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State v Romen [2002] PGNC 78; N2260 (23 July 2002)

N2260

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE

CR. NO. 1063 & 1064 OF 2002

THE STATE

-V-

CHRIS ROMEN

&

THE STATE

-V-

CHRIS ROMEN & TIOTAM JAMES TIRALOM

KOKOPO: Lenalia, J.
2002: 16, 17, 23 July

CRIMINAL LAW – First indictment – First accused alone – Armed robbery – Plea of guilty – Matters for consideration – Sentence – Criminal Code s. 386 (1)((2)(a)(b)(c) and 387 – (Ch. NO. 262).

Criminal Law – Second indictment – First and second accused charged jointly with four charges – First accused pleads guilty to all four charges – Armed robbery and attempted armed robbery – Matters for consideration – Sentence – Criminal Code ss. 386 (1)(2)(a)(b)(c) and 387 – (Ch. No. 262).

Criminal Law – Armed robbery and attempted armed robbery – Not guilty pleas by second defendant – Trial – Finding of Not guilty – Criminal Code s. 386 (1)(2)(a)(b)(c) and 387 – (Ch. No. 262).

CASES CITED
The following cases are cited.
Gimble –v- Wellington Belawa [1988-89] PNGLR 271

Counsel:
L. Rangan, for the State
A, Raymond, for the Accused.

23 July 2002

LENALIA, J. The State presented two indictments before this Court last week. The first indictment charges the first accused Chris Romen alone with an offence of armed robbery. Upon arraignment on that first indictment (CR. No. 1063/2002) the prisoner Chris Romen pleaded guilty. On the second indictment containing four separate charges, the first accused again entered pleas of guilty to all charges whilst the second accused Tiotam James Tiralom pleaded not guilty to all four charges. The five charges are brought pursuant to ss. 386 (1)(2)(a)(b)(c) and 387 (1)(a)(2)(a)(b) of the Criminal Code.

I first deal with the first accused on his guilty pleas to the first indictment and the four charges contained in the second indictment. The facts to which Chris Romen pleaded to were these. On the first indictment the State alleged that on 17th of November, 2001 at Tokua-Kokopo road, he stole from Steven Baimo and others with actual violence a bag containing clothes, shoes, food stuff, ammunitions and a factory made pistol, the properties of Steven Baimo and others whilst the ammunitions and factory-made pistol the property of the Independent State of Papua New Guinea. The State further alleged that, accused Romen Chris was in company of others armed with a bush knife and a small pocket-knife.

Senior constable Steven Baimo was returning from Buka on the North Solomons Province after completing three months deployment duties and upon arrival at the Tokua Airport no police vehicle awaited him. The result was that he had to board a public motor vehicle bus to come to Kokopo town. As the driver took off to the main Highway at the airport, the accused Chris Romen and other stopped the bus. The pair were picked up, but on the way to Kokopo at Camp (6), the two men who had just been picked, called out for the driver to stop.

One of the two men went out to the driver’s side pulled out a pocket-knife and placed it against the driver’s neck while the other placed a bush knife on Steven Baimo’s left shoulder and Chris and his accomplice ordered the offsider to remove Constable Baimo’s belongings out from the bus. After removing the properties from the bus, the pair ordered the driver to take off.

On the second indictment (CR. No. 1064/2002), the State’s allegation in relation to the four charges are that, on 5th of December 2001, they stole from Arthur Donald with actual violence a Utility Toyota Hilux 2-wheel drive silver blue in colour Registration number H. 240 and K70.00 cash, the property of Elias Marangit. The State say that the two accused were armed with a factory-made pistol and a home-made gun being dangerous weapons and were in company of four others. The facts show that when accused Chris and another came upon Arthur Ronald they, threatened to shoot Arthur, they put sticky tape over his hand by way of tying his hands together, removed his waist-bag containing K70.00 and drove away in the vehicle.

Arthur Donald was told before the rascals drove away that they were to use his vehicle to get some money perhaps they were referring to the illegal attempting and obtaining of moneys from MVIT at SKOWHEGAN then at Omorong Service Station. So the accused and two others drove away living Arthur, accused Tiotam and Boas were ordered to stay put until the accused and his two co-accomplices returned. Arthur recalls that Tiotam, Boas and himself waited for a long time before the accused and his two accomplices returned. That span of time was referred to by Tiotam James Tiralom as about thirty minutes which in my view would not be the sufficient time to drive from the first scene to SKOWHEGAN, to Omorong Service Station then back to Tokua where they had left Arthur, Tiotam and Boas.

It is the evidence of the State, that the accused Chris Romen and his two accomplices used the vehicle driven by Arthur Donald to come to Kokopo town to SKOWHEGAN where accused Chris Romen parked outside and waited while his two colleagues went up-stairs to the MVIT office, held up Mrs. Dina Timmie and conducted an attempted armed robbery upon her. Nothing was stolen but Dina Timmie recalls that when the two unmasked men entered her office and asked if they could make a deal with her. Dina asked what was the nature of the deal and the two men said they wanted money. One of them pulled out a factory-made pistol and threatened to shoot her if she shouted.

