The State v Abel Airi (2000) N2007

• Jurisdiction: Papua New Guinea
• Judge: Kandakasi J
• Judgment Date: 28 November 2000
• Citation: (2000) N2007
• Court: National Court
• Year: 2000
• Judgement Number: N2007

Full Title: The State v Abel Airi (2000) N2007

National Court: Kandakasi J

Judgment Delivered: 28 November 2000

N2007

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]

CR. No. 857 of 2000

THE STATE

-v-

ABEL AIRI

WAIGANI: KANDAKASI, J.

2000: 9 and 28 NOVEMBER

Criminal Law — Practice and Procedure — Plea of guilty on arraignment — Depositions disclosing possible defence but accused deciding to forego and raise it in mitigation — Guilty plea confirmed — Criminal Code (Ch 262) SS. 560(a) and 593 (a)

Criminal Law — Sentence — armed robbery — fist time young offender with good character — Suspended sentence on terms — Criminal Code (Ch 262) SS. 386(2) and 19 (1) (d).

Criminal Law — Compensation under Criminal Law (Compensation) Act 1991 ordered — Such compensation no substitute for punishment — Relevant only in mitigation.

CASES CITED:

Gimble v. The State [1988-89] PNGLR 271

Public Prosecutor v. Don Hale (1998) SC 564

The State v. Morobet Awui Koma and Peter Kevin [1987] PNGLR 262

Kesino Apo v. The State [1988] PNGLR 182

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

Peter Joss Kinisa v. The State (1998) SC 544

Tau Jim Anis & Others v. The State SC 642

R v. Davey [1980] 2 A Crim R 254

The State v. Frank Kagai [1987] PNGLR 320

The State v. Rex Lialu [1988-89] PNGLR 499

Rex Lialu v. The State [1990] PNGLR 487

C. Kupinim, for the State

A. Furigi, for the Accused

9 November, 2000

KANDAKASI, J: On the 9th of November 2000, an indictment was presented against the Defendant charging him with one count of armed robbery. The indictment read:

ABEL AIRI of OROI, BEREINA, CENTRAL PROVINCE stands charged that he on the 11th day of February 2000 at Gordons in Port Moresby in Papua New Guinea stole from one THOMAS GANUPILA with actual violence a motor vehicle namely a Subaru Legacy Sedan, Registration Number JAB 153, the property of the said THOMAS GANUPULA.

AND AT THIS TIME the said ABEL AIRI was armed with a pistol and a shot gun, being dangerous weapons and was in the company of others.

On arraignment, the accused admitted the charge as presented in accordance with the provisions of s. 560(2)(a) of the Criminal Code Act (Ch 262) (hereinafter the Code). A provisional plea of guilty was therefore entered. However, after admitting into evidence the original depositions and upon reading them, I ascertained that the accused in his record of interview denied being armed with a shotgun, a pistol and stealing from Thomas Ganupila, but admitted to driving the vehicle that was stolen from that person upon the order. Learned Counsel for the Defendant, Mr Furigi was thus asked whether he had sought his client's instructions on those aspects and the possibility of raising a legal defence. Mr. Furigi said, he had sought and received his client's instructions and had a statement dated 9th November 2000, by his client which he sought leave to tender into evidence. That statement was admitted into evidence with the State's consent. Mr. Kupmain for the State, also informed the court that the State was accepting the version of facts set out in the statement. The statement was consistent with what the accused told the police during the record of interview.

Mr. Furigi then informed the court that, his client's instructions were for him to forgo any possible defence and raise them only in mitigation before sentence. He was therefore instructed to maintain his client's guilty plea. In the light of that, the court confirmed and formerly entered a guilty plea and proceeded to convict the Defendant.

The prosecutor then tendered into evidence an antecedent report on the accused. Thereafter, allocutus was administered in accordance with s. 593(a) of the Code. The accused said he was sorry for what he had done. He asked the court to be lenient with him when deciding what punishment to give and pointed out that he did not intend to commit the offence and that he was not the main offender. He then asked for a non-custodial sentence, which would give him a second chance to become a better law-abiding person. He finished by saying his lawyer will say some more things in addition to what he already told the court.

