State v Kanga [2005] PGNC 169; N2953 (26 September 2005)

N2953

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]

CR NO. 973 of 2004

THE STATE

-V-

DOMINIC KANGA

WEWAK: KANDAKASI, J.
2005: 20th, 21st, 22nd and 26th September

CRIMINAL LAW — Verdict – Identification and alibi only issues for trial – Accused failing to call witness to confirm claim of alibi –Effect of – Identification evidence circumstantial but supported by accused confessional statement – Confessional statement not challenged in the proper way – Effect of – Evidence identifying accused credible and good – No possible error in identification of accused as offender – Guilty verdict returned.

CRIMINAL LAW – Sentence – Worse case of - Break, enter and stealing – Break, enter of and stealing from a defence force armory – Offence facilitated staging of mutiny by soldiers – Arms and ammunition stole not recovered – Offence attack on security of the nation which is akin to breaking into a dwelling house – Conviction after a trial – Maximum prescribed sentence of 14 years imposed.

Cases cited:
John Jaminan v. The State (No.2) [1983] PNGLR 318.
The State v. Marety Ame Gaidi (01/08/02) N2256.
Jimmy Ono v. The State (04/10/02) SC698.
Masolyau Piakali v. The State (13/12/04) SC771.
The State v Luke Sitban (No 1) (07/06/04) N2572.
The State v. Raphael Kimba Aki (26/01/01) N2039.
The State v Jonah Yohang Monalen (23/09/04) N2677.
The State v. Ian Bob Wali (11/06/04) N2580.

The State v. Michael Kamban Mani (21/05/02) N2246.
The State v. Ben Wafia & Ors. (No 2) (05/03/04) N2547.
Peter Naibiri and Kutoi Soti Apia v. The State (25/10/78) SC137.
Ure Hane v. The State [1984] PNGLR 105.
Joe Foe Leslie Leslie v. The State (07/08/98) SC560.

Counsel:

Mr. A. Kupmain for the State.
Mr. J. Mesa for the Prisoner.

22nd September 2005

KANDAKASI J: On Thursday last week I delivered a brief decision finding you guilty on the charge of break, enter and stealing from a warehouse contrary to s. 398 (a) (i) of the Criminal Code. At that time, I said I would provide a full written judgment with the details of my reasons for decision. This is the full text of my reasons for decision.

At the outset of the trial, parties clearly agreed that the only issues for trial were, identification of you as one of the offenders and your claim of an alibi. In view of this, you correctly did not seriously contest the occurrence of the offence, namely, the breaking into the armoury of the PNGDF at Moem Barrack and stealing from there arms and ammunition being the property of the Papua New Guinea Defence Force (PNGDF) and therefore the State, on 9th March 2002.

State’s Evidence

In relation to the issues for trial, the State called two witnesses and admitted into evidence, with your consent the following documents:

1. Statement of Captain Peter Ikau dated 20th January 2004 – Exhibit "A";
2. Statement Helen Killie dated 10th July 2002 – Exhibit "C";
3. Your record of Interview with Police pidgin version – Exhibit "D1"; and
4. Your record of Interview with Police English version – Exhibit "D2";
   

First Witness – Captain Peter Ikau

The first witness called by the State was a Captain Peter Ikau of the PNGDF. This witness originally comes from Moem Village just outside the PNGDF’s Moem Barracks here in Wewak. He recalls being in his village on 8th March 2002, whilst on leave. The following day around 2 to 3:00am, his elder brother, who owns a club just next to the Moem Barracks went and woke the witness up, informing him as he did that something serious was happening at the Moem Barracks. By then the witness heard sounds of gun and saw flares and orange/yellowish light up in the air within the vicinity of the Moem Barracks.

The witness’ brother feared for the safety of his club and asked the witness to speak to the soldiers. Therefore, the witness and his brother got to the Mango clubhouse and tried to get information about what was happening at the Barracks. They kept a look out for anyone coming out of the Barracks until about 6:00am. At about that time, the witness saw three people, two soldiers and a civilian coming out of the cemetery area heading for the town direction. The witness knew the soldiers well as they served previously under his command. He was able to see the civilian that looked familiar and that the witness could recognize the civilian’s face but did not know his name.

