State v Anis [2002] PGLawRp 25; [2002] PNGLR 614 (23 May 2002)

[NATIONAL COURT OF JUSTICE]

THE STATE

v

DAMIEN ANIS

WEWAK: KANDAKASI J

15-16, 20-21 and 23 May 2002

CRIMINAL LAW – PRACTICE & PROCEDURE – Power of Court to call witnesses – Power can be exercised in appropriate cases – It is an appropriate case for Court to direct a witness be called where an accused claims breach of his Constitutional rights for which a voir dire is not conducted – Also where references are made to official records such as Court records witnesses may be called for independent verification

CRIMINAL LAW – PRACTICE & PROCEDURE – When identification is the only issue for trial – Court need to caution itself that witnesses called to establish it may be mistaken – Where crime allegedly takes place during broad day light and accused identified both by face and name and no doubt created in cross-examination on that issue it is safe to act on evidence before the Court.

CRIMINAL LAW –VERDICT – Armed robbery – Identification only issue for trial – Accused positively identified both by recognition and by name – State witnesses not cross-examined on possibility of mistake in identification – State witnesses not discredited in any way – Accused's own evidence supportive of State's case – Evidence called at direction of the Court showing accused lying under Oath – Caution exercise regarding possibility of mistaken identity – Totality of evidence dictating guilt of accused beyond any reasonable doubt – Guilty verdict returned

CRIMINAL LAW – PRACTICE & PROCEDURE – Sentencing co-accused – Co-accused pleading guilty and receiving 9 years sentence – Need to avoid disparity of sentence considered – Appropriate case to treat prisoner differently on the basis of not guilty plea.

CRIMINAL LAW – Sentence – Armed gang robbery – Cash and value of goods stolen substantial – Only a small amount recovered – Proceeds of robbery used up to purchase beer – No prior conviction put against prevalence of offence – Strong deterrent sentence called for – 15 years in hard labour imposed - Criminal Code ss 386 (1) (2) and 19.

Facts

The accused was involved in an armed robbery which took place at the Marani Trading in Wewak on 11 September 2000. The accused and four other men held up two employees of the Marani Trading in broad daylight with two pistols, one home made gun and a bush knife, and stole K17,277.90 in cash and cheques. The accused and one of his accomplices did not wear masks.

A raid was conducted by the police at the accused's wife's village, and some of the money was recovered with other items used in the robbery at the accused's residence. The accused was taken into custody and charged for armed robbery.

When questioned by the police, the accused denied being at the scene of the crime. The matter went to trial and the accused produced evidence to prove that he was at a different location when the crime was taking place and that he was severely assaulted by the police while in custody. To assist the court to verify the evidence of the accused the court exercised its discretion under the Criminal Practice Rules 1987 to call two witnesses to give evidence.

Held

1. In a trial where the court considers that it is essential to ensure a fair outcome of the case, it can exercise its powers under the Criminal Practice Rules to summon and examine a witness who was not called by the prosecution or defence counsels.

2. The sentencing guidelines set out in Gimble v The State [1988-89] PNGLR 27 for armed robberies is no longer appropriate today given the high frequency of the offence, level of actual violence, and the items or amount stolen or its value is large.

3. The courts have been unnecessarily restricted by principles such as 'disparity of sentence between co-accused' and 'quantum leap'. The community has repeatedly called for harsher penalties for armed robberies because it has adverse personal, psychological and economic impacts on the victims, the community and the country as a whole and therefore the courts must be receptive to these calls by the community.

4. The 8 years meted out by the courts for armed robbery in the past does not seem to deter the criminals. Armed robberies are on the rise and the courts must respond to the call by the community to increase the sentence for armed robberies. A sentence of 15 years in this case would therefore be appropriate.

Papua New Guinea cases cited

Andrew Uramani & 4 Others v The State [1996] PNGLR 287.

Biwa Geta v The State [1988-89] PNGLR 153.

Gimble v The State [1988-89] PNGLR 27.

John Beng v The State [1977] PNGLR 115.

