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

• Jurisdiction: Papua New Guinea
• Court: National Court
• Citation: (2001) N2187
• Date: 17 October 2001
• Year: 2001

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

National Court: Kandakasi J

Judgment Delivered: 17 October 2001

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 s386(1), s386(2)(a) and s386(2)(b).

2 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 s19 of the Criminal Code is not to be restricted by principles such as no "quantum leap."

3 John Beng v The State [1977] PNGLR 115, David Kandakason v The State (1998) SC558, The State v Raphael Kimba Aki (2001) N2039, The State v Eddie Peter (No 1) (2001) N2296, Gimble v The State [1988–89] PNGLR 271, The State v Jimmy Yasasa Lep (1996) N1495, The State v Abel Airi (2000) N2007, The State v Nickson Pari (No 2) (2001) N2033, The State v James Donald Keimou (2001) N2295, Andrew Uramani v The State [1996] PNGLR 287 and Thomas Waim v The State (1997) SC519 referred to

Decision on verdict

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Kandakasi J: You all pleaded not guilty to one count of armed robbery contrary to s386(1), s386(2)(a) and s386(2)(b) of the Criminal Code ("the Code"). The offence is alleged to have been committed on 1 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 2 May 2000 written by Conrad Holland (exhibit "A"). This piece of evidence states that an armed robbery took place at the Hotel on 1 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 1 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 as 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...