The witness tried to greet the soldiers and tried to get information about what was happening in the Barracks. However, the soldiers did not see him in the face. They just looked down. Therefore, the witness figured it out that there was something wrong. The witness then turned to the civilian, who was by then approaching the witness’ elder brother. The civilian said, he got to the Barracks the night before and stayed there until shocked by what happened, got scared and was trying to escape the Barracks.

Sometime later, the late Benedict Mambu, councillor of Nuigo, informed him at the time of the soldiers mutiny at the Moem Barracks that, a Dominic Kanga, who works at the Motorist Discount admitted to cutting the lock to the PNGDF armoury at the Moem Barracks. The councillor passed on this information to the witness on the witness undertaking not to reveal the councillor’s name. The witness said he passed on this information to the Criminal Investigations Division (CID) office here in Wewak. The police acted on that information, obtained a warrant and arrested you.

When in Court, he clearly identified you as Dominic Kanga, as the person he saw on 9th March 2002, coming out of the Moem Barracks through the cemetery area and the one arrested by police on his information.

Through this witness, the State admitted into evidence a statement on the incident signed by the witness on 20th January 2004 as exhibit "A". That statement is in terms similar to his oral testimony. It adds however, that the witness’ elder brother spoke to you on the early morning of 9th March 2002 and you told him that you had been drinking and sleeping in one of the soldier’s rooms.

Second State Witness – Peter Tupaia

The next witness for the State was Peter Tupaia. He is a policeman, here in Wewak, presently attached to the CID section. He was the policeman that took you into the police station for question in relation to the incident at Moem Barracks in the early hours of 9th March 2002. He testified that, you told him your version of events of the incident, which he recorded and you subsequently signed it. He stated that, before you did that, he warned you that, everything you say would be recorded in writing and later used in evidence in a Court of law against you. He further stated that, you gave your statement freely. There were no threats, inducement or anything like that to persuade you to give your statement.

You gave no notice of objecting to the admission into evidence the statement you gave and signed before this witness. Hence, when the State sought to admit the statement into evidence, you did not firmly object to its admission. You did object to it merely as a matter of formality and did not state any particular ground or reason for your objection. Hence, the Court admitted into evidence your confessional statement as exhibit "B".

Your confessional statement gives details of what you did on the day and night before the early hours of 9th March 2002. You stated in your statement that some soldiers from the Moem Barracks picked you up after work and took you to the Moem Barracks. There you drank beer with the soldiers until some soldiers took you to a building where there were more soldiers. Once reaching that place, the soldiers put you under gunpoint and got you to cut the lock to the building using an oxy until you were almost complete and a soldier took over from you. Soon thereafter, there were some disturbance and so you ran away from the scene to your cousin brother’s house at the Barracks. You continued to drink beer there until daybreak.

Your cousin brother tried to take you out of the Barracks in his vehicle without luck as renegade soldiers took over the Barracks and they allowed no one to go out. This caused your cousin brother to drop you off at a short cut that leads to the cemetery for you to get out of the Barracks. From there, you went on foot out of the Barracks onto the Mango Club and onto the main road leading to Wewak. You walked about 100 meters away from the Mango Club when a vehicle came by and you got on and went into town.

You say you did not know what happened later at the Barracks after you left. You eventually learned however, that the PNGDF armoury was broken into and a number of arms and ammunition were taken out by the soldiers. You said you did not get any arm or ammunition. A week later when you went back to the Mango Club with the late councillor Benedict Mambu, you met a soldier from the Highlands and he said he would give you a gun as your commission. After that, you and the councillor returned to Wewak town.

Your Evidence

Your evidence is that, after you finished work, you went home, had your dinner and went to sleep, on 8th March 2005 and woke up the next day. Before you went off to sleep you said, you went over and saw your uncle a James Jangie. After spending sometime with him, you returned and went to sleep. You were not specific in relation to time estimates for getting to your house, meeting up with your uncle and how long for.

You indicated at pre-trial that you would call your uncle to give evidence to support your claim of alibi. However, when the time came for you to call him, your uncle was not available to come and testify in your defence. You therefore closed your case. Hence, you are without any evidence supporting your claim of alibi.

