The State v Philip Bira (2009) N3633

• Jurisdiction: Papua New Guinea
• Judge: Cannings J
• Judgment Date: 26 May 2009
• Citation: (2009) N3633
• Docket Number: CR NO 405 0F 2000
• Court: National Court
• Year: 2009
• Judgement Number: N3633

Full Title: CR NO 405 0F 2000; The State v Philip Bira (2009) N3633

National Court: Cannings J

Judgment Delivered: 26 May 2009

N3633

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]

CR NO 405 0F 2000

THE STATE

V

PHILIP BIRA

Kimbe: Cannings J

2009: 14 April,

7, 26 May

SENTENCE

CRIMINAL LAW – sentence – armed robbery – Criminal Code, Section 386(1), (2)(a)(b) – guilty plea – co-offender already sentenced for same offence – principle of parity in sentencing.

A man pleaded guilty to armed robbery. He did not commit the actual robbery but aided those who did as he provided a vehicle and acted as a watchman and then, after the robbery, attempted to fool the police by making a false complaint that the vehicle had been stolen. A co-offender – the owner of the vehicle – was sentenced by another Judge five years ago. The offender argued that he should receive the same sentence as his co-offender. The State argued that the earlier sentence was lenient and that the court was not obliged to set the same sentence.

Held:

(1) The practical effect of the principle of parity in sentencing is that if a Judge is sentencing an offender and a co-offender has been sentenced by another Judge, it will be useful for the sentencing Judge to first indicate a notional sentence without having regard to the earlier sentence.

(2) The notional sentence is then compared with the earlier sentence.

(3) If the notional sentence is the same as the earlier sentence: fix that as the sentence.

(4) If there is a difference between the notional sentence and the earlier sentence, the sentencing Judge should consider whether the difference can be explained by different sentencing considerations peculiar to the offender being sentenced (eg different degree of involvement, different antecedents, different age or state of health).

(5) If different sentencing considerations are apparent, the sentencing Judge should proceed to fix the notional sentence or whatever sentence is considered appropriate, provided that when doing so (i) the Judge avoids giving rise to a justifiable sense of dissatisfaction or sense of injustice on the part of co-offenders and (ii) the Judge carefully explains why a disparate sentence is being imposed.

(6) If different sentencing considerations are not apparent, the sentencing Judge should impose the same sentence as the earlier sentence (whether it is higher or lower than the notional sentence).

(7) Here, the notional sentence was six years, compared to the earlier sentence of five years, but there were no significantly different sentencing considerations. Therefore the sentence was fixed at five years.

(8) The parity principle should also be applied to the questions whether any pre-sentence period in custody should be deducted from the head sentence and whether any part of the sentence should be suspended.

(9) Accordingly, the offender was sentenced to five years imprisonment, all of the pre-sentence period in custody (one year, one month) was deducted and the rest of the sentence (three years, 11 months) was suspended, on strict conditions.

Cases cited

The following cases are cited in the judgment:

Andrew Uramani v The State [1996] PNGLR 287

Gimble v The State [1988-1989] PNGLR 271

Ian Napoleon Setep v State (2001) SC666

Pemu Muro v The State (2006) SC842

Phillip Kassman v The State (2004) SC759

Public Prosecutor v Don Hale (1998) SC56

Saperus Yalibakut v The State (2006) SC890

Secretary for Law v Witrasep Binengim [1975] PNGLR 172

Tau Jim Anis v The State (2000) SC642

The State v A Juvenile “ET” CR No 1012/ 2003, 09.04.05

The State v A Juvenile, “TAA” (2006) N3017

The State v Alphonse Polpolio and Jeffery Baru CR No 865 + 701/2006, 14.07.06

The State v Danny Pakai (2001) N2174

The State v Dickson Kauboi CR No 495/2001, 07.06.06

The State v Frank Suwari (2001) N2173

The State v Jacky Vutnamur & Kaki Kialo (No 3) (2005) N2919

The State v Jethro Paul Matu CR No 314/2007, 13.07.07

The State v Justin Komboli (2005) N2891

The State v Kia Tala Moksy CR 785/2005, 12.08.05

The State v Lesley Cletus Malo CR No 379/2005, 19.12.06

The State v Michael Manowi CR No 1386/1999, 17.02.09

The State v Tony Pandau Hahuahoru (No 2) (2002) N2186

Tom Longman Yaul v The State (2005) SC803

Winugini Urugitaru v The Queen [1974] PNGLR 283

SENTENCE

This was a judgment on sentence for armed robbery.

