The State v William Nanua Kapris and Jacob Peningi Okimbari and Collin Masilo and Johnny Gumaira and Damien Inanei and Kito Aso and Joyce Maima and Bobby Selan and Reuben Micah and Isabella Kivare and Elvis Bala Aka and Peter Allan Popo (2011) N4305

• Jurisdiction: Papua New Guinea
• Judge: Cannings, J.
• Judgment Date: 19 May 2011
• Court: National Court
• Docket Number: CR NOS 251 OF 2010 & 1455, 1457, 1444, 1447, 235 & 287, 78 & 79, 1431, 76 & 77, 239, 237 & 235 OF 2009
• Citation: (2011) N4305
• Year: 2011
• Judgement Number: N4305

Full Title: CR NOS 251 OF 2010 & 1455, 1457, 1444, 1447, 235 & 287, 78 & 79, 1431, 76 & 77, 239, 237 & 235 OF 2009; The State v William Nanua Kapris and Jacob Peningi Okimbari and Collin Masilo and Johnny Gumaira and Damien Inanei and Kito Aso and Joyce Maima and Bobby Selan and Reuben Micah and Isabella Kivare and Elvis Bala Aka and Peter Allan Popo (2011) N4305

National Court: Cannings, J.

Judgment Delivered: 19 May 2011

N4305

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]

CR NOS 251 OF 2010 &

1455, 1457, 1444, 1447, 235 & 287,

78 & 79, 1431, 76 & 77, 239, 237 & 235 OF 2009

THE STATE

V

WILLIAM NANUA KAPRIS (1st offender)

JACOB PENINGI OKIMBARI (2nd offender)

COLLIN MASILO (3rd offender)

JOHNNY GUMAIRA (4th offender)

DAMIEN INANEI (5th offender)

KITO ASO (6th offender)

JOYCE MAIMA (7th offender)

BOBBY SELAN (8th offender)

REUBEN MICAH (9th offender)

ISABELLA KIVARE (10th offender)

ELVIS BALA AKA (11th offender)

PETER ALLAN POPO (12th offender)

Madang: Cannings J

2011: 24 March, 14 April, 5, 9, 11, 12, 19 May

SENTENCES

CRIMINAL LAW – sentencing – armed robbery (Criminal Code, Section 386) – conspiracy (Section 515) – kidnapping for ransom (Section 354(1)) – unlawful deprivation of liberty (Section 355(a)) – receiving stolen property (Section 410(1))

Twelve offenders were convicted after trial of armed robbery of a bank and conspiracy. Some were also convicted of other offences (kidnapping for ransom, unlawful deprivation of liberty, receiving stolen property) committed in connection with the robbery. This is the judgment on sentence.

Held:

(1) When sentencing an offender for multiple offences the court should arrive at a notional sentence for each offence and then: determine whether the sentences should be served cumulatively or concurrently, apply the totality principle and arrive at a total head sentence, decide whether any pre-sentence period in custody should be deducted and decide whether to suspend any part of the total sentence and then make a final determination of the time to be served in custody.

(2) After going through that process in respect of each offender, the court passed the following sentences:

No Name Total head Pre-sentenc Resultant Amount of Time to be Place
sentence e period length of sentence served in of
deducted sentence to suspended custody
be served custody
(CI)

1 William Nanua 30 years Nil 30 years Nil 30 years Bomana
Kapris

2 Jacob Peningi 15 years 1 year 14 years 3 years 11 years Beon
Okimbari

3 Collin 10 years 1 year, 8 years, 3 years 5 years, Beon
Masilo 2 months 10 months 10 months

4 Johnny 12 years 2 years, 9 years, 3 years 6 years, Bomana
Gumaira 9 m, 1 w 2 m, 3 w 2 m, 3 w

5 Damien 10 years 2 years, 7 years, 4 years 3 years, Beon
Inanei 10 m, 2 w 1 m, 2 w 1 m, 2 w

6 Kito 12 years 2 years, 9 years, Nil 9 years, Lakiemata
Aso 9 months 3 months 3 months

7 Joyce 10 years 2 years, 7 years, 4 years 3 years, Beon
Maima 8 months 4 months 4 months

8 Bobby 10 years 2 years, 7 years, 3 years 4 years, Beon
Selan 7 m, 2 w 4 m, 2 w 4 m, 2 w

9 Reuben 12 years 2 years, 9 years, 4 years 5 years, Beon
Micah 10 m, 1 w 1 m, 3 w 1 m, 3 w

10 Isabella 8 years 2 years, 5 years, 4 years 1 year, Bomana
Kivare 10 months 2 months 2 months

11 Elvis Bala 8 years 2 years, 5 years, 4 years 1 year, Lakiemata
Aka 10 months 2 months 2 months

12 Peter Allan Popo 12 years 2 years, 9 years, 3 years 6 years, Beon
10 m, 2 w 1 m, 2 w 1 m, 2 w

Cases cited

The following cases are cited in the judgment:

