The State v James Gatana, Michael Otly, Tonny Pidia, Thomas Damsy (2001) N2127

• Jurisdiction: Papua New Guinea
• Court: National Court
• Citation: (2001) N2127
• Date: 19 April 2001
• Year: 2001

Full Title: The State v James Gatana, Michael Otly, Tonny Pidia, Thomas Damsy (2001) N2127

National Court: Lenalia J

Judgment Delivered: 19 April 2001

1 Criminal Law—Sentence—Aggravated armed robbery—Armed robbery of vehicle on the street—Stealing with actual violence—Guns and knives—Use of—Criminal Code (Ch262) s386(1), s386(2)(c).

2 Criminal Law—Sentence—Armed robbery—Aggravating circumstances—Armed robbery in office using vehicle obtained in first count of armed robbery—Use of guns and knives—Office equipment left in disarray—Criminal Code (Ch262) s386(1), s386(2)(a), s386(2)(c).

3 Gimble v The State (1988–89] PNGLR 271, Public Prosecutor v Don Hale (1998) SC564, The State v Herman Kenny and Junior Henry (2001) (CR Nos 396 of 2000 and 132 or 332 of 2001, Unnumbered and Unreported judgments of Lenalia J), The State v Steward Pariwan (1999) N1834, The State v Lasi Mauwe and Maki Onopika (1999) N1886, Acting Public Prosecutor v Joe Kovea Mailai (1981] PNGLR 258, Gimble v The State (1988–89] PNGLR 271 and Paulus Mandatititip v The State (1978] PNGLR 128 referred to

S386(1) and (2)(a), (b) and (c) of the Criminal Code provides:

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

Penalty: Subject to Subsection (2), imprisonment for a term of not exceeding 14 days.

(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 s19, to imprisonment for life.

Held: (1) Where property in an armed robbery has been recovered whether by hot pursuit or the use of violence by the owner or police to recover the thing stolen should be an aggravation and criminal culpability is not reduced, though it may be taken into consideration on sentence.

(2) Despite the strong plea on mitigation, armed robbery in all circumstances of the four categories of armed robberies discussed in the case of Gimble v The State (1988–89] PNGLR 271 are of prevalent nature. In both charges before me, the amounts involved were quite substantial and sentences ought to be more than the suggested tariff in the Gimble's case.

(3) Where a first offender is a co–accused of another or others who have previous convictions, leniency be exercised toward the first offender on sentence.

SENTENCE ON PLEAS OF GUILTY

This was a judgment delivered in the course of sentencing two prisoners for two counts of armed robbery.

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Lenalia J: The four accused were charged with two counts of aggravated armed robbery. On the first count, the State alleged that on 15 September 1998, at Tokua/Rainau road junction they each and severally stole with actual violence a vehicle Nissan Navara No AGK 492, 4 x 4 Double Cabin white in colour with red stripes which vehicle they stole from it's owner Norbert Marus. On the second count the State alleged that using the vehicle stolen on the first count, the four accused after having blindfolded Norbert Marus and his only female passenger Anna Kamo, drove back to Boroko Motors office at Takubar whereupon they each and severally stole from Dianah Timie and others with threats of actual violence a sum of K1,364.85 in cash and two cheque books valuing at K617.70, the property of Boroko Motors Ltd. The State further say that at the time of the two armed robberies, the four accused were armed with two guns, one being factory made while the other a home–made one and bush knives. These offences are against s386(1), s386(2)(a), s386(2)(b) and s386(2)(c) of the Criminal Code.

These matters were set for trial, but on arraignment, accused James Gatana and Michael Otly pleaded guilty while Tonny Pidian Berevy and Thomas Damsy entered not guilty pleas. Pidian and Damsy's cases were later dismissed on the date I took their pleas since the State offered no evidence and their bails were ordered refunded.

The facts to which James and Otly pleaded to were as follows: On 15 September 1998, the two victims of the first armed robbery, Norbert Marus and his only female inlaw passenger Anna Kamo took off from Kokopo with intention to go to Ulaveo Plantation. On the way on the junction to Tokua Airport and Rainau road, Norbert stopped for purposes of relieving himself. So he pulled up along side the road leading to Rainau. When he was about to get out from his vehicle, two mask men hastily walked towards him and stood on his sides, one on the right and the other on the left pointing two guns at him. His female...