The State v Kevin Aku Knox and Alex Ambi (2008) N3339

• Jurisdiction: Papua New Guinea
• Judge: David J
• Judgment Date: 15 May 2008
• Court: National Court
• Citation: (2008) N3339
• Docket Number: CR NO. 819 OF 2005 AND CR NO. 672 OF 2005
• Year: 2008
• Judgement Number: N3339

Full Title: CR NO. 819 OF 2005 AND CR NO. 672 OF 2005; The State v Kevin Aku Knox and Alex Ambi (2008) N3339

National Court: David, J

Judgment Delivered: 15 May 2008

_________________________________

N3339

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]

CR NO. 819 OF 2005 AND CR NO. 672 OF 2005

Between:

THE STATE

And:

KEVIN AKU KNOX and ALEX AMBI

Prisoners

Waigani: David, J

2008: 15 May

CRIMINAL LAW – sentence – guilty pleas entered by each prisoner – one count of armed robbery on golf course – a home-made gun and bush knives used - robbery in the company of others - actual violence – youthful offenders - one with prior conviction sentenced to seven years – first offender sentenced to six years – both sentences partly suspended- s.386 (1)(2) Criminal Code.

Cases cited:

Ure Hane v. The State [1984] PNGLR 105

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

Tau Jim Anis & Ors v. The State (2000) SC 642

Public Prosecutor v. Don Hale (1998) SC564

The State v. Fabian Kenny (2002) N2237

The State v. Nelson N. Ngasele (2003) SC731

Dadly Henry Gorop v. The State (2003) SC 732

The State v. James Gatana & Ors. (2001) N2127

The State v. Vincent Malara (2002) N2188

The State v. Sunny Kaupa, CR 480 of 2003 (2003)

Norbert Maing v. The State, SCRA No.29 of 2002, 02 October 2003

The State v. Paul Maima Yogol and Anor (2004) N2583

The State v. Tommy Yare & Anor, CR 1828 of 2003 (2004)

The State v. Chris Banban & Anor (2004) N2645

The State v. Terence Ago (2004) N2673

The State v. Billy Bimaru (2000) N2025

The State v. Benjamin Nabate (2002) N2216

The State v. Allan Esri Waluta (2005) N2911

The State v. Lionel Paru, CR 749 of 2004

Hawai John v. The State, SCR 9 of 1995 (1998)

John Arua Peter v. The State (2000) SC638

The State v. Gilbert Peter Diga (2000) N1991

The State v. Gore Yogal (2001) N2080

The State v. Sul Kora (2001) N2092

The State v. Tarere Mamu (2002) N2228

Counsel:

R. Luman and T. Ai, for the State

M. Norum, for the Prisoners

Legislation cited:

Criminal Code

Juvenile Courts Act, 1991

DECISION ON SENTENCE

15 May, 2008

1. DAVID, J: The State presented an indictment charging Kevin Aku Knox and Alex Ambi (the Prisoners) that they, on 17 February 2005 stole from one Kiyosi Matsuyama with actual violence (the victim) K20.00 in cash and properties valued at K16,300.00, the properties of the victim. At that time, the Prisoners were armed with dangerous weapons namely, a home-made gun and two bush knives. The Prisoners’ actions contravened s.386 (1) and (2) of the Criminal Code (the Code). The Prisoners pleaded guilty to the charge. The Court accepted the Prisoners’ guilty pleas and convicted each of them of the charge after reading the depositions and having been satisfied that there was sufficient basis to support the charge.

2. The Court has the benefit of pre-sentence reports filed for each of the Prisoners by the Community Base Correction & Rehabilitation Services through Ms. Elizabeth Mirio, Probation Officer and I am grateful for her contribution.

3. A Submission on Sentence was filed by the defence.

FACTS

4. The facts to which the Prisoners pleaded are these.

5. On 17 February 2005, at about 4.00 pm, the Prisoners who were part of a gang were in nearby bushes at the Port Moresby Golf Club, Waigani. They saw a Japanese man in the company of two locals. One of the locals was a caddy and the other a relative of the caddy. The gang then approached the security guard on duty at location 15 and threatened to shoot him if he raised any alarm as they were there to rob the Japanese. One of them stood near the security guard and stood watch while the rest awaited the Japanese and his caddy and the other local. As they approached the 15th hole, they were jumped upon and threatened with a home-made gun and bush knives and were ordered to lie down. They then searched the Japanese’s pocket and removed K20.00 from the pocket. They also removed a silver Rolex wrist watch valued at US$5,000.00 which is about K15,000.00 equivalent, 79 golf club, UX brand, graphite shaft valued at about K900.00, one pair of golf shoes, Nike brand valued at about K300.00.

