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State v Namuk [2019] PGNC 83; N7742 (8 March 2019)

N7742

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR NO 710 OF 2016

THE STATE

V

KENNEDY NAMUK

Lae: Pitpit J
2018: 13^th November; 5^th December
2019: 8^th February; 8^th March

CRIMINAL LAW- PRACTIC AND PROCEDURE– sentence – armed robbery pursuant to S386 (1), (2) (a), (b) and (c) CCA – identification - observation of a certain physical disability – circumstantial evidence in the form of stolen items of the victim found on the suspect some days after the robbery – explanation as to how suspect came to be in possession of the stolen items highly suspicious, more than just mere coincidental.

This was the sentence of an accused charged with armed robbery.

Cases Cited

The following cases are cited in the judgment:
Gimble –v- The State [1988-89] PNGLR 271
John Beng –v- The State [1977] PNGLR 115
Biwa Geta –v- The State [1988-89] PNGLR153
Lawrence Simbe v the State (1994) PNGLR 38
The State –v- Tom Morris [1981] PNGLR 493
The State-v- Mariano Wani Simon & Allan Dakoroka (1987) N600

Counsel

MS.P Matana, for the State
MR. J Huekwhain, for the accused

DECISION ON SENTENCE

08^th March, 2019

1. PITPIT, J: The accused was indicted with one count of Armed Robbery pursuant to section 386(1) and (2) (a) (b) and (c) of the Criminal Code Act 1974. He had pleaded not guilty and the case had proceeded to trial. At the end of the trial, he was found guilty and convicted as charged.

THE OFFENCE OF ROBBERY

(1) A person who commits robbery 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.

2. For the State to establish its case against the accused, it must establish by way of evidence the following elements:

(a) the accused must be clearly identified,
(b) the accused was armed with a dangerous or offensive weapon or instrument at the time of the alleged robbery,
(c) the accused was in the company of one or more persons during the alleged robbery,
(d) the accused at, immediately before or immediately after the time of robbery wounds or uses violence to any persons.

Brief Facts

3. The State alleges that on the 2^nd day of November, 2015, around 3:30pm, at Watarais, Markham District in Morobe Province, the accused Kennedy Namuk, stole from Egane Telabe with actual violence, a Nokia phone, a Samsung Galaxy S4 phone, a K2, 520.00, the property of the said Egane Telabe.
4. It was alleged the accused was in company with about five other men and they were armed with two factory made pistols and a factory made high powered rifle.
5. The complainant was driving a Toyota Land Curser, White in colour, and he was driving down from Ramu heading for Lae. He was at a place called Dry Wara, where there was a one lane bridge and there was also a line of cars waiting to cross over that one lane bridge.
6. Next to the one lane bridge there was also an old bridge which the complainant decided to use to cross over. The complainant was about to drive across the old bridge when a blue Toyota Land Cruiser 10 seater sped in front of him, rammed in the side of his vehicle and tried to blocked him off from crossing over the bridge.
7. The complainant looked out of his car window and saw a man holding a pistol and pointing at him. He knew that he was about be held up so he steered his vehicle past the blue Toyota Land Cruiser 10 seater and crossed over the bridge and sped off.
8. As the complainant was driving away, the accused and his accomplices fired gun shots at the complainant’s vehicle. One bullet hit the back wheel of the complainant’s vehicle and it flattened the tyre and caused him to slow down and eventually forced him to stop.
9. The complainant saw that his tyre was damaged so he got out of the vehicle and ran away on foot. But the accused and his accomplices shot at him ordered him to stop and lie down on the road.
10. He complied and lay down on the road and while lying there he observed two men approaching him and his accomplices searched the complainant and asked where his factory made pistol was but complainant informed them that the pistol was not in his possession. The accused and his accomplices then proceed to rob the complainant of his properties namely a Nokia phone, a Samsung Galaxy S4 phone, a Blackberry phone and a wallet containing K20.00 cash, total value of the properties stolen is K 2, 520.00.
11. The State alleges that the actions of the accused contravened section 386 (1) and (2) (a) (b) and (c) of the Criminal Code Act 1974.
12. The State further invokes Section 7 (1) (2) (c) and (3) of the Code.
13. When arraigned the accused had pleaded not guilty to the charge and the matter had proceeded to trial.
14. To prove its case, the State had tendered the following evidence by the consent of the Defence:
    1. The Record of Interview between the accused and the Police officers, Senior Constable Lukie Kavon and Constable Andrew Tangil on 23^rd November 2015.
    2. A Statement by Judas Girinde dated 7/ 12 /2015
    3. A Statement by Buksong Mura dated 8/12/2015
    4. A Statement by Mike Don dated 8/12 / 2015
    5. A Statement by David Kurubia dated 24 /11/ 2015
       