Counsel

F Popeu & A Kupmain, for the State

D Kari & S Maliaki, for the offender

26 May, 2009

1. CANNINGS J: This is a decision on sentence for an offender, Philip Bira, who has been convicted, after pleading guilty, of one count of armed robbery. The robbery happened more than eight years ago and in the meantime another person involved in it has been convicted and sentenced. The offender maintains that he should get the same sentence as his co-offender, which was five years imprisonment, suspended. The State says that that sentence was lenient and that a higher sentence, of eight years, is warranted. The case requires a consideration of the principle of parity in sentencing.

THE FACTS

2. Philip Bira did not commit the actual robbery but he aided others who did. Therefore he is deemed under Section 7 of the Criminal Code to have also committed the robbery.

3. The robbery was of what was then called “Kimbe Supermarket’ (now a Papindo store) in Kimbe. It took place on 24 January 2000. The offender knew of a plan to rob the supermarket and he helped put the plan in place in this way:

· He was the offsider in a vehicle (a Toyota single-cab ute) owned and driven by his friend, Camillus Leo, who was also in on the plan.

· They travelled in the vehicle from Gaongo to Kimbe and near the town market picked up the man who allegedly was the mastermind of the robbery, Joseph Wittick.

· From the market, they went to the suburb of Section 15 in Kimbe, picked up four other men who were members of Wittick’s gang and headed back into town.

· Bira and Leo got off the vehicle near the Kimbe Bay Hotel and walked back into town, leaving Wittick and his gang, who were armed with two factory made shotguns, to drive in.

· Bira and Leo took up their position as watchmen near the supermarket, standing under a mango tree opposite the Westpac Bank.

· Wittick and his gang drove to a point outside the supermarket. When the supermarket employees came out with the day’s takings they held them up and stole K37,000.00 in cash and K26,499.82 in cheques (a total of K63,499.82), then escaped.

· Bira and Leo walked to the police station and reported that their vehicle had been stolen at Gaongo.

4. The police, however, were not fooled and took Bira and Leo to Gaongo, found nothing there to support their story and then arrested and charged them with the robbery. Wittick was also arrested and charged but not his gang members. They appear to have vanished.

5. Bira, Leo and Wittick were granted bail after some time in custody. Wittick (who is still at large and on the WNB Bench Warrant List) and Bira jumped bail, leaving Leo as the only member of the trio to, until recently, face court.

6. Leo pleaded guilty and was sentenced by Justice Sakora in August 2004 to five years imprisonment. His pre-sentence period in custody (the remand period) of one year, nine months was deducted from the head sentence and the rest of the sentence (three years, three months) was suspended and he was placed on a good behaviour bond for two years.

7. Bira turned himself in during the 2008 Bench Warrant Exercise in Kimbe. His previous bail was forfeited and he was placed on fresh bail of K100.00 and since then he has been complying with his bail conditions. He pleaded guilty to armed robbery under Section 386(1) and (2)(a) and (b) (the offence of robbery) of the Criminal Code.

ANTECEDENTS

8. Philip Bira has no prior convictions.

ALLOCUTUS

9. I administered the allocutus, ie the offender was given the opportunity to say what matters the court should take into account when deciding on punishment. He said:

I do not want to go to jail. I know I have broken the law but I do not need to go to jai. I want the same sentence as Camillus Leo. I am now employed and I do not want to be imprisoned.

OTHER MATTERS OF FACT

10. As the offender has pleaded guilty he will be given the benefit of the doubt on mitigating matters raised in the depositions, the allocutus or in submissions that are not contested by the prosecution (Saperus Yalibakut v The State (2006) SC890).

11. Significant mitigating factors amongst that material are that he cooperated with the police early during the investigation in 2000 and made full admissions.

PRE-SENTENCE REPORT

12. Philip Bira is 33 years old. His parents are from Suambukum in the Maprik district of East Sepik Province. He was raised in West New Britain. His mother is alive but his father is deceased. His mother is supportive of her son and does not want to see him go back to jail. He presently lives at Kapore in employer-provided accommodation.

13. He married a Sepik woman some time ago...