State v Vutnamur [2005] PGNC 193; N2919 (27 October 2005)

N2919

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR NOS 1532-1541 OF 2003
AND 873 OF 2005

THE STATE

V

JACKY VUTNAMUR AND KAKI KIALO (NO 3)

Kimbe: Cannings J
2005: 8, 23 September, 27 October

CRIMINAL LAW – sentences – Criminal Code – Section 386 (the offence of robbery) – robbery of a house and a police officer – armed gang – Section 355 (deprivation of liberty) – detention of police officer – Section 139 (escape by prisoner) – guilty plea – sentence of 5 years – approach to take when offenders have already been tried for another offence committed around same time – whether cumulative or concurrent sentences – whether part of a single transaction – totality principle

Two men pleaded guilty to two counts of armed robbery and one count of unlawfully depriving a police officer of his liberty. They were members of an armed gang that held up a police officer at his home, next to a rural police station, stole a police firearm and uniforms, kept the police officer captive, then went and robbed a store. During the course of the store robbery an innocent person, another police officer, was killed. They were convicted of murder for the death of the police officer and are serving sentences for that offence. They were tried separately on the armed robbery and unlawful deprivation of liberty charges. The second man escaped from custody while on remand and was charged separately in relation to that escape. He also pleaded guilty to that charge.

Held:

(1) Where two or more prisoners are being sentenced for a multitude of offences, the court is obliged to start by fixing a head sentence for each offence, for each prisoner.

(2) The court then determines, in relation to each prisoner, whether the sentences should be cumulative or concurrent.

(3) If a prisoner has been sentenced for a separate offence in a previous trial, it is appropriate to take that sentence into account when determining the sentence in the current proceedings and apply the normal tests relating to cumulative and concurrent sentences.

(4) The totality principle should be applied after the court determines whether in relation to each prisoner the sentences are to be cumulative or concurrent.

(5) Where co-offenders are sentenced for jointly prosecuted crimes, it is appropriate to give significant credit to a co-offender who has surrendered to the police, made a full confession and pleaded guilty through all criminal proceedings.

(6) A prisoner who received a good pre-sentence report can be given an incentive of the prospect of an early release, which takes account of the likelihood of a remission of one-third of his sentence, in the normal course of events, under the Correctional Service Act.

(7) Where part or all of a sentence is to be served concurrently with a sentence imposed in a previous trial, it is appropriate to revoke the order for sentence given at the previous trial and replace it with a new all-encompassing order.

(8) The previous sentences, for murder, of 15 years for the first prisoner and 9 years for the second prisoner are revoked and replaced by new all-encompassing sentences of 17 years for the first prisoner and 16 years for the second prisoner; with minimum periods of custody set at 11 years for the first prisoner and 8 years for the second prisoner.

Cases cited

The following cases are cited in the judgment:

Acting Public Prosecutor v Konis Haha [1981] PNGLR 205
Charles Bougapa Ombusu v The State [1996] PNGLR 335
Edmund Gima and Siune Arnold v The State (2003) SC730
Gimble v The State [1988-89] PNGLR 271
Ian Napoleon Setep v The State (2001) SC666
Mase v The State [1991] PNGLR 88
Public Prosecutor v Kerua & Ors [1985] PNGLR 85
The State v Aaron Lahu (2005) N2798
The State v Enni Mathew and Others (No 2) (2003) N2563
The State v Irox Winston (2003) N2347
The State v Jacky Vutnamur and Kaki Kialo (2005) N2848
The State v Jacky Vutnamur and Kaki Kialo (No 2) (2005) N2868
The State v James Negol (2005) N2801
The State v Mark Kanupio and Others (2005) N2800
The State v Obert Poesan Pokanas (2004) N2702
The State v Raphael Walimini (2005) N2628
The State v Yakoto Imbuni and Others [1997] PNGLR 400
Tom Amaiu v The Commissioner of Corrective Institutions and The State [1983] PNGLR 87

PLEAS

Two prisoners pleaded guilty to two counts of armed robbery and one count of unlawful deprivation of liberty; and, in addition, the second prisoner pleaded guilty to escaping from lawful custody while on remand. The reasons for the sentences are delivered below.

