State v Leslie [1996] PGNC 40; N1552 (7 October 1996)

Unreported National Court Decisions

N1552

PAPUA NEW GUINEA

[NATIONAL COURT OF JUSTICE]

CR 1355 OF 1996
THE STATE
v
JOE FOE LESLIE LESLIE

Waigani

Passingan AJ
18-20 September 1996
23 September 1996
26 September 1996
2 October 1996
7 October 1996

CRIMINAL LAW - Essential facts not in dispute - charges - Robbery - Rape - Admission in Record of interview - Whether corroboration necessary.

SENTENCES - Robbery and series of rapes - Single incident - totality of sentences principle.

PRISONER SERVING LIFE SENTENCE - Concurrent sentence - Only alternative.

Cases Cited:

The following cases were cited in the judgment:

R v Kom [1967-1968] PNGLR 265

R v Wendo [1963] PNGLR 217

The State v Goi Mubin [1990] PNGLR 99

R v Ginitu Ileadi & Others [1967-68] PNGLR 496

R v Mon & Debon [1965-1966] PNGLR 42

R v Namiropa Koinbondi [1969-70] PNGLR 194

McKay v The King (1935)

Trial on Indictment

Joe Foe Leslie Leslie was charged under an indictment containing seven counts:

Count 1: &##60;& T60; onathe 1tth dath day of February, 1993 at Porebada Road in Papua New Guinea unlawfully used a motor vehicle namely, ata Hioublen Regtion D 605 without the consent of one Momoru Oda who waso was the the ownerowner and& and #160; in l possession of itof it (S 383(1)(a) Criminal Code).

Count 2: Tnat o 1the dathof F bruarbruary, 1993 at Porebada in Papua New Guinea stole from one Momoru Oda and others wers with actual violence a sum of One thousand four hundred and ninety-fiva (K100) ih, and assorted items valuevalued at d at TwentTwenty-three thousand eight hundred and seventy one kina and twenty-three toea the property of Momoru Oda and others. And at the timresaid he wahe was armed with a dangerous weapon namely a pump-action shotgun and was in company of other persons (s 386 Criminal Code).

Count 3: &ـ < T60; That on the 19th f Feof February, 1993 at the Porebada Road in Papua New Guinea committed rape upon one Igo Isaiah (s 347 Criminal Code).

Count 4: ҈&ـ That Tn the 19th day of Feof February 1993 at93 at the the Porebada Road in Papua New Guinea committed rape upon one Kari Lohia 7 Cri Code).

Count 5: &##160;; < T60; That on the 19te 1ayh dayh day of February, 1993 at Porebada Road in Papua New Guinea committed rape upon one Kevau Isaiah. (s 347 Criminal Code)

C

Count 6: &##160;;& 60athehathe 19th 19th day of Feof Februarbruary, 1993 at Porebada Road in Papua New Guinea attempted to committed rape upon one Geua Kila Sagap (s riminde).

Count 7: &##10;& T60; That That on the 19th day of February 1993 at Porebada Road in Papua New Guinea attempted to commit rape upon one Raka Duaha. ion 347 of the Criminal Coal Code Act).

Counsel:

P Kaluwin for the State

D Sakumai and J Waiwai for the accused

JUDGMENT

7 October 1996

PASSINGAN AJ: Upon arraignment the accused pleaded not guilty to all seven counts.

The facts are not in dispute. Botnsel submit that these hese are the agreed facts in this case:

(a) &#16metime between 5.00 pm60 pm6.00 pm on the 19th of February, 1993 Momoru Oda and nine others were travelling home to Poto Porebada village in a Toyota Hilux Doubbin whey weld uabout seven to eight men alon along theg the Leal Lealea/Poea/Porebada Road.

(b) &##160;; The mene men were were armed with a shotgun, bushknives and screwdrivers. They took control o vehiclehicle and drove it with the passengers on boarthe dion of Port Moresby. Before reachingououkou Vilu Vill Village they turned left onto a dirt road.

