The State v Kairi Morgan (No. 2)

• Jurisdiction: Papua New Guinea
• Judge: Kandakasi, J
• Judgment Date: 16 August 2007
• Citation: (2007) N3876
• Court: National Court
• Year: 2007
• Judgement Number: N3876

Full : CR NO. 739 & 740 of 2006; The State v Kairi Morgan & George Mike (No. 2) (2007) N3876

National Court: Kandakasi, J

Judgment Delivered: 16 August 2007

N3876

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]

CR NO. 739 & 740 of 2006

THE STATE

-V-

KAIRI MORGAN & GEORGE MIKE

(No. 2)

Waigani: Kandakasi, J.

2007: 25th July, 16th August

CRIMINAL LAW- Sentence – Armed gang robbery on a street – Conviction after trial – First time offenders – Serious damage to property stolen – Prisoners not playing lead role – Prevalence of offence – Deterrent sentence required – Sentence of 15 years imposed.

CRIMINAL LAW –Sentence – Unlawful use of motor vehicle – Vehicle stolen in armed robbery – Vehicle seriously damaged – Prevalence of offence – Guilty plea – First time offenders – Sentence of 15 years imposed.

CRIMINAL LAW – PRACTICE & PROCEDURE – Concurrency of sentence – Two offences committed out of the same transaction – Sentence for two offences made to be served concurrently.

Papua New Guinea Cases Cited:

Gimble v The State [1988-89] PNGLR 27.

The State v Moses Tingin & Kennedy Kara CR 1483 and 1484 of 2005 (judgment delivered on 26th September 2005).

Hawai John v The State (Unreported judgment delivered on 02/01/98) SCR 09 of 1995.

Dadly Henry Gorop v The State (unreported judgment delivered on 03/10/03) SC732.

The State v Paul Maima Yogol and Dama Teiye (21/05/04) N2583, per Kandakasi J

The State v Warip Mondol & Ors (19/08/04) N2707, per Lenalia J.

The State v Gilbert Monai (09/06/04) N2617, per Sevua J.

Bosco Bedy v The State SCR 45 of 2004, per Sevua, Kandakasi and Gabi JJ delivered 0n 30th August 2006.

Public Prosecutor v Don Hale (27/08/98) SC564.

The State v Edward Toude & Ors (No.2) (2001) N2299.

The State v John Micky Lausi (2001) N2073.

The State v Tomikuk Herman Itagau (CR No. 1522 of 2005 (2006) Unreported judgement delivered on 24th October 2006.

The State v Donald Angavia, Paulus Moi and Clement Samoka (No.2) (29/04/04) N2590, per Kandakasi J.

The State v James Yali (19/01/06) N2989, per Cannings J.

The State v Danny Sanu & Ors [1993] PNGLR 396.

The State v Aruve Waiba (Unreported and unnumbered judgment of the Supreme Court delivered on the 4th of April 1996) SCR 1 of 1994.

The State v Jason Domgoia (2000) N2038.

The State v James Gurave Guba (2000) N2020.

The State v Wallen Yamevi and Kem Dano (1990) N949.

Joseph Nimagi, Tom Gurua Kerui and David Bawai Laiam v The State (2004) SC 741.

Bokum Umba v The State, (1976) SC92.

Counsel:

S. Luben, for the State.

L. Siminji and R. Aupae, for the Prisoner

DECISION ON SENTENCE

16th August, 2007

1. KANDAKASI J: On 25th July 2007, this Court found you both guilty and convicted you one count each of armed robbery and unlawful use of motor vehicle. The conviction for the first count was after a trial whilst your convictions in relation to the second count were on your guilty plea confirmed after the trial. You argued for a sentence between 10 and 14 years for armed robbery and 2 years for unlawful use of motor vehicle to be served concurrently. The State asked for a sentence between 12 and 15 years.

Relevant Issues

2. The Court has to decide on an appropriate sentence for you on both counts and also decide whether to order the sentences it finally decides to impose against you to be served either concurrently or cumulatively. I will deal firstly with the question of what is an appropriate sentence for you and after a determination of that issue, the question of whether not, the serving of the sentences should be concurrent.

Appropriate Sentence

3. Turning firstly to the question of appropriate sentence, we need to start with what the law is in relation to both offences and the relevant sentencing guides and trends. We will then apply the law to the facts of your case and settle upon an appropriate sentence for each of the offences.

