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State v Komboli [2005] PGLawRp 22; [2005] PNGLR 263 (23 September 2005)

NATIONAL COURT OF JUSTICE

THE STATE

V

JUSTIN KOMBOLI

KIMBE: CANNINGS J

11 & 19 May; 6-8 & 23 September 2005

CRIMINAL LAW – Criminal procedure – Trial – Accused escaped from custody after commencement of trial and failed to appear – Whether the court can convict an accused person in his absence – Whether the court can sentence a convicted person in his absence – Constitution, Section 37(5), protection of the law – Criminal Code, Sections 570 (defence of accused), 571 (presence of accused), 572 (evidence in defence).

CRIMINAL LAW – Sentencing – Armed robbery – Offence committed during same incident in which a person was murdered – Prisoner already convicted of murder – Whether double punishment – Whether sentence for armed robbery should be concurrent with sentence for murder.

Facts

The accused was charged, together with two other persons, with armed robbery. They were all arraigned and pleaded not guilty. The case was adjourned but the prisoner escaped from custody and failed to appear when the trial resumed. The two other persons were present when the trial resumed and wanted it to continue.

Held

1. A person who escapes from custody gives up his constitutional right to be present at his trial. It is proper for the trial of such a person to go ahead in his absence.

2. No case submissions on behalf of the other two co-accused having been rejected, the court considered the evidence and concluded that the elements of armed robbery were proven beyond reasonable doubt.

3. The accused was accordingly convicted in his absence.

4. The nature and extent of a person's right to be present when being sentenced for a criminal offence is the same as their right to be present when the question of their guilt or innocence is being determined. Therefore the right to be present when being sentenced is impliedly given up when a person escapes from custody and does not attend the sentencing hearing.

5. The accused was accordingly sentenced in his absence.

6. In determining the appropriate sentence the court considered that the offender had already been convicted of the murder of a man that occurred around the same time that the armed robbery took place.

7. The offender was sentenced to 4 years imprisonment, to be served cumulatively upon his sentence for murder.

Papua New Guinea cases cited

Agiru Aieni and Others v Paul T Tahain [1978] PNGLR 37

Charles Bougapa Ombusu v The State [1996] PNGLR 335

Gimble v The State [1988-1989] PNGLR 271

John Konobo v The State (2004) N2500

Michael Gende v The State (1999) SC626

Phillip Kassman v The State (2004) SC759

Public Prosecutor v Don Hale (1998) SC564

Public Prosecutor v Terrence Kaveku [1977] PNGLR 110

Tau Jim Anis v The State (2000) SC642

The State v Aaron Lahu (2005) N2798

The State v Arey Watul [1992] PNGLR 475

The State v Augustine Lausi Ogi (2004) N2761

The State v Benjamin Bin and Justin Komboli, CR Nos 1650 and 1651 of 2001, 25.11.04, unreported

The State v Frank Johnston, Murray William and Moses William (No 2) (2004) N2586

The State v Gibson Salkut, Benjamin Bin and Justin Komboli, CR Nos 1649-1651 of 2001, 05.11.04, unreported

The State v James Negol (2005) N2801

The State v Lase Pale Nicholas (2002) N2270

The State v Nathan Kovoho (2005) N2810.

The State v Paul Kundi Rape [1976] PNGLR 96

The State v Thomas Sange, Vincent Kerry, Kito Aso and Steven Kaumu (2005) N2805

Thomas Kavali v Thomas Hoihoi [1986] PNGLR 329

Other Case Cited

R v Stuart and Finch [1974] Qd R 297

Counsel

L Rangan, for the State.
O Oiveka, for the accused.

23 September 2005

Cannings j. This is a decision on the conviction and sentence of a man for armed robbery. A peculiar aspect of the case is that the accused escaped from custody while the trial was in progress. The question arose whether the trial should continue in his absence.

Background

The case arises from an incident at Kavui oil palm settlement near Kimbe, West New Britain, on 26 April 2001. The accused, Justin Komboli, and two of his friends, Benjamin Bin and Gibson Salkut, got drunk and went to a property owned by Maya Wasekum. There was a house and store on the property. The accused and his two friends knew Maya Wasekum. There were a number of people present watching videos. The accused and his two friends started fighting with the people that were present. They went on a drunken rampage and damaged property.

