The State v Kennedy Arus (2001) N2081

• Jurisdiction: Papua New Guinea
• Judge: Kandakasi J
• Judgment Date: 16 March 2001
• Citation: (2001) N2081
• Court: National Court
• Year: 2001
• Judgement Number: N2081

Full Title: The State v Kennedy Arus (2001) N2081

National Court: Kandakasi J

Judgment Delivered: 16 March 2001

N2081

PAPUA NEW GUINEA

[In the National Court of Justice]

CR No. 18 of 2001

Between:

THE STATE

And:

KENNEDY ARUS

GOROKA: KANDAKASI, J

2001: 14th & 16th March

CRIMINAL LAW — Sentence — Armed robbery of a PMV bus on highway whilst still in motion — Offence committed whilst pursuing an unlawful purpose — Possessing and using illegally homemade guns — Forceful takeover of driving of bus and endangering lives — Passengers and driver abandoned in unfamiliar area — Plea of guilty — No prior convictions — Time to increase tariffs set by the Supreme Court — National Court obliged to follow guidelines set by the Supreme Court — 8 years imprisonment imposed — Criminal Code (Chp. 262) s. 386

Cases Cited:

The State v. Sabarina Yakal [1988-89] PNGLR 129

The State v. Jason Dongoma Unreported National Court judgement delivered on 13 December 2000) N2038.

The State v James Guruve Guba (Unreported National Court judgment)

Public Prosecutor v Don Hale (Unreported Supreme Court decision) SC 564

Tau Jim Anis & Two Ors v The State (Unreported Supreme Court decision) SC 642

Gimble v The State (1988 — 89) PNGLR 271

Counsel:

Mr Umpake for the State

Mr Apie'e for the Defendant

DECISION ON SENTENCE

16th March 2001

KANDAKASI, J.: The accused pleaded guilty to one count of armed robbery under s. 386 (1) (2) (a) and (b) of the Criminal Code (Chp. 262) (hereinafter "the Code").

The Allegation

The charge against the accused is this. On the 27 September 2000 at Korofeigu, Bena, in here in the Eastern Highlands Province, he stole from one Mr. Apa Waundo and others with actual violence a motor vehicle, namely, a white Toyota Coaster PMV 25 seater bus, Registration number P. 463W (hereinafter "the bus"), money in the sum of K350 in cash and various other items the property of Mr. Waundo and others. At the time of the offence, the accused was armed with two dangerous weapons, namely two home-made guns and was in the company of five others.

The Facts

The State alleges and is accepted by the Defendant that, the bus had originally traveled in from Kundiawa and was heading to Lae. It stopped at the Goroka market bus stop to drop off passengers who wanted to get off in Goroka and to pick up new ones intending to go to Lae. The accused and his five other accomplices got in the bus pretending to be passengers wanting to travel to Lae. The bus then drove out of Goroka heading for Lae. When it reached Korofeigu in the Benabena area here in the Eastern Highlands Province, the accused and his accomplices drew two homemade guns and held up the driver Mr. Waundo and the other passengers in the bus at that time. Then one of the accomplices took over the driving of the bus by force from Mr. Waundo and drove off the Okuk Highway into the Benabena High School road with the driver and passengers still inside. The hold-up took place whilst the bus was still in motion.

The accused and his accomplices drove pass the Benabena High School and stopped some distances away and ordered everybody in the bus to step out and they searched them at gunpoint. They then stole from the driver and the other passenger's money totaling K350.00 in cash, a pair of shoes and a wrist watch.

After robbing the driver and his passengers, the accused and his accomplices abandoned them and drove away in the bus toward Goroka. Most of the victims were not familiar with the area where they were abandoned. After the accused and his accomplices left, the victims managed to walk to the Benabena Police Station and from there they contacted Goroka Police and reported the robbery. Goroka Police immediately attended to the report and apprehended the accused and three others who were heading for Goroka after having committed the offence. According to Police evidence on file, the accused and his three accomplices tried to escape so the police wounded them. They were then taken to the Goroka Base Hospital for treatment and then to the police lock up. They have since been kept in custody.

There is no evidence on file to show whether the accused's accomplice who took over the driving forcefully from the driver of the bus was a properly licensed and experienced driver. It is however, clear from evidence on file that, he drove in a very dangerous manner putting at risk lives of the passengers and the legal driver of the bus. That was in addition to the bus itself which was valued at about K107, 000.00 at the time of the offence. The bus was recovered but it is not clear whether the cash and the other items stolen from the passengers and the driver were recovered.

After arraigning the accused, I entered a provisional plea of guilty and then admitted into evidence without any objection from the defence counsel, the depositions together with the antecedent report. After reading the depositions, I was satisfied that, there was sufficient material to support the accused's guilty plea. I therefore, proceeded to confirm the guilty plea and convicted the accused on the one count of armed robbery under s. 386 (1)(2)(a) and (b) of the Code. Before that, there was no s. 563 of the Code application by counsel for the accused.

The facts as outlined above, appear from the various witness statements and other material constituting the depositions. The accepted practice is for me to use the depositions to extract the relevant facts for sentencing purposes, in the absence of any sustainable objections and I have done that. For the relevant authorities on that see The State v. Sabarina Yakal [1988-89] PNGLR 129 and The State v. Jason Dongoma Unreported National Court judgement delivered on 13 December 2000) N2038.

Allocatus

The accused in his allocatus repeated his admission of guilt and went on to say that, at the time of his and his accomplices apprehension, the police set up a road block and on coming into contact with the road block he and his accomplices surrendered. They were then ordered by police to lie down on the grass and the police proceeded to shot at them with high-powered guns. He claims that fortunately that happened at a place where there were villagers who came to where they were and that prevented the police from further shootings. He confirms other evidences on file that, they were then taken to the Goroka Base Hospital for treatment and thereafter the police lock up. From there, they were sent to Bihute CIS for further detention awaiting their trial. He claims that, there were no further treatment given to him and he is still hurting from the injuries he sustained from the police.

For his personal background, he says he is an ordinary villager in a family of six children. His father died in 1994 but his mother is alive and is living in the village. He says he has three coffee gardens with one house pig. Also, he says he used to look after those things by himself as the eldest in the family but all of them are being jeopardized and affected by his continued incarceration.

Address on Sentence

The accused counsel, Mr Apie'e adopted what his client said in relation to his client's background and added that, his client is over 21 years old and he comes from Gogo village in the Chuave District of the Simbu Province. At the time of the offence the accused was at Faniyufa for about 24 hours and was caught up in the commission of the offence with which he has been charged and he has pleaded guilty to. He has a wife who is pregnant with his first child. That wife lives in the village with the accused's mother and his siblings.

In his client's mitigation, Mr Apie'e urges the court to take into account the fact that his client has pleaded guilty to the charge, a position he took from the moment he was arrested by police. That meant a lot of savings in terms of time and cost that would have been incurred in conducting a trial. He further submits that, this was his client's first ever offence and that, all of the items stolen were...