINAL LAW - aggravated robbery - Criminal Code Ch 262 - section 386(1)&(2) - maximum penalty - life imprisonment - suspension of custodial sentence - not an automatic right - discretionary matter - Criminal Code Ch 262 - section 19 - pre sentence report and means assessment report - offender with no financial means to make restitution to victims - no order for compensation - Criminal Law (Compensation) Act 1991 - section 2 and 4 - tougher penalties to be imposed - need for personal and public deterrence - custodial sentence appropriate - eight years imprisonment in hard labour - suspension of two years on condition - less six months and sixteen days for time in pre trial custody.

Cases cited:

Gimble -v- The State [1988-89] PNGLR, 271

The State -v- Robert Bandi (1990) N 802

Public Prosecutor -v- Don Hale (1998) SC 564

The State -v- Thomas Waim [1998] PNGLR 360

The State -v- Lasi Mauwe & Maki Onopika (1999) N1886

Gibson Lulip -v- The State (2000) SC636

John Arua Peter -v- The State (2000) SC638

Tau Jim Anis -v- The State (2000) SC 642

The State -v- Kennedy Arus (2001) N2081

The State -v- Max Undaba: CR No 562 of 2001 (Unnumbered & Unreported Judgment of 22 October 2002)

The State -v- Fabian Kenny (2002) N2237

The State -v- Graham Chris, Kevin Wani, Norman Wani, Robin Doriga and Bob Gabriel (2003) N2575

The State -v- Chris Banban & Nare Steri Banban (2004) N2645

The State -v- Warip Mondol, Luwi Nehie, Kupim Pepilo, Paul Embril and Dain Sonk (2004) N2707

The State -v- Honenu Kinzong (2005) N2942

Legislations Cited:

Criminal Code Ch 262

Criminal Law (Compensation) Act 1991

Counsel:

Mr M. Ruari, for the State.

Mr P.Kumo, for the Prisoner.

21 April, 2008

SENTENCE

1. MAKAIL AJ: On 3 April 2008, I convicted you on one count of armed robbery under section 386(1) & (2) of the Criminal Code Ch 262 after you pleaded guilty to the offence and also after having satisfied myself from the deposition presented by the State against you.

2. I reserved my Judgment on sentence until today to also consider a Pre Sentence Report from the Probation Officer, Mr William Yambo based here in Kundiawa at the request of your counsel, Mr Kumo. This Report has been provided and I thank the Probation Officer for providing it. I note it also included a Means Assessment Report.

BRIEF FACTS

3. On arraignment, the following facts were put to you; on the morning of 5 October 2007 at about 8 o’clock at Waratampa along the Okuk Highway, you and four other persons held up an Isuzu Ute Registration No LAO-718 and robbed the driver and the passengers off money and belongings. A cash sum of K120.00 was taken from one of the passengers by the name of Apa Moroma.

4. You acted as a spy man for the group and were stationed a few distance away along the Highway from where your other friends were to spy on any oncoming vehicles and people. At that time, you and your friends were armed with two shotguns and two bush knives.

5. You acted as a watchman or a spy for them whilst your friends attacked the driver and the passengers of the vehicle and robbed them of their money and personal items using the shot guns and bush knives. Your interview with the Police in the Record of Interview confirmed the armed robbery, although you said that you did not actually hold up the occupants of the vehicle with your friends. You merely acted as a watchman or spy for them.

6. You were apprehended by the people from the nearby village where the victims of the armed robbery sought help whilst your four friends escaped.

ALLOCUTUS

7. On your allocutus, you told the Court that at that time of the commission of the offence, you had earlier gone to a funeral. Whilst you were at the funeral, your four friends came and asked you to go with them to do armed robbery. He told them to go ahead and you followed them sometimes later. When you arrived at the highway, your friends had already held up a vehicle and robbed the people in it. They escaped and the village people apprehended you after the victims of the armed robbery sought help from the people in the village.