Wilful murder trial

Maya Wasekum's son, Ishmael Maya, was killed in the incident and the accused and his two friends were charged with his wilful murder. They were jointly tried on an indictment before Lay J in the National Court at Kimbe in November 2004. Justin Komboli and Benjamin Bin were convicted of murder and sentenced to 16 years and 20 years imprisonment respectively. Gibson Salkut was acquitted. (The State v Gibson Salkut, Benjamin Bin and Justin Komboli, CR Nos 1649-1651 of 2001, 05.11.04, unreported; The State v Benjamin Bin and Justin Komboli, CR Nos 1650 and 1651 of 2001, 25.11.04, unreported.)

Benjamin Bin and Justin Komboli have appealed against their convictions and sentences to the Supreme Court. Their appeals have not yet been heard.

COMMENCEMENT OF ARMED ROBBERY TRIAL: MAY 2005

On 11 May 2005 the same three co-accused were jointly indicted on a charge of armed robbery relating to the same incident that led to the death of Ishmael Maya. The indictment pleaded the 'wounding' of Ishmael Maya as an aggravating circumstance. I endorsed the indictment and heard the brief facts from the prosecutor, Mr Rangan. At that stage I was unaware of the background of the matter. Mr Rangan informed the court that Ishmael Maya had died as a result of being wounded in the course of the robbery. I noted that it seemed unusual that there was no more serious charge laid. However, the three co-accused were arraigned and they each pleaded not guilty to the armed robbery charge.

After the pleas were entered, Mr Rangan informed me that, in fact, the three co-accused had been tried for the wilful murder of Ishmael Maya. Upon being made aware of that, I asked counsel whether it was proper for the trial on the armed robbery charge to proceed in light of the principles of autrefois convict and autrefois acquit in s 37(8) of the Constitution and ss 16, 17, 560 and 564 of the Criminal Code.

Section 37(8) of the Constitution (protection of the law) states:

No person who shows that he has been tried by a competent court for an offence and has been convicted or acquitted shall again be tried for that offence or for any other offence of which he could have been convicted at the trial for that offence, except upon the order of a superior court made in the course of appeal or review proceedings relating to the conviction or acquittal.

Section 16 of the Criminal Code (person not to be punished twice for same offence) states:

(1) Subject to Subsection (2), a person cannot be punished twice under the provisions of this Code or under the provisions of any other law for the same act or omission.

(2) Subsection (1) does not apply where an act or omission is such that by means of it the offender causes the death of another person, in which case he may be convicted of the offence of which he is guilty by reason of causing the death, notwithstanding that he has already been convicted of some other offence constituted by the act or omission.

Section 17 of the Criminal Code (former conviction or acquittal) states:

It is a defence to a charge of any offence to show that the accused person has already been—

(a) tried and convicted or acquitted, on an indictment on which he might have been convicted of the offence with which he is charged; or

(b) acquitted on indictment, or convicted, of an offence of which he might be convicted on the indictment or complaint on which he is charged.

Section 560 of the Criminal Code (pleas) states:

(1) If the accused person does not apply to quash the indictment, he must either plead to it, or demur to it on the ground that it does not disclose any offence cognizable by the court.

(2) If the accused person pleads, he may plead—

(a) that he is guilty of the offence charged in the indictment, or, with the consent of a State Prosecutor, of any other offence of which he might be convicted on the indictment; or

(b) that he is not guilty; or

(c) that he has already been convicted—

(i) on an indictment on which he might have been convicted of the offence with which he is charged; or

(ii) of an offence of which he might be convicted on the indictment; or

(d) that he has already been acquitted on an indictment—

(i) on which he might have been convicted of the offence with which he is charged; or

(ii) of an offence of which he might be convicted on the indictment; or

(e) that he has already been tried and convicted or acquitted of an offence committed or alleged to be committed under such circumstances that he cannot under this Code be tried for the offence charged in the indictment; or

(f) that he has been pardoned for the offence charged in the indictment; or

(g) that the court has no jurisdiction to try him for the offence.

