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State v Enj [2015] PGNC 100; N5893 (16 March 2015)

N5893

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR 996 OF 2009

THE STATE

V

JACKSON ENJ
Offender

2015: 13th February; 16th March

CRIMINAL LAW – Armed Robbery – Guilty following trial – Sentence – leader of gang - Hold up of ambulance and health workers and theft of health centre workers fortnight pay – providers of vital services to the community – premeditation – use of dangerous weapons axes, bush knives, sticks and stones – one victim held hostage overnight – no recovery of money and items stolen – no apology or compensation – no genuine expression of remorse – 8 years head sentence – two years deducted for mitigating factors and waiting for trial while out on bail for five years

Cases cited:

Goli Golu v. The State [1979] PNGLR 653
Gimble v The State [1988-89] PNGLR 271
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
The State v Malo [2006] PGNC 111
The State v Kumkumbun [2009] PGNC 60 N3645
The State v Jonathon Sengi [2009] PGNC 91; N3692
The State v Michael Pinia Junior [1999] PGNC 23; N1850
The State v Vere Vanua & three others (2005) N_____

Legislations Cited

Criminal Code Section 386(1) (2)(a) & (b)

Counsel:

Sheila Luben, for the State
Cecelia Koek, for the Offender

DECISION ON SENTENCE

16th March, 2015

1. KASSMAN J: On 13 June 2014, I found Jackson Enj ("Enj") guilty on one count of armed robbery pursuant to Section 386(1)(2)(a) & (b) of the Criminal Code, Chapter 261. My written judgment containing the reasons for my decision was delivered on 20 November 2014. I heard submissions on sentence on 13 February 2015 and this is my decision on sentence.
   
2. In my judgment, I found the State had proven beyond reasonable doubt that on 27th January 2009 at between 8pm and 9pm at Kana Village, Poroma, Southern Highlands Province, Enj was amongst a group of men armed with axes, bush knives, sticks and stones who held up Sawa Ugiga and the occupants of the Pimaga Hospital Ambulance which was travelling from Mendi to Pimaga along the Highlands Highway. They robbed the occupants of their personal items and stole Two Hundred and Fifty Kina (K250) in cash from the driver Sawa Ugiga and Four Thousand Eight Hundred and Sixty Two Kina (K4,862.00) in cash from an occupant of the ambulance Inabiya Michael the Health Extension Officer with the Pimaga Hospital. Those were the wages for staff of Pimaga Hospital. The State also proved beyond reasonable doubt that Enj and his cohorts held Sawa Ugiga prisoner in a house in their village at Kunjulu Village for two nights and released him on the 29th January 2009.
   
3. At the trial, Enj pleaded not guilty and raised in his defence an alibi claiming that, at the time of the armed hold up, he was in his house in Ameya Village with his wife and another person Tony Turu and not at the scene of the crime and not involved in the armed hold up. The Notice of Alibi was filed on the day of trial.
   
4. After hearing evidence from the State witness Sawa Ugiga and from Enj and his witness Pastor Tony Turu, I found there was no dispute to all the critical aspects of the armed hold-up as testified by Sawa which I summarized in the paragraph above. I was also dismayed with the revelation that the ambulance was carrying the body of a deceased person which was kept in the ambulance and released with the ambulance the following day. Enj and his men removed the vehicle keys from the Ambulance thus preventing the bus from being driven away. They then abducted the driver of the vehicle Sawa and held him prisoner for two nights. At all times, the men including the accused were armed with offensive weapons.
   
5. I found the evidence of and for the accused unreliable and lacked consistency. Further, the performance of Enj and his witness did not give me confidence. The evidence of the lone State witness Sawa was not shaken by the alibi evidence to create a reasonable doubt as to the veracity of any aspect of his evidence. I found the alibi raised by Enj not substantiated and was in fact a "recent invention". When he was questioned by police in the record of interview, conducted seven weeks after the incident, Enj did not mention there was a large number of people who had gathered at his house at Ameya Village on the evening of the armed hold-up which was what he said in evidence at trial three years later. When asked for an explanation for this in evidence, Enj said he only thought of it a day or so before the start of the trial. The trial commenced on 7 November 2012. The Notice of Alibi was dated 7th November 2012 and was filed on the 8th of November 2012. I found it incomprehensible that Enj waited for three years to raise his alibi. His first opportunity to raise the alibi was on being apprehended by police or at the police record of interview which took place within two months of the incident.
   