Facts

The relevant facts are in the Defendant's Statement admitted into evidence with the consent of the State. In the morning of 11th February 2000, the Defendant repeatedly asked his mother to use her car but the mother refused. He got angry and decided to go to Gordons to ask his grandparent's car. On the way, he met a Paul Kove, Simon (whose surname the Defendant did not know), and John Koivi. He then went with these men to Gordons Liquor Barn and bought two large bottles of whisky bourbon. They took the whisky to Paul Kove's residence and drank them with two additional ones of the same kind. About 6.00pm, they were all intoxicated. Paul with the agreement of Simon and John, then suggest that they get into a car and go for a joy ride. The Defendant on his part said, "if you know how to get one, I'll do the driving." Paul and Simon left for a brief 5 — 10 minutes and returned with a home-made shotgun and a toy pistol.

They left the place at which they were drinking and walked to Dunlin Street also in Gordons. At that street, a vehicle drove up and stopped about 5-10 metres away from where the Defendant and his friends were. As they got closer, Paul with the help of Simon and John, suddenly approached the vehicle, held up its driver and its other occupants and forced them out of the vehicle. At that stage, Paul discharge a warning shot into the air from the shotgun. As soon as the occupants of the vehicle were out, Paul ordered the Defendant to get into the driver's seat and drive and he did. John and Simon took the backseat, while Paul took the seat beside the driver's seat. As soon as the Defendant and his friends got into the vehicle, the Defendant drove the vehicle off and was continuing to drive the vehicle aimless around the Gordons area until the police caught up with them at Dunlin Street.

On seeing the police, the Defendant immediately stopped the vehicle and got into the yard of one of the nearby residences from where he was apprehended while his other friends had escaped. The Defendant neither layed his hands on the driver of the vehicle that was stolen or any of its occupants, either to steal or hurt them nor did he take anything from the vehicle that belonged to the victims. Upon his arrest, the police did not find or recover from him any of the things allegedly stolen from the driver or any of the occupants of the vehicle that was stolen.

The Defendant

The Defendant was about 19 years old at the time of the commission of the offence, Paul, Simon and John were aged between 24 and 26 years. The Defendant was therefore the youngest amongst them. He revealed the identity of his friends tot he police. He also took and showed the police the place at which he and his friends had been drinking. He admitted being involved in the commission of the offence initially to the police and then this court.

The Defendant's parents have been separated for about 11 years now. He has two younger brothers' aged 18 and 10 years old. The Islander Travelodge Hotel employs his mother as its Executive Secretary while Dunlop PNG Ltd employs his father as its Sales Manager. The father supports the family from time to time. The former Prime Minister, Hon. Bill Skate, employed the Defendant as a clerk Grade 8 for a period of 2 years. He left that employment to pursue further education. He has planned with his mother for him to go on to university matriculation studies but for the fees. He has therefore, decided to find some employment to find the money required to undertake such studies. Stop and Shop currently employs him as a merchandiser, a position that has been confirmed since the start of November, 2000. He has been and continues to support himself and his younger brothers from his salaries or wages.

Nearly all of the Defendant's references speak highly of the Defendant has an honest, quiet, friendly, reliable, helpful, well-mannered and disciplined person from a strong Catholic background. The commission of the offence was a one-off character incident. He expressed his remorse. With the assistance of his relatives he is prepared to pay a compensation of up to K3,000.00 to the victims. During arraignment and the administration of allocutus I got the impression that the Defendant was the kind of person describe by his referees and I also got the impression that his expression of remorse was genuine.

Learned Counsel for the Defendant, for his address on sentence, handed up a written submission and took the court through it in his oral arguments. The defendant through his counsel, mainly argued for a non-custodial sentence whilst...