Assessment of the Evidence and Findings of Fact

Having regard to the issues for trial and position parties have taken at the commencement of the proceedings, I find beyond any reasonable doubt that there was a break, enter and stealing from the armoury at the Moem Barracks arms and ammunition, being the property of the PNGDF and therefore the State on 9th March 2002.

What I now need to find is whether you were the person that committed that offence or were you at your house as you claim in your notice of alibi. In order to make such a finding, I need to closely assess the evidence now before me. As the State always has the burden to establish a prima facie case against you before you could be called upon to answer, I will start that exercise with the evidence called for the State.

You did not seriously question the credibility and reliability of the State’s witnesses’ and their testimonies. The first witness said he knew you long before the mutinous situation at the Moem Barracks. He said you were a familiar face in Wewak but he did not know your name. On the day of the offence, he said he clearly saw you as it was already day break and he could clearly see you with two soldiers coming out of the cemetery area, heading for town. He and his brother stopped and talked to you and the two soldiers in a bid to get information about what was happening at the Barracks.

The second State witness obtained your statement, wrote it down and you signed it. That statement is in evidence as your confessional statement. You did not object to its admission in the usual way, as you did not give notice of any objection and the basis for your objection. You tried to object to its admission during the trial without specifying any basis or ground for it. I therefore allowed the admission into evidence a copy of the statement.

Your confessional statement corroborates the testimony of the first State witness. Indeed, your statement gives much detail and information about all of your activities on the day and night leading up to the time of the commission of the offence and a week after that. If indeed you were under threat or force or inducement, I cannot see how you could have gone into such detail and length. Further, in your statement you sought to exonerate yourself from the commission of the offence.

The totality of the State’s evidence then is that, you were engaged by the mutineers at the Moem Barracks of the PNGDF here in Wewak and you acted in association with them on the night of 8th leading to the early hours of 9th March 2002. Your duty was to help them to cut the lock to the armoury to enable the soldiers to steal from there arms and ammunition for their unlawful purpose. Your consideration was a gun, something a soldier confirmed when you went with councillor Benedict Mambu to the Mango Club a week after the commission of the offence. After the commission of the offence, you tried to escape through the cemetery area but was identified by Captain Ikau, and that led to your arrest and eventually the charge against you.

You tried to rebut this prima facie case against you by raising an alibi and going into evidence in your behalf. You claimed that after you finished work, you went home, had your dinner and then went off to sleep after seeing your uncle. You were very evasive in relation the time when you got home, when you went to sleep and all of that. Similarly, you were also very evasive in relation to where your uncle lives, whether in the same house, same bedroom, same area or where. Further, if indeed you were elsewhere and not committing the offence, you could have readily informed the police of that, when you were interviewed during your record of interview but you did not. Whilst it is your right as an accused person to remain silent, the failure to bring out any alibi or any other defence as early as possible has the risk of losing its credibility if they are raised much later in time. The Supreme Court made that clear in John Jaminan v. The State (No.2).[1] Besides, your uncle did not come to testify in your defence. Hence, your claim of alibi remains uncorroborated.

Going by your demeanour in the witness box, your evasiveness and the lack of any corroboration of any part of your evidence, I do not find you to be a credible witness. Instead, I find you to be an unreliable and untruthful witness. I therefore reject your testimony. Consequentially, I am left with the clear case the State established against you through the testimonies and other evidence the State produced against you.

That does not mean that I should automatically return a verdict of guilty against you. Since the issue for trial was one of identification, the law requires me to exercise more care and attention before arriving at a decision on your guilt or innocence.

In The State v. Marety Ame Gaidi,[2] I summarized the relevant principles governing the treatment of identification evidence in his way:

"1. It has been long recognized that, there are dangers inherent in eye-witness identification evidence;

2. A trial judge should warn the jury in the case of a jury trial system or himself as in our case, of the special need for caution before convicting in reliance on the correctness of the identification because for example:

(a) a convincing witness may be mistaken; or

(b) a number of witnesses could be mistaken;

3. Provided such a warning is given, no particular form of word need be used;
4. There should be a specific direction to closely examine the circumstances in which the identification was made;
5. Identification by recognition may be reliable but one need to be cautious because there can be mistakes in trying to identify close relatives and friends;
6. All these go to the quality of evidence – if the quality of evidence is good the identification may be reliable. If however, the quality of evidence is bad, the identification will be bad;
7. The quality of the evidence may be poor if there is a fleeting glance or a longer observation made in poor conditions; and
8. There should be an acquittal if the quality of the evidence is bad."
   