Counsel

L Rangan, for the State
O Oiveka, for the first co-accused
R Inua, for the second co-accused

27 October, 2005

1. CANNINGS J: This is a decision on the sentences for two men who pleaded guilty to two counts of armed robbery and one count of unlawful deprivation of liberty. They are Jacky Vutnamur, the first prisoner, and Kaki Kialo, the second prisoner. In addition, the second prisoner pleaded guilty to escaping from custody while on remand. This judgment contains the sentence for that offence as well.

2. The armed robbery and unlawful deprivation of liberty incidents took place in and around Kapiura, West New Britain, in May 2003. During the second armed robbery, a police officer, Walter Ajimba, was shot and killed by another member of the prisoners' gang. The escape incident was in August 2004 at Lakiemata correctional institution, near Kimbe. In May 2005 the two prisoners were jointly indicted for the wilful murder of Walter Ajimba. The first prisoner pleaded not guilty, so a trial was held. Witnesses were called and evidence adduced. His main defence of compulsion, under Section 32 of the Criminal Code, was rejected. He was convicted not of wilful murder, but murder. The basis of the verdict was that he was involved with others in prosecuting an unlawful purpose (the armed robbery) and a person was killed intentionally by a member or members of the gang. The second prisoner pleaded guilty to wilful murder. However, in line with the verdict on the first prisoner I substituted his plea with a plea of guilty to murder and convicted him accordingly. (The State v Jacky Vutnamur and Kaki Kialo (2005) N2848).

3. In July 2005 I sentenced the first prisoner to 15 years imprisonment and the second prisoner to 9 years imprisonment. The disparity in the sentences was due to a number of factors, including that the second prisoner surrendered to the police soon after the incidents, made an immediate confession, pleaded guilty and expressed genuine remorse; whereas the first prisoner did not. (The State v Jacky Vutnamur and Kaki Kialo (No 2) (2005) N2868).

4. Neither prisoner could be dealt with for armed robbery, unlawful deprivation of liberty or escape at the time of their wilful murder trial. Section 531 of the Criminal Code precludes the joinder on one indictment or in one trial of a charge of wilful murder, murder or manslaughter with any other offence (Charles Bougapa Ombusu v The State [1996] PNGLR 335, Amet CJ, Kapi DCJ, Los J, Injia J, Sawong J). The State elected to proceed first with the charge of wilful murder, and leave the other charges to later.

INDICTMENTS

5. On 8 September 2005 the State Prosecutor, Mr Rangan, presented two indictments to the court. The first indictment was against both prisoners and charged them jointly with three offences:

• count 1 – armed robbery of a police officer, Isicas Lelepe, stealing a police-issued pump action shotgun, police uniforms and other items, the property of the State, on 4 May 2003, contrary to Sections 386(1), (2)(a) and (b) of the Criminal Code;
  
• count 2 – unlawfully depriving Isicas Lelepe of his personal liberty, on 4 May 2003, contrary to Section 355(b) of the Criminal Code;
  
• count 3 – armed robbery of Chang Pan, stealing K45,000.00 in cash, the property of Kapiura Trading, on 4 May 2003, contrary to Sections 386(1), (2)(a), (b) and (c) of the Criminal Code.
  

6. The second indictment was against the second prisoner only and charged him with one count of escaping from lawful custody, on 20 August 2004, contrary to Section 139 of the Criminal Code.

FACTS

7. The following allegations were put to the two co-accused for the purpose of obtaining their pleas. On 4 May 2003 the two of them plus three or four others travelled in a car to Salelubu police station. They parked the car in front of the house of police officer Isicas Lelepe. Jacky Vutnamur was the driver and remained in the vehicle while Kaki Kialo and others held up Isicas Lelepe at gunpoint. His family was present. They went into his house and stole a police-issued pump action shotgun; six cartridges; four police uniforms and two berets. They ordered Isicas Lelepe into the vehicle and left, confining Isicas Lelepe in the vehicle. They then committed a second armed robbery, this time at the Kapiura Trading store, at Kapiura. Some members of the gang went inside the store, armed with guns. They held up the manager and customers and stole K45,000.00 cash. Kaki Kialo was later arrested and charged and remanded in custody at Lakiemata correctional institution near Kimbe. On the night of 20 August 2004 he and about thirty other detainees escaped.