A quick thought came into Dina’s mind and she told the robbers "No" to their demands but she said the keys were at the back room. She convinced them and once she was out of the two men’s sight she quickly ran down shouting and calling out for assistance and alerting other occupants of the SKOWHEGAN office complex. The two men fled empty handed into the waiting vehicle and the accused Chris Romen drove them away to the next scene.

On their way up toward Takubar, they stopped at Omorong Service Station where they robbed three Pump Attendants of their waist-bags by coming from their backs and pointed a pistol and another man sitting at the blue vehicle also pointed a gun at the other and took the three bags of money and drove away leading towards Takubar. It is not clear from the evidence whether, the armed robbery committed at Omorong Service Station was conducted first before coming to SKOWHEGAN or not. What is clear is the space of time between the two attempted and armed robbery was quite close to each other in order for the accused Chris Roman and his accomplices to escape. Before they escaped the scene at Omorong Service Station, a warming shot was fired into the air.

Arthur Donald said, after a long time of waiting, the gang came back, picked them up, and drove down to the back of the DCA Compound where they blocked of the main access in the main road. I infer, that must have been done after the driver had seen a Nissan Navara 4x4 Single Cab Reg. No. RAF. 84. That vehicle was driven by Tareu Bradley and was owned by Boroko Motors. Bradley says that he saw the vehicle sped toward him at a very high speed blocking off his access on his lane and so he had to slow down then eventually stopped.

After having stopped, one of the suspects jumped out from Arthur’s vehicle with a home-made gun pointed it at Bradley and his passengers and made signs for him to get out of the vehicle. The two men with arms applied laplaps around their heads as scalves. Bradley was eventually ordered out and the gang took control of his car and drove away then into the dirt road leading to Kabagap village.

All evidence tendered is consistent with the accused Chris Romen’s guilty pleas to all the five charges contained in the first and second indictments. The part played by Chris Romen was he was a driver and quite apparently he is caught by definition of s. 7 of the Criminal Code and he was a principle offender pursuant to s.7 (1)(a)(b)(c) which provides –

"(i) When an Offence is committed, each of the following persons shall be

deemed to have taken part in committing the offence and to be guilty of the offence, and may be charged with actually committing it:-

(a) every person who actually does the act or makes the omission that constitutes the offence;

(b) every person who does or omits to do any act for the purpose of enabling or aiding another person to commit the offence;

(c) every person who aids another person in committing the offence;

(d) any person who counsels or procures any other person to commit the offence".

Before, I discuss the law on sentence of accused Chris Romen, I now turn to all evidence tendered by consent against the accused Tiralom Tiotam James. There is evidence by the driver of the vehicle named "EXODUS" Registration Number H.2410 a Toyota Hilux 2 Wheel drive single cabin that accused Tiotam James Tiralom and another, Boas Dissing approached him at Kokopo market and asked him if he could go with them to Tokua to pick up their wet cocoa beans to be sold here in Kokopo. They took off because the driver Arthur consented to go with them to Tokua.

On arrival at the scene where, Tiotam and Boas were to pick up their baskets of cocoa, they asked the driver to wait for them to pick their wet beans up. While Arthur waited in his car, the accused Tiotam and accomplice Boas Dissing returned with two or three other men. The State say that because of the manner of approach by accused Tiotam James Tiralom and Boas Dissing in the way they perhaps acted and participated, the accused Tiotam was an accomplice. Accused Tiotam James Tiralom has been charged with all four charges contained in the second indictment of the Criminal File No. 1064 of 2002, together with the first accused Chris Romen.

The law on accomplice is that where there are several parties to an offence or offences arising out of the same or closely related facts, they may be charged in the same indictment and tried together. The court may however order separate trials pursuant to s. 568 of the Code. In the case where an accused pleads guilty and the other not guilty, the proper course is to postpone sentence on the prisoner who has pleaded guilty until those who have pleaded not guilty have been tried so that the Court may be in possession of the facts relating to those who have been convicted in order to properly assess their degrees of guilt: R –v- Payne (1950) 34 Cr. App R. 43. This rule does not apply where the prisoner would be called as a witness. Under such circumstances the prisoner should be sentenced forthwith: see pages 481 – 482 in the Criminal Law and Practice of Papua New Guinea by Charmers, Weisbrot, Inja J. Andrew and Dianne Nicols.

It has been stated that mere present at the scene of an offence is not sufficient to create criminal liability, there ought to be participation in the act. But, presence and wilful encouragement are sufficient to constitute the offence of parties to a crime. It is not even sufficient that the presence of an accused has in fact given encouragement. It must be proved that the accused intended to give encouragement and that he wilfully encouraged: Porewa Wani -v- The State [1979] PNGLR 593 see also R –v- William Taupa Tovarula [1973] PNGLR 140.

