State v Awa [2000] PGNC 45; N2012 (26 June 2000)

N2012

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]

CR NO. 905/98 - THE STATE -v- JOHN MICHAEL AWA
CR NO. 906/98 - THE STATE -v- ERIC STEVEN GITU
CR NO. 907/98 - THE STATE -v- DEGEMBA MICHAEL
CR NO. 1010/98 - THE STATE -v- JOHN MICHAEL AWA
CR NO. 1011/98 - THE STATE -v- ERIC STEVEN GITU
CR NO. 1012/98 - THE STATE -v- DEGEMBA MICHAEL
CR NO. 1031/98 - THE STATE -v- HARRY EWAG

Lae: Injia J
2000: June 19, 26

FINAL VERDICT

Counsel:
N. Miviri for the State (standing in for L. Rangan)
A. Raymond for all accused

19 June 2000

INJIA, J.: The evidence in this trial consists of all evidence presented by both parties before the voir dire and during the voir dire, as set out in the first part of my judgment herein. Both counsel adopted the evidence on the voir dire for the purpose of the substantive trial. Additional evidence adduced by the State after the voir dire are 7 written statements of the accused Michael John Awa, Degemba Michael and Eric Steven Gitu which were tendered as s.93 statements during the committal proceedings. These statements are referred to in the affidavit of the presiding Magistrate John Numapo which is also in evidence and marked Court exhibits "DD.1" - "DD.6" (State).

Before I consider the evidence as a whole for the purpose of arriving at a verdict, I wish to re-state some established principles which I believe are relevant to the case before me. The State carries the burden of proving each and every element of the charge(s) beyond reasonable doubt. There are two charges against each accused. They are aggravated robbery under S.386 and unlawfully taking control of aircraft or "plane hijacking" under S.393. Earlier in the trial, there was reference to a possible charge of unlawful use of a motor vehicle under s.383 but no such charge has been preferred against the 4 accused. Instead the State relies on the evidence of unlawful use of the subject motor vehicle in the various records of interview (ROI) as a circumstance of the two crimes.

There is only one issue in this trial which is common to both charges, and it is one of identification, there being no dispute that the two crimes were committed by a group of young men in the manner described in my findings of fact which are set out in the first part of my judgment handed down on 15 May 2000 and which appear on pages 8 - 9 herein. For purposes of completeness, I set out that part of the judgment hereunder:

I now wish to set the stage for discussion of the case against each accused. It is not disputed that on 30 January 1998, a North Coast Aviation Islander Aircraft piloted by one Shelly Damien left Lae’s Nadzab airport en route Sialum and Finschafen, to deliver pay for public servants based in the area. In the plane were provincial government finance department officers as well as other passengers. At 11am, the aircraft touched down at Sialum airstrip. The District Office vehicle for Tewae/Siassi, a government 10 seater landcruiser, drove up to the tarmac to collect the cargo. They loaded the vehicle with all the cargo and were about to leave when 5 men wearing masks and blue overall clothes wielding guns approached them and held them up. They fired shots into the air and forced the passengers to lie flat on the ground and they searched them. Aircraft passenger Colin A. Ramin (Local Government Manager) lost K487.74 in pay cheque and K550.00 in cash and other payments designated for Yabim Mape Local Government Administration. Aircraft passenger William Bogu (teacher of Dreger High School) lost K150.00. Aircraft passengers Mrs Nancy Bogu (teacher of Dreger High School) and her one year old daughter were also held up. Aircraft passenger Mathias Awagasi (Local Government Council Manager) was also held up. Aircraft passenger Robin Dama (employee of Sialum Local Government Council) was held up and threatened. The driver of the 10 seater landcruiser Peter Novenba was also held up and threatened. Ms Nancy Calistor (typist at Sialum District office) who accompanied the driver to the airport to collect the cargo was also held up and threatened. Mr. Juki Jackro (Sialum Station mini-power operator) who accompanied Ms Nancy Calistor was also held up and threatened. Mr. Kitoli Posanau (Provincial Finance Clerk) based at provincial headquarters was a passenger on the plane and he was responsible for the payroll run. He had with him a total of K24,330.92 in cash and K10,297.60 in cheques (total K34,628.52) designated for Sialum, Wasu, Kabwum and Siassi based public servants, all packed and wrapped. He was also held up and threatened. All of these were monies taken away by the suspects. Councillor Manasing Seket watched the hold up from his home next to the airport and was frightened at what he saw. All this episode took a very short time, 1 - 2 minutes.

