The State v Abel Airi (2000) N2007

• Jurisdiction: Papua New Guinea
• Citation: (2000) N2007
• Date: 28 November 2000
• Court: National Court
• Year: 2000

Full Title: The State v Abel Airi (2000) N2007

National Court: Kandakasi J

Judgment Delivered: 28 November 2000

1 Criminal Law—Practice and Procedure—Plea of guilty on arraignment—Depositions disclosing possible defence but accused deciding to forego and raise it in mitigation—Guilty plea confirmed—Criminal Code (Ch262) s560(a) and s593(a)

2 Criminal Law—Sentence—armed robbery—first time young offender with good character—Suspended sentence on terms—Criminal Code (Ch262) s386(2) and s19(1)(d).

3 Criminal Law—Compensation under Criminal Law (Compensation) Act 1991 ordered—Such compensation no substitute for punishment—Relevant only in mitigation.

4 Gimble v The State (1988–89] PNGLR 271, Public Prosecutor v Don Hale (1998) SC564, The State v Morobet Awui Koma and Peter Kevin (1987] PNGLR 262, Kesino Apo v The State (1988] PNGLR 182, Andrew Uramani v The State (1996] PNGLR 287, Peter Joss Kinisa v The State (1998) SC544, Tau Jim Anis v The State (2000) SC642, R v Davey (1980] 2 A Crim R 254, The State v Nyama (1991] PNGLR 127, The State v Frank Kagai (1987] PNGLR 320, The State v Rex Lialu (1988–89] PNGLR 449, Rex Lialu v The State (1990] PNGLR 487 referred to

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Kandakasi J: On 9 November 2000, an indictment was presented against the Defendant charging him with one count of armed robbery. The indictment read:

"ABEL AIRI of OROI, BEREINA, CENTRAL PROVINCE stands charged that he on 11 February 2000 at Gordons in Port Moresby in Papua New Guinea stole from one THOMAS GANUPILA with actual violence a motor vehicle namely a Subaru Legacy Sedan, Registration Number JAB 153, the property of the said THOMAS GANUPULA.

AND AT THIS TIME the said ABEL AIRI was armed with a pistol and a shot gun, being dangerous weapons and was in the company of others."

On arraignment, the accused admitted the charge as presented in accordance with the provisions of s560(2)(a) of the Criminal Code (Ch262) (hereinafter the Code). A provisional plea of guilty was therefore entered. However, after admitting into evidence the original depositions and upon reading them, I ascertained that the accused in his record of interview denied being armed with a shotgun, a pistol and stealing from Thomas Ganupila, but admitted to driving the vehicle that was stolen from that person upon the order. Learned Counsel for the Defendant, Mr Furigi was thus asked whether he had sought his client's instructions on those aspects and the possibility of raising a legal defence. Mr Furigi said he had sought and received his client's instructions and had a statement dated 9 November 2000 by his client which he sought leave to tender into evidence. That statement was admitted into evidence with the State's consent. Mr Kupmain for the State, also informed the court that the State accepted the version of facts set out in the statement. The statement was consistent with what the accused told the police during the record of interview.

Mr Furigi then informed the court that his client's instructions were for him to forgo any possible defence and raise them only in mitigation before sentence. He was therefore instructed to maintain his client's guilty plea. In the light of that, the court confirmed and formerly entered a guilty plea and proceeded to convict the Defendant.

The prosecutor then tendered into evidence an antecedent report on the accused. Thereafter, allocutus was administered in accordance with s593(a) of the Criminal Code. The accused said he was sorry for what he had done. He asked the court to be lenient with him when deciding what punishment to give and pointed out that he did not intend to commit the offence and that he was not the main offender. He then asked for a non–custodial sentence, which would give him a second chance to become a better law–abiding person. He finished by saying his lawyer will say some more things in addition to what he already told the court.

Facts

The relevant facts are in the Defendant's Statement admitted into evidence with the consent of the State. On the morning of 11 February 2000, the Defendant repeatedly asked his mother to use her car but the mother refused. He got angry and decided to go to Gordons to ask for his grandparent's car. On the way, he met a Paul Kove, Simon (whose surname the Defendant did not know), and John Koivi. He then went with these men to Gordons Liquor Barn and bought two large bottles of whisky bourbon. They took the whisky to Paul Kove's residence and drank them with two additional ones of the same kind. About 6.00pm, they were all intoxicated. Paul with the agreement of Simon and John, then suggested that they get into a car and go for a joy ride. The Defendant on his part said, "if you know how to get one, I'll do the driving." Paul and Simon left for a brief 5–10 minutes and returned with a home–made shotgun and a toy pistol.

They left the place at which they were drinking and walked to Dunlin Street also in Gordons. At that street, a vehicle drove up and stopped about 5–10 metres away from where the Defendant and his friends were. As they got closer, Paul with the help of Simon and John, suddenly approached the vehicle, held up its driver and its other occupants and forced them out of the vehicle. At that stage, Paul discharge a warning shot into the air from the shotgun. As soon as the occupants of the vehicle were out, Paul ordered the Defendant to get into the driver's seat and drive and he did. John and Simon took the backseat, while Paul took the seat beside the driver's seat. As soon as the Defendant and his friends got into the vehicle, the Defendant drove the vehicle off and was continuing to drive the vehicle aimlessly around the Gordons area until the police caught up with them at Dunlin Street.

On seeing the police, the Defendant immediately stopped the vehicle and got into the yard of one of the nearby residences from where he was apprehended while his other friends escaped. The Defendant neither laid his hands on the driver of the vehicle that was stolen or any of its occupants, either to steal or hurt them nor did he take anything from the vehicle that belonged to the victims. Upon his arrest, the police did not find or recover from him any of the things allegedly stolen from the driver or any of the occupants of the vehicle that was stolen.

The Defendant

The Defendant was about 19 years old at the time of the commission of the offence; Paul, Simon and John were aged between 24 and 26 years. The Defendant was therefore the youngest amongst them. He revealed the identity of his friends to the police. He also took and showed the police the place at which he and his friends had been drinking. He admitted being involved in the commission of the offence initially to the police and then to this court.

The Defendant's parents have been separated for about 11 years now. He has two younger brothers aged 18 and 10 years old. The Islander Travelodge Hotel employs his mother as its Executive Secretary while Dunlop PNG Ltd employs his father as its Sales Manager. The father supports the family from time to time. The former Prime Minister, Honourable Bill Skate, employed the Defendant as a clerk Grade 8 for a period of 2 years. He left that employment to pursue further education. He has planned with his mother for him to go on to University matriculation studies but for the fees. He has therefore, decided to find some...