The State v Peter Guma

• Jurisdiction: Papua New Guinea
• Judge: Miviri AJ
• Judgment Date: 18 May 2017
• Citation: (2017) N6770
• Court: National Court
• Year: 2017
• Judgement Number: N6770

Full : CR Nos 49, 50, 51, 52, 53, 54 of 2016; The State v Peter Guma, Junior Garu Greg, & Butsco Ber (2017) N6770

National Court: Miviri AJ

Judgment Delivered: 18 May 2017

N6770

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]

CR NO, 49, 50, 51, 52, 53, 54 OF 2016

THE STATE

V

PETER GUMA, JUNIOR GARU GREG, & BUTSCO BER

Kimbe: Miviri AJ

2017 : 22nd March, 4th April 15th 18thMay

CRIMINAL LAW - Plea-Unlawful use of motor vehicle Section 383 Criminal Code-passenger on vehicle driven detained -vehicle abandoned kilometre-no weapons drunken driver driving off accompanied by co accused-immediate surrender to law-admission to offence-cumulative sentence-concurrent sentence-totality principle-section 7 & 8 Criminal Code Act.

CRIMINAL LAW - Plea-drunk- deprivation of liberty-passenger of motor vehicle still on vehicle- driver defendant drunk-two passengers jumped off moving vehicle injured- one passenger pregnant woman-vehicle stopped after alert by by-standers.

CRIMINAL LAW -Plea-three co accused-Indictment Unlawful use of motor vehicle- deprivation of liberty-two in court-one escaped at large-bench warrant for arrest

CRIMINAL LAW - declaration filed-Section 525 (1) (b) Criminal Code- armed robbery- three defendants-one at large-discharged from armed robbery.

Cases cited:

Acting Public Prosecutor v Haha [1981] PNGLR 205

Public Prosecutor v Done Hale (1998) SC 564

Public Prosecutor v. Kerua & Ors [1985] PNGLR 85.

State v Guba [2000] N2020

Setep v The State [2001] SC666

Ume v The State [2006] SC836

Waim v The State [1997] SC519

Counsel:

C. Sambua, for the State.

D. Kari, for the Defendant

DECISION ON SENTENCE

18th May, 2017

1. MIVIRI, AJ: Peter Guma of Kup Kerowagi, Simbu Province, Junior Garu Greg of Balam Wewak, East Sepik Province, and Butsco Ber of Pori, Tari, Hela Province were charged jointly that they on the 1st August 2016 at Morokea, Kimbe unlawfully used a motor vehicle a Hyundai truck registered number KAC 803 without the consent of the owner one Michael Rambe. This was count one on the indictment presented contrary to Section 383 of the Criminal Code.

2. Section 383 UNLAWFULLY USING MOTOR VEHICLES, ETC.

(1) In this section, “unlawfully uses” includes the unlawful possession by any person of any motor vehicle or aircraft–

(a) without the consent of the owner or of the person in lawful possession of it; and

(b) with intent to deprive the owner or person in lawful possession of it of the use and possession of it temporarily or permanently.

(2) A person who unlawfully uses a motor vehicle or aircraft without the consent of the owner or of the person in lawful possession of the vehicle or aircraft is guilty of a crime.

Penalty: Imprisonment for a term not exceeding five years.

(3) This section applies without prejudice to any provision relating to the unlawful use of motor vehicles or aircraft of any other law, but an offender is not liable to be convicted under both this section and such a provision in respect of any one and the same unlawful use.

3. The second count on the indictment contrary to Section 355 of the Criminal Code was that; Peter Guma of Kup Kerowagi, Simbu Province, Junior Garu Greg of Balam Wewak, East Sepik Province, and Butsco Ber of Pori, Kawi Hela Province were charged jointly that they on the 1st August 2016 at Morokea, Kimbe unlawfully detained one Christine Rambe inside the Hyundai truck registered number KAC 803 against her will.

4. Section 355 DEPRIVATION OF LIBERTY.

A person who unlawfully–

(a) confines or detains another in any place against his will; or

(b) deprives another of his personal liberty,

is guilty of a misdemeanour.

Penalty: Imprisonment for a term not exceeding three years.

5. Present in court from custody were Peter Guma and Butsco Ber. Junior Garu Greg had since escaped from the cells whist awaiting the matter. There was a bench warrant application made for his arrest by State counsel which the Defence did not oppose.

