The State v Paul Kumkumbun (2009) N3645

• Jurisdiction: Papua New Guinea
• Judge: Makail, J
• Judgment Date: 22 May 2009
• Citation: (2009) N3645
• Docket Number: CR NO 1412 OF 2006
• Court: National Court
• Year: 2009
• Judgement Number: N3645

Full Title: CR NO 1412 OF 2006; The State v Paul Kumkumbun (2009) N3645

National Court: Makail, J

Judgment Delivered: 22 May 2009

N3645

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]

CR NO 1412 OF 2006

THE STATE

V

PAUL KUMKUMBUN

Wabag: Makail, J

2009: 15th & 22nd May

CRIMINAL LAW - Sentence - Robbery - Maximum penalty of life imprisonment - Aggravating factors - Highway robbery - Mob hold up of ambulance - Ambulance sold to third party - Substantial value of property - Prevalence of offence - Deprivation of use of ambulance by public - Mitigating factors - Early guilty plea - First offender - Unblemished criminal record and instrumental in restoring peace and harmony in community - Remorseful - Cooperation with police - No use of offensive weapons - Recovery of ambulance - Minimal damage - Head sentence of 9 years imprisonment imposed, partly suspended on strict conditions - Personal and public deterrence - Criminal Code - Sections 19 & 386(1)&(2)(b).

Cases cited:

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

The State -v- Jackson Nimai (2008) N3355

Robin Gaibuli & 5 Ors -v- The State: SCRA Nos 32-37 of 2006 (Unnumbered and Unreported Judgment of the Supreme Court of 27th June 2007)

John Peter Arua -v- The State (2000) SC 638

Philip Kassman -v- The State (2004) SC 759

Ramsay Lestro Pitaro -v- The State (2006) SC 846

The State -v- Thomas Waim, Tala Gena and Alois Wanpis [1998]PNGLR 360; (1998) N1750

Counsel:

Mr S Kesno, for the State

Mr P Kumo, for the Offender

SENTENCE

22 May, 2009

1. MAKAIL J: The offender pleaded guilty to one count of robbery of a motor vehicle, the property of the Enga Provincial Government on 04th April 2005 at Tambitanis near Surinki on the Okuk highway in the Enga Province contrary to section 386(1)&(2)(b) of the Criminal Code.

RELEVANT ALLEGATIONS OF FACT

2. The relevant allegations of fact upon which the offender pleaded guilty are as follows; on 04th April 2005 at about 4:30 pm John Basi, an employee of Muritaka Heath Centre was driving an ambulance, a Toyota ten seater landcruiser Registration No PAC 157 (herein the “vehicle”) from Wabag towards Laiagam along the Okuk Highway. At a place called Tambitanis before Surinki, the offender in the company of some men numbering 10 to 15 staged a road block using a body of a used motor vehicle.

3. The ambulance came to a stop and the offender and his accomplices surrounded it and demanded the driver John Basi to give the key and for him and the passengers to get out of the vehicle of which they did. The offender got into the vehicle and drove down to Wabag. From there, he drove to Mt Hagen the same afternoon and sold it to a third party in Mt Hagen. The vehicle is the property of the Enga Provincial Government.

ALLOCUTUS

4. On allocutus, the offender says that he had a reason to rob the vehicle. The reason is this, he hails from a community that had serious break down in law and order. There were tribal fights. There were armed hold ups and the use of fire arms was rampant. As a son of a former Local Level Government member and also a law abiding citizen, he organized youths from his village to restore peace and harmony within the community. With the help of youths and his late father, he was able to round up fire arms and surrender them to the police. The campaign for peace in the community also saw the establishment of the Malipin Association, where he was a founding member. The Association spear headed the drive for peace and harmony in the community.

5. On one occasion, a big ceremony was held in the village attended by the Governor of the Enga Province, Honourable Peter Ipatas, the Commissioner of Police Mr Gari Baki, village councilors and leaders, members of the Association and about 3,000 to 4,000 people. The people came and surrendered firearms and pledged to work together to bring peace and harmony to the community. It was on that occasion that the Honourable Governor Mr Ipatas made a verbal promise that he would give K5,000.00 cash to him for his hard work in restoring peace and harmony in the community. This money would be used to buy food and drinks like coca cola to celebrate the occasion and as a token of appreciation for the tireless efforts of those involved in restoring peace and harmony. He promised to make available the money within two days.