Tau Jim Anis & Others v The State (2000) unreported SC642.

The State v Abel Airi (2000) unreported N2007.

The State v Andrew Keake [2000] PNGLR 204.

The State v Birch [1978] PNGLR 79.

The State v Jimmy Yasasa Lep (1995) unreported N1495.

The State v Max Charles & Anor (2001) unreported N2187.

The State v Michael Rave & Or [1993] PNGLR 85.

The State v Nickson Pari (No.2) (2000) unreported N2033.

The State v Tony Pandua Hahuahori (No 2) (2002) unreported N2186.

The State v Vincent Malara (2002) unreported N2188.

Thomas Waim v The State (1997) unreported SC519.

Counsel

M Ruari, for the State.
D Kari, for the accused.

23 May 2002

Kandakasi J. You pleaded not guilty to a charge of armed robbery at the Marani Trading on 11 September 2000 here in Wewak where a motor vehicle and K17, 277.90 in cash and cheques were stolen contrary to s 386(1)(2) of the Criminal Code. A trial was therefore conducted on the 15th, 16th, 20th, and 21st of this month.

Issue for trial and findings of facts not in issue

The only issue for trial was your identification at the scene of the crime as one of those involved in the robbery. That meant there are no issue on the facts of the robbery and the items alleged to have been stolen on the day and place mentioned. I therefore, find as a matter of fact that five men armed with two pistols, one home made pistol and one bush knife held up Pat Moran and Otto Jackson at the Marani Trading here in Wewak on 11 September 2000, between 10:00 and 11:00 a.m. This happened when the victims were just about to go and do their banking of a total of K17, 277.90 in cash and cheques. In the robbery Pat Moran and Otto Jackson were forced out of the victim's vehicle and the vehicle was driven off with the money inside. The money was inside a white PNGBC banking bag with the words amongst others "PNGBC" on one side and "Marani Trading" on the other side. That bag was inside a blue Jean bag and was in the vehicle at the time of the robbery.

There is also no dispute and I find that the banking bag and part of the stolen money totaling K1, 940.00 was recovered from you together with two .9mm pistol bullets, 2 AR 15 bullets and a blue woolen mask. That was during a police raid conducted on 13 September 2000, at your wife's village at Turubu where you were apprehended and taken to the police station.

The State's Evidence

The State called three witnesses, two of them eyewitness and the police-investigating officer. David Buatu and Otto Jackson were the two eyewitnesses. Mr. Buata was the first witness. He comes from Mour village in the Turubu area. He was a shop assistant at the time of the robbery and witnessed the robbery. His evidence is that, on Monday 11 September 2000, his boss Mr. Pat Moran and a fellow employee, Mr. Otto Jackson who usually does the banking for Marani Trading were ready to go to the bank between 10:00 and 11:00 a.m. Pat Moran was in the driver seat while Otto Jackson was in the crew seat of the company's vehicle. Before they could drive out of their area onto the road, five men armed with three pistols and a bush knife appeared and executed the hold-up. They did so by three of them going to the front side of the vehicle and two of them on either side of the vehicle. Out of the five robbers two were unmasked. He saw one of the unmasked men going to the driver side ordering Pat Moran out of the vehicle. In compliance of the order, Pat Moran came out of the driver's seat of the vehicle. One of the robbers with the bush knife chased the witness into the wholesale area while the other went to Otto Jackson in the crew side of the vehicle. Then all of the robbers got on the vehicle and drove away.

This witness said the unmasked man ordering Pat Moran out and getting into the driver seat and driving it away with the other robbers was you. He says you are a common face to him as you are married to one from his area Turubu although from a village different to his. He also says your name became popular in relation to a highway robbery turning into a murder case. He also says he was about 5 to 7 meters away from where the hold up took place and there was nothing obstructing his view. As such, he was able to see what was happening very clearly and also clearly identify you.

