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State v Walimini (No 3) [2004] PGNC 163; N2628 (24 June 2004)

N2628

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR 1374 of 1999
CR 1375 of 1999
&
CR 1389 of 1999

THE STATE

V.

RAPHAEL WALIMINI

Kimbe: Sevua, J
2004: 23rd & 24th June

CRIMINAL LAW – Sentence – Attempted armed robbery – Aggravating circumstances – Armed gang of eight – Attempted to rob vehicle on road - Use of firearms – Shooting and wounding of victim – Death of victim – Offender not a young first offender – Prior conviction for armed robbery – Death of victim worst kind of a aggravating circumstances – Maximum sentence warranted. Sentence – Life imprisonment

Cases cited:
Gimble v. The State [1988-89] PNGLR 271
The State v. Gibson Lulip, (CR 1136/1998 & CR 1137/1999), unreported and unnumbered, 15th March 1999
Winugiri Urugitaru [1974] PNGLR 283

Counsels:
F.Popeu for State
O.Oiveka for Prisoner

24th June 2004

SEVUA, J: The prisoner was convicted of attempted armed robbery yesterday. He was originally charged with three counts on the same indictment. The first count was attempted armed robbery, contrary to s. 387 (1) & (3) (a) & (b), the subject of this judgment. The second count was armed robbery, contrary to s. 386 (1) & (2), and the third count was unlawful use of motor vehicle, contrary to s.383 (1) (a) & (b) of the Criminal Code. He was acquitted of the second and third charges.

The facts as found after the trial are that, on 27th July 1998; the prisoner and eight others armed with two factory made shotguns, one home made shotgun, one pistol and several bush knives planned to rob a particular vehicle which was carrying villagers from Lavege village who had collected their royalty moneys in Kimbe and were returning home. The prisoner was informed of the plan by one Badi Kawas of Dagua, East Sepik Province at Kavui, Section 12. Both men then went to Buvussi Mountain between Bialla and Kimbe to execute the plan together with the other members of the gang who had already gone to the rendezvous and were waiting for the vehicle to pass by. The other members of the gang who had gone to Buvussi Mountain and were waiting were, Gibson Lulip, armed with a single shot shotgun; Roymond Jubu, armed with a pistol, and those armed with bush knives were Ken Kira of Maprik, Joe Joe of Dagua, Joe Kaveu of Mai village, Hoskins, John Waine of Simbu, and Komsi Magambu of Maprik.

As they waited in the mountain of Buvussi, the vehicle, a blue Dyna open back truck carrying many passengers approached from the direction of Kimbe and slowly climed the Buvussi Mountain. As the truck reached the location where the gang was, the accused and the others rushed onto the road to stop the truck. Badi Kawas, Gibson Lulip and Roymond Jubu were in the front of the truck and fired shots at the truck to stop it. The prisoner who was at the back of the vehicle fired a shot at the rear tyres of the truck to disable its movement; however the driver did not stop and continued driving. The shot that was fired at the driver missed him, but struck the crew, Patrick Waiyang, on his face.

As the gang was unable to stop the truck, they turned onto the next approaching vehicle, a Mitsubishi L200 double cab belonging to Buvussi Health Centre. They threatened its driver, Mambu Sina, and ejected him out of the vehicle and stole it. They used that vehicle to pursue the truck; however they did not catch up with the truck so they escaped in the stolen Mitsubishi utility. The prisoner said he was not with them as he ran away after the failed robbery of the truck. As I allude to earlier, he was acquitted of the second and third charges which relate to the theft and use of the Mitsubishi double cab utility.

In the judgment on verdict delivered yesterday, the following were findings of facts which the Court made.

(i) Badi Kawas had gone to the prisoner at Section 12, Kavui and told him (prisoner) about the planned robbery to be committed at Buvussi Mountain on 27th July 1998.
(ii) Both the prisoner and Badi Kawas went to Buvussi Mountain and met the other gang members who had already gone there and were waiting at the rendezvous.
(iii) The prisoner was armed with a factory made single shot shotgun and two bullets.
(iv) The prisoner was involved in the attempted robbery of the blue Dyna open back truck carrying passengers towards Bialla.
(v) The prisoner fired a shot from the shotgun he had at the rear tyres of the truck in an attempt to stop the vehicle, so he and the others could rob the passengers.
(vi) The prisoner was part and parcel of the plan to commit this crime, and he actively participated in the commission of the crime of attempted armed robbery.