8. They both pleaded guilty to those facts. I entered provisional pleas of guilty and then, after reading the District Court depositions, confirmed the pleas. I convicted Jacky Vutnamur of two counts of armed robbery and one count of unlawful deprivation of liberty under the first indictment. I convicted Kaki Kialo of the same crimes, plus one count of escape under the second indictment.

ANTECEDENTS

9. Neither prisoner has any prior conviction. Though they were convicted of murder, neither of them has convictions for offences committed prior to the incidents that gave rise to the offences now being dealt with.

ALLOCUTUS

10. The first prisoner, Jacky Vutnamur, stated:

I sincerely apologise for what I have done and I apologise again for the murder of the police officer. I admitted everything to the police. I did not understand the procedures of the court and I just followed the lawyer's advice to deny the charge. I made it harder for myself, so I know things are harder for me now. I did not know about this plan. The others forced me to drive the vehicle. They had high-powered guns. I apologise to Senior Constable Lelepe's family and to Lelepe himself for what happened at Salelubu. I also apologise to Hertz Rent A Car, for not asking for permission to use their vehicle. I say sorry to the manager of Kapiura supermarket, the customers, and to the security guards and shop assistants. I say sorry to all these people and ask them to forgive me for what I have done. I know that I have done wrong and I have broken the mother law of PNG. I apologise to the judge and the lawyers and the court staff for taking up their time to deal with my case. I ask God for forgiveness and ask the court to make my sentences concurrent.

11. The second prisoner, Kaki Kialo, stated:

I was not the planner of this robbery. This group came up with the plan to rob Kapiura Trading. I only knew Jacky Vutnamur and Vincent Peni as we all live in the same street. When I saw the two of them get on the vehicle, I got on. If I had not seen them, I would not have got on. It is true that I followed them but I did not assault anyone. I say sorry to Lelepe and his family for what happened at Salelubu and I am sorry for forcing him to get on the vehicle. But I did not hurt him. I say sorry to the manager of the store. I say sorry to this honourable court for breaking a law of this country. I will never be in court again. On the 8th of June this court gave Michael Waluka a K1,000.00 fine for a serious offence but I am already serving a sentence of nine years. Please consider my age and my family situation. As for my escape, it is true that I ran away but that was because something affected me badly. The National Court gave bail to Jacky Vutnamur and refused me bail. That made me feel bad. There were plenty who escaped that night. I was worried that if I stayed back, the warders would have assaulted me; and I have a problem with my heart. In 2003 when three people escaped they assaulted the ones who were left behind. Some of them are chronic escapees, but they have not been charged. This was my first and only time to escape but they charged me. I sincerely apologise to the gaol commander and the warders on duty that night.

OTHER MATTERS OF FACT

12. Though the prisoners pleaded guilty there are some issues of fact raised in the allocutus, which, if resolved in their favour, may be relevant to the sentence.

13. In two recent Kimbe cases I have set out the principles to apply whenever there are significant issues of fact arising from the depositions or the allocutus that were not in the prosecutor's summary of the facts. Those cases are The State v Mark Kanupio and Others (2005) N2800, which deals with issues arising from the depositions, and The State v Aaron Lahu (2005) N2798, which deals with issues arising from the allocutus. The principles are the same:

• The effect of a plea of guilty is that an accused person admits to the elements of the offence and the facts that have been put to the accused.
  
• Once the court considers the depositions, accepts the plea and enters a conviction, the accused must then be given the benefit of any reasonable doubt on matters of penalty.
  
• If the judge detects any significant mitigating matters in the depositions or in the allocutus that were not put to the accused in the prosecutor's summary of the facts the judge should ascertain whether there is agreement between the prosecution and the defence on those matters.
  
