The State v Timothy Thomas Moriloma (No 2) (2003) N2395

• Jurisdiction: Papua New Guinea
• Judge: Manuhu AJ
• Judgment Date: 23 May 2003
• Citation: (2003) N2395
• Court: National Court
• Year: 2003
• Judgement Number: N2395

Full Title: The State v Timothy Thomas Moriloma (No 2) (2003) N2395

National Court: Manuhu AJ

Judgment Delivered: 23 May 2003

N2395

PAPUA NEW GUINEA

IN THE NATIONAL COURT OF JUSTICE AT LAE

CR. 385 of 2002

THE STATE

- vs -

TIMOTHY THOMAS MORILOMA (No. 2)

Lae: Manuhu, AJ

2003: 23rd May

CRIMINAL LAW - Particular offence –Armed robbery –Sentencing considerations in contested case – ‘Accidental’ killing in the course of robbery.

Cases cited in the judgment:

Andrew Uramani & 4 Others v. The State [1996] PNGLR 287.

Anna Max Marangi v. The State (2002) SC702.

Gimble v. The State [1988-1989] PNGLR 271.

Jerry Wasu v. The Sate (2002) SC697.

Public Prosecutor v. Don Hale [1998] SC 564.

Tau Jim Anis v. The State (2000) SC642.

The State v. Abel Airi (2000) N2007.

The State v. Danny Pakai (2001) N2174.

The State v. Frank Suwari (2001) N2173.

The State v. Gore Yogal (2001) N2080.

The State v. Jimmy Yasasa Lep (1996) N1495.

The State v. Kennedy Arus (2001) N2081.

The State v. Marety Ame Gaidi (2002) N2279.

The State v. Steward Pariwan (1999) N1834.

The State v. Wallen Yamevi and Kem Dano (1990) N949.

Ms. C. Nidue, for the State.

Mr. Mwawesi, for the prisoner.

JUDGMENT ON SENTENCE

23rd May 2003.

MANUHU, AJ: The prisoner, Timothy Thomas Moriloma (“The prisoner”), was convicted on two related counts of armed robbery on 5th May after a trial.

1 See judgment on verdict in State v. Timothy Thomas Moriloma (No. 1) (2003) N2395 .

1 I must now sentence him.

Relevantly, the facts are as follows. On 13th August 2001, at about 2.30pm, the accused and five accomplices went to Mangola Street, Lae, where the business premises of Lings Freezers were situated. They were armed with a factory made pistol and some knives. They held up a cashier forcefully took about K2,000.00 in cash and rushed out of the store. They then pointed a pistol at a driver and his crew, and ordered them to get out of their security-firm vehicle. The prisoner and his accomplices then got into the vehicle and drove away from the scene. As the stolen vehicle made its getaway, a shootout took place between the robbers and a James Wong. The stolen vehicle was eventually abandoned and the robbers fled in various directions.

About one hour and fifteen minutes later, following a search, the prisoner was located within the search area from underneath the pallets at the back of Laurabada Secondhand Clothing. He had been wounded and was bleeding from the face. An accomplice was also found wounded in the abdomen. He later died in the hospital. An innocent bystander also lost his life from a stray bullet during the shootout. The prisoner was taken to the police station and then the hospital. The prisoner escaped from the hospital in the evening of 14th August. He was later apprehended on 27th October and charged for the armed robberies.

The appropriate sentence may be ascertained firstly by ascertaining the current sentencing trend in like offences. In that regard, the oft-cited Supreme Court case of Gimble v. The State

2 [1988-1989] PNGLR 271.

2 (“Gimble”) sets the course for the apportionment of sentences in various categories of armed robbery cases. This case falls in the third category, which fixes a sentence of five years in a contested case, where a group of young first offenders, carrying weapons, use threats of violence and rob a store, a vehicle, etc. A lesser sentence may be imposed in a plea of guilty but a higher penalty may be imposed if aggravating factors are found.

