The State v Gilbert James (2009) N3752

• Jurisdiction: Papua New Guinea
• Date: 24 September 2009
• Citation: (2009) N3752
• Docket Number: CR. No. 1362 OF 2008
• Court: National Court
• Year: 2009

Full Title: CR. No. 1362 OF 2008; The State v Gilbert James (2009) N3752

National Court: David, J

Judgment Delivered: 24 September 2009

CRIMINAL LAW—sentence—guilty plea—1 count of aggravated robbery—robbery of a house in the night—a machete and firearm used—robbery in the company of others—threats of actual violence—no injury sustained by complainant - mobile phone and wallet containing K90.00 in cash taken from the complainant—value of mobile phone not known - wallet recovered without cash - first offender—expression of remorse - 8 years custodial sentence—s386 (1)(2)(a) and (b) Criminal Code.

Cases cited:

The State v Steward Pariwan (1999) N1834; Gimble v The State [1988–89] PNGLR 271; Public Prosecutor v Don Hale (1998) SC564; Tau Jim Anis v The State (2000) SC642; Dadly Henry Gorop v The State (2003) SC732; The State v Sunny Kaupa, CR 480 of 2003 (2003); The State v Paul Maima Yogol (2004) N2583; The State v Tommy Yare & Anor, CR 1828 of 2003 (2004); The State v Benjamin Nabate (2002) N2216; The State v Allan Esri Waluta (2005) N2911; The State v Billy Bimaru (2000) N2025; The State v Vincent Malara (2002) N2188; The State v Nelson Ngasele (2003) SC731; Saperus Yalibakut v The State (2006) SC890

DECISION ON SENTENCE

24 September 2009

1. DAVID, J: INTRODUCTION: The Prisoner pleaded guilty to 1 count of aggravated robbery under s386 (1) and (2)(a) and (b) of the Criminal Code. I accepted the Prisoner’s plea of guilty and recorded a conviction after reading the depositions. I will say a little bit more as to why I have convicted the Prisoner later on in the judgment.

INDICTMENT

2. The indictment to which the Prisoner pleaded reads:-

“GILBERT JAMES of Surunki village, Laiagam, Enga Province stands charged that he on the 8th day of September 2007 at Four (4) Mile, Works Compound, National Capital District in Papua New Guinea stole from one Leonard Kasa with threats of actual violence a mobile phone and Ninety Kina (K90.00) in cash, the property of the said Leonard Kasa.

AND at that time, the said Gilbert James was in the company of other persons and they were armed with a machete and a firearm which are dangerous or offensive weapons.”

BRIEF FACTS

3. The Prisoner pleaded to these brief facts for the purpose of arraignment.

4. On 8 September 2007, at about 07:00 o’clock in the evening, the complainant one Leonard Kasa (the complainant) and his wife were sitting outside of their house at Four (4) Mile, Works Compound in the National Capital District when the Prisoner and three (3) others entered the complainant’s premises. The Prisoner was armed with a machete and his other friends were armed with shotguns and knives. They held up the complainant at gun point and the Prisoner snatched the complainant’s mobile phone from his pocket and his wallet which contained K90.00 in cash. During the commotion, the neighbours came to the rescue of the complainant and the suspects fled the scene. The matter was reported to the police who then carried out an investigation resulting in the arrest of the Prisoner. The Prisoner had no right to be in the complainant’s premises and threatening him with offensive weapons and taking his mobile phone and K90.00 in cash.

EVIDENCE

5. Amongst the documents contained in the depositions are the following:-

1. The Statement of Leonard Kasa dated 14th September 2007;

2. The Statement of Vivian Koroti dated 14th September 2007;

3. The Statement of Andrew Ovia dated 15th September 2007;

4. The Statement of Maria Ovia dated 15th September 2007;

5. The Statement of Jackson Wally dated 14th September 2007;

6. The undated Statement of Steven Aua;

7. The Record of Interview conducted in Tok Pisin on 5th November 2007;

8. The translated English version of the Record of Interview conducted on 5th November 2007.

6. There is reference to a Statement given by one Ivan John in the depositions who appears to be a person listed at the back of the indictment as a State witness, but it is missing.

SUMMARY OF EVIDENCE

The Statement of Leonard Kasa

7. He is a mining engineer by profession. He is the complainant who was held up by the Prisoner and his accomplices on 8th September 2007 at about 07:00 o’clock in the evening at the Four (4) Mile Works Compound in the National Capital District. He was with his wife sitting outside of their house at the time. The Prisoner entered the premises through the main gate. The Prisoner and his accomplices who were armed with a machete and a firearm with threats of actual violence took from him his mobile phone and wallet containing K90.00 in cash. The firearm was actually pointed at him by the gunman threatening to shoot him while the Prisoner armed with a machete threatened to hack him in the face. Neighbours came to their rescue and the Prisoner and his accomplices fled the scene. The incident took over a minute. The Prisoner and his accomplices live in and around the Four (4) Mile Works Compound and are well known in the community for their notorious activities. His wallet was found the next morning and returned to him with his driver’s licence minus the cash.

The Statement of Vivian Koroti

8. She is the complainant’s wife. She corroborates the complainant’s evidence. She has resided at the compound for almost 20 years. She knows the Prisoner and his accomplices well because they have grown up together within the compound. She also states that the security light was on at the time and she could observe clearly the robbery taking place from where she was hiding. She was hiding amongst their neighbour’s flowers and trees.

The Statement of Andrew Ovia

9. He is an accountant and lives at the Four (4) Mile Works Compound. On 8th September 2007 at about 07:00 o’clock in the evening, he was with...