The State v Lucas Yovura (2003) N2366

• Jurisdiction: Papua New Guinea
• Judge: Kandakasi J
• Judgment Date: 29 April 2003
• Citation: (2003) N2366
• Court: National Court
• Year: 2003
• Judgement Number: N2366

Full Title: The State v Lucas Yovura (2003) N2366

National Court: Kandakasi J

Judgment Delivered: 29 April 2003

1 CRIMINAL LAW—Sentence—Armed gang robbery with threats—Police in hot pursuit fired upon—Accused injured in gun fire exchange—Money totalling K10,950.00 stolen—Only K600.00 recovered—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 of 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, The State v Jamie Campbell Fereka (2003) N2359 and Public Prosecutor v Don Hale (1998) SC564 referred to

___________________________

N2366

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]

CR NO. 2002 of 2000

THE STATE

-V-

LUCAS YOVURA

WEWAK: KANDAKASI, J.

2003: 24th April

2nd May

CRIMINAL LAW – Sentence – Armed gang robbery with threats – Police in hot pursuit fired upon – Accused injured in gun fire exchange – Money totaling K10, 950 .00 stolen – Only K600.00 recovered - 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 – 89] 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. G. Korei for the Accused

29 April, 2003

KANDAKASI J: You pleaded guilty on one charge of armed gang robbery on 17th July 2000 with threats of violence using offensive weapons, contrary to s. 386 (2) of the Criminal Code. Upon being satisfied that there was enough evidence to support the charge and your guilty plea, I accepted your guilty plea and had you convicted.

I then asked you to address the Court on your sentence. You informed the court that you were sorry for what you have done. Also, you told the Court that you have now converted and have become a Christian. Further, you told the Court that you are married with one child. Furthermore, you told the Court that you co-operated with police from the very beginning up to this Court in admitting your involvement. In the circumstances you asked for leniency and mercy from the Court.

In view of your request, your lawyer asked for a pre-sentence report. I therefore ordered that a pre-sentence report be prepared and furnished to this Court. That has been done and I thank the Probation Officer here, Mr. Moses Galus for attending to that within the short period of time that was given to him. The report recommends that you be given a part custodial and part non-custodial sentence.

Whether or not you should be given a non-custodial sentence is dependent on the circumstances in which you committed the offence as well as the lead up to your arrest. These are very important considerations before a decision on sentence can be reached. This is in addition to other factors the Court must take into account before arriving at your sentence. I will therefore first deal with the relevant facts. I will then consider the factors against you. That will be followed by the factors going in your favour. Upon a careful consideration of these competing factors, I will arrive at a sentence.

The relevant facts in you case are straightforward. On Monday 17th July 2000, at about 12:30p.m., a Jeff Liversidge, an expatriate with two others, all employees of the Sepik Coffee Producers Ltd, went in their employers vehicle to refuel at the Caltex service station. They had with them K10,950.00 in cash after having collected them from their employers Wewak office.

Two of Mr. Liversidge’s work mates went into the store to buy some food and cigarettes, while Mr. Liversidge who was the driver of the company vehicle they were in at the time remained in the vehicle. While he was waiting, he surprisingly heard the corking of a pistol on his right side. He then saw you standing there armed with a 9mm pistol pointed at him. You then ordered him out of the vehicle. He did not leave immediately so you yelled at him and ordered him to do so and he complied. At that time you were not masked and so you were clearly seen and identified.

As soon as Mr. Liversidge complied, your other accomplish, Fin Buka got into the driver’s seat of the vehicle, while one more of your accomplish got into the crew’s seat and yourself hoped onto the back open tray of the vehicle. You then drove away from the scene of the crime, with K10, 950.00 inside the vehicle.

Not long and a police motorist patrol arrived at the scene of the robbery and it was alerted. The police therefore, gave chase and caught up with you at the Epe Trading area. As the police drove closer, you having being armed with the pistol started to shoot at the police. That saw an exchange of gunfire between the police and you up to Kreer heights through to Koikin village mountaintop, where your gang stopped the vehicle and your accomplishes escaped on foot.

You were not able to escape with your gang as you were shot on your legs in the gunfire exchange. That led to your apprehension by police. However, before the police could apprehend you, you threw the pistol into the nearby bushes. The police successfully searched for it and recovered it with 8 live ammunition in it. The police recovered some of the money that was stolen. Mr. Liversidge states that the total of the money recovered is only K600.00. That means K10, 350.00 has not been recovered.

The first factor against you is the prevalence of the offence of armed robbery and repeated calls by the community for a stiffer penalty. This offence 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 made these observations as recent as in The State v. Fabian Kenny (unreported judgement delivered 16/05/02) N2237 at page 5 and The State v. Jamie Campbell Fereka (unreported judgement delivered 07/04/03) N2359.

I note in this case that, the offence you committed was indeed against a business and the immediate victim was an expatriate. Going by the name of the company, it seems it was involved in the coffee business, which is a cash crop based. It is this kind of business that helps the people in the rural areas to generate some cash income. When such companies become the target of criminal activities by people of your type, they could be forced to close and the majority of the innocent and decent people who are trying to make a living inevitably suffer from none of their doing.

Out of the bad experiences and the various other difficulties criminal activities such as armed robbery brings upon majority of our peace loving people, there are repeated calls for tougher penalties against people like you. I noted this as very recently in The State v. Damien Anis (unreported judgement delivered 23/05/02) N2236, at page 11.

I have responded to that by...