(3) Two or more pleas may be pleaded together, except that the plea of guilty cannot be pleaded with any other plea to the same charge.

(4) An accused person may plead and demur together.

Section 564 of the Criminal Code (plea of autrefois convict or autrefois acquit) states:

In a plea that the accused person has already been convicted or acquitted, it is sufficient to state that he has been lawfully convicted or acquitted, as the case may be, of the offence charged in the indictment, or of the other offence of which he alleges that he has been convicted or acquitted, and in the latter case to describe the offence in any way in which it is commonly known.

There was discussion of these issues between bench and bar. Mr Rangan also raised the principles emerging from the Supreme Court's decision in Charles Bougapa Ombusu v The State [1996] PNGLR 335. I asked counsel to consider all these issues and gave the defence counsel, Mr Oiveka, until 19 May 2005 to make any application in relation to these issues.

On 19 May 2005 the case was mentioned again. Mr Oiveka did not make an application and it was accepted that, in fact, the correct procedures were being used. The State had elected to proceed first with the charge of wilful murder, as Section 531 of the Criminal Code precludes the joinder on one indictment or in one trial of a charge of wilful murder, murder or manslaughter with any other offence.

Section 531 of the Criminal Code (joinder of charges: general rules) states:

(1) Subject to this Code, an indictment must charge one offence only, and not two or more offences.

(2) Subject to Subsection (3), when several distinct indictable offences are alleged to be constituted—

(a) by the same acts or omissions; or

(b) by a series of acts done or omitted to be done in the prosecution of a single purpose,

charges of such distinct offences may be joined in the same indictment against the same person, and the several statements of the offences may be made in the same form as in other cases, without any allegation of connexion between the offences.

(3) If in a case to which Subsection (2) applies, it appears to the court that the accused person is likely to be prejudiced by the joinder, the court may—

(a) require the prosecutor to elect on which of the several charges he will proceed; or

(b) direct that the trial of the accused person on each or any of the charges be had separately.

(4) This section does not authorize the joinder of a charge of wilful murder, murder or manslaughter with a charge of any other offence.

The Supreme Court's interpretation of s531(4) of the Criminal Code in Ombusu meant that it was not possible for there to have been a joint trial of the armed robbery and wilful murder charge. However there was insufficient time for the case to be completed, so it was adjourned generally.

RESUMPTION OF ARMED ROBBERY TRIAL: SEPTEMBER 2005: ABSENCE OF ACCUSED

The armed robbery trial did not resume until 6 September 2005. In the interim, Justin Komboli, who had been in custody at Lakiemata correctional institution serving his sentence for the murder of Ishmael Maya, escaped from custody and was not present at the trial. Only Benjamin Bin and Gibson Salkut were present.

Mr Oiveka applied to have the trial in relation to Justin Komboli vacated on the ground that he was not present. To allow the trial to go ahead in his absence would be in violation of s37(5) of the Constitution and s571 of the Criminal Code, Mr Oiveka submitted. Mr Rangan, for the State, agreed with the application.

Section 37(5) (protection of the law) states:

Except with his own consent, the trial [of a person charged with an offence] shall not take place in his absence unless he so conducts himself as to render the continuance of the proceedings in his presence impracticable and the court orders him to be removed and the trial to proceed in his absence, but provision may be made by law for a charge that a person has committed an offence the maximum penalty for which does not include imprisonment, (except in default of payment of a fine), to be heard summarily in his absence if it is established that he has been duly served with a summons in respect of the alleged offence.

Section 571 of the Criminal Code (presence of accused) states:

(1) Subject to Subsection (2), a trial must take place in the presence of the accused person, unless he so conducts himself as to render the continuance of the proceedings in his presence impracticable, in which case the court—

(a) may order him to be removed; and

(b) may direct the trial to proceed in his absence.

(2) The court may, in any case, if it thinks fit, permit a person charged with a misdemeanour to be absent during the whole or any part of the trial on such conditions as it thinks proper.

