The State v Gilbert James (2009) N3752

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

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

National Court: David, J

Judgment Delivered: 24 September 2009

N3752

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]

CR. No. 1362 OF 2008

THE STATE

V

GILBERT JAMES

Prisoner

Waigani: David, J

2009: 23 & 24 September

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 – s.386 (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 & Ors v. The State (2000) SC 642

Dadly Henry Gorop v. The State (2003) SC 732

The State v. Sunny Kaupa, CR 480 of 2003 (2003)

The State v. Paul Maima Yogol and Anor (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 N. Ngasele (2003) SC731,

Saperus Yalibakut v The State (2006) SC890

Counsel:

T. Ganai and J Sebi, for the State

J. Mesa and E. Wohuinangu, for the Prisoner

DECISION ON SENTENCE

24 September 2009

1. DAVID, J: INTRODUCTION: The Prisoner pleaded guilty to 1 count of aggravated robbery under s.386 (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 his wife (Maria Ovia) and son (Solomon) who went to check what was causing the shouting and swearing in the yard of a workmate, namely Bosco Eli within the compound when he saw a person armed with a gun pointing it at Bosco Eli’s house and threatening to shoot into it. As they were approaching the person with the gun, he then pointed the gun at them. Another person who was armed with an axe and swearing and shouting abuses hit the door to the house trying to force it open. These persons are known to him having lived at the compound for a long time and they are also known in the community for their notorious activities. He learnt of the incident involving the robbery of the complainant after the gang left.

The Statement of Maria Ovia

10. She corroborates her husband’s evidence.

The Statement of Jackson Wally

11. He is a policeman holding the rank of sergeant and is a dog handler. He is attached to the National Capital District Dog Unit based at the Bomana Police College. On 14th September 2007, he was with the complainant whilst on patrol at the Four (4) Mile Works Compound when the Prisoner was apprehended in the vicinity of the old registry following his identification by the complainant as one of those who robbed him.

The undated Statement of Steven Aua

12. He is a detective holding the rank of first constable and is attached to the Criminal Investigations Division at the Boroko Police Station. He was the corroborating officer who was present at the interview that took place between the Prisoner and Constable Ivan John on 5th November 2007 which started at about 03:00 pm and terminating at about 04:00 pm. The Prisoner was not harassed or induced into giving his answers.

The Record of Interview

13. The Prisoner was at the Four (4) Mile Works Compound playing cards with some people at the material time, but denied his involvement in the robbery.

Remarks on evidence and findings

14. The effect of a plea of guilty is that an accused person pleads to the constituent elements of the offence. It is therefore the duty of a judge to examine the depositions to check if there is any evidence of the constituent elements of the offence with which the accused is charged: Saperus Yalibakut v The State (2006) SC890. The constituent elements for the offence of aggravated robbery which had to be proven by the prosecution beyond reasonable doubt in the present case are:

1. the accused stole something;

2. immediately before or immediately after the time of stealing it, he used or threatened to use actual violence to a person or property;

3. in order to obtain the thing stolen or to prevent or overcome resistance to it being stolen;

4. the accused was armed with a dangerous or offensive weapon or instrument (Section 386(2)(a)); or

5. the accused was in company with one or more other persons.

15. It is clear from the evidence that the Prisoner was a person known to the complainant and his wife. He was clearly recognised or identified by the complainant and his wife, Vivian Koroti as one of the robbers who had entered their yard and committed the robbery despite it occurring during the night which according to the complainant took over a minute to execute. The Prisoner entered their yard through the main gate. According to the complainant’s wife, Vivian Koroti,...