The State v Marety Ame Gaidi (2002) N2279

• Jurisdiction: Papua New Guinea
• Judge: Kandakasi J
• Judgment Date: 26 August 2002
• Citation: (2002) N2279
• Court: National Court
• Year: 2002
• Judgement Number: N2279

Full Title: The State v Marety Ame Gaidi (2002) N2279

National Court: Kandakasi J

Judgment Delivered: 26 August 2002

N2279

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]

CR NO. 247 of 2001

THE STATE

-V-

MARETY AME GAIDI

WAIGANI: KANDAKASI, J.

2002: 15th and 26thAugust

DECISION ON SENTENCE

CRIMINAL LAW – Sentence – Armed robbery by gang – Robbery of an office in a residence – Two members of the gang in police uniform – No physical violence and injury – A fire arm used to execute robbery – Substantial amount of money and goods stolen in the robbery, most not recovered – Accused found guilty after trial – No prior convictions – Plea of family suffering if custodial sentence imposed rejected because that is the natural consequence of committing the offence at the first place – Pre-sentencing report recommending non-custodial sentence consider but not followed as offender is not a young offender – Prevalence of offence considered – Sentence 17 years imposed – Criminal Code ss.17 and 386.

Cases cited:

The State v. Fabian Kenny (unreported judgement delivered 16/05/02) N2237.

The State v. Damien Anis (unreported judgement delivered 23/05/02) N2236.

The State v. Edward Toude & Ors, CR. No. 964 of 2001 (unreported and unnumbered judgement delivered on 18/10/01) No. 2.

The State v. Vincent Malara (unreported judgement delivered 20/02/02) N2188.

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

Tau Jim Anis v. The State SC642.

Allan Peter Utieng v. The State (Unreported and unnumbered judgement delivered in Wewak on the 23rd of November 2000) SCR 15 of 2000.

The State v. Raphael Kimba Aki (No.2) (unreported judgement delivered on 28/03/201) N2082.

The State v Danny Pakai (unreported judgement delivered on 17/12/01) N2174.

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

The State v. Micky John Lausi (unreported judgement delivered on 27/03/01) N2073.

The State v Zima Munduai (unreported judgement delivered 12/12/00) N2036.

Counsel

Ms. M. Boni for the State

Mr. B. Takin for the Accused

26th August, 2002

KANDAKASI J: You were found guilty on the 1st of August 2002, after a trial. Then on your lawyer’s application, a pre-sentencing report from the Probation Service was called for. The Court received the report on the 14th of this month. On the following day, the Court heard submissions from both your lawyer as well as that of the State. A decision on your sentence was then reserved to a later date. This is now the Court’s decision.

You were found guilty of being part of an armed gang of about four men who held up at gunpoint an Alex Theo and others on the 3rd of August 2000. The robbery was carried out at an office in a residence at East Boroko here in the National Capital District. Two of your accomplishes were dressed in police uniform and that greatly assisted in the robbery which was successfully carried out. Whether, these two men were in fact policemen or were impersonators, they achieved the purpose of successfully carrying out the robbery. It was the presence of the police uniform that made it possible for the security guard at the gate to open the gate and you entered the office with no difficulty. If it were not for that, I am sure there could have been some physical harm or injury occasioned to the victims of your offence or that you would not have been successful.

In the robbery, you stole cash and goods totaling K9,600.00. You were found driving in the vehicle used in the robbery and were apprehended. A witness positively identified you as the person driving the vehicle involved in the robbery and was a part of the gang that carried out the robbery. At the time of your apprehension you were found to have in your possession K1,170.00 in cash. You offered no good or convincing explanation as to where this money came from. Despite all of these, you denied being involved. That necessitated a trial, forcing the State to incur further costs. You did not produce any witnesses to testify in your favour in any respect.

For the purposes of sentencing I note these facts as factors operating against you. That is in addition to noting that you are an adult person married with children. You are therefore not a young offender. I also note that the presence of the two men in police uniform irrespective of whether they were in fact policemen or impersonators, made the robbery in my view a more serious one. Added to that is the fact that, the robbery was carried out at a dwelling house, which had a small office downstairs. In fact one of the occupants of the house was sleeping when you conducted the robbery. Further, I note and there is no dispute that, the crime of armed robbery is a very prevalent offence.

On the other hand the factors in your favour are few. First, I note that you are a first time offender as you have no prior convictions. Secondly, I note according to your pre-sentencing report that, you have been a useful member of the society using your trained skills as a motor vehicle mechanic. You belong to the SDA church by way of church and family background. Thirdly, I note that you are not a very violent person and that you did not use any force or violence against any of the victims in the robbery. Fourthly, I note you are a married man with 4 children ages ranging from 3 to 10 years old. If you are given a custodial sentence, your family will be seriously affected, as you are the only means of support for them.

In my view the factors operating against you far outweigh the factors operating in your favour. There are number of reasons for that. First, the crime of armed robbery as already noted is a very prevalent offence. It is being committed everyday throughout most parts of the country. People are living in fear and that is preventing the free conduct of business. Many people who would come with their skills, knowledge and money to help build our country both economically and socially are scared off by this kind of offence. I noted this in many of my judgements already as in The State v. Fabian Kenny (unreported judgement delivered 16/05/02) N2237 at page 5. Indeed, the offence with which you have been charged was against a business at the residential office of the business and I have nothing to show that despite the robbery the business continues to exist and or function today.

Again as I have noted in many of my own judgements very recently as in The State v. Damien Anis (unreported judgement delivered 23/05/02) N2236, at page 11, there are repeated calls for stiffer penalties against armed robbers. This is the response from the community because of the seriously bad effects of the crime of armed robbery. I have responded to that by imposing sentences as high as 20 years as The State v. Edward Toude & Ors, CR. No. 964 of 2001 (unreported and unnumbered judgement delivered on 18/10/01) No. 2, after a trial for an armed robbery on a ship. In a case of a guilty plea, I have imposed sentences as high has 15 years as in The State v. Vincent Malara (unreported judgement delivered 20/02/02) N2188. In arriving at such sentences, I noted and accepted that although Parliament has prescribe life imprisonment and the maximum penalty, the Supreme Court has come up with guidelines for sentences in armed robbery cases, in its decision in Gimble v. The State [1988 – 89] PNGLR 27.

The guidelines set by the Supreme Court in the Gimble v. State (supra) case, allows for sentences much lower than life imprisonment. These guidelines allow for sentences of 7 years up on the top for robbery of a dwelling house and 3 years for a robbery on a street at the lower end. These are for cases of guilty pleas by first time young offenders with no aggravating features. The actual sentence in anyone case may be over or below those recommended. I have also noted that, these guidelines have been varied by subsequent judgements of the Supreme Court such as the decision in Tau Jim Anis v. The State SC642. Numerous warnings have been given in many judgements of both the National and the Supreme Courts that the Courts will impose more higher or stiffer penalties given the higher occurrence of the offence.

A period of more than one year has passed since my judgement in The State v. Edward Toude & Ors (supra) and a period of 3 months have passed since the judgement in the case of The State v. Vincent Malara (supra). I do not consider the period that has lapsed since the judgement sufficient to enable offenders like you to become aware of the sentences. More importantly however, you committed the offences before the pronouncements of the sentences in those cases. This means your sentence must not exceed...