The Supreme Court endorsed this summation of the principles in its judgment in Jimmy Ono v. The State[3] and Masolyau Piakali v. The State.[4] I therefore take it that this is a correct summation of the principles governing the treatment of identification evidence.[5]

Applying these principles to your case, I first warn myself that the evidence purporting to identify you as one of the persons involved in the break, enter and stealing from the armoury at the Moem Barracks of the PNGDF may be mistaken, even in cases where identification is by recognition. In so doing, I note that, even an eyewitness may be mistaken in his or her alleged identification. Further, I note that, what matters is the quality of the evidence. If the quality of the identification evidence is good and reliable, the identification evidence will be reliable. It is therefore necessary to closely examine and consider the circumstances in which you were identified.

You were not identified as one of the persons committing the offence at the scene of the offence. Instead, the evidence from the first State witness is circumstantial. He saw you coming out through the cemetery area of the Moem Barracks. The witness saw you during day light. He and his brother stopped you and talked to you in a bid to get some information about what was happening in the Barracks without much luck. To the witness, you were a known and familiar face. He therefore had no difficulty identifying you. Further, you gave a confessional statement admitting your involvement. That statement is in evidence against you. That clearly shows of your involvement and commission of the offence.

I find the evidence against you and your involvement convincing and accept them as good and credible for the Court to act on. Accordingly, I find that, your identification as one of the persons involved in the commission of the offence of break, enter and stealing from the PNGDF armoury at Moeom Barrack has been established against you on the required standard of prove, namely, prove beyond any reasonable doubt. Hence, I find you guilty as charged and returned a verdict of guilty against you as charged contrary to s. 398 (a)(i) of the Criminal Code. I then ordered a revocation of your bail and ordered that you be remanded in custody pending your sentence.

Decision on Sentence

26th September 2005

Following the above decision on your verdict, the Court administered your allocatus and heard from both yours and the State’s lawyers on the kind of sentence you should receive.

The relevant facts are set out above but for the purposes of sentencing, I note in summary that, you in association with a number of soldiers broke into the PNGDF armoury at Moem Barracks on 9th March 2002, using an oxy. Without the part you played, the soldiers could not have gained entry and stolen the arms and ammunition, which they later use to stage the mutiny at the Moem Barracks. There is no evidence as to whether you stole any of the arms and ammunition but is clear that a large number of arms and ammunition were stolen. As of this day, according to evidence produced in Court with your consent, a large number of the arms and ammunitions have not been recovered and are still at large.

Your Allocatus and Address on Sentence

In your address on sentence, you said you have 5 children, 3 of them in school. The children are presently with their mother, who is unemployed. You used to support them from the income you received from your then employment with the Motorist Discount store. They are now damaged with you being incarcerated. You then asked the Court to give you a penalty that reflects your family needs.

Your lawyer submitted and I accept that, this is the first time the Court has come to deal with a break, entering and stealing from a military armory or establishment. He therefore drew the Court’s attention to the case of The State v Jonah Yohang Monalen,[6] to assist the Court in its deliberations before arriving at a decision on your sentence. The State’s counsel agrees with these submissions of your counsel. However, when the Court pointed out to both counsel’s attention the case of The State v Ian Bob Wali,[7] they agree that, that is a more relevant authority for the Court to have regard to when considering a sentence for you.

You counsel also urged the Court to note what you yourself told the Court and the fact that you are 34 years old. You are a Roman Catholic by faith. He also urged the Court to note that you are from this Province. He then concluded with a submission that, having regard to what I said in the The State v Ian Bob Wali[8] and the particular facts of your case, a sentence between 8 and 12 years would be appropriate.