I should further add that Patrick Waiyang was shot and injured on the face from a shot fired by one of the gang members, and as a result he died from injuries caused by the gun shot.

The prisoner was given the opportunity to say something if he wished to in relation to punishment so during allocutus, he asked the Court to consider that he has spent his life time in prison. He is currently serving 15 years and therefore asked for probation or a concurrent sentence. He also requested to be transferred to Wewak where his parents, wife and child are residing. I cannot understand why he can leave his wife and child in Wewak and come to Kimbe to live a life of crime.

Mr. Oiveka, submitted that the prisoner is 29 years old and married with one child. He comes from Yaujage village in Maprik, East Sepik Province. He has spent three years one month in custody awaiting trial on these charges. Counsel asked that that period be taken into account on sentence. Counsel further submitted that the prisoner was found guilty of attempted armed robbery which is an aggravated case involving a number of people in a public highway. In the course of the commission of the crime, a person was injured and died as a result. Counsel submitted that the Court should look at the aggravating features of the case and balance them with the interest of the prisoner. Counsel further submitted that the maximum penalty for this crime is life imprisonment, subject to s.19 of the Criminal Code. The Court was urged to consider a sentence that is not crushing on the prisoner taking into account the current sentences the prisoner is serving.

I have considered all these matters and I must admit that this is a very difficult case to consider on sentence because of the previous criminal record of the prisoner, and the fact that death resulted from the commission of this crime. In fact, I consider that there is nothing that can be said in this case that act as an effective mitigating factor. The prisoner lost the benefit of leniency because he pleaded not guilty. The discount that would normally be available to a prisoner who pleads guilty is not available to the prisoner. Therefore I am of the view that there is very little that can be said in favour of the prisoner. That is why I alluded to the fact that this is a very difficult case to consider. It is not an easy task to consider the appropriate sentence in this kind of cases where the prisoner has a prior conviction for armed robbery, but more so, where the loss of a life was the direct consequences of the crime.

The facts of the case present a very serious and aggravated background of the crime. This was a planned robbery. The prisoner knew of the plan as he was told by Badi Kawas of the plan to rob the village people in a truck as the gang had had prior information that the village people were carrying a lot of money in royalty payments. They chose an isolated location, the Buvussi Mountain, between Kimbe and Bialla because it would be easy for them to escape therefore making it difficult for police to track them down, and perhaps, they thought the crime would be concealed.

The prisoner and his companions were armed with factory made shotguns, a pistol, a home made gun and several knives. They knew that they would use the guns to execute their plan and ought to have known that in the process someone might be injured or killed. Patrick Waiyang was shot and killed by one of the gang members. This is a very serious aggravating factor which, in my view, calls for the maximum penalty. An innocent villager was shot and killed without any lawful justification.

I am of the opinion that the death of Patrick Waiyang makes this case the worst type of attempted armed robbery, even worse than an ordinary run of the mill armed robbery case where guns are not used. It was an attempted robbery that went drastically wrong and the prisoner together with the other gang members ought to have known that the use of guns might have resulted in serious injuries or even death. It did result in the death of an innocent villager who was going about his lawful business, working hard to earn an honest living. Whilst the prisoner and the other gang members thought they could live off the sweat of innocent people. It is obvious that the gang members, except for Joe Kaveu, who comes from Mai village in Hoskins, are from outside West New Britain. These are the people who come to this Province and create a bad name and image for the Province as well as the country. They are unemployed and lazy and do not want to work to get money, but think they can commit robberies and live off the fruits of their criminal activities. I consider that these are the people who are a danger to the community and must be severely punished.

In respect of the prisoner, he has not disputed that he has a prior conviction for armed robbery in 1992. The State has informed the Court that in 1992, the National Court convicted the prisoner of armed robbery and sentenced him to 7 years. Then, in May 2003, he was convicted of armed robbery committed in December 1997 and sentenced to 10 years, which he is presently serving. He was also sentenced to 5 years for escape whilst on remand in relation to the present charges which he has now been dealt with. That sentence was reduced to 3 years following the suspension of 2 years.

