The State v Max Charles, Tony Steven and Daudi Charles (2001) N2187

• Jurisdiction: Papua New Guinea
• Judge: Kandakasi J
• Judgment Date: 17 October 2001
• Court: National Court
• Citation: (2001) N2187
• Year: 2001
• Judgement Number: N2187

Full Title: The State v Max Charles, Tony Steven and Daudi Charles (2001) N2187

National Court: Kandakasi J

Judgment Delivered: 17 October 2001

N2187

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]

CR NO. 1146 of 1999

THE STATE

-V-

MAX CHARLES, TONY STEVEN

AND DAUDI CHARLES

ALOTAU: KANDAKASI, J.

2001: 16h & 17th October

1* Due to a power failure I was not able to read out and make available to the parties this judgements on verdict and sentence which were then in draft. I delivered the judgements orally in summary form in Alotau. I promised then to finalize them and have them delivered to the parties. This is the final and detailed version of the judgements.

1*

CRIMINAL LAW-Particular offence-Armed robbery-Gang robbery of a hotel-Identification by facial recognition-Part of item stolen in robbery leading to arrest recovered-Return of guilty verdict against two of the accused-Criminal Code 386 (1)(2)(a) and (b).

CRIMINAL LAW-Sentence-Armed robbery-Robbery of hotel by an armed gang-First time offenders-No other good mitigating factors-Conviction after a trial-Offence on the increase so sentences also need to be increased to correspond to that increase for personal and general deterrence-Sentencing discretion under section 19 of the Criminal Code is not to be restricted by principles such as no “quantum leap.”

Cases cited:

John Beng v. The State [1977] PNGLR 115

David Kandakason v. The State (1998) SC558.

The State v. Raphael Kimba Aki (unreported judgement delivered 26/01/01) N2039

The State v. Eddie Peter (No.1) (Unreported and unnumbered delivered on the 12th of October 2001) CR 1446 of 1998.

Gimble v. The State [1988-89] PNGLR 27

The State v. Jimmy Yasasa Lep (unreported judgement) N 1495. In The State v. Abel Airi (unreported judgement delivered 28/11/00) N2007

The State v. Nickson Pari (No.2) (unreported judgement 10/01/01) N2033

The State v. Eddie Peter (unreported and unnumbered judgement delivered on the 12th of October 2001) CR 1446 of 1998

The State v. James Donald Keimou (unreported and unnumbered judgement delivered on 12th October 2001) CR 430 of 1999

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

Thomas Waim v. The State (unreported judgement) SC519

Counsel

K. Popeu for the State

D. Kari for the Accused

DECISION ON VERDICT

17th October, 2001

KANDAKASI, J: You all pleaded not guilty to one count of armed robbery contrary to section 386(1), (2)(a) and (b) of the Criminal Code (“the Code”). The offence is alleged to have been committed on the 1st May 2000 at the Veawa Melanesian Hotel (the “Hotel”), here in Alotau. The State alleges that you were armed with one pistol, one factory made shotgun, one home made gun and one knife, all being dangerous weapons. After holding up the Hotel employees, you made off with its cash register, K250.00 cash and a number of alcoholic spirits and wines (“drinks”). The State alleges the total of the cash and value of all of the items stolen is K1,906.00

The only issue you take and hence the trial was the question of your identification as the offenders. There is no issue on all the other allegations and or elements of the offence.

The State’s Evidence

The State admitted into evidence with your consent, a letter dated 2nd May 2000 written by Conrad Holland (exhibit “A”). This piece of evidence states that an armed robbery took place at the Hotel on the 1st of May 2000 at about 7:30pm. It then lists the items stolen in the hold-up which included a cash register or till and a “Black Marlin X (750ml) bottle of wine and K250.00 in cash.

Your respective records of interviews conducted with the police were also admitted into evidence with your consent as exhibits “B” for Max Charles, exhibit “C” for Tony Steven and exhibit “D” for Daudi Charles. Apart from confirming that a record of interview was conducted for each of you, there is no further evidence from these records of interview because you simply refused to answer any of the questions asked and chose to remain silent.