After the suspects held them up, they forced them to lie down, fired some shots, and they drove off in the 10 seater landcruiser in a hurry with all the cargo. On the way, they crashed the landcruiser on the side of the road and were unable to get it back on the road. They then returned to the airport and held up the pilot and forced him to fly them out of Sialum, at gun point. He did as he was told.

The pilot flew the plane to Finschafen and was told to land there at the southern end of the airstrip, which he did. At 12:05pm, he touched down and took off at 12.20 pm. The suspects then got out of the plane. When he took off he saw 2 - 3 cars on the airstrip. Thinking they were police, he landed again and waited in the plane but no one approached him so he took off and headed for Sialum.

According to Ms Mary M. Dala (A/Personnel Manager of BMS Lae) police recovered and returned K16,949.02 in cash only. The balance of K17,679.50 (that is K10,297.60 in cheques and K7,381.90 in cash) were not recovered and returned.

None of these witnesses who gave evidence in Court through their certified statements, were able to identify the suspects by name and face, except to give general description of the clothes worn by the suspects and their general appearance. The issue in the main trial no doubt is one of identification. Therefore, the record of interview which the State alleges contains admissions from these 4 accused are critical to both sides in this trial.

The only evidence of identification of course comes from the admissions in the 12 ROI which were admitted into evidence. The 7 statements of the accused submitted in the District Court do not appear to contain any admissions. In addition, in respect of the accused Michael Degemba, there is also the evidence of State witnesses who recovered stolen monies near the scene of the crime and implements of crime from the house of Degemba’s relatives which to some extent was admitted in Court by this accused.

In considering the evidence before the court, whether objected to or not, the Court is required to ascertain the truth by carefully assessing the value and weight of the evidence and make findings of fact which support the charge(s). Where there is an admission by the accused, the admission must be sufficiently clear in order for the Court to accept its truth. Where an accused person’s statement contains a mixture of admissions and excuses, it is imperative that the whole statement, both the incriminating parts and the exculpatory parts, must be considered in determining the truth: R v. Sharp (Colin), 86 Cr. App. R.274; R v. Azis [1996] A.C. 41. There is a general discretion to reject the truth in an admission if its truth is called into serious questions by the exculpatory statement accompanying the admission.

In a case where the trial involves several co-accused jointly indicted and tried together, it is important to separate the evidence against each co-accused: Keko Aparo & Others v. The State SC249 (25 May, 1983). Whilst evidence of one accomplice is not evidence against another accomplice, the Court may nonetheless, after warning itself, accept such evidence if the evidence of one accomplice against another accomplice is corroborated by the accused himself by way of admissions or by evidence of some other witnesses: see The State v. Amoko Anoko [1981] PNGLR 373; of The State v. Joseph Tapa [1978] PNGLR 134.

There are a number of ROI which contain clear admissions. These are ROI No. 7 in relation to Michael John Awa (Plane Hijacking and Armed Robbery), ROI No. 8 in relation to Michael Degemba (Armed Robbery and plane hijacking), ROI No. 9 in relation to Michael Degemba (Armed Robbery and plane hijacking) and ROI No. 11 in relation to Degemba Michael (Armed robbery, Plane Hijacking and unlawful use of get-away motor vehicle). These evidence are sufficient to support a guilty verdict in respect of these two accused on both charges.