Nothing was put to him in cross-examination that questioned his identification of you at the scene of the crime and your participation in it. For example, no questions were asked about his eyesight or something like that, which could suggest his identification of you was mistaken. The only questioning that might be of relevance on this issue was the witness saying he was in a state of "shock" in pidgin when the armed hold up took place. There is, however, no evidence of him having a blackout of sight or mind or consciousness. Given this and noting that the term "shock" was used in pidgin, I take the reference to "shock" to mean being taken by surprise. Further, nothing was put to him that could be suggestive of him having a reason to come into Court and tell a deliberate lie against you. Similarly, nothing was put to him or is in evidence about the weather that could also cast some doubt on the ability of this witness's identification of you at the scene. Furthermore, nothing was put to him or is there evidence suggestive of this witness not being a credible witness. Simply put, there is no reason for me to reject this witness' evidence. Instead, I find him both a credible and reliable witness. I therefore accept his evidence.

The other witness, Otto Jackson corroborates Mr. Buata's evidence, especially in relation to the number of robbers and the number of the robbers that were masked and unmasked and how they carried out the hold-up and drove away in Marani Trading's vehicle. He too confirms that you were one of the unmasked men carrying out the robbery and ordering Mr. Pat Moran out of the driver's seat and taking over the vehicle before driving it away. He says he could clearly see you as he was in the front driver and crew cabin of the vehicle when you went over to the driver side and ordered Mr. Pat Moran out. He says he did not see or know you before but says he clearly saw your face at the time of the robbery as described and again in the witness box as the face he saw during the armed hold-up and robbery.

The matters I have noted above in relation to Mr. Buata and his evidence equally apply to this witness. Therefore, I also find him credible and reliable and accept his evidence as well.

The third witness was Sergeant Alphonse Vogone, who was the investigating and arresting officer. His testimony is that police received report of the robbery the same day. At that time, your name was mentioned as one of those involved. So on 13 September 2000, he organised and conducted a raid of your house at Turubu. That raid resulted in your apprehension. At the time of your apprehension, he found and took for exhibit purposes 2 AR 15 bullets, 2 point 9mm pistol bullets, a blue woolen mask and a white banking bag with the words "PNGBC" on one side and "Marani Trading" and others on the other side with K1, 940.82 inside. The money was returned to Marani Trading whilst the other items were kept in the police exhibits hold and produced in Court as exhibits during your trial.

This witness denied any police brutality in any form against you both at the time of your apprehension and at the police station. He also said, you freely admitted to your involvement in the robbery both at the time of your apprehension and during your record of interview. The record of interview was not admitted into evidence because of your objection on the basis of your claim that it was not given voluntarily.

There was no suggestion or evidence questioning the credibility and reliability of this witness. I took the clear impression that he was telling the truth. I therefore accept his evidence both as reliable and credible.

The above evidence positively identifies you both by sight and by name and fixes you at the scene. You have been identified as one of the armed robbers and especially one who ordered Pat Moran who was in the drivers seat of the car which was also stolen and driven off by you with your accomplices. When police apprehended you, you admitted to your involvement in the robbery and had that carried through to your record of interview.

Defence evidence

You tried to rebut the case against you by going into evidence yourself on oath. On the day of the robbery you said you first came to the Court house here at Wewak hill and reported to the clerk of the District Court in accordance with the terms of a bail in relation to another offence. You then went to see your father and mother at Porrigo and from there to the Wiriwi Catholic Mission on your parents' instructions to see your priest brother. You went to the Catholic Mission between 2:00 and 3:00 p.m. and was told that your brother had gone to be the priest at Kariru Island. So you left that place and went to Nuigo bus stop.

While you were at Nuigo bus stop, Wesley Robert and another person arrived and they invited you to go and drink some beer with them. You followed them. Wesley continuously provided the money for the beer. You drank beer the remainder of that day (11/09/00) throughout that night and the whole of the next day when Wesley gave you a black bag to look after for him because the police were looking for him. Then you continued to drink beer until about 7 or 8 p.m. in the evening when you said to Wesley you wanted to leave to go to your wife and children. So Wesley hired a vehicle to take you home to Turubu where you usually stay.

