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State v Leslie [1996] PGNC 163; [1997] PNGLR 296 (7 October 1996)

[1997] PNGLR 296

PAPUA NEW GUINEA

[NATIONAL COURT OF JUSTICE]

THE STATE

V

JOE FOE LESLIE LESLIE

WAIGANI: PASSINGAN AJ
18, 19, 20, 23, 26 September, 2, 7 October 1996

Facts

The accused was charged with and tried on two counts of stealing with violence, under s 386 of the Criminal Code, three counts of rape under s 348 of the Criminal Code and two further counts of attempted rape: thus a total of seven counts. All these charges arose from a single incident of armed robbery committed by the accused in company with others along the Lealea/Porebada road outside Port Moresby.

Essential facts surrounding the commission of the offence were not disputed except for the alleged admission by the accused contained in a record of interview where the defence argued that the accused never gave confessions in a record of interview that he was involved in.

Held

1. All questions in the record of interview were fairly put to the accused and there is no evidence of any threat or attempt to extort an admission: R v Ginitu Ileadi & Others [1967-68] PNGLR 497 cited.
   
2. A court will convict on an uncorroborated confession only after the closest scrutiny and testing of the confession: R v Namiropa Koimbondi [1969-70] PNGLR 194 and McKay v The King (1935) CLR 119 cited.
   
3. When parties have agreed to the facts, corroboration may not be necessary.
   
4. On all the evidence and the circumstances of the case, I am satisfied beyond reasonable doubt that the accused was a party to each of the seven counts charged: guilty as convicted.
   
5. The principle of totality of sentence as pronounced by the Supreme Court in Mase & Another v The State [1991] PNGLR 88 cited and applied.
   

Papua New Guinea cases cited

R v Ginitu Ileadi & Others [1967-68] PNGLR 496.

R v Kom [1967-68] PNGLR 265.

R v Mon and Debon [1965-66] PNGLR 42.

R v Namiropa Koinbondi [1969-70] PNGLR 194.

R v Wendo [1963] PNGLR 217.

The State v Goi Mubin [1990] PNGLR 99.

Other case cited

McKay v The King (1935) CLR 9.

Counsels

P Kaluwin, for the State.
D Sakumai and J Waiwai, for the accused.

7 October 1996

Passingan AJ. Joe Foe Leslie Leslie was charged under an indictment containing seven counts:

Count 1. That on the 19th day of February 1993 at Porebada Road in Papua New Guinea unlawfully used a motor vehicle namely, a Toyota Hilux double Cabin Registration No BAD 605 without the consent of one Momoru Oda who was the owner and in lawful possession of it (s 383(1)(a) Criminal Code).

Count 2. That on the 19th day of February 1993 at Porebada Road in Papua New Guinea stole from one Momoru Oda and others with actual violence a sum of One thousand four hundred and ninety-five Kina (K1,495.00) in cash, and assorted items valued at Twenty-three thousand eight hundred and seventy one Kina and twenty-three toea the property of Momoru Oda and others. And at the time aforesaid he was armed with a dangerous weapon namely a pump-action shotgun and was in company of other persons (s 386 Criminal Code).

Count 3. That on the 19th day of February 1993 at the Porebada Road in Papua New Guinea committed rape upon one Igo Isaiah (s 347 Criminal Code).

Count 4. That on the 19th day of February 1993 at the Porebada Road in Papua New Guinea committed rape upon one Kari Lohia (s 347 Criminal Code).

Count 5. That on the 19th day of February 1993 at Porebada Road in Papua New Guinea committed rape upon one Kevau Isaiah. (s 347 Criminal Code).

Count 6. That on the 19th day of February 1993 at Porebada Road in Papua New Guinea attempted to commit rape upon one Geua Kila Sagap. (s 348 Criminal Code).

Count 7. That on the 19th day of February 1993 at Porebada Road in Papua New Guinea attempted to commit rape upon one Raka Duaha. (Section 347 of the Criminal Code Act).

Upon arraignment the accused pleaded not guilty to all seven counts.