The Court has noted that the prisoner’s counsel did not make any submission as to whether or not the convictions recorded against the prisoner last year are prior convictions. However, it is my view those two convictions last year are not prior convictions, although the armed robbery which he was convicted of and sentenced to 10 years, which he is presently serving, is said to have occurred in December 1997. For purpose of sentence therefore, the prisoner has only one prior conviction for armed robbery in 1992. The Court shall therefore take that prior conviction into account on sentence and disregard the two convictions last year.

The State tendered a copy of a judgment in CR 1136 of 1998 and CR 1137 of 1998 in respect a co-accused, Gibson Lulip, who pleaded guilty to the same charges and was dealt with by Jalina, J on 3rd and 15th March 1999. That prisoner was sentenced to 25 years for the attempted robbery because the death of Patrick Waiyang was considered as a circumstance of aggravation. That prisoner was also sentenced to 8 years on the second count of armed robbery and 2 years for the third count of unlawful use of motor vehicle. The sentences for the second and third counts were made concurrent with the sentence of 25 years for the attempted armed robbery.

For purpose of sentence, I consider that, that case can be distinguished from the present case. In that case, the prisoner pleaded guilty to all three charges. He was a first time offender with no previous conviction. In the present case, the prisoner pleaded not guilty therefore a trial was conducted for a little over three days. In my view, the question of parity or disparity of sentence does not apply. As I adverted to earlier, this prisoner has lost the benefit of a discounted sentence, which is usually available to prisoners who plead guilty.

While it is true that the prisoner has not been charged with murder or willful murder for the death of Patrick Waiyang, the Court cannot overlook the fact that the deceased was shot and killed in this failed robbery. The Court cannot down play the enormity and seriousness of that crime, which resulted in the loss of an innocent life. I reiterate that the sentence must reflect that aggravated feature of this case. An issue which would often arise in this type of cases, especially in relation to sentence is whether the prisoner pulled the trigger. This issue relates to the role that each offender plays in the perpetration of a crime where more than one participant is involved. But in my view, the Supreme Court has already settled the law on that aspect in Gimble v The State [1988-89] PNGLR 271. At page 273 the Court said:

"The general rule is that all active participants in the crime should be sentenced on the same basis. The Court does not normally stop to consider whether a particular prisoner actually held up the victim, or held the gun, or iron bar, or was a watchman outside, or was the driver of the get-away vehicle. All are equally guilty because without each playing his full part the crime could not be perpetrated."

In applying that principle in the present case, one might think that since Gibson Lulip got 25 years for the same crime, the prisoner in this case must also receive the same sentence. I consider that a misconception. I have already made a distinction between the two cases and I consider that the prisoner in this case is not entitled to the same sentence imposed on Gibson Lulip who pleaded guilty and was a first offender. The prisoner in the present case cannot therefore be treated like that prisoner. I do not think that the above principle applies to cases where one offender pleads guilty and the others plead not guilty. It only applies where all the offenders either plead guilty or not guilty. I refer to Winugini Urugitaru v. The Queen [1974] PNGLR 283; where the pre-independence Supreme Court said at 286:

"It is, of course, accepted that the court is justified in differentiating in the treatment of persons for the same crime, if in considering the public interest, it has regard to the differences in the characters and antecedents of the convicted men, and discriminates between them because of these differences. R. v. Ball[1] per Hilbery J. The court may also have regard to factors connected with the actual commission of the crime. But the fact that one of several prisoners jointly indicted has received too short a sentence is not a good ground to lead a court necessarily to interfere with a longer sentence passed on the others. What generally has to be shown is that the applicant in appeal has received too long a sentence. Reg. v. Richards[2]. But as it also appears from that case if there is a very considerable disparity between sentences, an appellate court may take it into account (ibid)."

I have considered everything that the prisoner and his counsel had submitted in mitigation and sentence. His personal antecedents like age, marital status, education and so forth have been taken into account. He pleaded not guilty, he is not a first offender and he has not expressed remorse for what he did, and of course this demonstrates his attitude to the crime he had committed. I have taken into account what needs to be taken into account and I have considered those together with matters not in favour of the prisoner but I maintain that there is very little that can be said in favour of the prisoner.

It is my view that, death resulting from the prosecution of an unlawful purpose, in this case, an attempted robbery is as serious as wilful murder itself. I consider that this is a very serious case than an ordinary robbery where only threats of violence are used.

