The State v James Gatana, Michael Otly, Tonny Pidia, Thomas Damsy (2001) N2127

• Jurisdiction: Papua New Guinea
• Judge: Lenalia J
• Judgment Date: 19 April 2001
• Court: National Court
• Citation: (2001) N2127
• Year: 2001
• Judgement Number: N2127

Full Title: The State v James Gatana, Michael Otly, Tonny Pidia, Thomas Damsy (2001) N2127

National Court: Lenalia J

Judgment Delivered: 19 April 2001

N2127

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]

CR. NO. 70 OF 1999

THE STATE

-V-

JAMES GATANA

MICHAEL OTLY

TONNY PIDIA

THOMAS DAMSY

KOKOPO: Lenalia, J.

2001: 11, 19 April

Criminal Law — Sentence — Aggravated armed robbery —

Armed robbery of vehicle on the street — Stealing with actual violence — Guns and knives — Use of — Criminal Code s.386 (1)(2)(c) — (Ch. No. 262).

Criminal Law — Sentence — Armed robbery — Aggravating

circumstances — Armed robbery in office using vehicle obtained in first count of armed robbery — Use of guns and knives — Office equipment left in disarray — Criminal Code s.386 (1)(2)(a)(c) — (Ch. No. 262).

Section 386 (1) and (2)(a)(b) and (c) provides:-

"(1) A person who commits robbery is guilty of a

Crime.

Penalty: Subject to Subsection (2), imprisonment for a term of not exceeding 14 days.

(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.

Held: (1) Where property in an armed robbery has been recovered whether by hot pursuit or the use of violence by the owner or police to recover the thing stolen should be an aggravation and criminal culpability is not reduced, though it may be taken into consideration on sentence.

(2) Despite the strong plea on mitigation, armed robbery in all circumstances of the four categories of armed robberies discussed in the case of Gimble -v- The State [1988-89] PNGLR. 271 are of prevalent nature. In both charges before me, the amounts involved were quite substantial and sentences ought to be more than the suggested tariff in the Gimble case.

(3) Where a first offender is a co-accused of another or others who have previous convictions, leniency be exercised toward the first offender on sentence.

CASES CITED

The following cases are cited in judgment.

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

Don Hale -v- The State [1996] SC. 564.

The State -v- Herman Kenny & Junio Henry [2001] CR Nos. 396 & 132 of 2001.

The State -v- Lasi mauwe & Maki Onapika [1988] N1886.

Acting Public Prosecutor -v- Joe Kovea Mailai [1981] PNGLR. 258.

Paulus Mandatitip & 2 ors -v- The State [1978] PNGLR. 298.

SENTENCE ON PLEAS OF GUILTY

This was a judgment delivered in the course of sentencing two prisoners for two counts of armed robbery.

L. Rangan, for the State

W. Donald, for four Accused

19 April 2001

LENALIA, J. The four accused were charged with two counts of aggravated armed robbery. On the first count, the State alleged that on 15th of September 1998, at Tokua/Rainau road junction they each and severally stole with actual violence a vehicle Nissan Navara No. AGK. 492, 4x4 Double Cabin white in colour with red stripes which vehicle they stole from it's owner Norbert Marus. On the second count the State alleged that using the vehicle stolen on the first count, the four accused after having blind-folded Norbert Marus and his only female passenger Anna Kamo, drove back to Boroko Motors office at Takubar whereupon they each and severally stole from Dianah Timie and others with threats of actual violence a sum of K1,364.85 in cash and two cheque books valuing at K617.70, the property of Boroko Motors Ltd. The State further say that at the time of the two armed robberies, the four accused were armed with two guns, one being factory made while the other a home-made one and bush knives. These offences are against s.386 (1)(2)(a)(b) and (c) of the Criminal Code.

These matters were set for trial, but on arraignment, accused James Gatana and Michael Otly pleaded guilty while Tonny Pidian Berevy and Thomas Damsy entered not guilty pleas. Pidian and Damsy's cases were later dismissed on the date I took their pleas since the State offered no evidence and their bails were ordered refunded.