Acting Public Prosecutor v Konis Haha [1981] PNGLR 205

Application by Kutetoa (2005) N2819

Dadly Henry Gorop v The State (2003) SC732

Emil Kongian v The State (2007) SC928

Gimble v The State [1988-1989] PNGLR 271

Goli Golu v The State [1979] PNGLR 653

Paul Mase and Kopa Lore John v The State [1991] PNGLR 88

Phillip Kassman v The State (2004) SC759

Public Prosecutor v Don Hale (1998) SC56

Public Prosecutor v Kerua [1985] PNGLR 85

Public Prosecutor v Terrence Kaveku [1977] PNGLR 110

Richard Liri v The State (2007) SC883

Saperus Yalibakut v The State (2006) SC890

Tau Jim Anis v The State (2000) SC642

The State v A Juvenile “ET” CR No 1012/ 2003, 09.04.05

The State v A Juvenile, “TAA” (2006) N3017

The State v Aaron Lahu (2005) N2798

The State v Alphonse Polpolio and Jeffery Baru CR No 865 + 701/2006, 14.07.06

The State v Chris Baili CR No 1396/2006, 17.08.07

The State v David Bandi CR No 729/2003, 20.04.05

The State v Dickson Kauboi CR No 495/2001, 07.06.06

The State v Francis Vau Kamo CR 663-664/1998, 06.04.06

The State v Iori Veraga (2005) N2921

The State v Jacky Vutnamur & Kaki Kialo (No 3) (2005) N2919

The State v James Negol (2005) N2801

The State v Jelio Yawi (2009) N3631

The State v Justin Komboli (2005) N2891

The State v Kia Tala Moksy CR 785/2005, 12.08.05

The State v Lucas Soroken Sembengo, Bob Alois Wafu & Raphael Lawrence Mandal (2006) 2801

The State v Mogi Konda CR No 1316/2005, 19.04.05

The State v Owen Gabriel Koud CR No 312/2010, 20.05.10

The State v Two Juveniles, “MK” & “PSA” CR No 372/2005, 25.08.05

The State v William Nanua Kapris & 13 Others (2011) N4232

Abbreviations

The following abbreviations appear in the judgment:

2IC – second-in-charge

BSP – Bank South Pacific

CI – Correctional Institution

CR – Criminal file reference

DCA – Department of Civil Aviation

EHP – Eastern Highlands Province

ESP – East Sepik Province

HS – High School

Is – Island

K – Kina

LLG – Local-level Government

LPV – Limited Preferential Voting

m – month(s)

MRO – Mineral Refining Operations

N – National Court judgment

No – number

para – paragraph

PMV – public motor vehicle

PNG – Papua New Guinea

PNGLR – Papua New Guinea Law Reports

s – Section

SC – Supreme Court judgment

SDA – Seventh-Day Adventist

Sgt – Sergeant

SP – South Pacific

St – Saint

v – versus

w – week(s)

WNB – West New Britain

SENTENCES

This was a judgment on sentence for 12 offenders convicted of armed robbery and conspiracy and variously of kidnapping, unlawful deprivation of liberty and receiving stolen property.

Counsel

P Kaluwin & M Pil, for the State

A Meten & A Turi, for the 1st offender

M Mwawesi, for the 2nd, 6th, 10th & 11th offenders

A E Raymond, for the 3rd, 4th, 5th & 12th offenders

S L Daniels, for the 7th, 8th & 9th offenders

19 May, 2011

1. CANNINGS J: Twelve offenders are before the court to be sentenced for their involvement in an armed robbery that occurred on the morning of Saturday 5 July 2008 at the Madang branch of Bank South Pacific. Approximately K2.4 million cash was stolen. After a joint trial they were each convicted of armed robbery and conspiracy. Some were also convicted of other offences (kidnapping for ransom, unlawful deprivation of liberty and/or receiving stolen property) committed in connection with the robbery. Details of the circumstances in which the offences were committed are in the judgment on verdict (The State v William Nanua Kapris & 13 Others (2011) N4232).

2. Though jointly tried and subject to a joint sentencing hearing, each offender must be individually sentenced in a way that takes account of the particular offences of which he or she has been convicted and his or her level of involvement in the crimes and individual circumstances. The following process will be followed in relation to each offender:

· Step 1 – convictions – records the particular offences of which the offender has been convicted.

· Step 2 – antecedents – states whether the offender has any prior convictions.

· Step 3 – allocutus – summarises what the offender has said in allocutus, ie the part of the sentencing hearing where the convicted person is, before the court passes sentence, accorded the right to address the court.

· Step 4 – pre-sentence report – summarises the pre-sentence report. Each offender requested the court to arrange a report by the Community Based Corrections Service. The report describes the offender’s background (family, education, employment etc) and personal circumstances and assists the court in making a decision on what the total head sentence should be and whether any part of it should be suspended.

· Step 5 – notional sentences – is where the court allocates a notional head sentence to each offence. As each offender has been convicted of multiple offences it is necessary to first fix a sentence for each offence, which takes account of the maximum penalty available for that offence, the relevant starting point and mitigating and aggravating factors. These notional sentences are then added together to arrive at a total potential sentence.

· Step 6 – concurrent or cumulative – is where the court exercises its discretion whether the sentence for each offence should be served concurrently or cumulatively with other sentences. If any sentences are to be served...