The State v Michael Timothy & Henry Gilson & Daniel Sakane

• Jurisdiction: Papua New Guinea
• Judge: Miviri J
• Judgment Date: 12 May 2023
• Neutral Citation: N10251
• Citation: N10251, 2023-05-12
• Counsel: P. Tengdui, for the State,J. John, for the Defendant
• Docket Number: CR No. 231, 232, 233 OF 2023
• Hearing Date: 11 May 2023
• Court: National Court

N10251

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]

CR No. 231, 232, 233 OF 2023

The State

v.

Michael Timothy & Henry Gilson & Daniel Sakane

Ialibu: Miviri J

2023: 11^th May

CRIMINAL LAW — PRACTICE AND PROCEDURE — Robbery — Store — Trial — First time Offenders — Remorseful — Well Planned — Actual Violence — Victim Stabbed — Prevalent Offence — Strong Deterrent Sentence.

Facts:

The three accused were part of a group armed with guns and knives who held up the shop Sinkwong Trading Ialibu and stole cash and properties valued at K 38, 000.00 and in the course, victim was stabbed.

Held

Store Robbery.

First Offenders.

Well Planned.

Actual violence.

Victim stabbed.

Prevalent Offence.

20 years IHL.

Remand deducted.

Cases Cited:

Anis v The State [2000] PGSC 12; SC642

Ala Peter Utieng v. The State (23rd of November 2000) SCRA 15 of 2000.

Golu v The State [1979] PNGLR 653

Gimble v The State [1988–89] PNGLR 271

Gorop v The State [2003] PGSC 1; SC732

Kumbamong v State [2008] PGSC 51; SC1017

Kama v The State [2004] PGSC 32; SC740

Keru; Public Prosecutor v Aia Moroi, Public Prosecutor v [1985] PNGLR 78

Lahui, Hetau, Noho, and Eki, v The State [1992] PNGLR 325

Marase v The State [1994] PNGLR 415

Nimagi v State [2004] PGSC 31; SC741

Public Prosecutor v Hale [1998] PGSC 26; SC564

State v Daniel [2003] PGNC 26; N2476

State v Malo [2006] PGNC 231; N4520

Simbe v The State [1994] PNGLR 38

State v Hahuahoru (No 2) [2002] PGNC 136; N2186

Simbago v The State [2006] PGSC 23; SC 849

Wani v The State [1979] PNGLR 593

Counsel:

P. Tengdui, for the State

J. John, for the Defendant

Public Prosecutor: Lawyer for the State

Public Solicitor: Lawyer for the Defendant

SENTENCE

12^th May, 2023

1. Miviri J: This is the sentence after conviction of Aggravated Armed Robbery of Michael Timothy of Wara Mil Block Bulolo Morobe Province with Henry Gilson from Karkar Island Madang Province and Daniel Sakane of Yaramanda Enga Province.

2. They were convicted that on the 03^rd December 2021 in company with others they, Michael Timothy, Henry Gilson, and Daniel Sakane were in Ialibu town. At about 2.00pm together with 7 others they entered the Sinkwong Trading store armed with automatic weapons, handguns, and knives. They held up the store manager and his assistant. They took K25,000.00 in cash kept by the Manager upstairs. They took another cash amount of K5000.00 from the till downstairs as well as store goods to the value of K8000.00. And during the robbery the Manager of the store James Zheng and his assistant Kai Zheng were both stabbed. The robbery in progress was observed by members of the public who alerted others of the robbery, and the commotion caused one of the robbers to fire a shot in panic. The shot alerted those who were inside to run out with the money and the goods and made their escape. They left four of their members behind who tried to make their getaway on foot but were captured by the public at Ialibu and handed over to the police. One escaped whilst in CIS custody whilst the three now remaining have been convicted.