The next day, being Wednesday, police came and raided your place and apprehended you and took you to the police station. At the time of your apprehension, the police recovered from you two .9mm pistol bullets and 2 AR 15 bullets together with a white banking bag labeled "PNGBC" on one side and "Marani Trading" on other side with some other words. They also took from you a blue mask.

You claim that the police bashed you up so badly and threatened you with more so you admitted to your involvement in the robbery and called the names of your accomplices. A record of interview was later conducted between you and the police and you repeated your admissions because the police and the Marani Trading boys (at the invitation of the police) subjected you to further beatings. You say the beating by the police were such that you are now with a disabled knee requiring the use of a crutch. You came into court with a single crutch. However, under cross-examination you admitted to not receiving any treatment in 2000. Your first treatment was at the Boram CIS aid post in 2001.

Evidence called at the Court's Direction

In view of your claim of police brutality and reporting to the Courthouse on the day of the robbery, the Court directed that the records of your reporting to the Clerk of Court be brought into Court. It also directed that the medical personal at the Boram CIS be called. This was pursuant to O 4 r 9 of the Criminal Practice Rules 1987 as elaborated or commented upon by The State v Birch [1978] PNGLR 79 at p.97:

"Section 30 of the Criminal Procedure Act of 1889 (N.G.) provides in effect that it is lawful for a judge of the National Court at any stage of a trial to summon and examine any witness whose evidence he shall consider essential for a just decision.

Section 30 also provides in effect that a judge may examine as a witness any person who may be within the precincts of the court, although such person may not have been bound over or summonsed to attend as a witness or may not be willing to give evidence.In my view both [similar New South Wales provision and s. 30] provisions are so far as they go merely declaratory of the inherent powers of the court which include the power to obtain documents actually in court in the absence of notice to produce, or consent, and, save in case of allowable exceptions, to deliver them to the prosecution."

I cited and had regard to these principles in The State v Andrew Keake (20/11/00) N2003, and so did Doherty J in The State v Michael Rave & Or [1993] PNGLR 85.

There was no contest on this issue either from you or the State, rightly so because of the nature of the power and principles behind it. Then with your consent, a copy of your bail reporting condition kept by the Clerk of the District Court here was admitted into evidence as exhibit "H". That does not have any entry or record of your supposed reporting on 11 September 2000. The entry starts with a signing by you on 14 July 2000, and ending on 8 September 2000. There is a notation in that record too that you were on bail for rape and you committed armed robbery whilst on bail. Hence there is no further record of reporting.

The Court also directed the aid post orderly or community health worker at Boram CIS to be called. His name is Jackson Saunim. His qualification in so far as is relevant, is a community health worker attended at Timbunke here in the East Sepik Province. He has been working at the Boram CIS aid post for 10 years now. By reason of his training and the facilities at the CIS, he does not deal with any major or serious medical cases. So he only deals with minor cases and refers major cases to the Boram Hospital.

He says he knows you as one of the detainees at Boram CIS who escaped in 2000 and was injured. He does not know who caused you those injuries. You went to the aid post for treatment and he treated you for minor injuries mainly bruising. He says you did not go to him with a broken bone at all which could have required a referrral. He also says since you came into the institution, you have not used a crutch and have not been issued with one either. Also you have not been referred to the Boram General Hospital for treatment. Only a Roger Pongo was issued with a crutch. When asked about you coming into court with the crutch and where you could have got it from, the witness said you might have borrowed it from Mr. Pongo. He also said you did not use a crutch during the week of your trial last week and that he did not receive any medical complaint from you last week.

This witness was not cross-examined on his evidence in any way. It thus stands uncontested in any way. I therefore accept his evidence as both credible and reliable.

The effect of all of these evidence is that, you did not report to the Clerk of the District Court here on the day of the robbery. Also you did not sustain any injury requiring any major treatment at a hospital. You have no medical history even moments before the days of your trial, of a broken leg resulting in disabilities to your leg. This is consistent with your own admission that you did not receive any medical treatment until 2001. I therefore find you to be a witness who was prepared to lie under oath especially about police brutality resulting in serious injuries and making involuntary admissions. In the circumstances, I do not find you as a reliable and credible witness. I therefore reject the whole of your evidence except for the part or parts of your evidence that is consistent with the State's evidence.