(c) &##160; At tp otothe ile hile hills the following incidents took place:

(i) &##160; a60; all the nasse, ersd eand es wedered to remove their clothes;

(ii) ҈ ea0; eac; eac; each pash passenger was blind folded;

(iii);ټ&#the passengers were tied up, hands and legs;legs;

(i

(iv) ; fivale passengssengers wers were raped;

(v) & ptiperties including cash cash were stolen; and

(vi) the seven to eight men wetn wet posly idied as they were mas/p>

EVIDENCE

The main evidence in the State tate case case consiconsisted sted of alleged admissions in a Record of view cted the accused used on thon the 6the 6th of February, 1995. That Recordnterview was thas the subject of a vior dire. On the 23rd of Seer, 1996 1996 I ruled that the record of interview was fairly obtained and properly recorded. Aat it was admissiven t un t unsigned: 160; R v Kom [1967-68]
N0; PNGLR 265; R Wendo [1963] PNGLR 217; The Stat State v Goi Mubin [1990] PNGLR 99; R v Le50) [1950] HCA 25; 82 CLR 133; R v Jeffries (1946) 47 SR (NW).

Stat>Statements of Momoru Oda, Heagi Isaiah, Ricky Vagi, Peter Momoru, Igo Heagi and Dr Lahui Geita (Exhibits “B”-”G”) were tendered by consent.

THE ISSUES

The first issue is that of what weight to be given to the record of interview. I am aware that the aion oion of the record of interview is not the end of the matter. There is still the question of what weight to attach to it. ontents of the dot should ould be examined. In my view the accuully unly unly understood the allegations and truthfully answered the questions. nd the questione were not inot in the nature of cross-examinationation, that is suggesting the required answers. In fact throughout the iiew the accused was invited to respond to the allegations and to answer to shorter questionstions.

The next matter for considen is the circumstances under which the accused was apprehended or arrested. He was apas appreheon the 1the 17th of November, 1994 over other offences. He was stody at the Bomanaomana Corrective Institution when he was picked up on the 6th of Februar95 for the interview. I am satisfied the Police lice lice were merely carrying out their obligations. All questions were fairly put and there is no evidence of any threat or any attempt to extort an admission: R v Ginitu Ileanmp; Othersthers [1967-68] P496, 497. On the evidence before me there was no force or threats by Senior Constabletable Timothy Sare and Constable Togey Bou

The second issue is that of corroboration. Whethehether there is evid evidence to confirm or corroborate the truth of the contents of the record of interview. its “B-G” corr corroborate the contents of the record of interview. But iview corroion is not not nnot necessary because the parties here have already agreed on the facts. They agreed that there wase was bery and in the course of the robbery five female passengers were raped by about seven to e to eight men.

The main point in thence case is that this is not the correct record of interviterview. The accused says in the correct record of interview he had denied involvement in the crimes. Defence submits that Constable Togey Bou supports the accuseds’ denials. Thiness ident the record oord of interview. ve no e no evidence of anof another record of interview which contained the denials.I amrefore, satisfiedsfied that this is the only record of interview which contained the admissdmissions. I accept the contents of that document as the truth and give weight to it. I find that the adons are are true (satisfaction beyond reasonable doubt).I have heard the evidence of the accused. I have also given similarhweight to hypothypotheses more or less reasonably consisteth the confession or admissdmission being untrue: R v Mon and Debon [1965-1966] PNGLR 42.

A court will convict on an uncorrobo confession only after the the closest scrutiny and testing of the confession, if any supplying hypotheses by which the making of the confession may be explained more or less reasonably consistent with innocence: R v Namiropa Koinbondi [1969-1970] PNGLR 194; McKay v The King (1935) CLR 11, 9.

On all of the evidence and the circumstances of this case I am satisfied beyond reasonable doubt that the accused was a party to each of the seven counts on the indictment before me. Accordingly, I enter a verdict of guilty on each count.

VERDICT

Count 1 G &#1 2;d ; G60lty

Count 3&#163 #160; ;d y

Count 5 ; n Gu0; Gu0; Guilty

Coup>Count 6&nt 6 & < Guilty

C0;&##160;;&60;;ټ&##160;ty

R>REASONEASONS FORS FOR SENT SENTENCE

Joe Foe Leslie Leslieeslie you you have been convicted of at least six very ss cri one of armed robbery, fou, four cour counts onts of rape and one count of attempted rape.

The facts and circumstances have been set out in my judgment delivered on the 2nd of October, 1996.

In mitigation your lawyer submits that for the purposes of sentence count one (unlawful use of motor vehicle) and count two in category one. Counts three to count sen n in category two (rape and attempted rape). I do agree with submissionssion. Normally the sng of a moto motor vehicle is always a part of a robbearge. In ew it is not necessary sary to make it a sepa separate count. Tpe charges will be considonsidered together.

