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State v Yovura [2003] PGNC 126; N2366 (2 May 2003)

N2366

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]

CR NO. 2002 of 2000

THE STATE

-V-

LUCAS YOVURA

WEWAK: KANDAKASI, J.
2003: 24th April
2nd May

CRIMINAL LAW – Sentence – Armed gang robbery with threats – Police in hot pursuit fired upon – Accused injured in gun fire exchange – Money totalling K10, 950 .00 stolen – Only K600.00 recovered - Guilty plea – No prior convictions – Plea of family suffering if custodial sentence imposed rejected as that is the natural consequence of committing the offence at the first place – Pre-sentence report recommending non-custodial sentence considered but not followed as offender is not a young offender – Prevalence of offence considered – Sentence 12 years imposed – Criminal Code ss.17 and 386.

Cases cited:
The State v. Fabian Kenny (unreported judgement delivered 16/05/02) N2237.
The State v. Damien Anis (unreported judgement delivered 23/05/02) N2236.
The State v. Edward Toude & Ors, CR. No. 964 of 2001 (unreported and unnumbered judgement delivered on 18/10/01) No. 2.
The State v. Vincent Malara (unreported judgement delivered 20/02/02) N2188.
Gimble v. The State [1988-89] PNGLR 27.
Tau Jim Anis v. The State SC642.
Allan Peter Utieng v. The State (Unreported and unnumbered judgement delivered in Wewak on the 23rd of November 2000) SCR 15 of 2000.
The State v. Raphael Kimba Aki (No.2) (unreported judgement delivered on 28/03/201) N2082.

Acting Public Prosecutor v. Don Hale (1998) SC564.

Counsel:
Mr. M. Ruari for the State
Mr. G. Korei for the Accused

29 April, 2003

KANDAKASI J: You pleaded guilty on one charge of armed gang robbery on 17th July 2000 with threats of violence using offensive weapons, contrary to s. 386 (2) of the Criminal Code. Upon being satisfied that there was enough evidence to support the charge and your guilty plea, I accepted your guilty plea and had you convicted.

I then asked you to address the Court on your sentence. You informed the court that you were sorry for what you have done. Also, you told the Court that you have now converted and have become a Christian. Further, you told the Court that you are married with one child. Furthermore, you told the Court that you co-operated with police from the very beginning up to this Court in admitting your involvement. In the circumstances you asked for leniency and mercy from the Court.

In view of your request, your lawyer asked for a pre-sentence report. I therefore ordered that a pre-sentence report be prepared and furnished to this Court. That has been done and I thank the Probation Officer here, Mr. Moses Galus for attending to that within the short period of time that was given to him. The report recommends that you be given a part custodial and part non-custodial sentence.

Whether or not you should be given a non-custodial sentence is dependent on the circumstances in which you committed the offence as well as the lead up to your arrest. These are very important considerations before a decision on sentence can be reached. This is in addition to other factors the Court must take into account before arriving at your sentence. I will therefore first deal with the relevant facts. I will then consider the factors against you. That will be followed by the factors going in your favour. Upon a careful consideration of these competing factors, I will arrive at a sentence.

The relevant facts in you case are straightforward. On Monday 17th July 2000, at about 12:30p.m., a Jeff Liversidge, an expatriate with two others, all employees of the Sepik Coffee Producers Ltd, went in their employers vehicle to refuel at the Caltex service station. They had with them K10,950.00 in cash after having collected them from their employers Wewak office.

Two of Mr. Liversidge’s work mates went into the store to buy some food and cigarettes, while Mr. Liversidge who was the driver of the company vehicle they were in at the time remained in the vehicle. While he was waiting, he surprisingly heard the corking of a pistol on his right side. He then saw you standing there armed with a 9mm pistol pointed at him. You then ordered him out of the vehicle. He did not leave immediately so you yelled at him and ordered him to do so and he complied. At that time you were not masked and so you were clearly seen and identified.

As soon as Mr. Liversidge complied, your other accomplish, Fin Buka got into the driver’s seat of the vehicle, while one more of your accomplish got into the crew’s seat and yourself hoped onto the back open tray of the vehicle. You then drove away from the scene of the crime, with K10, 950.00 inside the vehicle.

Not long and a police motorist patrol arrived at the scene of the robbery and it was alerted. The police therefore, gave chase and caught up with you at the Epe Trading area. As the police drove closer, you having being armed with the pistol started to shoot at the police. That saw an exchange of gunfire between the police and you up to Kreer heights through to Koikin village mountaintop, where your gang stopped the vehicle and your accomplishes escaped on foot.

You were not able to escape with your gang as you were shot on your legs in the gunfire exchange. That led to your apprehension by police. However, before the police could apprehend you, you threw the pistol into the nearby bushes. The police successfully searched for it and recovered it with 8 live ammunition in it. The police recovered some of the money that was stolen. Mr. Liversidge states that the total of the money recovered is only K600.00. That means K10, 350.00 has not been recovered.

