The State v Micky John Lausi (2001) N2073

• Jurisdiction: Papua New Guinea
• Judge: Kandakasi J
• Judgment Date: 27 March 2001
• Citation: (2001) N2073
• Court: National Court
• Year: 2001
• Judgement Number: N2073

Full Title: The State v Micky John Lausi (2001) N2073

National Court: Kandakasi J

Judgment Delivered: 27 March 2001

N2073

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]

CR. 125 of 1999

THE STATE

v.

MICKY JOHN LAUSI

WAIGANI: KANDAKASI, J.

2001: February 16

: March 7, 12 and 27th

CRIMINAL LAW — Particular offence — Armed gang robbery on a street and Unlawful use of motor vehicle — Motor vehicle and other properties stolen at gun point — Admission of charges after trial and conviction — Pre-sentencing report called for and considered — Young first offender with no prior convictions — Good character reference and community support for rehabilitation and reformation of offender — Compensation considered appropriate and ordered — Prisoner released under strict terms and sentence deferred — Criminal Code (Ch. 262), Ss. 386, 383, s. 7 and s. 19.

Cases Cited:

The State -v- Abel Airi (2000) N2007

The State -v- Morobet Awui Koma & Peter Kevin [1987] PNGLR 262,

Joe Foe Leslie Leslie v. The State (1998) SC 561

Gimble v. The State [1998-99] PNGLR 271

Tau Jim Anis & Others v. The State, SC 642

State v. James Gurave Guba (2000) N2020

R. v. Davey [1980] 2 A Crim. R 254

The State v. Frank Kagi [1987] PNGLR 320

The State v. Nyama [1991] PNGLR 127

Public Prosecutor v. Don Hale (1998) SC 564

Counsels:

M. Zurenuoc, for the State

O. Oiveka and P. Kore, for the Defendant

27th March 2001

DECISION ON SENTENCE

KANDAKASI, J: In the written judgement delivered by this Court on the 16th of February 2001, you were found guilty of one count of armed robbery under s.386, and one count of unlawful use of motor vehicle under s.383 of the Criminal Code (Chp. 262) (hereinafter "the Code").

The relevant facts are set out at pages 4 — 6 of the judgement on verdict, which I need not repeat for the purposes of sentencing.

After hearing submissions on sentence, I call for a pre-sentencing report from the Probation Services. That report was furnished on the 2nd of March 2001, and I had further arguments arising from the report from both the prosecution and your lawyer on the 7th March 2001. A decision on sentence was thereafter reserved and this is the decision on sentence.

In the pre-sentencing report and at the hearing of further submissions on the 7th of March 2001, you admitted to having committed the offences. At that stage, I pointed out that, that admission was a little too late as the State has been put to the trouble and expenses of conducting a trial and establishing your guilt. Consequently, your belated admission will not have any favourable effect for you in relation to your sentence.

The Offences

The offence of armed robbery is prescribed by s.386 of the Code in the following terms:-

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

Penalty: Subject to subsection (2), imprisonment for a term not exceeding 14 years.

(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.

The offence of unlawful use of a motor vehicle is prescribed by section 383 of the Code. That provision reads:-

(1) In this section, "unlawfully uses" includes the unlawful possession by any person of any motor vehicle or aircraft —

(a) without the consent of the owner or of the person in lawful possession of it; and

(b) with intend to deprive the owner or person in lawful possession of it for the use and possession of it temporarily or permanently.

(2) A person who unlawfully uses a motor vehicle or aircraft without the consent of the owner or of the person in lawful possession of the vehicle or aircraft is guilty of a crime.

Penalty: Imprisonment for a term not exceeding five years.

(3) This section applies without prejudice to any provision relating to the unlawful use of motor vehicles or aircraft of any other law, but an offender is not liable to be convicted under both these sections and such a provision in respect of anyone and the same unlawful use.

The offence of armed robbery and unlawful use of a motor vehicle in this case were committed out of the same transaction. Accordingly if a term of imprisonment is to be imposed it has to be made concurrent and not cumulative: see The State v. James Gurave Guba (19/1200) N2020 at pages 9 to 10 and the cases referred to there.

Culpability

The driver of the motor vehicle, a Nissan Sunny registration Number LAM 093 namely Paul Egep who was held up at gunpoint. He lost to you and your accomplices his wallet with some cash and the vehicle. The vehicle was driven away by you and your accomplices and was subsequently recovered through excellent police work. You were found guilty of having committed the offence in the company of others. After you were tried and found guilty and convicted of the charges, you admitted to committing those offences. For the purposes of committing the offences, guns and threats of violence were used.

As I said in The State -v- Abel Airi (2000) N2007, going by the authority of The State -v- Morobet Awui Koma & Peter Kevin [1987] PNGLR 262, at page 263 per Wilson, J., "the essential starting point in determining punishment is to fix the culpability or blame worthiness of the prisoner".

In line with that principle, the relevant question is what is the extent of your culpability in the commission of these offences. This is where ss.7 and 8 of the Code come into play. Unlike in the Abel Airi case, the State has alleged and asked for the application of those provisions against you. Section 7 stipulates that: -

(1) When an offence is committed, each of the following persons shall be deemed to have taken part in committing the offence and to be guilty of the offence and may be charged with actually committing it —

(a) every person who actually does the act or makes the omission that constitutes the offence; and

(b) every person who does or omits to do any act for the purpose of enabling or aiding another person to commit the offence; and

(c) every person who aids another person in committing the offence; and

(d) any person who counsels or procures any other person to commit the offence.

(2) In subsection (1)(d), the person may be charged with —

(a) committing the offence; or

(b) counseling or procuring its commission.

(3) A conviction of counseling or procuring the commission of an offence entails the same consequences in all respects as a conviction of committing the offence.

(4) Any person who procures another to do or omit to do any act of such a nature that, if he had himself done the act or made the omission it would have constituted an offence on his part, his —

(a) guilty of an offence of the same kind; and

(b) liable to the same punishment,

as if he had done the act or made the omission and may be charged with himself doing the act or making the omission.

Then section 8 provides in these terms:

Where —

(a) two or more persons form a common intention to prosecute an unlawful purpose in

conjunction with another, and

(b) in the prosecution of such purposes and offences committed of such a nature that each

commission was a probable consequence of the prosecution of the purpose, each of them shall be deemed to have committed the offence.

It is now a well settled principle of law that, by virtue of an offenders association and common purpose for the commission of an offence in the company of others within the meaning of these provisions, every person involved in the commission of the offence in question is a principle. See Joe Foe Leslie Leslie v. The State (1998) SC 561. Accordingly, any offender who commits an offence in the association of or in the company of others pursuing a common purpose is by virtue of that, a principle and a sentencing court as to proceed on that basis. I allow myself to be guided by that principle.

Sentencing Principles

The offence of armed robbery and unlawful use of motor vehicles following a robbery is a common everyday occurrence in the country. The Supreme Court in Gimble v. The State [1998-99] PNGLR 271 has set out the guidelines for sentencing in armed robbery cases. In respect of a robbery of a motor vehicle on a street or a robbery of a store, a starting sentence of five years is appropriate. It then went on to further say that "a lesser sentence should be imposed in an uncontested case". More recently, the Supreme Court in Tau Jim Anis & Others v. The State, SC 642, varied the guideline set in Gimble's case especially in the area of...