6. In my analysis of the evidence, it is arguable a number of serious offences were committed apart from armed robbery and that included abduction and unlawful imprisonment and I would also suggest a charge for holding a corpse without lawful reason. Enj faced only one charge and that was for the offence of armed robbery.
   
7. Section 386(1)(2)(a) & (b) of the Criminal Code provides:
   

"(1) A person who commits robbery is guilty of a crime. Penalty: Subject to Subsection (2), imprisonment for a term not exceeding 14 years. (2) If a person charged with an offence against Subsection (1) – (a) is armed with a dangerous or offensive weapon or instrument; (b) is in company with one or more 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."

I have found Enj guilty of armed robbery on finding beyond reasonable doubt that Enj was armed with dangerous weapons, he was in the company of more than four men who held up the ambulance, driver and passengers and, using force and threats of violence, stole from them money and personal property. As such, Enj is liable to a sentence of imprisonment for life.

8. This court is tasked with the authority and responsibility to impose punishment where wrongful conduct is found to have occurred without lawful excuse. The punishment must be fitting of the wrongful action and all relevant circumstances and should also serve as a warning or deterrence to any member of the public that they must at all times act lawfully and with respect for the safety, dignity and life of fellow human beings.
   
9. In allocutus Enj said:
   

"I am a first time offender. I have never been to any court. This is my first time to commit this crime. I say sorry to this court. I say sorry to the owner of the property. I stole the money from him. I say sorry to this honorable court for wasting your time and resources. I also say sorry to Father God for what I have done. When I was in custody I took responsibility for leading the youths and I delivered Gods word to the youths in the prison. I am a church elder. In the absence of the Pastor, I take the lead in the church. I am also a community leader when there are problems in the community, I take the lead to resolve. I have six children, five in school, one in the home. I have a bank loan of K6000 I will repay K8640. I own a trade store, piggery, coffee trees. I am chairman of the elementary school and youth. There is no other person to look after my children and their education and also my properties. I beg this court to have mercy on me. I beg this court to put me on good behavior bond so I serve my time out of custody. That's all thank you."

His attempt at expressing remorse was very late and of little effect. Enj was just seeking mercy from this court when his fate was about to be determined.

10. The court did not have the benefit of a Pre–Sentence Report even though the Community Based Corrections Officer was ordered on 13 June 2014 to produce a report by 31 July 2014. Despite further adjournments, no such report was filed and this court proceeded with submissions with the consent of lawyers for the prosecution and Enj.
    
11. Counsel for Enj relied on affidavits of Enj, Doris Jackson, Nakon Ipe and Pastor Wilson Angula and a written submission all filed 13 February 2015. Counsel for the State relied on a written submission filed 12 February 2015 and confirmed Enj has no prior conviction.
    
12. For the purpose of this decision on sentence and also for the information of this court, I state the following information on the prosecution of Enj. The crime occurred on 27 January 2009. It is not clear when Enj was arrested but records show he was charged on 24 March 2009 and his record of interview was conducted by police on 25 March 2009. On a date in June 2009, Enj was granted bail by the Mendi District Court. Enj was committed to stand trial in the National Court on 30 June 2009. District Court bail was converted to National Court bail on 7 December 2011. The indictment was presented and trial commenced on 8 November 2012 and evidence was completed on 9 November 2012. Submissions were heard on 11 November 2013. Enj was found guilty on 13 June 2014 and was then remanded in custody as an offender or prisoner of the State from that date. This court's written decision on the guilty verdict was delivered on 20 November 2014. Submissions on sentence were heard on 13 February 2015. Enj faithfully reported at every monthly call-over and returned to face his trial while out on bail for over five years. This demonstrates that he is now a law-abiding citizen.
    