The first factor against you is the prevalence of the offence of armed robbery and repeated calls by the community for a stiffer penalty. This offence is being committed everyday throughout most parts of the country. People are living in fear and that is preventing the free conduct of business. Many people who would come with their skills, knowledge and money to help build our country both economically and socially are scared off by this kind of offence. I made these observations as recent as in The State v. Fabian Kenny (unreported judgement delivered 16/05/02) N2237 at page 5 and The State v. Jamie Campbell Fereka (unreported judgement delivered 07/04/03) N2359.

I note in this case that, the offence you committed was indeed against a business and the immediate victim was an expatriate. Going by the name of the company, it seems it was involved in the coffee business, which is a cash crop based. It is this kind of business that helps the people in the rural areas to generate some cash income. When such companies become the target of criminal activities by people of your type, they could be forced to close and the majority of the innocent and decent people who are trying to make a living inevitably suffer from none of their doing.

Out of the bad experiences and the various other difficulties criminal activities such as armed robbery brings upon majority of our peace loving people, there are repeated calls for tougher penalties against people like you. I noted this as very recently in The State v. Damien Anis (unreported judgement delivered 23/05/02) N2236, at page 11.

I have responded to that by imposing sentences as high as 20 years as in The State v. Edward Toude & Ors, (18/10/01) (No. 2) N2299, after a trial for an armed robbery on a ship. Then in the case of a guilty plea, I have imposed sentences as high has 15 years as in The State v. Vincent Malara (unreported judgement delivered 20/02/02) N2188. In arriving at such sentences, I noted and accepted that although Parliament has prescribe life imprisonment as the maximum penalty, the Supreme Court has come up with guidelines for sentences in armed robbery cases in Gimble v. The State [1988-89] PNGLR 27 for sentences far below that.

They allow for sentences of up to 7 years at the top end for robbery of a dwelling house and 3 years for a robbery on a street at the lower end. These are for cases of guilty pleas by first time young offenders with no aggravating features. The actual sentence in any one case may be over or below those recommended. I have also noted that these guidelines have been varied by subsequent judgements of the Supreme Court such as the decision in Tau Jim Anis v. The State SC642. Numerous warnings have been given in many judgements of both the National and the Supreme Courts that the Courts will impose more higher or stiffer penalties, given the higher and frequent occurrence of the offence.

A period of more than two years have passed since my judgement in The State v. Edward Toude & Ors (supra) and a period of over one year has passed since the judgement in the case of The State v. Vincent Malara (supra). I do not consider the period that has lapsed since these judgements sufficient to enable offenders like you to become aware of the sentences. More importantly however, you committed the offences before the pronouncement of the sentence in Vincent Malara case and just a few months after the sentence in the Edward Toude & Ors case. This means your sentence must not exceed the sentences I had imposed in the cases mentioned, as you would not reasonably be expected to be aware of the sentences in those cases unless there are aggravating factors that might dictate a higher or similar sentence.

Proceeding on this basis, I imposed a sentence of 12 years in The State v. Jamie Campbell Fereka (supra). The prisoner in that case was married with children just like you. He was also becoming a Christian and was involved in a gang robbery. He was armed with a gun and used it to execute the robbery. He was overpowered and injured by his victims. He was hospitalized on account of the injuries he sustained.

The second factor in aggravation in your case is this. You commenced and engaged in a shoot out between you and police. It is a very serious thing to attempt to kill or injure a policeman or any other law enforcing official in the pursuance of his official duties. This has been made clear in a large number of cases. See for example the Supreme Court judgement in Joe Foe Leslie Leslie v. The State (August 1998) SC560, where a case of attempted murder of a policeman in the course of his duty was considered serious and the maximum sentence of life imprisonment was imposed. In this case, the lives of more than one police man was put at risk.

Thirdly, a substantial amount of money was stolen. Out of a total of K10, 950.00 stolen only K600.00 was recovered. The balance of K10, 350 has not been recovered at all.

Fourthly, you did not cover yourself with any facemask or anything like that. Instead you went to commit the offence in broad daylight displaying fully your identity. This conduct in my view was a gesture of condemnation of the ability of the laws of the land and their enforcement having any deterrent effect on you. You showed yourself to be above the law.

Fifthly, you were personally armed with a pistol, which is a very dangerous weapon. There is no evidence of you having any license to carry and use the weapon at anytime. You therefore committed yet another offence in carrying and using a gun illegally.

Against the above aggravating factors, you only have a few mitigating factors. These are mainly your guilty plea and being a first time offender. Added to this is your plea of having cooperated with the police and this Court by your admission or plea of guilty. Based on these, you argue for a more lenient sentence so you could return to your family and support them. Similar arguments were raised in The State v. Jamie Campbell Fereka (supra) and I said such a plea must be seen in its proper context.

The context in this case is that, you were caught red handed by police immediately after the robbery following a shoot out with them. There was therefore no way for you to succeed in a denial of your involvement. Nevertheless, I note that your guilty plea has saved substantial time and money that could have been thrown away if you denied your involvement. Only to that extent, I note your guilty plea operates in your favour.

