The State v Kalama Daniel (2003) N2476

• Jurisdiction: Papua New Guinea
• Judge: Lenalia J
• Judgment Date: 14 July 2003
• Citation: (2003) N2476
• Court: National Court
• Year: 2003
• Judgement Number: N2476

Full Title: The State v Kalama Daniel (2003) N2476

National Court: Lenalia J

Judgment Delivered: 14 July 2003

N2476

PAPUA NEW GUINEA

[In the National Court of Justice]

CR: NO. 517 OF 2003

THE STATE

-V-

KALAMA DANIEL

KOKOPO: Lenalia, J.

2003: 9, 14 July

Criminal Law – Arm robbery – Plea – Matters for consideration - Sentence –

Criminal Code s. 386 (1)(2).

Criminal Law – Armed robbery – Several charges – All offences arising from separate facts

– Totality principle – Applicability of – Four separate acts of armed robbery committed within one day – Just total of sentences – Sentence.

CASE CITED

The following cases are cited:

Public Prosecutor -v- Terrence Kaveku [1977] PNGLR. 110

Gimble -v- The State [1988-89] PNGLR. 271

Public Prosecutor -v- Don Hale (1998) SC. 564

Tau Jim Anis -v- The State (2000) SC 642

Manuel Boi -v- The State SC. No. 14 of 2000

The State -v- Lucas Yovura CR. No. 2002 of 2000, 25th May 2003 N 2366

The State –v- Jamie Campbel Fereka CR. No. 1043of 2002 N 2359 of 7th April 2003

Acting Public Prosecutor -v- Joe Kovea Mailai [1981] PNGLR. 258

The State –v- Manja [1987] PNGLR 477 & The State -v- Frank Kagai [1987] PNGLR. 387.

Mase -v- The State [1991] PNGLR. 881

Public Prosecutor -v- Kenis Haha [1991] PNGLR 205.

Secretary for Law -v- Witrasep Binengim [1975] PNGLR. 172

Goli Golu -v- The State [1979] PNGLR 653.

The State –v- Chris Romen & The State -v- Chris Romen & Tiotam James Tiralom (2000) N 2260

L. Rangan, for the State

M. Peter, for the Accused

SENTENCE

July 14th 2003

LENALIA, J. The accused pleaded guilty to four counts of armed robbery pursuant to s. 386 (1)(2)(a)(b) & (c) of the Criminal Code. The first count was committed with actual violence whilst the remaining three were committed with threatened violence.

FACTS

The accused was amongst a group of four young men which held up a driver, Aurther Maradi on 5th of December 2001 at Tokua. When the first victim wanted to drop two passengers to pick their cocoa bags, the accused and his gang came out from nearby cocoa and coconut trees and pointed a home-made gun and a factory made pistol at him. The gang used actual violence by tieing Aurther’s hand with heavy duty sticky-tape after which they told him to wait there until they came back. They told him they were to use his vehicle to get some money from a saving and loans, which they did not name and that they were to return his vehicle. They demanded Aurther to give them the vehicle keys and they drove off.

The gang used the stolen vehicle Reg. No. H. 2410, which is owned by Elias Marangit to come to town at Kokopo and at SCHOWHEGAN, they went into the Motor Vehicle Insurance Trust office where they threatened Ms. Timie Diana to give them money. Having realised what was happening the victim of the second charge Diana Timie shouted at the top of her voice raising an alarm to employees in that business centre and the gang escaped in that same vehicle. They took of from there to the Omorong Service Station.

At Omorong Service Station, the accused and his gang held up the employees there and pump attendants. They pointed a homemade gun and the pistol at them and threatened to shoot if money was not given to them. There they stole a cash sum of K1566.17 from Beldeon Koi and others the property of Omorong Service Station.