Personal particulars and background information

13. Enj is thirty eight years old and has been married to Doris Jackson for twenty years. Enj says he was educated up to grade five. They have six children, five of whom are at school. The eldest is in grade twelve at Kutubu High School. Before this incident, he was a member of the Evangelical Church of PNG and Assistant Pastor. While in custody, he took part in religious activities. He says he is a small businessman and runs a trade store, piggery and poultry project and has a few blocks of coffee. He has an outstanding loan with BSP Mendi which he has not been able to meet since being held in custody. He says he is the treasurer of Kerepa and Maeya Co-operative Society and Chairman of the Nenja Elementary School.
    
14. Doris Jackson confirms she is the wife of Enj and is thirty two years old. She says she and the children have been wholly dependent on Enj for their survival. She says Enj "has been a good and supportive husband and father. They have six children, five of whom are at school.and has been a self employed small businessman in our community where he operated a small trade store, small piggery project, poultry project, coffee blocks and he also has outstanding bank loan with Bank of Papua New Guinea, those project had come to a stop when he was detained and it had been very difficult for me raising six children all of school age." She obviously seeks to corroborate what Enj said in his affidavit and supports Enj plea for a non-custodial sentence.
    
15. Pastor Wilson Angula says he is a pastor in the Evangelical Church of PNG based at Ameya Village and says that before Enj was charged and detained, he was a "faithful baptised member of my church. He was a church elder and assistant pastor ... He is also a committed family man and a leader in the community."
    
16. Nakon Ipe presented himself as the Chairman of the Southern Highlands Provincial Co-operative Society and provided a glowing reference for Enj saying he has known Enj for thirty years as an upcoming businessman and community and church leader at Ameya Village. He went on to say Enj is "an influential person at the Community and Grassroots level and always" takes responsibility to settle disputes by being the first person to contribute pigs or cash to settle problems, "he is non-violent, of Christian principles and discipline and has no criminal record."
    
17. Counsel for Enj also handed up in court a character statement from L/CPL Eric Anjo written on Correctional Service of PNG Bui-Iebi letterhead dated 11 February 2015. He says Enj is "mature and God fearing" and "is humble and faithful in conducting church activities inside the prison compound. He also testified publicly that he was brought in by his creator (God) as a discipline and now he realises his mistakes and wanted to change his whole life."
    
18. These sworn statements present an impressive resume for Enj with very positive character references but it is hard to understand why someone of such high standing in the community would not only participate in but play a leading role in the armed hold up of an ambulance and health workers and then hold a victim for two nights against his will and threaten to kill him. This has never been explained. As a result, I am not inclined to give much weight to these statements although I am sure the statements were offered in good faith from reputable people.
    

Mitigating factors

19. There are just three mitigating factors. Firstly, Enj has no prior conviction. Secondly, Enj has demonstrated that he can be trusted. He was granted bail in June 2009 and faithfully returned for his trial on 8 November 2012. He remained on bail and he was then remanded in custody on delivery of the guilty verdict on 13 June 2014. So he was out on bail and complied with his bail conditions and attending the monthly crimes call-over for over five years. Enj's five co-accused escaped from lawful custody in a mass jail break and bench warrants were issued for their recapture on 23 May 2010. They have not been recaptured by police. Despite that, Enj returned to face his charge whilst out on bail until he was remanded in custody on 13 June 2014.
    

Aggravating factors

20. Enj pleaded not guilty and a full trial ensued following which he was found guilty of the offence of armed robbery. There was premeditation in this crime. The hold up using dangerous and offensive weapons was planned and executed at night along a public road leaving the victims with no room to escape and they meekly surrendered. Enj and his accomplices had possession of and used dangerous and offensive weapons namely axes, bush knives, sticks and stones. The offence was committed by Enj and five other men in a group that outnumbered the victims in the ambulance. The victims were stunned and overcome by the fear that their lives were in immediate danger.
    
21. The presence in the ambulance of the body of a deceased person was of no consequence to Enj and his accomplices. This demonstrated deep disrespect for the dead which is unheard of in PNG society where death carries major significance. In PNG no matter what the circumstances, the presence of a breathless and motionless body of a fellow human being leads to a pause in tension and conflict out of deep respect. Enj and his accomplices showed no respect and their lack of basic human instinct cuts across any claim to being a good citizen and of having basic Christian values.
    
