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National Court of Papua New Guinea |
PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]
CR. NO: 920 OF 2004
THE STATE
-v-
WARIP MONDOL, LUWI NEHIE, KUPIM PEPILO
PAUL EMBRIL & DAIN SONK
Mendi: Lenalia, J.
2004: 12, 19 August
CRIMINAL LAW – Sentence – Aggravated armed robbery – Armed robbery of vehicle on public highway – Stealing with actual violence – Victim cut with bush knives – Guns and bush knives – Use of – Criminal Code s. 386 (1) (2) (a)(b) and (c), Ch. No. 262.
CRIMINAL LAW – Aggravated armed robbery – Violence used toward driver of vehicle – Passengers harassed and striped naked in search of valuables – Substantial cash amount stolen – Valuables and properties worth thousands of kina stolen – Offence committed with actual violence – Sentence.
Cases cited:
Gimble -v- The State [1988-89] PNGLR 271
Public Prosecutor -v- Don Hale (1998) SC564
Tau Jim Anis -v- The State (2000) SC642
Dadly Henry Gorop -v- The State (2003) SC732
Richard Sebastine -v- The State (2003) CR. No. 43 of 2003 (unreported decision of 1.10.2003).
Counsels:
S.Kesno, for the State
P. Kapi, for the Accused
19th August 2004
LENALIA, J. The five accused entered pleas of guilty to one count of aggravated armed robbery contrary to s. 386 (1)(2)(a)(b)(c) of the Criminal Code.
The facts are that on 22nd of September 2003, Thomas Poppa was a driver of a Toyota Land cruiser yellow Utility Reg. No. BAQ – 832 returned from Koroba through Tari then to Mendi. In Tari, he picked up about 13 or 14 passengers who wanted to come and do some business in Mendi. Most passengers had brought with them large sums of money. An example of one of them Mr. Tandape Punga was and is a small businessman running a trade store in Tari. In his case, he brought with him a cash sum of K9,535.00 with the intention to buy trade store goods in Mendi.
On their way past the Nipa Station, they came toward the first two corners up towards the Demin village, they came across a road block with huge stones placed across the road from side to side. Thinking that some youths were working on the road site to stop PMVs passing through and collect some monies from passing vehicles, Thomas stopped. But as he was stopping, Thomas and his passengers realized that they had come into an ambush and some men armed with bush knives and home/made guns converged upon the vehicle from both sides of the road.
One of the men with a bush knife came to the driver and demanded the driver to hand over the vehicle keys to him. Thomas Pippon got up and said, he was not going to give the vehicle keys away to criminals. A second man also armed with a bush knife intervened and supported the first man and when the driver kept refusing to deliver up the car keys, the second person swung the bush knife at the driver. In an attempt to defend himself, the driver threw his left hand up to catch the knife, but in so doing, he was chopped on his left upper arm.
The man who swung the knife at the driver, opened the door on the side where the driver was and demanded for the car keys. The driver still sitting behind the steering wheel was stabbed on the side and he was chopped the third time. He threw the car keys to them and he was dragged out from the vehicle and dragged him to the trailer where all his passengers were. By this time his two off-siders were already dragged outside as well.
The man who got the vehicle keys got behind the steering wheels and got it started and instead of going forward, he reversed to the rear and ran off the road and overturned into the drain.
Soon after that, all the passengers including their driver were led away into an old quarry pit where they were ordered to stand up and each of them were searched. Some of the passengers were ordered to strip and a female victim was stripped and dragged in a little distance in an attempt to rape her. All cash, watches, shoes and even clothing were removed from passengers. Some of those passengers worth a mention on this judgment because they lost substantial sums of cash monies. For instance:
The total of the above cash amounts to K19,659.00 being the amount stolen from this armed robbery. Apart from the above other properties stolen were worth some K12,496.00, the property of Thomas Pippon and his passengers.
On behalf of the five accused, the defence counsel submitted that the Court should take into account his clients had pleaded guilty to this very serious charge and that they each had shown some remorse when making their statements in allocutus. Certainly, the Court shall take into account their guilty pleas.
Mr. Kapi of counsel for the five accused cited a number of cases including the well-known and often quoted case of Gimble v The State [1988-89] PNGLR 271 where the Supreme Court categorized various forms of armed robberies and suggested a tariff of sentencing range to be adopted in a particular category. Counsel was right in saying the accused case fall into the third category in the above case as this robbery was committed along a public thoroughfare on the highway linking Tari and Mendi on this Province.
I note that the suggested tariff for the third category in Gimble where the Supreme Court said that in case of first young offenders who carry offensive weapons and use threats of violence to rob a store or a vehicle on the road as in this case, a sentence of 5 years should be appropriate in contested cases and less where there was a plea.
However, in Public Prosecutor v Don Hale (1998) SC564 the Supreme Court said at page 4 of the judgment that with prevalence of violent crimes involving the use of guns and other weapons, the sentencing guidelines set down in Gimble’s case were no longer relevant today.