8. You said that the people thought that you were part of the armed gang as their watchman or spy. The people assaulted you and handed you over to the police were you were interviewed, arrested and charged.

PARTIES’ SUBMISSIONS

9. Mr Kumo on your behalf first submitted that you are 19 years old and come from Monogano Village in the Kamtai District in Sinasina in the Chimbu Province. You are educated as far as Grade 4. Secondly, you are the fourth child in your family.

10. Thirdly, you are a first offender. You have already spent seven months in pre trial custody and have freely cooperated with the police by admitting to the commission of the offence. Fourthly, you played a passive role in the commission of the offence, in that you merely acted as a watchman or spy whilst your other four friends held up the vehicle.

11. Your counsel also submitted you are naïve and it was a new experience for you to be involved in an armed robbery. You were not defensive and this is a sign of you having accepted criminal responsibility of the offence.

12. He submitted further that whilst there is evidence to show that you and your four friends had in possession dangerous weapons, namely shotguns and bush knives, the victims were not assaulted or injured, let alone killed in the hold up.

13. Finally he submitted that the amount of money stolen in the armed robbery was only K120.00. It was not a substantial sum of money. It appears that you have not profited from the proceeds of this crime. He asked for a partly suspended custodial sentence and you be put under the care and supervision of the Probation Officer.

14. Mr Ruari of counsel for the State submitted that the offence of armed robbery is prevalent in the country and a tough penalty is called for in this case. In response to the question of suspended sentence, he submitted that almost all the offences of armed robbery are committed by youths. It is prevalent and suspension of the sentence is not warranted.

15. First, he referred to the Supreme Court Judgment of Gibson Lulip -v- The State (2000) SC636, where the Supreme Court dismissed the Appeal of the prisoner on both conviction and sentence of attempted robbery, armed robbery, unlawful use of motor vehicle and discharged of a fire arm where a person was killed. The prisoner pleaded guilty to a charge of attempted robbery pursuant to section 387(1) and (3), a charge of robbery pursuant to section 386 and a charge of unlawful use of a motor vehicle pursuant to section 383 of the Criminal Code Ch. 262 respectively and the National Court on each charge sentenced him to 25 years, 8 years and 2 years imprisonment on each charge respectively. The Supreme Court confirmed the sentences imposed by the National Court.

16. The next Supreme Court case that he referred to is John Arua Peter -v- The State (2000) SC638 where the Supreme Court also dismissed an Appeal on sentence from the National Court in a case of an armed robbery and unlawful use of a motor vehicle. He was indicted and pleaded guilty to one count of aggravated robbery and one count of illegal use of a motor vehicle. He was sentenced to ten (10) years imprisonment for robbery and two years for unlawful use of a motor vehicle to be served concurrently.

17. Bearing in mind the Judgments of these Supreme Court in confirming the sentences imposed by the National Court in cases of armed robbery, he submitted that a custodial sentence of around eight years would be appropriate in the circumstances of this case.

THE APPLICABLE LAW

18. The offence of armed robbery is provided under section 386(1)&(2) of the Criminal Code Ch 262. It states as follows:

“386 The offence of robbery

(1) A person who commits robbery is guilty of a crime.

Penalty: Subject to Subsection (2), imprisonment for a term no exceeding 14 years.

(2) If a person charged with an offence against Subsection (1) -

(a) is armed with a dangerous or offensive weapon or instrument;

(b) is in company with one or more other persons; or

(c) at, immediately before or immediately after, the time of the robbery, wounds or uses any other personal violence to any person, he is liable subject to Section 19, to imprisonment for life”.

19. This offence carries a maximum of life imprisonment.

YOUR CASE

20. I take into account the factors in your favour and those against you. I note you are 19 years old and first time offender. You are the fourth child in you family. I note from Pre Sentence Report that your father died long time ago and you live with your elder brother, Barime Muro. Your mother has remarried and has gone away. You help your brother and his wife to make gardens and you have...