The following facts are not in dispute. Both counsel submit that these are the agreed facts in this case:

(a) Sometime between 5.00 pm and 6.00 pm on the 19th of February 1993 Momoru Oda and nine others were travelling home to Porebada village in a Toyota Hilux Double Cabin when they were held up by about seven to eight men along the Lealea/Porebada Road.

(b) The men were armed with a shotgun, bush knives and screwdrivers. They took control of the vehicle and drove it with the passengers on board in the direction of Port Moresby. Before reaching Koukou village they turned left onto a dirt road.

(c) At the top of the hills the following incidents took place:

(i) all the passengers, males and females were ordered to remove their clothes;

(ii) each passenger was blind folded;

(iii) the passengers were tied up, hands and legs;

(iv) five female passengers were raped;

(v) properties including cash were stolen; and

(vi) that the seven to eight men were not positively identified as they were masked.

Evidence

The main evidence in the State case consisted of alleged admissions in a record of interview conducted with the accused on the 6th February 1995. That record of interview was the subject of a voir dire. On the 23rd September 1996 I ruled that the record of interview was fairly obtained and properly recorded. And that it was admissible even though unsigned: R v Kom [1967-68] PNGLR 265; R v Wendo [1963] PNGLR 217; The State v Goi Mubin [1990] PNGLR 99; R v Lee [1950] HCA 25; (1950) 82 CLR 133; R v Jeffries (1946) 47 SR (NW).

Statements of Momoru Oda, Heagi Isaiah, Ricky Vagi, Peter Momoru, Igo Heagi and Dr Lahui Geita (Exhibits "B"-"G") were tendered by consent.

The Issues

The first issue is that of what weight to be given to the record of interview. I am aware that the admission of the record of interview is not the end of the matter. There is still the question of what weight to attach to it. The contents of the document should be examined. In my view the accused fully understood the allegations and truthfully answered the questions. I find that the questions were not in the nature of cross-examination that is suggesting the required answers. In fact throughout the interview the accused was invited to respond to the allegations and to answer to shorter questions.

The next matter for consideration is the circumstances under which the accused was apprehended or arrested. He was apprehended on the 17th November 1994 over other offences. He was in custody at the Bomana Corrective Institution when he was picked up on the 6th February 1995 for the interview. I am satisfied that the Police were merely carrying out their obligations. All questions were fairly put and there is no evidence of any threat or any attempt to extort an admission: R v Ginitu Ileandi & Others [1967-68] PNGLR 496, 497. On the evidence before me there was no force or threats by Senior Constable Timothy Sare and Constable Togey Bou.

The second issue is that of corroboration. Whether there is some evidence to confirm or corroborate the truth of the contents of the record of interview. Exhibits "B-G" corroborate the contents of the record of interview. In my view corroboration is not necessary because the parties here have already agreed on the facts. They have agreed that there was a robbery. In the course of the robbery five female passengers were raped by about seven to eight men.

The main point in the defence case is that this is not the correct record of interview. The accused says in the correct record of interview he had denied involvement in the crimes. Defence submits that Constable Togey Bou supports the accuseds’ denials. This witness identified the record of interview. He gave no evidence of another record of interview, which contained the denials.

I am, therefore, satisfied that this is the only record of interview, which contained the admissions. I accept the contents of that document as the truth and give weight to it. I find that the admissions are true (satisfaction beyond reasonable doubt).

I have heard the evidence of the accused. I have also given similar weight to hypotheses more or less reasonably consistent with the confession or admission being untrue: R v Mon and Debon [1965-66] PNGLR 42.

A court will convict on an uncorroborated confession only after the closest scrutiny and testing of the confession, if any supplying hypotheses by which the making of the confession may be explained more or less reasonably consistent with innocence: R v Namiropa Koinbondi [1969-70] PNGLR 194; McKay v The King (1935) CLR 11, 9.

On all of the evidence and the circumstances of this case, I am satisfied beyond reasonable doubt that the accused was a party to each of the seven counts on the indictment before me. Accordingly, I enter a verdict of guilty on each count.

Sentence

In mitigation your lawyer submits that for the purposes of sentence count one (unlawful use of motor vehicle) and count two in category one. Counts three to count seven in category two (rape and attempted rape). I do agree with that submission. Normally the stealing of a motor vehicle is always a part of a robbery charge. In my view it is not necessary to make it a separate count. The rape charges will be considered together.