In respect of Harry Ewag in relation to ROI No. 12, except for his answers to questions 36 and 37, his admissions are quite clear and in sufficient detail to support a conviction on both charges.

In relation to ROI No. 5, and ROI No. 7 in respect of Michael John Awa, they contain clear admissions of armed robbery and plane hijacking. His admissions in these two ROI are sufficient to convict him on the two charges.

The last set of ROI remaining to be considered in ROI 1 - 4 which relates to Eric Steven Gitu. Only ROI No. 2 and ROI No. 4. They contain admissions that he was part of the group’s planning to get this vehicle to use in the robbery to transport the stolen money and later boarded the plane for the reasons given.

In a number of ROI, in particular ROI No. 1 and 3, (Eric Steven Gitu) No. 5 & 7 (Michael John Awa), No. 10 Degemba Michael) and No. 12 (Harry Ewag), there is evidence on the face of the record in various form and extent of outright or partial denial of participation in the crimes, the interviewer persisting with questions on the face of outright or partial denial, the interviewer using of statements from accomplices implicating the accused, the accused implicating other accomplices in the crimes, the accused blaming others for forcing or pressuring him to be involved in one or two of the crimes, and so on. It may be argued that the obtaining of admissions in this manner was unfair to the accused and these are sufficient to warrant the exercise of my discretion to re-consider the admissibility of these ROI and disregard the evidence in these ROI. There is support in the common law for the proposition that in a case where subsequent evidence in the trial calls into question the fairness of an admission previously admitted into evidence, whether objected to or not, there is a general discretion to disregard the admission: see R v. Stat-Bhambra, (1989) 88 Cr. App. R. 55 C.A. Watson (1980) 70 Cr. App. R. 273.

In my view however, their admissions are clear. Their denials or excuses only relate to the extent of their participation in the two crimes. Their admissions clearly are that each was a willing party in the planning of this robbery and the execution of it, but was a reluctant participant in the subsequent events in which their attempted exit from the scene in the stolen government vehicle turned into a nightmare, forcing them to return to the plane and hijacked the plane to fly them out to safety. Throughout this whole trial, they have never re-tracked the truth of those admissions. It was never also their case that their admissions were extorted by the use of the other co-accused’s evidence implicating each other. The 4 accused in this trial are accomplices - they are charged in the same incident and stood trial together. As accomplices, they chose to stand trial together and succeed or fall unisome. In the process, they have corroborated each other in their involvements, at least in the roles they each admit they each played. In arriving at this conclusion, I do warn myself of the dangers inherent in using the evidence of one accomplice against the other, but this is one of those peculiar cases where the admission by each accused stand clear and tall and I have no doubt in accepting the truth of those admissions. Although it is accepted rule of evidence that each accused’s case is judged purely on the evidence against him, there is no cause shown by each accused, severally or jointly, that they stood to suffer prejudice if the evidence of each other is used against each other.

I also conclude that even in the context of fairness, each of these accused were treated fairly in the various interviews, in that their precise answers were accurately recorded, both admissions and excuses, and even answers which implicated the police. For these reasons, in the exercise of my discretion, I accept their admissions.

Also in these areas of evidence, the evidence that they all acted in concert in committing the two crimes, without being compelled by one or more of the accomplices at gunpoint, is sufficiently corroborated by all the State witnesses’ evidence which were admitted into evidence by consent.

In summary, on the basis of the admissions made by each accused, I make the following findings of fact. In relation to Harry, he was involved in the planning of the robbery with the others from 19/1/98. He told John Awa of the time of the plane landing. On 27/1/98, he and John Awa, Eric Gitu, Degemba, Joe and Niroi took a PMV to Sialum from Finschafen. Then they waited and made further plans at Nurem beach. On 30/1/98, they went to the airport at Sialum where he explained to the others where and when the plane was going to land. He carried a bag containing the gun given by John Awa and hid the bag near the Sialum station boundary. Then he returned to Finschafen by PMV. Later, after the robbery and hijacking, the others did not give him any money when their plan failed because the police caught them.