In the case of accused Tiotam James Tiralom, he gave evidence of his and that of his colleague Boas Dissing bona fide approach to driver Arthur Donald to assist them pick their baskets of cocoa beans to be sold here at Kokopo. I find there is no evidence connecting him to the four offences charged against him. He has given evidence that the reason for his and his colleague’s continued presence was their concern about Arthur Donald at the scene where they were. After all they were not masked and I do not think the Court could draw any inferences of guilt from the behaviour of the accused Tiotam. I find there is insufficient evidence to establish that accused Tiotam James Tiralom was a party to the crimes charged against him. I find him not guilty and acquit him.

On the prisoner Chris Romen the five offences you committed are all very serious. On the first, third, fourth and fifth counts, yo could be sentenced to life imprisonment. On the second charge of attempted armed robbery, the maximum penalty if committed without aggravation is 14 years, but where it is committed with circumstances of aggravation the maximum punishment is life imprisonment. In your case firearms were used and one of you discharged a warning shot at Omorong Service Station. The sentencing guidelines set by the Supreme Court in Gimble -v- The State [1988-89] PNGLR 271 have been referred to by other judges as not now suitable to the circumstances of arm robbery cases committed in our days with the increase use of firearms and of course the gratuitous accompanying violence being applied to commit these heinous crimes: The Public Prosecutor -v- Don Hale [1995] SC564.

The offences you committed, in my view are separate and distinct offences as compared to crimes committed in the course of one transaction and where it could be argued that you could be sentenced under the mercy of the principles enunciated in the case of Public Prosecutor -v- Sidney Kerua and Billy Kerua [1985] PNGLR 85. In that case it was held by the Supreme Court that where two or more offences are committed in the course of one or a single transaction, all sentences in respect of such offences should be made concurrent. But where offences are different in character, or in relation to different victims, sentences should normally be made cumulative. I bare in mind what the Court said there about offences of being similar character and relate that fact to the prisoner’s involvement in the instant armed robbery charges and one attempted charge. Though those offences may have been of similar in character, they involved quite distinct victims. The crimes you and your accomplices committed were committed within intervals in the sense of timing and were committed at different locations and the Court should impose cumulative sentence.

However, I am still bound by the principle that after arriving at appropriate sentences in consideration of all appropriate circumstances and have decided whether sentences should be made concurrent or cumulative, the sentencing Court must then look at the total sentence to see if it is just fair and appropriate. Due to this principle, I am mindful that any sentences imposed on the prisoner in the instant five serious charges must be just in total: Acting Public Prosecutor -v- Konis Haha [1981] PNGLR 205.

In your favour, the Court take into account your guilty pleas to the five serious charges. It is a genuine credit on your behalf. It shows at least that despite being charged with serious crimes you can stand up to your conscience by pleading guilty. I also take into account all mitigating factors mentioned in your favour by your lawyer. I also consider the serious nature of these offences and the fact that the crime of armed robbery is quite prevalent. The mitigations raised in your favour together with what you mentioned in allocutus of the five charges. My view is committing five crimes in one day is totally out of ordinary and it shows determinate intent to commit crimes without due consideration for law and respect due to the victims you offended against.

Business people must be allowed to conduct their business freely without threats and fear from anyone. People travelling up and down public highways or even in private feeder roads must feel free to travel without fearing someone will rob them of their vehicles or belongings. The policeman you robbed at Camp (6) had returned from call-out duties to the North Solomons Province and for you and your colleagues to rob him before he reached his house and his family was totally deplorable.

You are also a first offender and I bare in mind comments made by the Supreme Court in the case of Tau Jim Anis -v- The State (2000) SC642 that those comments raised in the case of Don Hale related to an armed robbery in a dwelling house. You were involved in robberies in the public streets and offices. Having considered all mitigation on one hand and the aggravating factors on the other, you are sentenced in the following manner:

On CR. No. 1063/2002: You are sentenced to 7 years in hard labour.

On Cr. No. 1064/2002:

Count 1 : You are sentenced to 5 years imprisonment in hard

labour.

To be served cumulatively upon sentence on CR. No. 1063/2002 (Total 12 years).

Count 2 : Imprisoned to 5 years imprisonment IHL.

To be served concurrently upon sentence for Count 1.

Count 3 : Imprisonment to 6 years IHL.

To be serve cumulative on Count 2 (Total 18 years).

Count 4 : Sentenced to 6 years imprisonment IHL.

To be served concurrently upon sentence on Count 3 (Total 18 years).

The Court orders that the custody period of 7 months 2 weeks shall be deducted from the head sentence, living 17 years 4 months and 2 weeks.

The Court further orders that, three (3) years shall be suspended from the total sentence. After serving the balance, he shall enter into recognizance to keep the peace and be of good behaviour for 3 years. This leaves the balance of 13 years 4 months 2 weeks.

Sentence accordingly.
_____________________________________________________________________
Lawyer for the State : The State Prosecutor
Lawyer for the Accused : The Public Solicitor