15. In addition to these documentary evidence, the State also called two witnesses who came before the court and gave sworn oral testimony before the court on matters relating to the incident of the 2^nd of November 2015 at the Watarais, Morobe Province Papua New Guinea where one Egane Telabe was said to have been held up with actual violence and had his personal properties comprising a Nokia Phone, a Samsung Galaxy S4 Phone, a Black Berry Phone and twenty Kina Cash all estimated to be to the value of K2,520.00 the property of the said Egane Telabe
16. In this case there is no dispute that there was a robbery that had taken placed at the place at Watarais called Darai Wara of the complainant namely Egane Telabe at about 3.30 pm on the 2^nd day of November 2015.
17. There was also no dispute that there was a group of men involved and that they were armed with dangerous weapons. And that they did fire their weapons upon the Complainant and that his vehicle did sustain damages.
18. The main issue is who had done this to the complainant. The evidence by the complainant victim was that when he was lying down on the road he was able to see his assailants. He said he could see two men approaching him and after checking his pocket the person he claimed to be the accused looked directly at him face to face, asked him about his gun but he told him he did not have a gun. And after they had checked his vehicle and taken his mobile phones they said there was nothing so they left.
19. The person whom the complaint claimed to be the accused was wearing a short and walk with a slight limp. The complainant claimed that if he sees him again he would recognize him.
20. In court he pointed out the accused in the dock as the person that had approached him at the scene of the robbery. He was very sure, adamant almost. It was 3.00pm and he would have had a good look at his face.
21. In cross examination he denied he was in a state of mind that he could not properly identify his assailant, but he said I have been held up so many times before, that I was not terrified to the extent that I would not recognize the person who held me up.
22. Reminding myself of the dangers inherent in identification cases, as expressed in the leading cases of John Beng v The State [1977] PNGLR 115 and Biwa Geta v The State [1988-89] PNGLR 153, I accept the evidence of the complainant at the scene as good evidence that may be accepted.
23. On the 19^th of November 2015, the complainant came down to town to follow up with the police on his case and when he was at the Police Station he saw this person being led into the room by a policeman. And when he observed him he was convinced to the point that he could not withhold it to himself anymore that he went to the man and said to him Hey! You the one that yell at me during the robbery at Markharm valley, Okuk Highway.
24. He said he went out but was not satisfied so went back into the police Station and asked the police man about the man and was told that he was wanted for questioning on a robbery at the Papindo Super Market in Popondetta.

25. The evidence of the phone is independent, and credible. It was more than a mere coincidence. See The State v Tom Morris [1981] PNGLR 493.

26. 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.

27. The evidence of the phone in the possession of the accused put beyond any doubt about the identity issue, that the accused was the culprit. He gave an unsatisfactory explanation of how he acquired the complainant’s Black Berry.

28. Reminding myself of the warning in the case of The State v Mariano Wani simon & Allan Dakoroka (1987) N600 on the accused’s false denials and false statements. Great care must be taken in a case such as this concerning the use to be made of false statement. As a general proposition, it must be accepted that false denial does not prove guilt for many reasons. For good reasons, it has been said that people confronted with allegations of wrong doing may have other reasons not to tell the truth apart from hiding their guilt.