(3) If the accused person absents himself during the trial without leave, the court may direct a warrant to be issued to arrest him and bring him before the court.

In dealing with the application I considered the leading Supreme Court case of Thomas Kavali v Thomas Hoihoi [1986] PNGLR 329, Kidu CJ, Woods J, Barnett J, together with four cases in which the National Court had ordered the continuation of the trial of an indictable offence in the absence of an accused person who had either escaped from custody or not attended the trial.

In Kavali the Supreme Court indicated that the right entrenched by s37(5) of the Constitution was not absolute. An accused person can expressly or by implication consent to a trial going ahead in their absence. However, the court must be satisfied that the accused has elected to be absent, through caprice or malice or for the purpose of embarrassing the trial. Mere failure to appear is not by itself implied consent. The circumstances must unambiguously show that the accused is consenting to the trial proceeding in their absence.

In The State v Arey Watul [1992] PNGLR 475, eight co-accused men, facing trial for wilful murder and armed robbery, escaped from custody during the course of the trial; before the closure of the State's case. One was recaptured and he was eventually acquitted. As to the other seven, Doherty J held that their escaping from custody showed a definite decision to be absent voluntarily. The trial proceeded against them, up to the stage where the State closed its case. Her Honour then adjourned the hearing to allow the remaining accused persons to call evidence pursuant to s570 of the Criminal Code (defence of the accused), which states:

(1) A person charged with an offence is entitled to make his defence at his trial and to have the witnesses examined and cross-examined by his lawyer.

(2) A person charged with an offence may, by leave of the court, have his defence conducted by another person who is not a lawyer.

In John Konobo v The State (2004) N2500 Davani J was conducting a trial involving three co-accused. All the evidence was completed and the court adjourned for a decision on verdict. Two of the co-accused then escaped from custody. The remaining co-accused applied to have the trial continue in the absence of the other two. Her Honour noted that s571 of the Criminal Code was based on a similar provision in the Queensland Criminal Code. In the leading case R v Stuart and Finch [1974] Qd R 297 the Queensland Court of Criminal Appeal held that a trial judge had correctly exercised his discretion by ruling that a trial proceed in the absence of an accused. The two phrases "in which case the court may order him to be removed" and "unless he so conducts himself as to render the continuance of the proceedings in his presence impracticable" should be read disjunctively as well as conjunctively. Thus the court has power to deal with the situation at the trial or away from the trial where an accused person has so conducted himself as to render the continuance of the proceedings impracticable. The provision intends to lay down reasonable and sensible procedures to cover all circumstances in which, during the continuance of the trial, an accused person voluntarily absents himself. The section gives the court power to order the accused to be removed if his conduct, either within or outside the court, renders the continuance of the trial in his presence impracticable, and the further power, in the event of such conduct, to direct that the trial proceed in his absence. Davani J followed the Queensland approach, upheld the application, ordered that the trial proceed, and set the case down for a decision on verdict.

In The State v Frank Johnston, Murray William and Moses William (No 2) (2004) N2586 three young men were convicted of attempted murder by Kandakasi J. One of them, Frank Johnston, failed to turn up to the court after the State closed its case, ie before the verdict was handed down. That situation continued throughout the rest of the trial. In the judgment on sentence, his Honour stated:

As for Frank Johnston, he failed to turn up for his address on sentence. This continued from his failure to attend the rest of the proceedings after the close of the State's case. The Court therefore decided to proceed in his absence pursuant to Section 571 of the Criminal Code. That continues to be the case. For the purposes of sentencing, I am of the view that by his own conduct, he decided not to address the Court. Therefore, unless, he is able to show very good reason why this should be re-visited the Court's decision on sentence herein will also apply to him. For I am of the view that, one can only claim his right if he is prepared to exercise it at the relevant time. If there is a failure to do that, it amounts to an acceptance by his conduct that he will accept whatever orders or decisions the Court will arrive at. The people through the State do not have money readily available to throw away in such circumstances. Likewise, the Court does not have the luxury of more time to reconvene for such a person when he fails without good cause, to exercise his or her rights at scheduled Court hearings after having participated in the initial part of the proceedings, particularly in a circuit setting such as this.