On the other hand, having regard to the same considerations the State’s counsel submitted that the Court should impose the maximum prescribed sentence of 14 years. In making that submission, the State highlighted a number of aggravating factors against you. These are first; your conviction came about after a trial. Secondly, he pointed out that, you broke into a military armory, which amounts to an offence directly against the sovereignty and security of Papua New Guinea. Thirdly, you played a major role in the break, enter and stealing from the armory using your skills and knowledge, which enable the soldiers to put up the mutiny at the Moem Barracks that went for a number of days. Without the part you played, there would have been no mutiny. Finally, he pointed out that the arms and ammunition stolen from the armory are still at large and have not been recovered. They are out there somewhere on the street in the wrong hands posing a danger to the ordinary citizens. Counsel for the State therefore argued for an imposition of the maximum prescribed sentence of 14 years.

The Offence and Sentencing Tariffs

Section 398 (a) (i) of the Criminal Code provides for the offence of break, enter and stealing from amongst others a warehouse. It also provides for a maximum penalty of 14 years.

I observed elsewhere as in The State v. Ian Bob Wali,[9] the offence of break, enter and stealing is a prevalent offence, but there are not many judgments on it. I considered nearly all of the cases on break, enter and stealing in my judgment in The State v. Michael Kamban Mani,[10] and noted that, none of the published judgments up to then provided any assistance in terms of providing a guideline for sentencing in these types of cases. I therefore, considered it necessary to suggest some guidelines. I then said:

"...[T]he maximum prescribed penalty should not be readily imposed. Instead, it should be reserved for the worse type of the offence under consideration. Secondly, guilty pleas, and the offender being a first time young offender and the existence of such good factors operate in the offender’s mitigation and sentences lower than the prescribed maximum may be imposed. Thirdly, the break, enter and stealing of a dwelling house armed with weapons and in the company of others attract sentences higher that those imposed for the commission of the offence involving structures such as a office.

To these, a number of factors must be added. I consider these factors important in order to properly discharge the duty placed in a sentencing judge to impose a sentence that best meets the interest of the society to punish offenders and rid the society of such offenders if possible and the interest of an offender to be rehabilitated. First, is the amount or the value of property taken and whether all or any of the property stolen has been recovered. In my view, if the amount of money or value of the property involved is high and has not been recovered, that should attract a sentence higher than the kind of sentence imposed in one where they have been recovered. Secondly, prevalence and effect of the offence against the victim and the community or society as a whole. If the impact of the offence deprives the community of a vital service such as health services, important research work which as the potential of greater benefit to the society, the sentence should be sterner to reflect such impacts on the society. After all, criminal sentencing is a duty being discharged by the Courts on behalf of the community. Thirdly, prevalence or otherwise of the offence, which could be reflective of the ability of the previous sentence to either deter or not deter other would be offenders. For it would be a disservice to the society if too lenient sentences are imposed and they fail to rid the society of such offenders. At the same time, it would also be a disservice to the society if the sentence imposed does not adequately reflect the gravity of the offence and impacts of the sentence on the offender in terms of his rehabilitation. Finally, the kinds of sentences that are being imposed in similar but less serious offences such as a simple act of stealing should be considered to ensure that sentences in an higher or serious offence is not lower than those imposed for the less serious offences."

Allowing myself to be guided by these principles, I imposed in that case a sentence of 3 years. That was in a case of a break, enter and stealing of a generator from a Health Centre and sold to a third party. However, good police work recovered it. The prisoner pleaded guilty from the time of his apprehension to the point of his arraignment.

A case that comes somewhat closer to your case is the case of The State v. Ian Bob Wali.[11] In that case, the prisoner was the son of second in charge of a police station here in the East Sepik Province. He broke into the police station and stole from there a number of items of value including two firearms and cash. I found these were serious factors in aggravation. There was a full recovery of the items stolen. The prisoner was a first time offender but married with children. I imposed a sentence of 6 years with provision to suspend part of it, conditional on the provision of a satisfactory pre-sentence report with a detailed work program and supervision.