3. The conviction is pursuant to section 386 (1) (2) (a) (b) (c) of the Criminal Code which is as follows:

“(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.” [Criminal Code (Amendment) Act 2022 (certified 12 April 2022)]

4. Robbery simplicitor will attract a minimum sentence of 14 years imprisonment. But if it is aggravated where there are dangerous and offensive weapons used, guns and knives here, and is committed in company or as a gang, and immediately after or at the time of the robbery, violence is used, here stabbing of the victim James Zheng, then the offenders can be sentenced to the maximum of life imprisonment. That is what is due the offenders here by the facts set out above, the maximum of life imprisonment for the aggravated robbery convicted here. But the maximum is reserved for the worst case of aggravated armed robbery: Golu v The State [1979] PGSC 9; [1979] PNGLR 653 (14 December 1979). Here a determinate time will be accorded. And that will be a balancing of the aggravating, the mitigating, and any extenuating circumstances for a proportionate sentence to be accorded.

5. In this regard aggravated Robbery has become prevalent, fearless with planning to military precision. How long to be in the site of the robbery and to get out as fast as is mastered. That is clear here because the defendants convicted are not from Ialibu. Michael Timothy is from Wara Mil Block Bulolo Morobe Province, with Henry Gilson from Karkar Island Madang Province, and Daniel Sakane of Yaramanda Enga Province. It is a risk they have individually taken to come out here to Ialibu not their home or locality to commit this crime. They have no fear that they will be caught. And particularly here where the location is in the heart of this little peaceful town. Shattered by the gun fire from their robbery on a crowded Friday 03^rd December 2021. It was not at the back of their mind that the weapons they had would injure someone within. And as here James Zheng was stabbed with the knife, exhibit P4 by Doctor Carolyn U Kema of the Ialibu Rural Hospital dated 11^th March 2022. Affirming treatment mastered at admission number 258019 on the 04^th December 2021 at Nazarene General Hospital. He had hemopneumothorax of his right lung. And underwent surgery on the 04^th December 2021, and was discharged on the 06^th December 2021. He sustained significant injury to his air box his lungs following the ordeal with the robbers. This is clearly a major and important part of the body. He could have been a dead man as a direct result of the aggravated armed robbery committed by the prisoners. No man lives without air to his body. They were immediately responsible for that injury because it was in their hands that he suffered that injury, which nearly cost his life. He was led upstairs ushered unceremoniously with force by them. It was very clear he sustained the injury in their hands. And the sentence will reflect this against all three prisoners. Their action in the injury is aiding and abetting each other in stabbing him with the bayonet type knife photograph Exhibit P5 and the Knife itself Exhibit P9.

6. He minded his own business and was in no way hurting, tormenting anyone but earning an honest upkeep employing Papua New Guineans, local persons from Ialibu as Akula Karo and Lamech Lawa, giving them a sense of working and living for themselves. All to be held up with dangerous weapons at 2.00pm to 2.30pm when the place was frequented and packed with the towns people. And that is clear from the reactions of the people leading to their arrests. It was therefore time in view to lay sentence that would reflect that where criminals took the risk to commit serious criminal offences as was the case here, they would face stiff and punitive sentences reflecting and saying that the law would not tolerate such anymore. Enough was enough. Tariff and range did not deter would be offenders. Fairness and Equity in passage of sentence: Gimble v The State [1988–89] PNGLR 271, was stepping into the domain of legislating. That is not the function of the Courts. Even then times have changed robberies as was the case here are now daring as ever. Which decision was made in 1988 now 35 years old. It is clear classification to proportion penalty sentence has not seen justice for the law abiding. The staggering arm of this crime can be seen out by its tentacles in armed security guards, in the grills and bars that are put up in business establishments drawing kina in millions, that is undoubtedly passed to the consumers in the public domain. Discretion of the Court is stifled by this domain of tariff range and classification of robberies and all other crimes that have become the subject of categories as they are referred. The theme is good, but the spirit is not since there are distinct roles, one by the Legislature, the Peoples will, and the interpretation by the Court. Armed robbery has not desisted by any measure of hope given the length and breadth of that decision. It has become even more daring as can be seen in this commission.

7. Applying the law to the facts and circumstances peculiar to a case and coming out with an appropriate sentence is the function of the Courts: Kumbamong v State [2008] PGSC 51; SC1017 (29 September 2008). Individually constituted Courts in their wisdom derived from the immediate facts and circumstances before them have passed sentences that have been distorted in the...