He was sentenced in his absence to 19 years imprisonment.

In The State v Augustine Lausi Ogi (2004) N2761, Davani J sentenced a young man who had seven years earlier been convicted of murder by another Judge, Vagi AJ. The accused escaped from custody during the trial, after the close of the State's case and before he had the opportunity to present evidence in his defence. Vagi AJ convicted him in his absence. He was recaptured several years later and brought before Davani J for sentencing. Her Honour noted that Vagi AJ had acted correctly as the accused had, by absconding, made it impracticable for the court to hear him. She sentenced him to 50 years imprisonment.

All the above cases show that the principle that a trial should proceed in the presence of an accused person is not an absolute one. An accused person can give up his right by escaping from custody (if he is in custody, as happened in Watul, Konobo and Ogi) or by simply not turning up (if he is appearing from bail, as in Johnston). In either situation the accused is taken to have impliedly consented to the trial continuing in his absence.

In the present case it is undisputed that Justin Komboli escaped from Lakiemata correctional institution after the commencement of his trial. Applying the test laid down in Kavali's case I was satisfied that he elected to be absent, through malice and for the purpose of embarrassing the trial. A person who escapes from custody is, in the absence of an explanation or apology, unambiguously showing contempt for the rule of law and consenting to the trial proceeding in their absence.

Therefore I rejected the application that the trial in relation to Justin Komboli be vacated and ordered the trial against him and Benjamin Bin and Gibson Salkut proceed.

I indicated that if it were subsequently shown that Justin Komboli had not deliberately escaped, eg if he had been abducted from the gaol, then that would seem to be a good reason to set aside any decisions made adverse to his interests in his absence. However the natural inference to draw when the court is told that a person has escaped from lawful custody is that it has been done deliberately. It sends the wrong message to the community if the court puts cases on hold just because someone has escaped.

THE STATE'S CASE

It was the State's case that during the course of the fracas at Kavui on 26 April 2001 Justin Komboli broke into Maya Wasekum's canteen and that after he left it was discovered that a number of things were missing: store goods worth K766.00, K500.00 in cash and a cheque for K760.00, their total value being K2,026.00. The State alleged that the three co-accused stole these things, that they were in each other's company and they used dangerous and offensive weapons to effect the robbery.

The State called no witnesses and tendered, by consent, 13 exhibits, comprising three records of interview, nine witness statements and a sketch plan of the site of the incident. Mr Rangan then closed the State's case.

NO CASE SUBMISSION

Mr Oiveka then made a no-case submission based on the principles in Rape's case (The State v Paul Kundi Rape [1976] PNGLR 96). He argued that none of the elements of armed robbery was present. There is perhaps some evidence of wilful damage to properties but that is not what they have been charged with.

Mr Rangan in response argued that there is evidence that the co-accused were in company of each other. They were seen armed with weapons (stones and bottles). There was evidence that Maya was assaulted. There is strong evidence against Justin Komboli.

I ruled on the no case submission on 7 September 2005. I referred to two recent published judgments I had delivered and followed the approach taken in them: The State v Thomas Sange, Vincent Kerry, Kito Aso and Steven Kaumu (2005) N2805 and The State v Nathan Kovoho (2005) N2810.

I noted that the indictment was presented under s 386 (the offence of robbery) of the Criminal Code.

Section 386 states:

(1) A person who commits robbery [as defined by Section 384] is guilty of a crime.

Penalty: Subject to Subsection (2), imprisonment for a term not exceeding 14 years.

(2) If a person charged with an offence against Subsection (1)—

(a) is armed with a dangerous or offensive weapon or instrument; or

(b) is in company with one or more other persons; or

(c) at, immediately before or immediately after, the time of the robbery, wounds or uses any other personal violence to any person,

he is liable subject to Section 19, to imprisonment for life.