5. As the victim and the two locals were lying on the ground, the victim was attacked with a bush knife with hands on his head. He sustained injuries to the middle fingers from both his hands. The victim was later transported to a hospital where he was appropriately treated.

6. The gang escaped. The Prisoners were subsequently arrested after an investigation was conducted.

THE LAW

7. The Prisoners were charged under s.386 (1) and (2) of the Code. Section 386 (1) and (2) of the Code creates the offence and prescribes the penalty for simple and aggravated robbery. I set out the relevant provision 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 not 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; or

(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.

8. In Gimble v. The State [1988-89] PNGLR 271, the Supreme Court prescribed sentencing guidelines for aggravated armed robbery cases for which the maximum prescribed penalty is life imprisonment and they are as follows:-

1. On a plea of not guilty by young first offenders carrying weapons and threatening violence for:-

(a) robbery of a house – a starting point of seven years;

(b) robbery of a bank – a starting point of six years;

(c) robbery of a store, hotel, club, vehicle on the road or the like – a starting point of five years;

(d) robbery of a person on the street – a starting point of three years;

2. Features of aggravation such as actual violence, large amount stolen or where the robber is in a position of trust towards the victim may justify a higher sentence.

3. A plea of guilty may justify a lower sentence.

9. These guidelines were varied in Tau Jim Anis & Ors v. The State (2000) SC 642 where the Supreme Court held that while the sentencing guidelines were still useful, the tariff was not which resulted in the increase of the recommended sentences for each category by three years. The Supreme Court was influenced by Public Prosecutor v. Don Hale (1998) SC564 where the Supreme Court held that with the prevalence of violent crimes involving the use of guns, the tariff recommended in Gimble had no effect and was no longer relevant. The Supreme Court in Don Hale felt that the starting point of armed robbery of a house at night should be ten years, an additional three years above the tariff set. The Supreme Court in Tau Jim Anis said there was a need to increase the sentencing tariff for all categories of armed robberies, but that it is done progressively and not by leaps and bounds.

10. The following are examples of some aggravated armed robbery cases which show that there has been an increase in sentences. Guilty pleas were entered in all the cases.

11. In Dadly Henry Gorop v. The State (2003) SC 732, the appellant was sentenced to twenty years imprisonment in hard labour for the robbery of a tourist couple at Rabaul with physical violence occasioning serious injuries to both of them. He claimed that the sentence was excessive. The appellant attacked the victims with a hockey stick repeatedly until the victims fell to the ground unconscious and then stole from them a camera, a bag containing their business cards and K150.00 in cash. The victims suffered multiple injuries including fractures to the head and facial area affecting the sight of one of them and the brain of the other. They were initially taken to the Nonga Base Hospital, Rabaul, but were later flown to Cairns Base Hospital and then transferred to Townsville General Hospital where they recovered from the injuries. They required ongoing rehabilitation particularly for the male victim whose long term prognosis was not good. The Court reduced the sentence to eighteen years holding that the trial judge failed to consider the sentencing trend in similar cases.

12. In The State v. Sunny Kaupa, CR 480 of 2003 (2003), the Court sentenced the prisoner to five years imprisonment in hard labour less time spent in custody. Two years of the term was suspended and the prisoner placed on a good behaviour bond for three years after serving two years one month and three weeks in gaol. In that case the prisoner, who was a youthful first time offender, in the company of others held up the victim while driving his motor vehicle along the Sogeri Road towards Port Moresby. The prisoner and his accomplices were armed with home made guns and a bush knife. The victim and his passengers were robbed of K1,500.00 in cash and property valued at K190.00 out of which the prisoner only received K50.00 in cash.

13. In The State v. Paul Maima Yogol and Anor (2004) N2583, the prisoners were charged with the armed gang robbery of a motor vehicle. They were first time offenders and had no prior convictions. They were in the company of ten other young men when they set up a road block, held up and robbed the driver of the motor vehicle and his passengers of cash and property with an estimated total value of K1,300.00. The prisoners and their accomplices were armed with three home-made shotguns and bush...