In relation to Eric Steven Gitu, he was involved in the initial planning of the robbery of the public servant pay-load delivery by this plane by the group of 6 men. Their plan was to rob the public servants who came to collect the pay-load delivery at the airport in the 10 seater Toyota Landcruiser operated by the Sialum District Office and then use the said vehicle to drop off the money at the Masawang river. This accused was with the group when the robbery took place. After the money was seized at gunpoint, the other 5 men got into the vehicle and drove off in a hurry, leaving him behind and he ran after them and followed them. On the way, the vehicle crashed but he did not see this. The other men then returned to the airport where Eric was and he boarded the plane with the others. Upon arrival at Finschafen, he and the others distributed the stolen money amongst themselves.

In relation to Michael John Awa, he was also involved in the planning of the said robbery. On the day in question, he and four others went and hid behind on the side of the airstrip waiting for the plane carrying the pay-load to land. He himself was armed with a knife and wore an orange overall and a mask. When the plane landed, they went over and held up passengers. He used the knife to hold them up. One Joe took the money from the passengers, boarded the vehicle with the others and drove away with Joe driving. The vehicle crashed on the way and they returned to the airstrip. They got the pilot to fly them to Finschafen. At Finschafen, they distributed the money amongst themselves.

In relation to Degemba Michael, he was also involved in the planning of the robbery, in the execution of the robbery and the subsequent hijacking of the plane. Joe seized the car and Reroy seized the money bag. Joe then drove the vehicle and they left but he was left behind. So he ran after the vehicle. He saw the vehicle after it had overturned. He returned to the plane with the others and flew out.

Each accused denies that each one was armed with a shotgun and that they forced the pilot at gunpoint to fly them to Finschafen. Only Eric said Michael John Awa forced him at the point of a pump action shotgun to board the plane. Harry does however say that he took a gun bag given by Michael John Awa to Sialum to prepare for the robbery. But the uncontested evidence of State witnesses say gunshots were fired during the robbery. The pilot, Shelly Damien further says the men used force to order him to fly them to Finschafen. The pilot says, there were "two men directly behind me (on the plane) had shotgun. I was told if I co-operated, I wouldn’t be harmed". On the basis of these overwhelming State evidence which to some extent is supported by Harry’s admissions, I find that the men in the group were armed with two shotguns which they used on the victims and the pilot. But on the evidence, disregarding the evidence of accomplices, I cannot tell who exactly held the gun. In the circumstances, I give the benefit of the doubt to find that Joe and Riroy, two members of the group who are not here in Court today, were armed with the two shotguns but because these accused were part of the same group, these accused are also equally responsible.

The four accused also say in their ROI that they kindly asked the pilot to fly them to Finschafen. But I do not accept this evidence. I accept the uncontested evidence of the pilot to the contrary.

Based on these findings, I am satisfied beyond reasonable doubt that these four accused severally and jointly committed the crimes of armed robbery and plane hijacking. In convict each one of them as charged.

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SENTENCE

26th June 2000

INJIA, J.: On 19 June 2000, I convicted the four accused on two charges of aggravated robbery and aircraft hijacking under s.386 and s.393 of the Criminal Code respectively. The facts of the case and the role played by each accused are set out in my judgment dated 19 June 2000.

All accused are aged in their early 20’s. Except for Michael John Awa, the three other accused are first offenders. John Awa was serving a 15 year sentence for aggravated robbery when he escaped, was on the run from the law, and committed these present offences. They all come from stable family and Christian Church backgrounds. They are of prior good character and have had some formal education. They all co-operated with the police in admitting the offence and the part they each played. I take all these factors into account in their favour. As for John Awa, he has some formal education, is a Christian and he co-operated with police. These factors will be taken into account in his favour. No credit will be given to all the accused for what they say is police assaults which forced their confessions, because I found in the trial that no such assaults took place.