Section 384 (definition of robbery) states:

A person who steals any thing, and, immediately before or immediately after the time of stealing it, uses or threatens to use actual violence to any person or property in order to obtain the thing stolen or to prevent or overcome resistance to its being stolen, is said to be guilty of robbery.

The elements of the crime of armed robbery therefore are:

1 The accused stole something;

2 used or threatened to use actual violence;

3 immediately before or immediately after the time of stealing it;

4 in order to obtain the thing stolen or prevent or overcome resistance to its being stolen; and

5 (a) armed with dangerous or offensive weapon or instrument,

(b) in company with one or more other persons;

(c) wounds or uses personal violence around time of robbery.

In the present case, Mr Oiveka stated that he was relying on both limbs or tests in Rape's case. I therefore had to pose some questions in relation to the three co-accused separately. I tested the issues first in relation to Justin Komboli, as a cursory examination of the evidence suggested that the evidence was strongest against him.

Justin Komboli

Question No 1: is there some evidence of each element of the offence which, if accepted, would either prove the element directly or enable its existence to be inferred? That is, is there evidence that Justin Komboli:

1 stole something? – yes – it is circumstantial – but there is evidence that he broke into the store as part of his drunken rampage and there is evidence that things were missing – the inference being that he took the things;

2 used or threatened to use actual violence? – yes – evidence that he was using actual violence;

3 immediately before or immediately after the time of stealing it? – yes immediately before;

4 in order to obtain the thing stolen or prevent or overcome resistance to its being stolen? – yes;

5 was armed with dangerous or offensive weapon or instrument? – yes.

Therefore the answer to question No 1 – is there some evidence of each element of the offence which, if accepted, would either prove the element directly or enable its existence to be inferred? – is yes. There was some evidence against Justin Komboli. The first limb of the no case submission failed.

Next, question No 2: although there is a case for Justin Komboli to answer, is there sufficient evidence on the basis of which the court ought to convict him?

Again, the question does not ask whether the prosecution has proved its case beyond reasonable doubt. Is there more than a scintilla of evidence? Is the evidence not so weak or unreliable that no reasonable tribunal of fact could base a conviction on it? I also answered this question, yes.

Therefore I ordered that the trial proceed in relation to Justin Komboli.

Benjamin Bin

Question No 1: is there some evidence of each element of the offence which, if accepted, would either prove the element directly or enable its existence to be inferred? I answered this question, no. The first limb of the no case submission in relation to Benjamin Bin was upheld and he was acquitted.

Gibson Salkut

The case against Gibson Salkut was dealt with in the same way as Benjamin Bin's. He was acquitted.

THE CASE FOR THE DEFENCE

The next thing to do was determine, again, whether the trial should proceed in the absence of the only remaining accused, Justin Komboli. In Watul's case Doherty J adjourned the trial at this point, evidently because of the discomfort her Honour felt about continuing the trial in the absence of the accused persons she had decided had a case to answer, without allowing them to call evidence.

With respect, I felt no similar discomfort. I reminded myself that in a number of other cases the court had convicted accused persons who had absented themselves voluntarily. I considered that it was the right and just thing to do, to continue the trial in as normal a way as possible, even though the accused was not present.

I asked Mr Oiveka, who continued to represent Justin Komboli, whether the defence would call any evidence. That was done in order to comply with s572 of the Criminal Code (evidence in defence), which states:

(1) At the close of the evidence for the prosecution, the proper officer of the court shall ask the accused person or his counsel whether the accused intends to adduce evidence in his defence or whether he desires to make a statement to the court before he or his counsel addresses the court.

(2) Whether or not the accused intends to adduce evidence in his defence he is entitled to make a statement to the court.

(3) When the accused makes a statement to the court he shall make the statement at the close of the evidence for the prosecution and before adducing any evidence in his defence.

Mr Oiveka indicated that the defence had no evidence and, as Justin Komboli was not present, the accused could not make a statement to the court. So the defence case was closed.

SUBMISSIONS ON VERDICT

Mr Rangan submitted that the inference can safely be drawn from the evidence that it was Justin Komboli who broke into the store and stole the items. He used violence to rob the store. It was all part of his drunken rampage.