On the fourth charge, using the same vehicle stolen at the first armed robbery they took off toward Takubar and the gang proceed straight to where they had left Aurther Maradi. They picked him up and proceeded toward the airport where they met up with the fourth victim. The driver of the stolen vehicle and other gang members saw a Nissan Navara 4x4 red in colour driven toward them and their driver drove right on the centre of the road almost blocking off passages of on coming vehicles. The driver of the Nissan Bredly Tareu having seen this, slowed down to avoid collision and stopped.

Members of the gang jumped out from their stolen vehicle and held up Bredley. They threatened him to use the guns against him if he did not surrender the vehicle keys to them. He surrendered the keys and all the gang members including the accused drove away in the Nissan Navara. The vehicle was the property of Boroko Motors – Kokopo.

PRISONER

The accused said pursuant to s. 593 of the Code that he is very sorry for committing these offences. That having realised what he and others had done, he wishes to extend his apology to his community, the victims and the Court. He further added that three weeks after the four crimes were committed his gang did a reconciliation ceremony. He asked for the mercy of this Court.

The prisoner is 22 years old and he is married with no children. He completed Grade 7 and left and had been in the village until he and his colleagues committed these offences. I am required to take into account the accused guilty pleas and his previous good record. Mr. Peter of counsel for the accused confirmed that there was in fact a reconciliation ceremony organised by a number of the gang members during which all victims were invited. Some victims did not however attend.

On sentence Mr. Peter for the accused submitted that, the Court take into account the accused guilty pleas to the four serious charges. In fact the charges are very serious and on the first count actual violence was used toward the victim Aurther Maradi. My view is, in a serious case such as the ones before me, a guilty plea may be of little significance. Count one of the crimes you committed was accompanied by violence. For all offences you committed, guns were used to threaten the victims. Pursuant to s. 386 (2)(a)(b) and (c) you could be sentenced to life imprisonment for the first crime. Actual violence was used in the first count while on the remaining three, you and your gang threatened to use violence to those various victims.

There is a growing lawlessness in this country. There is no respect for people and their property and there is no respect for the law. People who conduct business in this Province and in the country as a whole must have the confidence to invest their money in this country. With the down-turn of the Papua New Guinea currency due to the devaluation of the Kina, small businesses and those of us ordinary people are suffering but some manage to survive because they work hard for what they earn.

The sentencing guidelines set in Gimble -v- The State [1988-89] PNGLR. 271 have been referred to by other judges of this Court to be not suitable to the circumstances under which armed robberies are being committed in our time. The guidelines set there allow for sentences up to 7 years at the top end of a robbery in a dwelling house and 3 years for a robbery in the street at the lower end. Those are for guilty pleas and first time young offenders with no aggravations. Note here, these are only guidelines and actual sentences may vary either over or below those recommended due to circumstances of each case.

As seen from the cases of Public Prosecutor -v- Don Hale (1998) SC. 564 an aggravated armed robbery in a house where the respondent and his compatriots fired shots over the heads of the family and carried a TV set away. He was sentence to 5 years but the sentence was fully suspended with orders to pay a fine of K1,000.00 a bond given with a condition to return to his area in Tari, Southern Highland Province. The Public Prosecutor appealed against the sentence and the Supreme Court ordered reinstatement of the 5 years sentence. The comments made there are however significant to armed robberies committed at home during the night. I also note comments made in Tau Jim Anis -v- The State (2000) SC 642.

What is interesting in Don Hale’s case is that armed robberies carried out in dwelling houses at night perpetrators could expect good sentence up to 10 years. The Supreme Court there expressed the following concern at 4 of that judgment:

“We find that with the prevalence of violent crimes involving the use of guns the ranges of sentence recommended in Gimble’s case are having us effect and no longer relevant. Gimble’s case was decided in 1989 and crimes of violence have definitely increased with the use of guns being more prevalent and the community is calling for heavier punishments as a, deterrence. We feel that the starting point to an appropriate sentence involving the robbery of home owners at night with the use of firearms to threaten victims should be 10 years”.

As alluded to, I note comments made in Tau Jim Anis -v- The State (supra) which seems to say that the range suggested in Don Hale’s case is for home owners only but with greatest respect, on commencement...