The State then called a number of witnesses who gave oral evidence. The first to be called was Mathew Moses, a policeman with Alotau police. This witness said he was on duty in the night at the Alotau police station on the 1st of May 2000. Between 7:00 and 7:30 pm he received a telephone call from the Hotel. The caller reported of an armed hold up at the Hotel where the hotel’s cash register and some hard stuff (alcoholic drinks) were stolen. He notified his fellow duty officer, Constable, Max Irofe and the two of them proceeded to the Hotel.

When the witness and his colleague got there, they found out that the robbers had already escaped. Only some staff of the Hotel was there. They then took the names and particulars of the witnesses and returned to the police station. Once at the police station, the witness made an entry of the crime and continued with his normal duties at the police station.

At about 2:00 am the next day, a nephew of a policeman, Junior Samson, arrived at the station with a green wine bottle. He says he got the bottle off from the policeman’s nephew and worked out that, that bottle could be one of those stolen from the Hotel and asked the policeman’s nephew. “Where did you get this bottle of wine from?” The answer to that was, he got it off from one of the boys at Misima Barracks (police) here in Alotau. He then got details of the place where the boys were and got into a police vehicle and asked the driver to head straight to that place. When he got there, he saw Tony Steven, who he was able to identify or recognise because of him being brought to the police station on previous occasions for minor offences, with two others he could not identify talking to another policeman. There were other youths further up on red hill. When those youths saw the police vehicle he was in, they started running away. The other two youths with Tony Steven also ran away into a compound through a bamboo patch. After giving them a chase, he caught one of them. He recognised that person to be Max Charles because he had on earlier occasions arrested him for being drunk and disorderly. Based on his knowledge of Max Charles he says he asked him upon catching him and asking him to stand up, “Is that you Max?

He and the other policeman then drove further up on red hill. On their return he saw in the vehicle light Tony Steven and the other two youths with him. Upon seeing the vehicle’s light they all ran into the darkness. Him and his colleague gave chase to them but were unable to catch any of them. So they return to the police station with only Max Charles.

At the police station, he asked Max if he was drunk, to which Max replied in the negative. But the witness could see that Max was drunk. Max than told him that, Tony Steven and some other boys put a knife on his neck and told him to be a spy. Then those boys went to his (Max’s) compound and from there they were drinking hard stuff, wine. When asked, Max also told him that he was given only two glass of wine and he drank them. On further questioning, Max also told him that, Tony Steven was amongst those who were drinking the hard stuff and that all of the other boys were from Gadisu and Marriawette.

Thereafter he locked Max up for the CID section to takeover and filed a crime report based on details obtained from him. Constable Jeffrey Warriupa took over from there, carried out the necessary investigations and formerly charged Max.

This witness positively identified both Max Charles and Tony Steven. They were identified by their respective names picking them out correctly in Court by reference to their clothing and position in the dock. In addition to this, the prosecution through this witness, identified and admitted into evidence a green Black Marlin brand wine marked has exhibit “E,” which was quarter way empty.

The State’s second witness was Constable Gamani Maika. He says he was asleep in his house at the Misima Police Barracks around 11:30 pm when he was suddenly awakened by loud music and singing by a group of drunkards numbering about 5, walking on the road. He got out of bed and went out to the road and told them to keep their noise down and walk away quietly. They complied but as soon as they reached a junction, they called back and said to him “Yu kaikai kan” (You eat vagina). This angered him and caused him to run after the youths.

Two of his colleagues joined him by then. The witness was a bit slower in the chase but one of his colleagues was faster than he was. His colleague caught one of the youths, while the rest escaped into red hill. At the time of apprehending the youth, Junior Samson got hold of a long neck hard stuff (strong alcoholic drink). So the witness told Junior Samson to take it to the police station and get police help, while he continued to go after the youths. Then one of the youths that he identified as Tony Steven appeared from where he was hiding and said to him, “Boss we are innocent, the boys you were chasing ran up red hill.” He was able to identity that person as Tony Steven because he sometimes drinks with the policemen.

Soon thereafter, a police vehicle arrived and he got on leaving the two boys behind believing their claim of innocence. He and those in the police vehicle drove up red hill and on the way they saw...