In sentencing each accused, I take into account the role each accused played, as I found against each accused. I accept their assertion that none of these accused were the ring leaders whereas Joe and Riroy, two suspects who are not here played a leading role in the two crimes. None of these men were armed with the two shotguns used in the robbery. None of the victims were physically hurt. Of the K34,628.52 in cash stolen, K16,949.02 was recovered by police. There is also no evidence that the stolen motor vehicle when it crashed was damaged beyond repair. Also the aircraft’s navigational and mechanical parts were not interfered with or damaged. In relation to the two offences, a distinction has to be made here that the initial planning of the robbery involved the search and seizure of the passengers of the plane and pay-load and the motor of vehicle. The hijacking of the aircraft was not part of this plan and its initial execution. The aircraft was hijacked only when their get-away motor vehicle crashed. These circumstances help reduce the seriousness of the two crimes.

Both crimes are treated seriously by the legislature. A maximum punishment of life imprisonment is prescribed for these offences with aggravating features, which are common for both offences, that is the offence was committed by a group of men with the use of dangerous weapons such as shotguns and actual violence was used.

The crime of aggravated robbery is a prevalent offence in this country. It is the subject of sentencing guidelines and tariff set down by the Supreme Court in Gimble v. The State [1988-89] PNGLR 272 - a sentence of 5 years is suggested for a simple armed robbery of a motor vehicle with money and where additional aggravating features exist, a higher sentence is suggested in an uncontested case. Since Gimble’s case, the Supreme Court has warned of an increase of sentence: Don Halle v. The State SC564 [1998]. The additional factors present in this case is that the robbery was carefully planned for a number of days, large amount of was money stolen and many passengers in the motor vehicle and the plane were searched and moneys taken. These factors require a higher sentence to punish the offenders and also to serve as a deterrent for other future offenders.

The crime of aircraft hijacking is not so common in this country. On record, there appears to be only one other aircraft hijacking case in Goroka where an MBA aircraft carrying a money load was hijacked and monies stolen in a similar robbery. The accused pleaded guilty and he was sentenced to 6 years imprisonment: see State v. Michael Kompie N1471 (Sawong J. 11/9/96).

The use of any aircraft, in particular, fixed wing small aircraft, is a common mode of transporting passengers and valuable cargo in this vastly remote country comprising of mountainous terrains which are not accessible by road, and many islands. The aircraft, unlike other mode of transportation, has inherent security and safety risks. The aircraft and its crew expects no interference in the security and safety of its operations. Already, the most common mode of transportation in this country, land transport, is increasingly coming under threat from gun-wielding bandits. It would be indeed a sad day in this country, if the airspace was littered with gun-wielding young criminals, such as these men. The second-time commission of this offence in the history of this country, as evidence before the Court, is the beginning of a new and dangerous trend. And the offence must be equally met with a strong punitive, and in particular a strong deterrent sentence.

In all the circumstances, I sentence Eric Steven Gitu, Degemba Michael and Harry Ewag to 6 years imprisonment IHL for armed robbery. I also sentence them to 10 years for aircraft hijacking. Both sentences are to be served concurrently. I see no basis for differentiating these accused on sentence. The period of 2 years 4 months 27 days in custody will be deducted from the sentences of Eric Steven Gitu, Degemba Michael and Harry Ewag. As for Michael John Awa, there is reason to differentiate him from the other 3 accused. He is sentenced to 7 years for armed robbery and 12 years for hijacking. Both sentences are to be served concurrently but the present sentence is to be cumulative upon any other previous sentences he is serving. The period Michael John Awa spent in custody would be credited to his present sentence for armed robbery he is serving so it will not be deducted. Separate Warrants of Commitment will be issued forthwith.
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Lawyer for the State : Public Prosecutor
Lawyer for the Accused : Public Solicitor