Itubmitn your behalf thaf that you are aged 30, educated up to Grade 6 at the Baruni Community Schy School, Port Moresby and that you were omployed in 1977-1978 as a ls a linesman with the Papua new guinea Electricity Commission. In your allocutus you maintained your innocence and have shown no remorse.

Robbery and rape are very serious crimes which attract the maximum penalty of life imprisonment. Both crimes are alry prevaprevalent throughout this country. The innocent citizen no lono longer safe to travel and go anywhere they wish to attend to their daily needs.

This incident took place between your village of Baruni and yourhbouring villages of Porebada, Boera and Lealea and so on.& on. You and your friends did this to your neighbours who pass your village daily to work and do business.

The aggravating factors in your case are as follows:

(a) &&#160s was a planned robberobbery. In your recf d of intervieerview (Q 20) you and your friends planned to rob people from Poreand L becaou needed money;

(b) ҈& you weru were arme arme armed witd with a sh a shotgun, bushknives and screwdrivers;

(c) the passengers were threatened and treated with disrespect that is:

(i) ـ҈ y60; you ordu ordered the adult males and females to remove their clothes;

(ii) ټ blindfoindfolded each of them;

ـ tied up, hand land legs; ags; and

(iv) itted rape uponfthe five feve female paers;

(d); ҈ the value of propeptiesrtiesrties stolen was about K7,108.99;

(

(e)&#1e) the mentaect sed byfive female passengersngers as a result of being sexually violated by strangers; and

(f)&>(f) #1660; th0; that you hav priovicni nines forer in 1991 and six six monthmonths fors for esca escape inpe in 1992.

The guidelines for sentences for rape and armed robberyset o the me Court in Kalabus v The State [1988] PNGLRPNGLR 193, 193, Auka Auka v The State [1987] PNGLR 267 and Gimble v The v State [1989] PNGLR 271.

In all the circumstances of this case I consider the following sentences appropriate on each count:

align="tgn="top">

Count One	Sentence	Six months IHL
Count Two	Sentence	Seven years IHL	(Count one concurrent on Count two)
Count Three	Sentence	Eight years IHL
Count Four	Sentence	Eight years IHL	<160; >
Count Five	Sentence	Eight years IHL
Count Six	Sentence	Four years IHL
Count Seven	Sentence	Eight years IHL

Having calculated what I consider to be appropriate sentences I come to the question of totality of sentences principle: Acting Public Prosecutor v Konis Haha [1981] PNGLR 205; Acting Public Prosecutor v Sidney Kerua [1985] PNGLR 85; Mase and Another v The State [1991] PNGLR 88. In Mase’s case at p 91 the Supreme Court re-affirme principle:

“8220;This Court has already dealt with this principle in previous cases: ting Public Prosecutornis rnis Haha [1981] PNGLR 205, the joint judgment of Kidu CJ, ACJ, Andrew J and Pratt J contains the following at 214:

‘We cer that the inherent gravity of the offence of rape on one one hand and armed robbery on the other and their separate nature, albeit committed within a short space of time, should lead to separate and consecutive sentences. Nevertheless we think that this Court must consider the total or aggregate sentence and decide whether it is just and appropriate.

The effect of the torinciple is to require a sentencer who has passed a series of sentences, each properly calc calculated in relation to the offence for which it is imposed and each properly made consecutive in accordance with the principles governing consecutive sentences, to review the aggregate sentence and consider whether the aggregate is ‘just and appropriate...’

The principle applies to all situations in which an offender may become subject to more than one sentence; where sentences are passed on different counts in an indictment, where the offender is subject to a suspended sentence or probation order, where he is already serving a sentence of imprisonment or makes appearances in different courts within a short space of time. In all such cases &#821 fihe final duty of the sentencer is to make sure that the totality of the consecutive sentences is not excessive...’&#822>

In the result I think the appropriate orders are:

1. That the six mosentence ince in count one to be served concurrently with the seven years imprisonment in hard labour imposed in count two.

2. &ـ҈ the fears sonment ient in harn hard labd labour sour sentenentence ince in count six to be served concurrently with the eight years imposed in s three, four, five and seven.

3. ـ T6e sentences nces nces are to be served consecutively. The prisoner is to a tota total of 15 years imprisonment in hard labour.

4. You areerve term years crncurrentrrently wily with your present sentence or sentences.

Lawyer for the State: Pte: Public Prosecutor

Lawyer for the accused: Public Solicitor