Mr Oiveka submitted that the court could not be satisfied beyond reasonable doubt that the elements of armed robbery were proven. There was general mayhem. Trouble had been brewing for some time. What happened was a domestic dispute that got out of control. No one was intent on robbing the canteen. The intention was to fight anybody related to or supporting Maya Wasekum, who had assaulted Gibson Salkut. The purpose of the rampage was not to steal. The violence was not perpetrated for the purpose of stealing. At most, the accused could be convicted of the lesser offence of break and enter.

DECISION ON VERDICT

The evidence was that two witnesses saw Justin Komboli break open the canteen, and one of them saw him go inside. I reminded myself of the dangers of convicting a person on circumstantial evidence, given that there was no direct evidence that Justin Komboli removed anything from the store. The principles were lucidly summarised by Jalina J in The State v Lase Pale Nicholas (2002) N2270:

The law on circumstantial evidence is as enunciated by the Supreme Court in Paulus Pawa v The State [1981] PNGLR 498, which is that when the case against an accused person rests substantially upon circumstantial evidence the jury cannot return a verdict of guilty unless the circumstances are such as to be inconsistent with any reasonable hypothesis other than the guilt of the accused.

I concluded that everything pointed to Justin Komboli being the person who threatened others in the course of breaking into the canteen. I was satisfied that he was the person responsible for stealing the missing items. He threatened others immediately before he broke in. Though he was very drunk, I was satisfied that he used violence in order to obtain the things he stole from the canteen. He was armed with dangerous and offensive weapons: stones and bottles. All elements of the offence of armed robbery were proven beyond reasonable doubt.

I therefore convicted Justin Komboli of armed robbery, as charged.

ALLOCUTUS

The next question to decide was whether Justin Komboli should be sentenced in his absence. Mr Oiveka pointed out that the allocutus – the part of a criminal trial when the magistrate or judge asks the convicted person whether they have anything to say to help the court decide on sentence – could not be administered.

The allocutus has a statutory basis in s593 (convicted person to be called on to show cause) of the Criminal Code, which states:

Where an accused person—

(a) pleads that he is guilty of an offence; or

(b) on trial, is convicted of any offence,

the proper officer shall ask him whether he has anything to say why sentence should not be passed on him, but an omission to do so does not invalidate the judgement.

The allocutus is an important part of criminal procedure in Papua New Guinea. It has been held to be part of the principles of natural justice enshrined by s59 of the Constitution: the minimum requirement of natural justice is the duty to act fairly and, in principle, to be seen to act fairly. It is consistent with these principles that once a person has pleaded guilty, a full opportunity must be given to allow mitigating factors to be put to the court. (The State v Aaron Lahu (2005) N2798, National Court, Cannings J.) In both Agiru Aieni and Others v Paul T Tahain [1978] PNGLR 37, National Court (Wilson J) and Michael Gende v The State (1999) SC626 (Supreme Court, Hinchliffe J, Jalina J, Sevua J) the failure to administer an allocutus nullified the sentence (notwithstanding the wording of Section 593, which seems to indicate that failure to do so is not necessarily fatal.

However, I consider that a person's right to be administered an allocutus and have his say on sentence is, like his right to be present throughout the trial, something capable of being given up. If the convicted person shows by his absence that he does not wish to say anything, the court should not hesitate. It should continue in his absence. That is what I ordered in this case. The nature and extent of a person's right to be present when being sentenced for a criminal offence is the same as their right to be present when the question of their guilt or innocence is being determined. The right to be present when being sentenced is impliedly given up when a person escapes from custody and does not attend the sentencing hearing.

SUBMISSIONS ON SENTENCE

Mr Oiveka submitted that mitigating factors were that Justin Komboli acted alone and that the robbery of the store was not something that was planned. The fact that he had been sentenced to 16 years for a murder committed around the same time as the robbery should not be held against him as an aggravating factor. If the court makes the sentence for armed robbery cumulative upon the existing sentence for murder, it must take account of the totality principle before reaching a conclusion on sentence in this case.