In your case, you committed an offence against the PNGDF directly and indirectly the State and people of Papua New Guinea. Whilst the police take care of internal security of the country, the defence force takes care of her external security. Therefore, the offence you committed was a direct act against the security of the nation, as I observed in the case of The State v. Ben Wafia & Ors. (No.2).[12] In my view, this is akin to breaking into the dwelling of a person. In a case like yours and that of The State v. Ian Bob Wali,[13] an offender is breaking into that which houses a country or nation when he or she commits an offence against a police or military personal, equipment or establishment. This alone makes the offence you committed very serious. In other countries, no one ever readily commits offences against these kinds of establishments as they are there for the defence of all persons within the country. What I said in the The State v. Ian Bob Wali, [14] equally applies here with the necessary modification to reflect the different settings. There, I said:

"In my view, attacking a police station or its establishment is a more serious offence. It is already worse enough to attack a single policeman. It is far worse to attack a whole establishment. The country’s security depends on them. It is organized from the headquarters down to the little establishments. It is not just any other establishment. A police station is the one place, or that which assures the community that, their security is taken care of by the presence of a policeman or of a police station amongst them. The mere presence of a police station brings with it law and order and respect for authority and the lives and properties of others. Hence, an offence against a police establishment, has to be dealt with severely and sternly to give the police force and the community the protection they need in order for them to provide the community and the country security and law and order."

I made this observations after duly noting what the Supreme and National Courts have said in the cases of Peter Naibiri and Kutoi Soti Apia v. The State,[15] Ure Hane v. The State,[16] Joe Foe Leslie Leslie v. The State[17] in relation to attacks on police officers carrying out their normal duties.

In addition to what I have already said about the offence, I note you are a mature adult person. You were in a paid employment and was in a better position to know that what you set out to do was not only wrong and against the law but it could put the whole security of the country at risk. Your successful commission of the offence speaks in volumes to the enemies of PNG that the PNGDF is very weak and that if they want to, they could attack the country at anytime. This is very serious.

Further, you pleaded not guilty and that put the State to further expenses to secure the appearance of its witnesses, one flown in from Port Moresby and run the trial. You had no credible evidence to put the State to the task of establishing its case against you. You therefore wasted the Court’s time, pleading not guilty and thereby securing your self a trial, which saw the passage of about two days.

Furthermore, the evidence before the Court clearly shows that the arms and ammunition that went out of the armoury are still at large. This means they are out there on the streets joining the large number of illegal arms and ammunition already out there. This in itself gives rise to the risk of them being used to commit crimes against the peace loving people in the country.

Against these serious aggravating factors, you have only one factor in your mitigation. That is the fact that this is your first ever offence. However, when this is considered alongside the factors operating against you, the factors against you far out weigh the only factor in your mitigation.

Having regard to all of the factors for and against you as outlined above, I consider a sentence of 14 years appropriate because I consider this to be a worse case of the offence under considerations in view of the serious aggravating factors. Accordingly, I impose that sentence against you. Of that, I order a deduction of the total number of time you have already spent in custody awaiting your trial and sentence. You will serve the balance of your sentence in hard labour at the Boram Correction Services.

In arriving at your sentence, I did consider your family needs as you outlined in your address on sentence. I note however, that the law is now crystallized in terms of no allowance being made of such a factor. The reason for this is simple. An offender should consider his own or that of his family’s needs first before choosing to commit an offence. A plea for their consideration before one’s sentence is too late and cannot therefore be accommodated.[18]
_____________________________________________________

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

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^[1] [1983] PNGLR 318 at pp. 332-333 per Bredmeyer J. I adopted and applied this principle in a number of cases already as in The State v Emmanuel Bais and Felix Fimberi (11/06/03) N2416.
^[2] (01/08/02) N2256.
^[3] (04/10/02) SC698.
^[4] (13/12/04) SC771.
^[5] For similar summation and application of these principles see The State v Luke Sitban (No 1) (07/06/04) N2572; The State v. Raphael Kimba Aki (26/01/01) N2039;
^[6] (23/09/04) N2677.
^[7] (11/06/04) N2580.
^[8] Ibid.
^[9] Ibid.
^[10] (21/05/02) N2246.
^[11] Opt Cit. note 9.
^[12] (05/03/04) N2547.
^[13] Opt Cit. note 9.
^[14] Ibid.
^[15] (25/10/78) SC137.
^[16] [1984] PNGLR 105.
^[17] (07/08/98) SC560.
^[18] See The State v. Lucas Yovura (29/04/03) N2366 quoting the Supreme Court in Allan Peter Utieng v. The State (Unreported judgment delivered in Wewak on 23/11/00) SCR 15 of 2000 for examples of authority on point.