The State v Samuel Sammy Engo (No 2)

• Jurisdiction: Papua New Guinea
• Judge: Toliken, AJ
• Judgment Date: 13 May 2014
• Citation: (2014) N5618
• Docket Number: CR NO. 343 OF 2011
• Court: National Court
• Year: 2014
• Judgement Number: N5618

Full Title: CR NO. 343 OF 2011; The State v Samuel Sammy Engo (No 2) (2014) N5618

National Court: Toliken, AJ

Judgment Delivered: 13 May 2014

N5618

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]

CR NO. 343 OF 2011

THE STATE

V

SAMUEL SAMMY ENGO

(No 2)

Alotau: Toliken, AJ.

2013: 16th October

2014: 13th May

CRIMINAL LAW – Sentence after trial – Armed Robbery & Attempted robbery of a bank by gang – Prisoner entered bank with accomplices – Armed with a shotgun – Prisoner checked customers for mobile phones - Gang unsuccessful in gaining access to main bank area – Disturbed by arrival of police and exited bank – Accomplice rips off a computer screen and runs off with it – Prisoner last to run out with a shot gun and a pistol– Caught outside the bank by a customer – Severely assaulted by members of the public – Hospitalized for injuries sustained -Further assaulted by police while in custody – Criminal Code Act Ch. 262, ss 386 (1)(2)(a)(b), 387 (1)(2)(a)(b).

CRIMINAL LAW – Sentence – Mitigating and aggravating factors considered – Settled starting point for robbery of bank considered and applied – No authority for starting point for attempted robbery cited to Court – Starting point set at 5 years – Head sentences – 10 years for robbery – 5 years for attempted robbery – Concurrent sentence of 10 years less period spent in pre-trial custody.

Cases Cited:

Goli Golu v The State [1979] PNGLR 653

Avia Aihi v The State (No.3) [1982] PNGLR 92

Gimble v The State [1988-89] PNGLR 271

The Public Prosecutor v Don Hale (1998) SC 564

Tau Jim Anis v The State (2000) SC 642

Philip Kassman v The State (2004) SC 759

Richard Liri v The State (2007) SC 883

The State v Basu (1997) N1537

The State –v- Aaron Labu (2005) N2798

The State v Francis Vau Kamo; Cr 663 – 664 (06.04.06) (unreported and unnumbered judgment)

The State v William Nanua Kapris (2011) N4305

The State v Samuel Sammy Engo; CR 343 of 2011 (unnumbered and unreported judgment delivered on 16th October 2013 at Alotau)

Counsel

B Gore, for the State

P. Palek, for the prisoner

JUDGMENT OF SENTENCE

13th May, 2014

1. TOLIKEN, AJ: On 16th October 2013, the prisoner Samuel Sammy Engo was convicted after trial for one count of armed robbery and one count of attempted robbery in contravention of Section 386(1)(2)(a)(b) and Section 387 (1)(2)(a)(b) of the Criminal Code Ch. 262 (Code) respectively.

2. I delivered a short judgment then and administered the allocutus. (The State v Samuel Sammy Engo; CR 343 of 2011 (unnumbered and unreported judgment delivered on 16th October 2013 at Alotau) I then heard submissions on sentence on 21st October 2013 and adjourned for sentence to the 25th October 2013. I was, however, unable to do so and the matter was adjourned to the December circuit. That circuit did not proceed though due to funding problems faced by the Public Prosecutor. Hence the matter now comes before me on this first circuit to Alotau this year for sentence.

THE ALLEGATIONS

3. The State’s allegations are that on 4th day of May 2010, between 11.00 am and 12.00 noon, the accused and his accomplices entered the Bank South Pacific Branch in Alotau. They were armed with firearms. Customers were in the line when they entered. Then one of the accused’s accomplices swung his firearm at Bank staff, Chris Orake who jumped out of the way to avoid being hit. However, the police were notified and realising that, the group ran out of the bank.

