The State v Jamie Campbell Fereka (2003) N2359

• Jurisdiction: Papua New Guinea
• Judge: Kandakasi J
• Judgment Date: 07 April 2003
• Citation: (2003) N2359
• Court: National Court
• Year: 2003
• Judgement Number: N2359

Full Title: The State v Jamie Campbell Fereka (2003) N2359

National Court: Kandakasi J

Judgment Delivered: 7 April 2003

1 CRIMINAL LAW—Sentence—Armed gang robbery with threats and actual violence—Robbery of a wharf warehouse—A firearm and fishing guns used to execute robbery—Property valued at over K7,000.00 stolen in the robbery—Partial recovery of property stolen—Guilty plea—No prior convictions—Plea of family suffering if custodial sentence imposed rejected as that is the natural consequence of committing the offence in 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 s17 and s386.

2 The State v Fabian Kenny (2002) N2237, The State v Damien Anis (2002) N2236, The State v Edward Toude (No 2) (2001) N2299, The State v Vincent Malara (2002) N2188, Gimble v The State [1988–89] PNGLR 271, Tau Jim Anis v The State (2000) SC642, Allan Peter Utieng v The State (2000) SCR15 of 2000 (Unreported and unnumbered judgment of the Supreme Court delivered in Wewak on 23 November 2000), The State v Raphael Kimba Aki (No 2) (2001) N2082 and Public Prosecutor v Don Hale (1998) SC564 referred to

___________________________

N2359

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]

CR NO. 1043 of 2002

THE STATE

-V-

JAMIE CAMPBELL FEREKA

WEWAK: KANDAKASI, J.

2003: 1st and 7th April

CRIMINAL LAW – Sentence – Armed gang robbery with threats and actual violence – Robbery of a wharf warehouse – A firearm and fishing guns used to execute robbery – Property valued over K7,000.00 stolen in the robbery – Partial recovery of property stolen – 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 – 1989] 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) SC 564.

Counsel:

Mr. M. Ruari for the State

Mr. M. Bayam for the Accused

7th April, 2003

KANDAKASI J: You pleaded guilty on 1st April 2003, to one charge of armed gang robbery with actual and threats of violence using offensive weapons, which was contrary to s. 386 (2) of the Criminal Code. Your lawyer then applied for a pre-sentence report from the Probation Service and I ordered such a report be provided by the Probation Service.

This morning, the Court received the requested report. I then heard both you and your lawyer on sentence as well as the State. I then reserved a ruling to this afternoon to enable the Court to consider the submission and the pre-sentence report. This is now the Court’s decision.

The offence of armed robbery you pleaded guilty to was committed at the Wewak Wharf on 12th December 2001, by a gang of about 9 men, including yourself. You were armed with a shotgun with live ammunition in it and two fishing guns. All of these weapons came from you. You carried the shot gun while two of your accomplishes carried the two fishing guns. You used these weapons to threaten, and actually caused physical injuries or assaults to security guards employed at the premises.

You gained entry into the premises by cutting the security wire fence. Once inside, you held up three security guards who were on duty at that time. You tied their hands and blind folded them with a masking tape. You then broke into the Sepik Coastal Agencies warehouse and stole 4 bales of second hand clothing, one sharp brand TV set and other properties belonging to Sepik Coastal Agencies. The total estimated value of the property you and your gang stole is put at over K7,000.00. Part of the properties were recovered but it is not clear exactly what was recovered with their estimated value.

Whilst you and your gang were in the process of stealing items of value from Sepik Coastal Agencies, one of the security guard managed to free his hands from your tying them together, and proceeded to free himself as well as his two colleagues. He then attacked you and pulled the gun you were carrying from you. He then caused you some injury consisting of two fractures to your head, lost of two of your teeth and other injuries. Police were eventually alerted and they came and arrested you. You were also taken to the hospital for appropriate medical treatment.

Following your arrest, you admitted to having committed the offence. In line with that, you gave a confessional statement to police. Consistently with that, you freely admitted to this Court of your involvement in the commission of the offence.

Upon being satisfied that there was enough evidence supporting your guilty plea, I accepted your guilty plea and proceeded to convict you of the charge. I then asked you to address me on the question of sentence or penalty. You informed the Court that your lawyer would do that for you on your behalf. Your lawyer as noted, asked for a pre-sentence report and an adjournment of your case to today.

In your lawyer’s submissions on your behalf, he has emphasised your co-operation with the police in terms of admitting your involvement culminating in your guilty plea. In the process, he urged this Court to take into account in your favour that you disclosed the names of your accomplishes. He also emphasised that, you are a first time offender and that you are relatively young although you are married with one child. Further, your lawyer ably argued that your victims seriously dealt with you, resulting in physical injuries to you as already noted. Furthermore, he points to the pre-sentence report and relies on its call for a lenient sentence against you for the reasons already highlighted.

Added to these factors is your family background of one wife and a child. They stand to suffer if you are given a longer imprisonment term for your punishment. There is also the fact that although you are married, you are a relatively young first time offender.

I also note from the pre-sentence report that you were forced into committing the offence by difficult time your family minus your father were going through. You were trying to make ends meet and got involved in this robbery. But that is not the only solution there is, to find ways to overcome your difficulties. Lawlessness is not and can not be the answer to any difficulty however great that might be. There are always lawful means through which one could arrive at solutions. For example, in your case there was nothing stopping you from returning to your mother’s village and work the land, something you are now prepared to do.

I take these factors into account in your favour. At the same time, I am duty bound to contrast these factors against those that clearly operate against you.

The main factor against you is the fact that the crime of armed robbery is a very prevalent offence. It 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 noted this in many of my judgements already as in The State v. Fabian Kenny (unreported judgement delivered 16/05/02) N2237 on page 5. Indeed, the offence you committed was against a business at its warehouse. There is no evidence that despite this robbery, the business, the victim of your robbery continues to exist and or is functioning today.

Again, as I have noted in many of my own judgements as very recently as in The State v. Damien Anis (unreported...