6. The money did not come after two days, then weeks, then months and eventually, he gave up waiting and decided to approach the officials at the Provincial Government office at the “Green haus” in Wabag to follow up the payment. He even completed the necessary forms to make a claim for that money and submitted them to the Provincial Government so that the claim could be processed and payment could be made but, everybody turned a blind eye on him so to speak. He became frustrated and decided that enough was enough, especially after waiting for two years and went ahead and robbed the vehicle.

7. He knew that what he did was wrong but did it anyway because he was upset with the Honourable Governor and his empty promise and thought that, this would be the only way to bring his frustration to the attention of the Honourable Governor. He also says sorry to the Court and the public for committing this offence and promises not to get into trouble again. He asks for leniency.

OFFENDER’S SUBMISSIONS

8. Counsel for the offender outlines his personal details as follow:

* He is 31 years old;

* He is from Lakaiyok village;

* He is married and has 2 children, one 2 and a half years old and the other, 1 year old;

* He completed Grade 6;

* In 1989, he worked with Rainbow store in Mt Hagen and then moved to Lorma Constructions Limited where he worked at the crushing plant;

* Presently, he lives in the village and is a subsistence farmer; and

* He spent 3 weeks in custody before being released on police bail of K250.00.

9. In mitigation, his counsel submits the following:

* He is a first offender;

* He has pleaded guilty to the offence, thus saving the Court’s time and money to conduct a trial to determine his guilt;

* He fully corporated with the police during their investigations into the commission of the offence including telling them where to find the vehicle. It was later found in Mendi in the possession of one John Paragua;

* As a result of him telling the police the location of the vehicle, the police were able to retrieve it.

* The vehicle is not worth K150,000.00 but about K90,000.00 and if equipped with the instruments for an ambulance would have cost around K110,000.00. When it was recovered, it was slightly damaged;

* He has expressed remorse;

* As his late father was a village councilor for more than 25 years and as a son of a councilor, he has always respected his father and upheld the rule of law in the community;

* He did not benefit from the alleged sale of the vehicle because it was never sold to a third party except that it was given to John Paragua to keep;

* There was no use of offensive weapons, like firearms or bush knives in the hold up;

* There was also no threats or assaults on the driver and his passengers during the hold up. The driver was simply asked to hand over the key of the vehicle to them and asked to get out of it with the passengers; and

* The robbing of the vehicle was to obtain satisfaction for a failed promise by the Honourable Governor to the offender.

10. His counsel also submits that part of any custodial sentence be suspended given that, first the offender has an unblemished criminal record and was heavily involved in restoring law and order in his community and secondly, that he had a genuine reason for robbing the vehicle.

STATE’S SUBMISSIONS

11. The State prosecutor draws to the Court’s attention the following aggravating factors:

* The offender’s reason for robbing the vehicle is unsatisfactory. It represents a typical mentally by people around this area. If they do not get what they want, they break the laws to get what they want. The reason offered by the offender should not be taken into account by the Court as it is neither a special mitigating factor nor an ordinary mitigating factor;

* The vehicle is valued at K150,000.00, which means that a lot of money had been spent by the Provincial Government to purchase it;

* The vehicle was only 10 months old when it was stolen;

* The vehicle was sold to a third party for cash;

* The person who bought it, John Paragua was charged with receiving a stolen property under section 410 of the Criminal Code, but the State did not proceed against him any further because he had died in a tragic accident some years back in the Western Highlands Province;

* The vehicle was eventually recovered but slightly damaged;

* The vehicle was used as an ambulance and serving the Murikata Health Centre and the people around that part of the province and when it was stolen, the people missed out on its services in terms of attending to emergency cases;

* The offence of robbery is prevalent; and

* Although, there is no actual violence or assault on the driver and the passengers, the hold up involved 10 to 15 men, thus putting lives of the driver and the passengers at great risk of being harmed, injured or even killed. It was also a terrifying experience;

12. For these reasons, he submits that...