I also note that you are a first time offender but not a young offender. The need of leniency is usually an important consideration in a case where the offender is a first time young offender. The Supreme Court in Acting Public Prosecutor v. Don Hale (27/08/98) SC564, held that a lenient sentence can be imposed against a first offender aged 19 or below. In your case you are not a young offender but an adult married man. What this means is that, as an adult person, you were in a better position to know that what you set about to do was wrong and yet you proceed to do it. Accordingly, any plea for mercy or leniency can not be sustained.

Indeed I note what the Supreme Court in Allan Peter Utieng v. The State (Unreported judgement delivered in Wewak on 23/11/00) SCR 15 of 2000 said is relevant. In that case, the Court observed that an offender should consider his background first before committing any offence. Implicit in that is the fact that, it is a little too late to talk about an offender’s personal background including the needs of his family concerns once he is proven guilty according to law. His background and concerns should have little or no weight against the need to impose a sentence or punishment that best befits an offence he has committed in the particular circumstances in which the offence was committed.

I followed this principle in a number of cases already. An example of that is the case of The State v. Raphael Kimba Aki (No.2) (28/03/01) N2082. Following this line of authorities and the reasoning behind them, your plea for leniency to avoid suffering to you family has no place. If at all, that plea has little or no weight in determining an appropriate sentence for you.

Bearing in mind both the factors in aggravation and in your mitigation as well as the recommendation of the pre-sentence report, I need to arrive at a sentence that best befits the offence you committed in the particular circumstances in which you committed it and its aftermath. In order to do that, I need to be mindful of the current tariffs in armed robbery cases on a guilty plea.

In The State v. Vincent Malara (supra), there was also a guilty plea. However, the prisoner had a prior conviction for arson. He committed the robbery against a super market here in the township of Wewak in the company of a large number of youths armed with dangerous weapons. He was as noted, given a term of 15 years in hard labour.

In the other case of The State v. Fabian Kenny (supra), here in Wewak also, I imposed a sentence of 9 years on a guilty plea. That was for armed robbery of a PMV and its passengers on the highway. The offender was a first time offender. A gun was involved but the prisoner did not personally carry or used it.

In The State v. Jamie Campbell Fereka (supra) case, the offender had no prior conviction. The value of the property stolen was about K7,000.00, which were substantially not recovered. He personally carried a gun and used it and supplied some of the other weapons that were used. He was also caught red handed like you. He was given a sentence of 12 years despite a pre-sentence report calling for a more lenient sentence. The recommendations of the pre-sentence report were rejected because I was of the view that the factors in aggravation far out weighed those in his mitigation.

In your case, I find that the factors in aggravation far outweigh those in mitigation. Of particular concern is that fact that substantial amounts of money were stolen and they have not been recovered. You used a dangerous weapon to execute the robbery and to resist possible arrest. You attempt to kill or to injure policemen who were only pursuing their normal duties. The incidents of criminals having a shoot out with police to escape arrest is becoming far too prevalent and is raising a serious security concern for police and other law enforcing agencies. You are a mature person and not one coming below the age of 19 to attract a lenient sentence. You also showed contempt or signs of being above the law by conducting in the manner you had adopted to commit the offence. Given this, a strong deterrent sentence is called for and I consider a sentence of 13 years appropriate. Hence, I order that you serve that term in hard labour at the Boram CIS.

In arriving at that view, I also had regard to your claim of being converted into Christianity. I am aware of many prisoners claiming to have changed their ways upon realizing the full force of the law, particularly when they are forced to experience life in prison. Such claims do not last long. As soon as they get out of prison, they return to their old ways. So if indeed a person has changed and accepted Jesus Christ than there is no reason why such a person should remain in prison to test his commitment and to help reform himself fully and be an influence for good reform toward his fellow prisoners. They should be ready to accept with humility the full responsibilities of the wrongful conducts they have committed rather than ask of mercy or leniency. The fact that they have become Christians is a personal matter between themselves and God. Although there are similarities between God’s law and man’s law, they have different consequences. Breaking God’s law, in this case the eighth commandment of the Ten Commandments, "thou shall not steal" becomes a sin. The book of Romans 6:23 teaches that "For sin pays its wage – death". The laws of Papua New Guinea provide that, anyone who commits the offence of armed robbery faces the risk of life imprisonment. There is no law that says that when an offender becomes a Christian he is excused from facing the full consequences of breaking the laws of the land. Indeed it is a cardinal principle in Christianity that, a person should make right what ever wrong he has brought upon his fellow man before he can be forgiven and accepted by God.

Whether you have in fact converted and become a Christian is a matter between you and your God. I am not God to be able to know the true state of your mind and spiritual standing. I can only hope that you have in fact changed and that you will be a means of blessing and good influence to your fellow inmates at the prison. I note that both the prison and probation system allow for better treatment of people who show real and good signs of reformation. If indeed you have changed, you will I hope, make it to that kind of treatment and might be on your way out to an earlier release.

Of the 13 years, the period of 2 years 4 months and 24 days you have already spend in custody awaiting your trial and sentence shall be deducted. This will leave you with a balance 11 years 7 months and 6 days yet to serve. I order that you serve that term in hard labour at Boram CIS. A warrant of commitment in those terms shall be issued forthwith.
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Lawyers for the State: Public Prosecutor
Lawyers for the Prisoner: Public Solicitor