State v Ondari [1990] PGNC 8; N867 (26 February 1990)

Unreported National Court Decisions

N867

PAPUA NEW GUINEA

[NATIONAL COURT OF JUSTICE]
THE STATE
V
SMITH JAMES ONDARI

Popondetta

Jalina AJ
19 February 1990
26 February 1990

CRIMINAL LAW - Criminal Code s 386(2) - Robbery with treats of actual violence and in company - Amount stolen small - One of the Robbers killed after robbery - Prisoner received broken arm - People taking law into their own hands. Deduction of period of sentence for punishment inflicted upon prisoner - First offender - Plea of guilty.

Case Cited:

The following case is cited in the judgment.

William Ukukul Gimble v The State SC 369.

Counsel:

S Soi with him J Kesan, for the State.

B Takin, for the Prisoner.

26 February 1990

JALINA AJ: You are charn indictment tent that on 2 December 1989 at Gewoto village with threats of actual violence stole from Gladstone Damura the sum of K68.00 and you were at that time armed with a dangerous weapon namely a double-barrel shotgun and you were in company of others. You have pleaded guilty to the charge. The fact of this case are that on the 2 December 1989 two others and yourself planned to rob the Gewoto Cocoa fermentery. You armed yourself with a double barrel shotgun whilst your two accomplices were armed with a single barrel shotgun and a double-bladed grassknife respectively. You were also masked. You then proceeded to Gewoto village which is a different village to your own and whilst the victim Gladstone Damura was buying cocoa from customers you came out of the bushes, pointed the gun at the victim shouting “Your money or your life”, grabbed the bag containing the money and ran into the bushes. You were then chased by the village people and caught. One ran away. One was killed by the village people at Gewoto and you, Smith James Ondari suffered a broken arm. You were in other words given “jungle justice” if those are the appropriate words to describe what happened to you and your accomplices. The people recovered K30.83 of the money you stole. You spent six (6) weeks in hospital for your broken arm.

On allocutus you said that the trouble you did is true. But then as soon as you were caught you were given another punishment by hitting you with an axe. This was done by the village people. They broke your left arm and killed your partner at the same time. He is now dead and for which you an not happy. Because of that you said that you were not prepared to get another punishment again and that you spent six (6) weeks nursing your broken arm.

In his submission on mitigation of sentence your lawyer has asked me to take into account in your favour the fact that the offence was committed in day time as opposed to committing it at night and that you did not actually use that weapon by firing it. You did not harm anyone. You just snatched the money bag off the victim and that most of this money has been recovered. Your lawyer has further submitted that you have already been punished twice. That is through the village people breaking your arm and the present sixteen (16) months for the three offences relating to the firearms. You have two children and have not been in trouble with the law before apart from the firearms conviction which is partially related to this offence.

But let me point out to you before proceeding further that unlike the offence of burglary where the punishment is lower if it is committed during the day and higher if it is committed during the night, no such distinction is made in respect of robbery under s 386 of the Code. In that section the penalty is lower if the robbery is without any of the aggravating features specified in subsection (2) and higher if any one or more of the aggravating features specified in subsection (2) are present. The fact that it was not committed during the night is irrelevant for the purpose of determining punishment. As long as one or more of the aggravating features specified in subsection (2) are present the punishment is, subject to s 19, imprisonment for life.

As I have said to a number of prisoners who have appeared before me for robbery, the offence of robbery has increased at an alarming rate all over Papua New Guinea in the last two years and people are living in fear of their lives. It is not safe to go shopping or drive your car to a quiet spot to rest because of the fear of being robbed and also being killed in the process. Except for the last month or so when police stepped up their operations, armed robberies were a common occurrence in the town of Popondetta and Oro Province generally. This cannot be allowed to go on and unless something is done quickly to curb this, our once peaceful country of Papua New Guinea will come under mob rule.

The Supreme Court has set sentencing guidelines in William Ukukul Gimble’s case for various categories of robberies. As you robbed a cocoa fermentery when people were buying and selling cocoa, your case falls under category 3. This is an uncontested case and as such a period of less than five (5) years would be appropriate. The fact that the amount was small has no real consequence in my view because it was by mere coincidence that the amount was small. You could have stolen a larger amount had the bag contained a larger sum.

Taking all the above factors into account, I sentence you to imprisonment with hard labour for 4 years. Since you have been punished through what might be termed as “jungle justice” and following the case of Lilyri Palisa & 4 ors, an unpublished decision of Los J in Lae in November 1989 where his Honour deducted 18 months for jungle justice given to the robbers by policemen in addition to degrading treatment, I deduct one (1) year from the sentence you have received. You will have to serve another three (3) years imprisonment in hard labour and this shall be served concurrently with your sentences relating to the firearms.

As the offence has been proved through your plea of guilty, the double barrel shotgun as well as the single barrel shotgun is forfeited to the State pursuant to s 73(1) of the Firearms Act (Ch No 310).

Finally, I note with concern that the person who killed one of the robbers has not been brought before the courts. I do not know why the police have not arrested and charged him. Whilst a citizen’s arrest must be encouraged where possible, people must be made to realize that they are not allowed to take the law into their own hands. The courts are there to deal with offenders and impose the appropriate punishment but not citizens imposing the punishment they consider as appropriate. If the person or persons responsible for the death of one of the robbers is not brought to justice, people will think that it is alright to kill in similar circumstances. It is not alright to take the law into your hands.

Lawyer for the State: Public Prosecutor.

Lawyer for the Prisoner: Public Solicitor.