State v Be'e [1990] PGNC 75; N950 (14 December 1990)

Unreported National Court Decisions

N950

PAPUA NEW GUINEA

[NATIONAL COURT OF JUSTICE]

CR943/90
THE STATE
V
MATHEW BE’E

Goroka

Brunton J
10 December 1990
14 December 1990

CRIMINAL LAW - Criminal Code s300 - murder - sentencing - shot-gun killing during armed robbery - co-accused “watchmen” sentenced to 14 years - prisoner principal offender - parity - relatively young-offender - plea of guilty.

The prisoner shot the driver of a vehicle in the course of an armed robbery. Co-accused “watchmen” were sentenced to fourteen years on a plea of guilty. The principle in Gimble -v- The State [1989] Unreported Judgement SC.369 that all active participants in a crime should be sentenced on the same basis, applied.

Sentence:

Fourteen years in hard labour, less six months in custody, to serve thirteen years and six months.

Cases Cited:

The State -v- Wallen Yamevi and Kem Dano [1990] Unreported Judgement Brunton.J

Gimble -v- the State [1989] Unreported Judgement SC.369.

Statutes Cited:

Criminal Code s300

Counsel:

Mrs. Ashton-Lewis: For the State

Mr C Inkisopo: For the prisoner

THE INDICTMENT

BRUNTON J: The prispleaded guilty to y to one count alleging the murder of Rose Bobola, contrary to Section 300 of the Criminal Code.

THE FACTS

The brief facts on which the prisoner was arraigned were that on the 15th of April he met with a group of other persons, and made a plan to hold up and steal monies from a coffee-buyer. Later that day they all went to the entrance of the Bobola Coffee Plantation. The prisoner was in a group of three who had armed themselves with a Winchester shot-gun and a home-made gun. The prisoner was armed with the Winchester shot-gun. A separate group, two of whom have already pleaded to a similar charge and have been sentenced, acted as watchmen. When a vehicle was seen to approach, the watchmen whistled a warning to the prisoners. The prisoner, and another then tried to flag the vehicle down. The vehicle did not stop; it sounded its horn and drove on. As the vehicle passed the prisoner, the Winchester shot-gun was discharged into the driver’s side of the vehicle. The shot went through the driver’s side window and hit the driver on the right side of the face and neck. She died more or less instantly.

At about 5.30pm on the 15th of April, 1990 Rose Bobola had driven Patricia Bobola to the Hospital. She then went to the Bena Vista restaurant to drop off a person called Paul. She went back to the hospital after doing some shopping, collected Patricia, and with her two children began to drive to her house at Magia Farm.

Near Kama it was getting dark, she put on her lights and as they began to climb a hill passed the Medecine Bridge, two armed men appeared from round a corner. Patricia told Rose Bobola to stop - Rose Bobola said “No way” and kept on driving. As the vehicle came level with the robbers a shot was fired and Rose Bobola was killed.

The cause of death was given as respiratory arrest from a shattered windpipe and exsanguination to death from haemorrage as a result of severed cartid arteries and internal jugular veins, caused by a shotgun wound.

SENTENCING PATTERNS AND PRINCIPLES

The principles upon which the sentences for the co-accused in this matter, were based have been discussed in my written judgement The State -v- Wallen Yamevi and Kem Dano (1990) Unreported Judgement. The co-accused, who were watchmen, on a plea of guilty, were sentenced to fourteen years imprisonment with hard labour.

The question arises in the case of Mathew Be’e whether he should receive a similar sentence - or should he receive a sentence which is higher than that imposed upon the co-accused watchmen, because it was this prisoner who actually pulled the trigger and killed Rose Bobola.

When a group of persons decide upon a venture of armed robbery, and some arm themselves with guns, and some are unarmed, but nevertheless aid, abet or counsel the robbery, they are all equally responsible at law for whatever ensues. Armed robbery is potentially a deadly activity. The participants either know, or can reasonably be expected to know, that there is a likelihood of a victim being hurt, injured, or killed. The intent is to steal, with force of arms, and to over-come any resistance with violence. All participants, even if they carry out different functions, planners, drivers, watchmen, decoys, the ones with the guns, the ones who snatch the money or valuables, lend support, encouragement, and facilitate the robbery. If they knowingly join a group with pistols and shot-guns, they cannot turn around and say “we didn’t know anyone was going to get killed”.

It is true that it was Mathew Be’e who actually pulled the trigger in this killing. But Wallen Yamevi and Kem Dano cannot benefit from that, because they were an integral part of the operation to rob Rose Bobola. Their function was to look-out. Mathew Be’e’s function was to hold the gun, and stop the vehicle. But the plan went wrong. Rose Bobola refused to stop and Mathew Be’e fired the gun.

If Mathew Be’e was to receive a sentence similar to Wallen Yamevi and Kem Dano could they feel aggrieved? Would there be a denial of justice which left them suffering from a real sense of grievance? For reasons stated, there can be no real sense of grievance. If individuals run with a pack, then they must be prepared to share the responsibilities that arise from the collective acts of their co-accused.

This is the approach that was adopted by the Supreme Court in Gimble -v- The State [1989] Unreported Judgement SC.369 page 3:-

“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”.

THE PRISONER

The prisoner is twenty years old, and unmarried. His parents are alive. He is the sixth born in a family of seven. He completed grade 10 education at Kabiufa High School in 1987. He has never had paid employment. He was taken into custody on the 18th of April 1990, but he escaped and was at large for about two months or so. Counsel agree that he has been on remand for six months. On his allocutus he expressed remorse; he has pleaded guilty.

THE SENTENCE

There is no good reason to add to the sentence of Mathew Be’e, anything more than was imposed upon the co-accused. They are all relatively young men; first offenders. The killing was foolish; a tragedy. But justice is not served by viciousness, spitefulness, overbearing, or vindictiveness. All those who embarked on this crime are equally responsible. They made the decision to rob. That is the subjective reality. The objective reality lies with an economic system that produces grade 10 graduates, but seems unable to give them, or entice them into, paid employment; that is another matter.

I sentence Mathew Be’e to fourteen years imprisonment, less the period of six months he spent on remand. He is to serve another thirteen years and six months in hard labour.

Lawyers for the State: The Public Prosecutor

Lawyers for the Prisoner: The Public Solicitor