This leads me to the question of, "has the State established the issue for trial and hence the case against you on the required standard of proof beyond any reasonable doubt?" Since the issue for trial is one of identity, I warn myself that there might be a mistake in the witnesses' supposed identification of you as one of the robbers. There are numerous authorities such as John Beng v The State [1977] PNGLR 115, at 122-123 and Biwa Geta v The State [1988-89] PNGLR 153 on the need for me to do so because of the presumption of innocence.

Your lawyers asked me to be cautious in treating the States' evidence. He argued that because the witnesses were in a shock, which as I said is "shock" in terms of being caught by surprise as opposed to a complete black out of sight, sound or anything like that, there was the danger that they could be mistaken. He also argued that, because it all happened fast, they did not have the opportunity to properly identify you. That submission has to be contrasted with the fact that one of the witnesses is used to seeing you many times before and knows you by name, although he does not deal with you in any way. It was therefore, as far as that witness was concerned, identifying a known person as opposed to a complete stranger. To the other witness, you were a stranger but he saw you at a very close range in the front cabin of the vehicle. Added to that, the robbery took place during broad day light and there was no obstruction for the witnesses. There is no question at all on their eyesight or anything like that, that might cast some doubt on their identification. I therefore, find there was no mistake in the identification of you by the first two State witnesses.

Further my rejection of your claims of police brutality which you claimed caused you to admit being involved in the robbery to police both at the time of your apprehension and at the police station during your record of interview, means you freely admitted to your involvement. I find that you had no choice but to admit because you knew you went unmasked, that you were identified and that you were caught with part of the stolen money and bag containing the money. This is also consistent with your own evidence by inference that you used the proceeds of the robbery to buy and drink a lot of beer on the day of the robbery and the whole of that night into the next day.

Having regard to all of the above, I find that the State has established the issue for trial and hence the whole case against you beyond any reasonable doubt. I, therefore, return a verdict of guilty on the charge of armed robbery pursuant to s 386(1)(2) of the Criminal Code.

There is one final matter I wish to deal with in this matter. That relates to my finding that you deliberately lied in the witness box. You took the oath on the Holy Bible to tell the truth before you gave your evidence. Despite that, you gave evidence that was clearly false in my view, especially in view of the records of your Court ordered reporting and the evidence from the community health worker at the Boram CIS. I therefore recommend that you be dealt with according to law for perjury under s 121 of the Criminal Code. For the purposes of subsection 7 of that provision, I order that a warrant for your arrest be issued forthwith.

Decision on Sentence - 24 May 2002

Yesterday, I found you guilty on one charge of armed robbery in the company of four others, where K17,277.90 and a motor vehicle were stolen. I need not repeat the facts for the purposes of your sentence, as they are set out in the judgement on verdict.

I therefore proceed only to consider the factors for and against you to determine an appropriate sentence. You have only one factor in your favour. That is, you have no record of a prior conviction. However, this must be viewed in the context of you putting this matter to trial without having any good evidence to rebut the States overwhelming case against you. There are four factors that stand clearly against you. Firstly, you were found guilty after a trial. Secondly, a number of dangerous weapons were used to conduct the robbery. Thirdly, the amount of money and property involved were substantial. Of that, only K1,940.82 was recovered. You came into Court and told deliberate lies. Finally, the offence of armed robbery is a very prevalent offence. It is being committed almost every single day throughout the country.

The offence of armed robbery carries a maximum of life imprisonment. In the much celebrated case of Gimble v The State [1988-89] PNGLR 27, the Supreme Court however, set sentencing guidelines for armed robbery cases lower than that. On a plea of not guilty by a young first offender carrying weapons and threatening violence the starting sentence for the robbery of a:

(a) dwelling house is 7 years;

(b) bank is 6 years;

(c) store, hotel, club, vehicle on the road or the like is 5 years, and

(d) person on the street is 3 years.