The use of guns in crimes of violence has been, and still is, the subject of serious concerns by leaders and members of the community. The media must be applauded for taking this issue head on. The use of factory and home made guns and pistols, even automatic weapons like
M 16s have caused, and continue to cause unnecessary losses and sufferings to innocent citizens. Innocent law abiding citizens are killed and sometimes maimed for life by ruthless criminals who have no respect for lives and property, and the rule of law. The innocent and law abiding citizens are fed up with violent crimes like armed robberies and rapes and the list goes on. People are living in fear, which in turn causes unnecessary stress and pressure in their daily lives. Substantial amounts of moneys are being spent unnecessarily on erecting fences around homes and offices because of fear of attack by armed criminals. If we are not careful, this country will be ruled by armed thugs and criminals resulting in anarchy and chaos and the country becoming a lawless State.

Crimes of violence is not only a threat to individual citizens, it is also a serious threat to businesses and the economy of the country. Foreign investors would not want to invest their moneys in a country with serious law and order problems. Businesses have also suffered at the hands of armed criminals therefore crimes of violence like armed robbery or attempted armed robbery are also a threat to the economic prosperity and wealth of the nation. The Government must act decisively now to address the gun issue.

I maintain that removing guns from licensed people is not the answer because there is no evidence that people with firearms licenses are involved in crimes of violence like armed robbery. Instead, the Government must seriously consider amending the Summary Offences Act, Firearms Act and the Criminal Code Act to take into account the many concerns that have been expressed, and are still being expressed about guns, and the use of guns in serious crimes of violence since they are very prevalent today.

I am of the view that the Parliament must amend the existing laws now. It should remove the provision dealing with firearms in the Summary Offences Act; amend the provisions of the Firearms Act by increasing the penalties; remove the fines and substitute them with custodial sentences; make all firearms offences under the Firearms Act indictable offences so that offenders are prosecuted on indictments in the National Court; and amend the Criminal Code so that the use of firearms in violent crimes like armed robbery or attempted armed robbery resulting in serious physical injuries be punished with life imprisonment, and where a death results, such crimes must be punished with the death penalty. It is my view that the time has come for the Parliament to remove some of the Court’s discretion under the Code so that Judges do not have wide discretion as they do now under s.19 of the Code.

In saying all these, I am not trying to interfere with the legislative function of the Parliament, however in view of the fact the crimes of violence like armed robbery, attempted armed robbery and rape are prevalent and are committed more frequently now and at will, sweeping changes to the existing legislations are warranted under the circumstances. We either take serious remedial actions now or leave this country to the criminals.

The penalty for this crime under s. 387 (3) of the Criminal Code is life imprisonment. In my view that reflects the seriousness with which the Parliament views this crime. Unless there are other good reasons for the Court to exercise its discretion under s. 19 of the Code, the maximum penalty must be considered for the worst case with serious aggravating features.

I consider that this case has those aggravating circumstances. The crime was planned. There was an armed gang who executed the planned robbery, except that it failed. The gang members including the prisoner were armed with guns and knives. They actually fired live bullets at the at the truck and its driver, but missed him and hit the crew. Serious injuries resulted consequently leading to the death of an innocent villager.

The prisoner also fired a shot from the single shot shotgun he was armed with in order to disable the vehicle so that the robbery could be carried out. The prisoner is not a first offender. He has one prior conviction for armed robbery in 1992 in which he was sentenced to 7 years. He has not expressed any remorse for his crime, especially when it resulted in the death of an innocent villager. All these are circumstances of aggravation deserving the most severe penalty, in my view.

The penalty that the Court imposes in this case must reflect all these matters and others that may not have been addressed here. It must send a warning to all the young people out there that they will be treated in the same manner if they do the same thing. Therefore, the sentence must act as a public deterrence as well.

I sentence the prisoner to imprisonment in hard labour for life.

In passing, I urge the police to make an all out effort to arrest and charge the other offenders who are still at large, namely, Badi Kawas, Roymond Jubu, Ken Kira, Joe Joe, Joe Kaveu, John Waine and Komsi Magambu.. They must be brought to justice as well.

Lawyer for State: Public Prosecutor
Lawyer for Prisoner: Public Solicitor

^[1] (1951) 35 Cr. App. R. 164 at 164
^[2] (1955) 39 Cr. App. R. 191 at p.192 per Lord Goddard