It is submitted on your behalf that you are aged 30, educated up to Grade 6 at the Baruni Community School, Port Moresby. You were once employed in 1977-1978 as a linesman with the Papua New Guinea Electricity Commission. In your allocutus you maintained your innocence and have shown no remorse.

Robbery and rape are very serious crimes, which attract the maximum penalty of life imprisonment. Both crimes are also very prevalent throughout this country. The innocent citizens are no longer safe to travel and go anywhere they wish to attend to their daily needs.

This incident took place between your village of Baruni and your neighbouring villages of Porebada, Boera and Lealea and so on. You and your friends did this to your neighbours who pass your village daily to work and do business.

The aggravating factors in your case are as follows:

(a) this was a planned robbery. In your record of interview (Q 20) you and your friends planned to rob people from Porebada and Lealea because you needed money;

(b) you were armed with a shotgun, bush knives and screwdrivers;

(c) the passengers were threatened and treated with disrespect that is:

(i) you ordered the adult males and females to remove their clothes;

(ii) blindfolded each of them;

(iii) tied them up, hands and legs; and

(iv) committed rape upon the five female passengers;

(d) the value of properties stolen was about K7,108.99;

(e) the mental effect suffered by the five female passengers as a result of being sexually violated by strangers; and

(f) that you have two prior convictions: nine years for murder in 1991 and six months for escape in 1992.

The guidelines for sentences for rape and armed robbery are set out by the Supreme Court in Kalabus v The State [1988-89] PNGLR 193, Auka v The State [1987] PNGLR 267 and Gimble v The v State [1988-89] PNGLR 271.

In all the circumstances of this case I consider the following sentences appropriate on each count:

Count One – Sentence - six months IHL.

Count Two – Sentence - seven years IHL.

(Count one concurrent on Count two).

Count Three – Sentence - eight years IHL.

Count Four – Sentence - eight years IHL.

Count Five – Sentence - eight years IHL.

Count Six – Sentence - four years IHL.

Count Seven – Sentence - eight years IHL.

Having calculated what I consider to be appropriate sentences I come to the question of totality of sentences principle: Acting Public Prosecutor v Konis Haha [1981] PNGLR 205; Acting Public Prosecutor v Sidney Kerua [1985] PNGLR 85; Mase and Another v The State [1991] PNGLR 88. In Mase’s case at p. 91 the Supreme Court reaffirmed the following principle:

"This Court has already dealt with this principle in previous cases: In Acting Public Prosecutor v Konis Haha [1981] PNGLR 205, the joint judgment of Kidu CJ, Andrew J and Pratt J contains the following at 214:

"We consider that the inherent gravity of the offence of rape on one hand and armed robbery on the other and their separate nature, albeit committed within a short space of time, should lead to separate and consecutive sentences. Nevertheless we think that this Court must consider the total or aggregate sentence and decide whether it is just and appropriate.

The effect of the total principle is to require a sentencer who has passed a series of sentences, each properly calculated in relation to the offence for which it is imposed and each properly made consecutive in accordance with the principles governing consecutive sentences, to review the aggregate sentence and consider whether the aggregate is "just and appropriate..."

The principle applies to all situations in which an offender may become subject to more than one sentence; where sentences are passed on different counts in an indictment, where the offender is subject to a suspended sentence or probation order, where he is already serving a sentence of imprisonment or makes appearances in different courts within a short space of time. In all such cases "the final duty of the sentencer is to make sure that the totality of the consecutive sentences is not excessive...."

In the result I think the appropriate orders are:

1. That the six months sentence in counts one to be served concurrently with the seven years imprisonment in hard labour imposed in count two.
   
2. That the four years imprisonment in hard labour sentence in count six to be served concurrently with the eight years imposed in counts three, four, five and seven.
   
3. The sentences are to be served consecutively. The prisoner is to serve a total of 15 years imprisonment in hard labour.
   
4. You are to serve this term of 15 years concurrently with your present sentence or sentences.
   

Lawyer for the State: Public Prosecutor.
Lawyer for the accused: Public Solicitor.