4. On their way out, one of the accused’s accomplices ripped out an Acer Flat Screen Computer Monitor and ran out with it. As for the accused, before he could get into the get-away vehicle, he was knocked to the ground by a Michael Dulo. Members of the public then set upon him, assaulting him and restraining him until the police arrived. He was apprehended and taken to the police station.

FACTS

5. I will sentence the prisoner on the following facts which I found at the trial. On the morning of 04th of May 2010, between 11.30 am and 11.46 am, the prisoner walked into the Alotau Branch of the Bank South Pacific. He was in company of four other men namely Charlton Eric (an acquaintance of his from Gerehu in the National Capital District), Tommy Maiva Baker and another man described by State witnesses as tall and wearing a peaked cap. Three of the men, one of whom was Tommy Baker and a tall man with peak cap entered the bank first and stood at the side counter. The tall man was talking on his mobile phone. He was advised by witness Chris Orake to go outside and continue his conversation there. Chris Orake then walked the man out but not before the man pushed a red and yellow bag to Tommy Baker. After leaving the man outside the bank, Chris Orake went back into the bank and was assisting a friend of Michael Dulo when two men pushed security guard Philemon into the bank. They were armed with home-made guns. As this was happening, the tall man returned and forced a bank officer Hiroshi Kapigeno into the bank. The two armed men pointed the guns at Chris Orake one of them swinging his gun at him but missed as Orake fell to the floor.

6. The would be robbers then ordered the customers to lie on the floor and the accused who was armed with a home-made shot gun started to check the customers for their mobile phones. As he was doing that, his accomplices unsuccessfully tried to get one of the bank officers, James, to open the door into the main area of the bank.

7. By that time, the police were alerted. Sensing this, the robbers hastily ran out of the bank. One of them pulled out an Acer computer screen or monitor from the lending table and ran out of the bank with it. The men ran for a awaiting get-away vehicle.

8. The accused was the last to run out of the bank being the farthest from the door. He made for the get-away vehicle with a home-made shotgun and pistol in his hand. He was, however, felled from behind by Michael Dulo, one of the customers in the bank that morning who immediately followed after the accused as he was running out. The two struggled and members of the public set upon the accused and belted him up. He was later handed over to the police.

PERSONAL PARTICULARS

9. The prisoner is of mixed Central and Milne Bay parentage. He was 36 years old at the time of his conviction and has 3 children from a first marriage and 2 from his second marriage. He comes from a family of 5 children – 2 boys and 3 girls. He is the last born. Both his parents are now deceased. He attended Della Salle Secondary School in 1993 but did not complete Grade 10. He is a Roman Catholic. He is a first time offender and had been in pre-trial custody for a period of 3 years 5 months and 6 days.

ADDRESSES TO THE COURT

i) The Prisoner

10. When asked to address the Court prior to sentence this is what the prisoner said:

“I apologise firstly to the Court and to the public and to the bank staff. This is the first time for me. I ask for the Court’s mercy. I ask for Good Behaviour Bond. That is all.”

ii. Defence Counsel

11. In a nutshell Mr. Palek submitted for the prisoner that this case is not the worst instance of robbery and that his involvement in the robbery and attempt was minimal. He submitted that the value of the property stolen (Computer monitor) was merely K426.00 and while guns were involved the gun and pistol that the accused had with him were defective and hence the public was never really at risk though he did acknowledge the operation of Section 7 of the Code in respect of his accomplice’s involvement.

12. Mr. Palek asked the court to take particular attention to the fact that not only was the accused attacked and severely beaten up by the public during the time of his apprehension resulting in him being hospitalized but that after he was discharged he was again severely beaten up by the police while in lawful custody. Counsel said that the prisoner suffered so much at the hands of the police hence the court should take this into account when considering an appropriate sentence.

13. Mr. Palek urged the court to consider the following mitigating factors in favour of the prisoner: (1) he was educated up to Grade 9 only but did not complete his studies, (2) he comes from a good family background and was of previous good character, (3) he co-operated with police by answering questions well in his Record of Interview, (4) he has shown remorse by apologising for the trouble he has caused, (5) his parents are both deceased, 6) he is a first time offender and, (7) was severely assaulted by the public and police and (8) the property stolen was merely...