• If there is agreement, the judge should work on what has been agreed to unless the claims made in the depositions or allocutus are so beyond the bounds of possibility as to be unbelievable.
  
• If there is a dispute between the parties about those matters, it would be appropriate for the court to take sworn evidence on them. The accused can be invited to give evidence, but cannot be forced into the witness box.
  
• If, however, the court does not take sworn evidence and there is no agreement between the parties as to the contentious matters, the court must act on the version of the facts which, within the bounds of possibility, is most favourable to the accused.
  

I now apply the above principles to the present case.

14. As for the depositions, the only possible mitigating factor is in relation to the second prisoner's conviction for escape. He was only at large for six days before being apprehended at a police roadblock near Kimbe.

15. As for the allocutus, the possible mitigating factors again relate to the second prisoner's escape conviction. He felt aggrieved that the first prisoner was granted bail and he was not. He was worried about being assaulted if he were left behind when the other detainees escaped.

16. As for other prisoners who he says have been given lenient treatment I am not prepared to regard that as even a possible mitigating factor, as there is no evidence that that is the case. The second prisoner referred to the case of Michael Waluka, as an example of soft treatment being given to others. I point out that Michael Waluka Lala was convicted of rape in June 2005 at Kimbe and sentenced to 5 years imprisonment. He was not given a fine, as the second prisoner believes.

RELEVANT LAW

17. The sentencing regimes to apply in this case are:

• for each count of armed robbery the maximum penalty is life imprisonment (Criminal Code, Section 386(2));
  
• for each count of unlawful deprivation of liberty the maximum penalty is 3 years imprisonment (Criminal Code, Section 355);
  
• for each count of escape from lawful custody the minimum penalty is 5 years imprisonment (Criminal Code, Section 139).
  

18. However there is a discretion under Section 19 of the Criminal Code to impose sentences other than the maximum (in the case of armed robbery and unlawful deprivation of liberty) or to suspend part of the sentence (in the case of escape from lawful custody) (Edmund Gima and Siune Arnold v The State (2003) SC730, Supreme Court, Kirriwom J, Kandakasi J, Batari J).

SUBMISSIONS BY DEFENCE COUNSEL

The first prisoner, Jacky Vutnamur

19. Mr Oiveka highlighted the following mitigating factors:

• Jacky Vutnamur was a passive participant in the crimes. He only drove the vehicle that was used in the robbery. He did not threaten or harm anybody.
  
• He pleaded guilty.
  
• He has expressed remorse.
  
• All the offences he committed were part of a single transaction, involving the prosecution of a single purpose. He should be sentenced concurrently, ie all three sentences arising from the current case should be merged into one and it should be imposed concurrently with the sentence of 15 years that he is currently serving for the murder conviction.
  

The second prisoner, Kaki Kialo

20. Mr Inua highlighted the following mitigating factors:

• Kaki Kialo surrendered soon after the incident took place and immediately confessed and cooperated with the police.
  
• He pleaded guilty.
  
• He was not one of the main instigators or perpetrators of these crimes. He happened to be in the wrong place at the wrong time.
  
• He has expressed remorse.
  
• As to the armed robbery and deprivation of liberty offences, all these things happened on the one day. They were all part of the same sequence of events, so cumulative sentences for these offences would be harsh and oppressive.
  
• As for the escape, no harm was done to anybody during the escape; he was not the mastermind of the escape; he was at large for only six days; he cooperated with the police.
  

21. Mr Inua urged the court to apply the totality principle, to ensure that his client was not given a crushing sentence and to bear in mind that he is already serving a sentence of 9 years for murder.

SUBMISSIONS BY THE STATE

22. Mr Rangan, for the State, argued that cumulative sentences are warranted. The two armed robberies were separate offences. The first involved robbery of a home; the second, a store. The unlawful deprivation of liberty of the police officer was also a separate and serious matter. The totality principle should not be applied until after the court has dealt with the offences cumulatively.

PRE-SENTENCE REPORTS

23. To help me make decisions on the appropriate sentences I requested and received pre-sentence reports under Section 13(2) of the Probation Act in relation to each prisoner. The reports were prepared by the Kimbe office of the Community Correction and Rehabilitation Service. The reports were very similar to the reports I received when the two prisoners were sentenced for murder earlier this year.