6. I granted the order as applied for a bench warrant to be issued for the arrest of Junior Garu Greg of Balam Wewak, East Sepik Province. That warrant is still outstanding even today.

7. State counsel also filed a declaration pursuant to Section 525(1) (b) (3) of the Criminal Code in respect of all defendants, on the robbery charge that they were facing. It was a decision taken following Section 531 “Joinder of charges”, and to an extent Section 532 of the Criminal Code as the State had elected to proceed on the same facts but on a charge lower than Section 386 of armed robbery.

8. I discharged each of the defendants named on the declaration Peter Guma and Butsco Ber. And Junior Garu Greg of the charge of armed robbery pursuant to the powers under that section.

9. Consequently, the sentencing was to reflect unlawful use of motor vehicle and not armed robbery.

Brief Facts on arraignment

10. On the 1st August 2016 at about 6.30 pm Michael Rambe drove his Hyundai truck registered number KAC 803 to Morokea Shopping area outside Kimbe town. He stopped the vehicle leaving the engine idle and went into the shop with his wife Christine Rambe to do some shopping. Upon returning to the vehicle you Peter Guma, Butsco Ber, Junior Garu Greg and another person were alongside the vehicle. Butsco Ber you got into the driver’s seat driving the vehicle. As you did, the other three jumped on the back with Christine Rambe and Jessica Tony still on the vehicle. Jessica Tony on seeing that jumped off as the vehicle was moving. She was five months pregnant she was in pain and in shock when she jumped and fell off the moving vehicle. Christine Rambe was taken in the vehicle with you all defendants as you drove away. She jumped off when the vehicle slowed down she too was injured and had to be treated at the hospital for the injuries. You abandoned the vehicle and ran away.

Guilty plea

11. Peter Guma, and Butsco Ber, you both admitted the charge of unlawful use of motor vehicle you got on the vehicle when it was driven by Butsco Ber who did so without the consent of Michael Rambe. I read the deposition that was tendered and confirmed the guilty plea to unlawful use of motor vehicle under Section 383 of the Criminal Code against the both of you.

12. Junior Garu Greg was not present upon the presentation of the indictment and so a bench warrant was issued for his arrest. His matter is therefore outstanding until he is arrested pursuant to the bench warrant.

13. The deprivation of liberty arises as a result of the unlawful use of the motor vehicle and therefore will be treated under the one transaction rule for the purposes of sentencing. Both women were passengers in the said vehicle that was taken unlawfully from the owner and consequently for the purposes of sentencing the court will treat both offences as concurrent and not cumulative as they are part of the same transaction: Setep v The State [2001] PGSC 14; SC666; Waim v The State [1997] PGSC 2; SC519. There are two offences here to which both defendants have pleaded guilty. The law in the way these are sentenced is the case of Acting Public Prosecutor v. Haha [1981] PNGLR 205 and Public Prosecutor v. Kerua & Ors [1985] PNGLR 85 principles cited above. From these cases, it is apparent that three principles are involved when it comes to determining the issue presented. These are set out in Kerua’s case at page 90 in the following terms:

"The National Court has discretion whether a sentence should be concurrent or cumulative but that discretion should be exercised in accordance with well-known principles. The latest local case on those principles is Acting Public Prosecutor v Konis Haha [1981] PNGLR 205. We follow that case and the useful statement of the English law found in Thomas, Principles of Sentencing (2nd ed), at 53-61). The first principle is what Thomas calls "the one-transaction rule": where two or more offences are committed in the course of a single transaction all sentences in respect of the offences should be concurrent. The Supreme Court in Tremellan v The Queen [1973] PNGLR 116 made the same point in different words (at 117): 'Although it is neither desirable nor possible to lay down any all-embracing rule as to when sentences for two or more convictions should be made concurrent, sentences should generally speaking be made concurrent where a congeries of offences are committed in the prosecution of a single purpose or the offences arise out of the same or closely related facts”.

14. The facts of Tremellan's case illustrate this rule. The counts were paired for stealing and for fraudulent and false accounting and the Supreme Court on appeal imposed concurrent sentences. Other examples are a series of sexual assaults or frauds on the same victim. There can be exceptions to this rule and the Court of Appeal in England has upheld sentences which appear to offend this rule because the court considered that the totality of the sentence was correct. It is more a rule of thumb or a guiding principle than a strict rule and it is subject to the totality principle which is explained further below at paragraph 16.

15. The second rule is that...