The facts to which James and Otly pleaded to were as follows: On 15th of September 1998, the two victims of the first armed robbery, Norbert Marus and his only female inlaw passenger Anna Kamo took off from Kokopo with intention to go to Ulaveo Plantation. On the way on the junction to Tokua Airport and Rainau road, Norbert stopped for purposes of relieving himself. So he pulled up along side the road leading to Rainau. When he was about to get out from his vehicle, two mask men hastily walked towards him and stood on his sides, one on the right and the other on the left pointing two guns at him. His female passenger was still in the vehicle when the mask men ordered victim Norbert to give them the ignition at the same time ordering him to get on to the back of his vehicle. Both victims noticed there were five mask men.

Once on top at the back of his vehicle, Norbert was ordered to lie flat on the back of his vehicle and whilst lying down, he was blind-folded and the spare tyre was placed across his body. Two of the gang members got into the vehicle, one of them Alphones and another, blind-folded the female victim then Alphones drove the two victims and gang back to Boroko Motors at Takubar. On arrival at Takubar Boroko Motors premises, the person sitting at the back told Norbert to close his eyes and keep them shut despite being already blind-folded.

Two armed men worked out from the vehicle which was already stationary, across to Boroko Motors, office where a staff member and relatives were having lunches ordered them to keep still and not to move while one of the robbers walked toward the cashier Dinah Timie and ordered her to give him the money. The rest of the staff members of Boroko Motors stood speechless and hopelessly watched as the mask men threw down files and stationaries to the floor, and walked out with a metal money box containing K1,364.85 and two cheque books valuing at K617.70, the property of Boroko Motors Limited.

As the robbers were driving out from Boroko Motors premises, a police vehicle on routine patrol sighted a mask man sitting at the back of the stolen vehicle then gave a chase along the Tokua road to Kabakaul/Bitapaka junction then on to the Tapo road thence further into the Rainau road where the robbers had an accident on which accused James Gatana and another Albert Baulten suffered serious injuries. Albert Baulten on the evening of the date of this armed robbery passed away at the Vunapope Hospital. Accused James Gatana was treated and discharged.

THE TWO PRISONERS

Prisoner James Gatana comes from Hanahan Village in Buka Island, Bougainville. He comes from a family of eleven children. He is the 4th born. He is married with five (5) children with ages ranging from 7 — 13 years. Two of his children are in school. He is currently employed by the Makurapau Plantation as a field supervisor. He earns K120.00 per fortnight. He has one previous conviction for a similar offence of armed robbery, was convicted by the National Court at Kokopo and sentenced to four (4) years and 7 months imprisonment in 1992.

In allocutus, James Gatana quoted from 1st John Chapter 1:9 which provides that if we confers our sins Jesus is faithful and just to forgive us. This I believe was quoted in relation to his guilty plea. The prisoner is well aware too that unless he is born again, he cannot see heaven as he quoted from Mathew 18:19 and John 3:3.

Pastor Sialis John of Kokopo Bible Baptist Church gave character evidence in favour of accused James Gatana. Pr. John said he had known James Gatana since Christmas of 1997. Prisoner James Gatana was one of those twenty-four (24) men and women who gave their lives to the Lord during a religious out-reach programme conducted at Makurapau Plantation during which a video show called "The Judgment Seat" was shown by the Bible Baptist Church here at Kokopo. The prisoner got baptised on 1st of February, 1998. He publicly made a commitment giving his life to Jesus. After the prisoner was arrested and put in Keravat, Pr. Sialis visited him three weeks afterwards gave the prisoner words of encouragement whereupon the prisoner re-dedicated his life to Jesus.

Pastor Sialis was quite frank when asked in examination in chief said, his church and is personal view on the offence of armed robbery and other offences is totally morally wrong not only from the community's point of view but the scriptures condemn such activities....