From mid-nineties, however, Gimble came under pressure when repeated calls were made to increase sentences for armed robbery. See for instance The State v Jimmy Yasasa Lep

3 (1996) N1495.

3 (“Jimmy Lep”), Public Prosecutor v Don Hale

4 [1998] SC 564.

4 (“Don Hale”), and The State v Steward Pariwan

5 (1999) N1834.

5 (“Steward Pariwan”). In Don Hale, for instance, the Supreme Court said:

“We feel that the starting point to an appropriate sentence involving the robbery of home owners at night with use of firearms to threaten the victims should be [ten] years.”

Eventually, in Tau Jim Anis v The State

6 (2000) SC642.

6 (“Tau Jim Anis”), the Supreme Court re-affirmed and applied the suggested denominator in Don Hale. Using the same denominator, the Supreme Court, in upholding the appeal, reduced the sentence in Tau Jim Anis for robbery of a store from ten years to eight years. That is an increase of three years from Gimble’s five years in the relevant category.

All these could mean that, using the same denominator, the new sentencing guidelines for armed robbery should now be ten years for robbery of a house in a contested case; robbery of a bank should be nine years; robbery of a store, a vehicle, etc, should be eight years, and; a street robbery should be six years. In each category, a lesser sentence may be imposed in a plea of guilty but a higher penalty may be imposed if aggravating factors are found. Unfortunately (or fortunately), the Supreme Court in Tau Jim Anis just fell short of increasing the tariffs set in Gimble.

In any event, the mood in Don Hale and Tau Jim Anis became evident in subsequent decisions. Under the category relevant to this case, in The State v Gore Yogal

7 (2001) N2080.

7 (“Gore Yogal”), the defendant was sentenced to seven years upon a plea of guilty when he robbed PNG Motors in West Goroka. The defendant was armed with a gun and was in the company of another. The defendant stole about K5,000.00 in cash and cheques. In The State v Kennedy Arus

8 (2001) N2081.

8 (“Kennedy Arus”), a sentence of eight years was imposed after the defendant pleaded guilty to an armed robbery of a PMV bus in motion on a highway. In The State v Frank Suwari

9 (2001) N2173.

9 (“Frank Suwari”), a sentence of six years was imposed after the defendant pleaded guilty to an armed gang robbery. A shotgun was used and various properties were stolen. In The State v Danny Pakai

10 (2001) N2174.

10 (“Danny Pakai”), after a plea of guilty, the defendant was sentenced to eight years. The defendant was in the company of others and they were armed with two homemade shotguns, a bush knife and a bolt cutter. The value of the property stolen was over K2,000.00. The defendant also had a prior conviction.

Very recently, however, sentences for armed robbery may have taken a quantum leap. In The State v Marety Ame Gaidi

11 (2002) N2279.

11 (“Ame Gaidi”), the trial judge referred to certain unreported judgments where sentences ranging from fifteen to twenty years were imposed. His Honour then imposed a term of seventeen years. The defendant was convicted after a trial, two members of the gang were in police uniform during the commission of the robbery, no physical violence or injury was caused and, properties of substantial value (K9,600.00) were stolen. Whilst the case involved a robbery upon an office in a residence, which is classified in Gimble as most serious, the sentence imposed still represents a substantial increase. It is seven years more than the suggested ten years tariff in Don Hale. If Ame Gaidi is the beginning of a new trend in relation to sentencing, it should now begin to impact on other categories of armed robbery.

However, for present purposes, for a number of reasons, the prisoner may be saved from any flow-on effects of Ame Gaidi. Firstly, Ame Gaidi falls in the first category of armed robbery whilst this case comes under the third category. Secondly, the inclination is to keep as close as possible to Gimble, Don Hale and Tau Jim Anis. As pointed in Tau Jim Anis, there is a need to increase “the tariff generally for all categories of armed robberies in Gimble but it must be done progressively rather than by leaps and bounds.”

Thirdly, the courts often resort to increasing sentences on the basis of a particular offence being prevalent without...