Mr Rangan submitted that the court should apply the principles in Gimble v The State [1988-1989] PNGLR 271, Bredmeyer J, Los J, Hinchliffe J. The court suggested the following sentencing guidelines:

· robbery of a house – seven years;

· robbery of a bank – six years;

· robbery of a store, hotel, club, vehicle, on the road etc – five years;

· robbery of a person on the street – three years.

Mr Rangan submitted that it was now generally accepted that sentences for each of those categories had increased by three years. This was the robbery of a store (the canteen) which was just next to and therefore part of a house. It was properly regarded as the robbery of a house. The head sentence should therefore be 7 + 3 = 10 years, he submitted.

WHAT IS THE APPROPRIATE SENTENCE?

Head sentence

I accept Mr Rangan's submission that the sentencing guidelines in Gimble are still a useful starting point, subject to the proviso that each category has been bumped up by three years. (See the judgments of the Supreme Court in Public Prosecutor v Don Hale (1998) SC564, Amet CJ, Woods J, Kirriwom J; Tau Jim Anis v The State (2000) SC642, Sheehan J, Jalina J, Kirriwom J; and Phillip Kassman v The State (2004) SC759, Jalina J, Sawong J, Batari J.)

However, I reject Mr Rangan's submission that this was the robbery of a home. The evidence suggests that the canteen was a separate building. It was therefore armed robbery of a store. It falls into category No 3 of the Gimble categories. Applying the plus-three denominator sanctioned by Hale, Anis and Kassman, the starting point for the present case is eight years.

I have in a number of recent armed robbery cases in Kimbe set out the considerations to be taken into account in deciding whether to increase or decrease the starting point (eg The State v James Negol (2005) N2801; The State v Aaron Lahu (2005) N2798). I have applied those considerations to the present case. I accept Mr Oiveka's submission that there are significant mitigating factors. The robbery of the store was unplanned. It just happened in the course of a drunken rampage. There was no premeditated intention to rob. The value of the items stolen was not large. There is no evidence of additional actual violence done to any person, for the purposes of robbing the canteen, over and above the killing of the deceased, for which Justin Komboli has already been convicted and sentenced. I therefore fix a head sentence of four years.

Cumulative or concurrent?

Though the robbery of the store was something that happened during the course of the drunken rampage, it was a separate event which Justin Komboli was responsible for. He should be punished separately for it. That is, the sentence will be cumulative.

Totality principle

I accept Mr Oiveka's submission regarding the totality principle. I have applied that principle, which means that I have posed the question: is a sentence of four years, when added to the existing sentence of 16 years, giving a total of 20 years, excessive? (Public Prosecutor v Terrence Kaveku [1977] PNGLR 110, Supreme Court, Frost CJ, Prentice DCJ, Williams J.) I answer that question, no. It will mean that Justin Komboli will be sentenced to the same total term as Benjamin Bin, 20 years.

I would normally have obtained a pre-sentence report from the Community Corrections and Rehabilitation Service at Kimbe, before making these decisions. However as the offender has escaped that would have been a pointless exercise, so no report has been requested and I have not considered the question of suspending any part of the sentence.

REMARKS

The right of an accused person to be present at his trial is an important human right. But it is a right capable of being given up. If an accused person escapes from custody and does not attend their trial the court is entitled to allow the trial to proceed. This is something detainees should consider if ever they contemplate escaping from custody. Such a person is denying themselves the opportunity to put their side of the story to the court. They should also consider that when they are recaptured, they will be charged with the separate offence of escaping from custody, which carries a minimum sentence of five extra years imprisonment.

SENTENCE

The Court makes the following order:

1 Justin Komboli, having been convicted of the crime of armed robbery, is sentenced to 4 years imprisonment in hard labour.

2 For the avoidance of doubt the above term of 4 years imprisonment shall be served in addition to the sentence of 16 years imprisonment imposed on Justin Komboli on or about 25 November 2004 by the National Court at Kimbe.

Sentenced accordingly.

Lawyers for the State: Public Prosecutor.
Lawyers for the prisoner: Public Solicitor.