4. The offence of armed robbery carries a maximum penalty of life imprisonment. Nevertheless, in the often cited case of Gimble v. The State,

[1988-89] PNGLR 27.

1 the Supreme Court set sentencing guidelines and tariffs lower than that in the exercise of the sentencing discretion vested in the Courts by s.19 of the Criminal Code. According to the guidelines provided by that case, higher up on the sentences it recommends is 7, years for robbery of a dwelling house and at the lower end are robberies of a person on the street at 3 years.

5. In The State v. Moses Tingin & Kennedy Kara

CR 1483 and 1484 of 2005 (judgment delivered on 26th September 2005).

2 I reviewed the Supreme and National Court’s approach to sentence since the decision in the Gimble case. I started that process with the decision of the Supreme Court delivered on 2nd April 1998, in Hawai John v. The State,

(unreported judgment delivered on 02/04/98) SCR 09 of 1995.

3 to the Supreme Court decision in Dadly Henry Gorop v. The State

(unreported judgment delivered on 03/10/03) SC732.

4 and the National Court decisions in The State v. Paul Maima Yogol and Dama Teiye,

(21/05/04) N2583, per Kandakasi J.

5 The State v. Warip Mondol & Ors.,

(19/08/04) N2707, per Lenalia J.

6 and The State v Gilbert Monai.

(09/06/04) N2617, per Sevua J.

7

6. The review revealed that, due to the prevalence of the offence of armed robbery, the Courts have now come to accept that, the past sentences have failed to deter offenders like you. Having regard to that fact, and the relevant sentencing trend and or tariffs, the Supreme Court in Dadly Henry Gorop v. The State (supra), in the context of a sentence of 20 years said:

“Given these, the sentence of 20 years in your case would appear not to be manifestly excessive going by the guidance of the judgment in Hawai John’s … case. At the same time however, given the kind of sentence the offenders have received in cases like that of The State v. Vincent Malara … following a guilty plea in the particular circumstances in those cases with a sentence after a trial as in The State v. Edward Toude, & Ors (No 2), … reaching 20 years, we are of the view that you would have a justified feeling of the sentence being excessive. We are therefore of the view that your sentence should be reduced to 18 years.”

7. In that case, the prisoner pleaded guilty to one charge of armed robbery. The amount of property stolen was not substantial, but the injuries to the victims were very serious. The victims were a Canadian couple, touring the country at the time. The prisoner seriously assaulted the victims with a hockey stick. That resulted in fractured head injuries to both victims. The prisoner also knocked them down unconscious, with one of them almost dying but for swift medical intervention.

8. In the case of Moses Tingin & Kennedy Kara then before me, I concluded:

“What is clear from all of this is the fact that, sentences in armed robbery cases have increased since the guidelines in Gimble v. The State … The prevalence of the offence is the main contributing factor for the increase in the sentences. The lowest starting point for a simple robbery of a dwelling house is now 10 years. This sentence may be increased or decreased depending on the factors in aggravation as well as those in mitigation. However, if this is reconsidered in the light of the judgment in Hawai John v. The State,… the sentence could well start at 13 to 15 years. Indeed two recent judgments of the Supreme Court in Norbert Maing v. The State … and Nelson Ngasale v. The State,… endorsed a number of judgments increasing sentences, most of them mine by indicating a preparedness to increase sentences from 10 years to 13 years for armed robberies on a street on a plea of guilty.”

9. I also noted that, the judgment of the National Court in The State v. Paul Maima Yogol and Dama Teiye, (supra) The State v. Warip Mondol & Ors.(supra) and The State v Gilbert Monai (supra) were examples of the Courts imposing sentences beyond the 10 years mark for robbery on a street.

10. In the first of these cases, I imposed a sentence of 12 years on guilty plea. The prisoners were part of an armed gang that held up a motor vehicle and stole from its driver and others cash and goods valued at about K1, 300.00. That was on a guilty plea by two first time young offenders.

11. In the second of these cases, the National Court per Lenalia J., imposed on a guilty plea a sentence of 12 years for armed gang robbery on a street. That was for robbery of a vehicle on a highway with the use of bush knives and actual violence where a...