22. There has been no recovery of the money and the items stolen. Health workers lost their hard earned fortnight pay which was not recovered and it is possible they went without and lived off family and friends for the next fortnight. Enj and his accomplices have not apologized to the victims and there has been no payment of compensation to the victims which is a practice recognized in PNG which takes place soon after the incident with the primary objective to restore peace and avoid any retaliation or escalation in tension and, where possible, for the perpetrators of the crime to apologize to the victims for their wrongdoing. The victims of this crime were health workers who provide vital services to a remote community. The community also suffered after the health centre was closed for a number of months following this incident. The offence of armed robbery is prevalent in the community and the country.
    

Case law

23. The Supreme Court said in Goli Golu v. The State [1979] PNGLR 653 that the maximum penalty should be reserved for the worst type of cases in terms of the facts and circumstances leading up to, during and following the crime.
    
24. I am obliged to Counsel for the State who has provided helpful submissions and case law which are adopted here. The Supreme Court in Gimble v The State [1988-89] PNGLR 271 discussed guidelines to be taken as appropriate to sentencing for aggravated robbery. The Court set out four categories. 1. On a plea of not guilty first offenders carrying weapons and threatening violence for:- (a) robbery of a house – a starting point of seven years; (b) robbery of a bank – a starting point of six years; (c) robbery of a store, hotel, club, vehicle on the road of the like – a starting point of five years; (d) robbery of a person on the street – a starting point of three years. 2. Features of aggravation such as actual violence, large amount stolen, or where the robber is in a position of trust towards the victim may justify a higher sentence. 3. A plea of guilty may justify a lower sentence.
    
25. With the continuing prevalence of the offence of armed robbery, the sentencing guidelines in Gimble have been considered by the Supreme Court to be outdated see 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 and have seen increases in the starting point for each category by three years. I agree with Counsel for the State that the circumstances of this case fall within the Gimble category three cases where the starting point has over the last fifteen years increased to eight years imprisonment see The State v Malo [2006] PGNC 111, The State v Kumkumbun [2009] PGNC 60 N3645 and The State v Jonathon Sengi [2009] PGNC 91; N3692.
    
26. The State submitted the head sentence at eight to nine years with no reduction for the mitigating factors but only for time spent in custody awaiting trial and sentence.
    
27. Counsel for Enj submitted a head sentence of five, time in custody be deducted and the balance of the term fully suspended on strict condition that Enj be of good behaviour. Counsel for Enj relied on two judgments of the National Court in The State v Michael Pinia Junior [1999] PGNC 23; N1850 and The State v Vere Vanua & three others 2005. I would not follow those judgments as one is a 1999 decision and the background facts and circumstances of the other were very different.
    
28. I set the head sentence at eight years. A dangerous weapon was used and this crime is prevalent in the community. This was a planned attack. Enj's expression of remorse was not genuine and Enj did not co-operate with police. Further, no compensation was paid. Other aggravating factors were also considered.
    
29. For the mitigating factors that have been discussed above, a period of two years is deducted from the head sentence. Enj will serve a sentence of imprisonment of six years. Counsel for Enj says he has spent a total of ten months in custody and that is deducted from the sentence.
    
30. Enj will from today serve the balance of his sentence of five years and two months at Bui-Iebi Corrective Institution outside Mendi, Southern Highlands Province. Enj bail moneys shall be refunded.
    
31. The formal orders of the Court are:
    
    1. A sentence of six (6) years imprisonment is imposed.
       
    2. Time in custody of ten (10) months is deducted from the sentence of six (6) years.
       
    100. Jackson Enj will serve the balance of the term of imprisonment of five (5) years and two (2) months at Bui-Iebi Corrective Institution, Mendi, Southern Highlands Province.
         
    4. Bail moneys paid shall be refunded.
       

Judgment accordingly:

________________________________________________________________

Public Prosecutor: Lawyer for the State

Public Solicitor: Lawyer for the Offende