Where there are features of aggravation such as actual violence, the amount stolen or its value is large, or where the robber is in a position of trust towards the victim, a higher sentence may be justified. Of course, a plea of guilty may justify a lower sentence.

It is now accepted that these guidelines (especially the tariffs) are out-dated: see (The State v Jimmy Yasasa Lep N1495). In The State v Abel Airi (28/11/00) N2007, I examined the sentencing trends in armed robbery cases on a guilty plea starting with the Gimble (supra) case and ended up with the Supreme Court decision in Tau Jim Anis & Others v The State SC642. In that case, the Supreme Court increased the guidelines set by the Gimble (supra) case for armed robbery cases falling in the third category to 8 years on an appeal against a sentence of 10 years by the National Court. That was a case of planned robbery of a factory with actual violence involving just over K20,000.00. There were mitigating factors like young first offenders and a guilty plea.

As I recently observed in The State v Vincent Malara (20/02/02) N2188, here in Wewak, in nearly all of the cases to date, the Courts have expressed hope or considered either expressly or by implication that the sentences they were imposing would deter the offenders or other would be offenders from committing such offences. Unfortunately, as nearly all judgements to date on this kind of offences acknowledge, the kinds of sentences that have been imposed to date have failed to meet that objective. The effect of that is, as I said, in The State v Nickson Pari (No.2) (10/01/01) N2033, "armed robberies are on the increase." They are every day occurrences throughout the country. As of this circuit, the total number of pending armed robbery cases here on the Wewak circuit alone have not significantly dropped since the last circuit. Instead it is on the increase. I note in some of my recent judgements as in The State v Max Charles & Anor (18/10/01) N2187, that the Courts have to date failed in my view, to also increase sentences to correspond with the increase in the offences.

That is the case despite having correctly described how bad the crime is. What I am unable to comprehend easily is, how does a short term of 8 years compare to the suffering and the loss a robbery brings upon the victims specifically, or the society at large as described in the judgements such as Tau Jim Anis v The State (supra). This, in my view, does not compare easily to the pain and suffering both physically and psychologically, such frightening experiences and loss, offences like armed robbery or rape, brings upon the immediate victims and the society at large. In the long term, if nothing substantial is done to curb the increase in this kind of crimes, services provided by law abiding people might shut down and the entire community might be left to bear the effects of such criminal conduct. Logically, if all it would take is a few short years, one could afford to commit such serious crimes because offenders would know that, they would get away lightly. In my view, this is partly contributing to the increase in this kind of offences.

Parliament after having considered all things, prescribed the maximum penalty of life imprisonment. It is the Courts that have started with sentences such as 5 years per the Gimble (supra) guidelines and 6 years with 2 years suspended as in Andrew Uramani & 4 Others v The State [1996] PNGLR 287, because of the principle of no disparity of sentences between co-accused.

Again as I said in the Vincent Malara (supra) case, the Courts have in my view, been unnecessarily restricted in the proper exercise of their sentencing discretion under s 19 of the Code by principles such as no "disparity of sentence between co-accused" as is shown by Andrew Uramani & 4 Others v The State (supra) and no "quantum leap" as in the Tau Jim Anis v The State (supra) and Thomas Waim v The State (unreported judgement) SC519. Yet there is no statutory prohibition against say a judge imposing a sentence that represents a "quantum leap" or disparity of sentences. Like I said in the Vincent Malara (supra) case again, the application of such principles does not reflect the particular circumstances or the particular facts of a case. This inevitably allows for ignorance or paying lip service to the purposes of sentencing in criminal cases such as, deterrence and retribution. In my view the courts should be guided more by the purposes of criminal sentence than not.

Offenders have taken advantage of a ready application of these principles and have gone into committing an increased number of crimes more particular, serious crimes like robbery, which is evidenced by the never-ending increase in this type of offences. In so far as the offenders are concerned, the application of these principles means a shorter term of years regardless of the many calls for stiffer penalties by the community to correspond with the particular circumstances of the offences they commit.