Even since Done Hale’s case (supra) and that Tau Jim Anis v The State (2000) SC642, sentences for armed robberies have been raised considerably. In Dadly Henry Gorop v The State (2003) SC732, that was the case where Dadly was sentenced by the National Court sitting in Kokopo to a term of 20 years less than the time spent in custody. I was the trial judge and the case involved an aggravated robbery where a Canadian couple were led by the appellant posing to be a tour guide up to famous Namanula Hill in Rabaul and on their way, the appellant attacked the couple by using a hockey stick rendering the male partner unconscious. He suffered brain damage. He had to be airlifted to Australia for urgent medical treatment.
The Appellant appealed to the Supreme Court. His sentence was reduced to 18 years. I think that is so far on of the highest penalty on appeal. In recent years the National Court has been imposing sentences of up to 15 years. A case on point is the judgment of Kandakasi, J. in The State v Vincent Malara (2002) N2185 where His Honour sentenced the accused to 15 years for a gang armed robbery and it was a guilty plea.
In The State v Edward Toude & Ors (No.2) (2001) N2299 the same judge imposed a term of 20 years. That was the case of an armed robbery on a ship where the Court there equated it to the same category as a robbery in a dwelling house and there were some elements of breach of trust. These cases were not tested by the Supreme Court as that of Dadly Henry Gorop, so not much reliance should be placed on such cases.
In my assessment the above cases would have been extreme cases. Most other National Court cases sentences would seem to this Court to be in the range of 8 – 9 years or even 12 years.
In Richard Sebastine v The State (2003) CR. No. 43 of 2002, the appellant appealed against a 9 years sentence for a well planned armed robbery of a passing public motor vehicle between Pagwi and Maprik District in the East Sepik Province. He entered a guilty plea and was sentenced accordingly. His appeal was dismissed as the Supreme Court found that although no violence was used, passengers were harassed and robbed of cash and properties worth K579.00.
The Court must pause and say here that despite what both the National and Supreme Courts have tried to say and express concern over the violence of violence being experienced rough throughout the country, the legislative intent in relation s. 386 (1)(2)(a)(b) and (c) is very obvious. An accused who offends against Subsection (2) of s.386 must expect to receive higher sentences. I believe the above Subsection speaks for itself. It says:
(2) If a person charged with an offence against Subsection (1)—
(a) is armed with a dangerous or offensive weapon or instrument; or
(b) is in company with one or more other persons; or
(c) at, immediately before or immediately after, the time of the robbery, wounds or uses any other personal violence to any person,
he is liable subject to Section 19, to imprisonment for life.
The five accused case falls under s. 386 (1)(2)(a)(b)(c) of the Code. It is aggravated by a number of factors. First, they were armed with home/made guns and bush knives. Secondly, they were in company with many more whom the Court believes have not been arrested. The third element is that, before the five accused and others robbed Thomas Poppa and his passengers, they chopped Thomas’ hand with a bush knife.
The medical report compiled by a Clinical Health Extension Officer Mr. Jeffery Hurums noted the following injuries on Thomas Poppa (victim driver):
"Injuries
- Vague pain
- No tissue injury
Right Forearm – Laceration minor
Left Forearm – Elbow – knife wound – 5 cm length
- 3 cm depth
- Barchial nerve severed
Management given:-
On another victim (Margaret Tugube) who also received knife wounds, Dr. Niure Badia said this victim sustained several bruises indicating the use of blunt objects or fists. She was sutured and was given antibiotics plus pain reliever was given to her. The sutures were removed on 30th of the month the offence was committed. The doctor noted that the clean cut showed that a bush knife had been used against Margaret.
I have noted on the file a compensation petition claim made to the then Acting Governor, Hon Alex Kapu dated 30th September 2003 which was from the District Office in Tari where certain representatives of those affected on this armed robbery claimed compensation of K20,000.00. There is no notice on the file and even the lawyers did not raise any issues about whether or not compensation has been paid or not. I take it that no restitution has been effected.
As the Court has already alluded to, the five of you could be sentenced to life imprisonment for the reasons I have already explained. It was lucky nobody was killed during this armed hold-up. It was lucky to that despite an attempt by some of you to rape a woman, it did not eventuate. For whatever reasons the rape did not eventuate is not clear or it could be because one of the elders from your village came upon the gang and they desisted from carrying out what they intended to do.
By the reading of the facts of your case, it appears to the Court, that there was a big group of men involved in this crime. As to why some of the gang members had not been arrested is not clear and is not a concern of the Court. Whatever happened, it is clear from the facts that, you five were amongst the group which held-up and robbed Thomas Poppa and his passengers. By definition of s.7 of the Criminal Code, you all participated in this very serious crime.
Taking your guilty plea into account and taking into account the seriousness of the offence you committed, I am of the view that a
sentence of 12 years imprisonment in hard labour is an appropriate sentence. The time you have spent in custody shall be deducted
and you shall serve the balance.
___________________________________________________________
Lawyer for the State : The Public Prosecutor
Lawyer for the Accused : The Public Solicitor
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