29. Having carefully considered and weigh the various reasons etc, I have decided that the various forms of evidence of identification that had been put together by the State are of such a quality and credibility that it had put the evidence of identification by the state to and beyond the threshold of beyond doubt. I find the accused guilty as charged and accordingly, convict him of the charge of aggravated robbery under section 386 (1), (2) (a), (b) and (c) of the Criminal Code Act 1974.

30. The Court having found you guilty, Has to now deliberate and decide on what punishment is to be imposed upon you for what you had done. In its endeavour, the court had asked you on any matters you would want the court to take into account and you had told the court this and I will briefly summarise.

31. You had expressed sorry to our father God in heaven, the court, to the Victim, the Law abiding Citizens of our country PNG for what you have done. You recognised that what you had done was wrong and you say sorry for that. You asked for the mercy of our Lord for the wrong that you have committed and asked the Lord to have mercy on you.

32. This offence is a very serious offence as can be seen from the maximum punishment that the Parliament had prescribed for it. This is the maximum penalty of death. The ultimate Punishment.

33. I have however, been guided by the lawyers in this case that the maximum punishment is to be reserved only for the most serious or the worst of this kind of offence. The question is whether your case is one that ought to be regarded as one of the most serious or the worst of its kind of robbery. This can be done by examining the facts or the circumstances of the case itself. Most of these circumstances of this particular case have been discussed when examining the evidence. The significant aspects of this case is that:

1. It appeared to have been pre -planned;

2. Committed by a group of men;

3. Armed with dangerous weapon;

4. Actual violence was used in the shooting of the tyre of the vehicle and at the victim himself when he was fleeing from the immobilised vehicle.

34. After checking the vehicle for whatever you were looking for you left him and went away. But before you left you took his personal properties mainly mobile phones, wallet and K20.00, all to the value of K2,520.00.

35. You are about 47 years old, married and was living at Ampo Lutheran Centre. You had been previously working with a security firm.

36. Your case is a very serious even though the victim was not hurt in anyway. I have considered the type of case discussed in the leading case of Gimble v The State [1988-89] PNGLR 271 and I find that your case falls under the 3^rd category. This, the robbery of a vehicle. The starting point then was suggested at five years. This now has been held to be out of date and following the case of the Public Prosecutor v Don Hale, the supreme court had suggested that the starting point is to be increased by three years. This would if we go merely by the tariff, to eight years as the starting point.

37. In Lawrence Simbe v The State, each case must be decided on its own facts and circumstances. In your case, you were with a group of men; you were armed with high powered firearms and that violence was actually used, resulting in damages to the vehicle. The victim was just very lucky that a stray bullet did not hit him.

38. This offence is not only serious but it is also a very prevalent offence, throughout the country. The public have been crying out for our leaders to do something and the Parliament had responded by amending the penalty and increasing it from the maximum of imprisonment for life to one of death to deter people from committing this offence but since the law was amended in 2013, the situation does not seem to have changed. It is now in the hands of the court to play its part.

39. Having considered everything that have been submitted on your behalf and the factor against you, I have decided that a period of 15 years imprisonment is warranted and appropriate in your case. This I hope would be a personal deterrence to you and those likeminded persons who may be thinking of going the path you have gone. This is also for your punishment for what you have caused the victim and those that have been directly or indirectly affected by your conduct on that day you committed this offence.

40. Finally, I would further order that:

1. The Prisoner is sentence to 15 years imprisonment after he was found guilty and convicted on the charge of Armed Robbery contravening s.386 (1) and (2) (a) (b) and (c) of the Criminal Code Act.

2. Pre-custodial period of 3 years, 3 months, 2 weeks and 3 days is to be deducted from the time awaiting trial in CS custody at Buimo.

3. The balance of 11 years, 6 months, 1 week and 4 days is to be served IHL in CS custody at Buimo.
41. That is the sentence of the court.
____________________________________________________________
Public Prosecutor: Lawyers for the State
Public Solicitor: Lawyers for the Accused