Offenders are now becoming more organised and sophisticated, something I noted in the Vincent Malara (supra) case. In that case I found a high level of organization and sophistication. The mere number of persons (twelve (12)), involved in the planning and the execution of the robbery in that case was alone indicative of the sophistication. Added to that was the use of heavy tools like crowbars and pinch bars to breakdown doors to gain access to premises such as supermarkets. Further still, there was a display of pride in the commission of the offence demonstrated in the purchasing of a lot of beer and openly talking about the robbery. I took that to be a clear indication of the kind of contempt offenders have for the system of law and order in our country. In such cases, a much stiffer sentence is called for, for the protection of the society and to serve both as a personal and general deterrence for other persons from committing such serious offences in the future.

Further, as I have expressed elsewhere, the effect a crime such as robbery has, on the immediate victims and the community or the country as a whole should always be borne in mind by a sentencing judge. As of necessity that requires a consideration of how the people would have dealt with an offender. Under our Constitutional framework the people's judicial power is vested in the National Judicial System which is exercised by the Courts. The Courts are therefore, under an obligation to consider and determine sentences for criminal offenders as near as possible as to what the people could administer to the offenders, but within the constraints of the law.

The effect of crimes such as armed gang robbery is obvious and has very devastating effects on the victims and the community at large. The victims may be left with physical loss of the function of a part or parts of their body where actual physical harm has been occasioned. And in any case, psychological trauma and pain may be suffered over a period of time or for the rest of their lives depending upon the circumstances and the way in which they may have been treated. The community is forced to suffer in terms of lack of service and progress in their areas for fear of robbers. These acts partly discourage both local and international investors from investing in the country. That is denying the country of much needed in flow of foreign currencies and investments generally to form a solid foundation for employment of more citizens and internal income revenue base for the country.

As I said in other cases, the Sepik is well known world wide for what it can offer to the outside world. It featured well in terms of her place in the Second World War, her carvings, her other cultures and traditions and even expeditions up the Sepik River. However, after more than 27 years of Independence, the province and the country as a whole have not progressed but have gone backwards partly because of the level of such violent crimes such as armed robbery, rape and murder. Many people are reluctant to come into the province and the country with their money and skills to help develop our people and country.

The community has acknowledged the bad effects of crime on the community as a whole and the victims of such crimes generally and have repeatedly called for stiffer penalties. As I mentioned above, whilst the Courts are talking about no "quantum leaps" the level of crime has taken a quantum leap. Society is thus calling on the Courts to exercise the people's judicial power vested in them by imposing stiffer penalties on offenders.

In your case, noting your family background as you tried to point out to me in your allocutus and as put to me by your counsel and both the factors for and against you, as well as the sentencing trends and tariffs in this types of cases, I consider a sentence of 15 years appropriate.

In arriving at that decision, I distinguish my judgement in the Charles Max & Anor case (supra), mainly by reason of the fact that the amounts of cash and goods stolen were not substantial in that case. I also note that 15 years is the same I imposed in February this year in the Vincent Malara case (supra). The reason for this is simply that, in that case, the amount of money and value of goods stolen were substantial. They exceeded the amount of money and goods in this case. Also, the prisoner pleaded guilty and he had a prior conviction. In your case it was a trial with no priors and although the amounts of money involved may not be the same they are nevertheless substantial.

It was submitted on your behalf that one of your co-accused received a sentence of nine years on a guilty plea. You should therefore be given a similar sentence. I reject that submission on the basis that you are found guilty and convicted after a trial. There is also a disparity in the age of the prisoner in that case and you. There is a difference of about five years. You are older than the co-accused who received the sentence of nine years. The law permits two co-accuseds to be treated differently if factors such as those that exist here prevail. (See The State v Tony Pandua Hahuahori (No. 2) (21/02/02) N2186 at page 6 – 8 for the relevant authorities on this point).

The end result is that this Court orders you to be imprisoned for a term of 15 years less the time you have already spent in custody awaiting your trial for this matter and not any other you may be held in custody for.

Lawyers for the State: The Public Prosecutor.
Lawyers for the accused: The Public Solicitor.