The first prisoner, Jacky Vutnamur

Of Takekel, East New Britain heritage – raised in Buvussi, West New Britain – aged 26, married with two children – educated to Grade 8 at Hoskins Secondary School – never employed in the formal sector – parents still alive – father is a former police officer and knew the deceased well – family income is derived from sale of oil palm – lives on oil palm block – health OK – was actively involved in Assemblies of God and South Seas Evangelical Church activities prior to commission of offence – a local volunteer Community and Rehabilitation Officer, Bonley Tiun has known the prisoner since childhood – no previous attitude or behavioural problems – surprised to hear about his involvement in the crime but a sociable person who gave in easily to friends.

Character references by Bonley Tiun, Senior Pastor Herman John, Buvussi AOG Church; and Alphonse Camillus, Youth Representative, Mosa Local-level Government, were all positive.

The report concludes that there is strong family and community support at Buvussi for the offender if he is released into the community. He is a suitable candidate for probation supervision for an extended period.

The second prisoner, Kaki Kialo

Of Suanumbu, East Sepik heritage – born and raised in West New Britain – aged 28, married with two children – educated to Grade 10 at Hoskins Secondary School – never employed in the formal sector – parents deceased, leaving behind an oil palm block – family income is derived from sale of oil palm – lives on oil palm block – health OK – was actively involved in South Seas Evangelical Church activities prior to commission of offence – a church elder, Thomas Saltik, confirmed that the prisoner was once an active church member but had 'back-slided' – his wife and children are now suffering.

Village peace officer at Kavui, Paul Kambari, was interviewed: prisoner is a hardworking person who socialises well and is involved in organising youth activities.

The report concludes that there is strong family support for the offender if he is released into the community. He is a suitable candidate for probation supervision subject to strict conditions.

DECISION MAKING PROCESS

24. This is a complex sentencing case for various reasons:

• there are two prisoners who have been convicted of a total of seven offences;
  
• they have been convicted of similar, but not the same, offences;
  
• most of the offences are related in some way (ie they happened around the same time);
  
• both prisoners are already serving sentences for the murder of the police officer committed during the course of one of the armed robberies for which they are now being sentenced;
  
• decisions have to be made on whether the sentences will be served cumulatively or concurrently, and, if concurrently, to what extent; and
  
• the totality principle has to be applied.
  

25. I will approach the sentencing process in this way:

• first, consider each conviction and set a head sentence for it, for each prisoner, and calculate the total sentence for each prisoner on the assumption that each sentence is to be cumulative upon each other;
  
• secondly, consider, for each prisoner, whether part or his entire total sentence should be served concurrently with other parts;
  
• thirdly, apply the totality principle to each prisoner;
  
• finally, consider whether any part of the final sentence for each prisoner should be suspended or otherwise made the subject of the exercise of discretion under Section 19 of the Criminal Code.
  

STEP 1 – HEAD SENTENCE FOR EACH CONVICTION

Decision re whether to treat each prisoner equally for sentencing purposes

26. For the armed robberies and deprivation of liberty convictions, I first have to decide whether to treat each prisoner equally or impose differential sentences. The general approach to gang robberies was explained by the Supreme Court in Gimble v The State [1988-89] PNGLR 271, Bredmeyer J, Los J, Hinchliffe J. At page 273 the court said:

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.

27. Gimble does not, however, mean that in all cases, all gang members will be treated equally. Sevua J explained why in a recent Kimbe case, The State v Raphael Walimini (2004) N2628. His Honour sentenced a man to life imprisonment for an attempted armed robbery of a PMV on the Buvussi Mountain, on the highway between Kimbe and Bialla, in 1998. An innocent villager was shot and killed during the attempted robbery. Another member of the gang that attempted the robbery, Gibson Lulip, had been convicted and sentenced by Jalina J in 1999, to 25 years imprisonment. Sevua J held that there were important differences between the two cases as Lulip had pleaded guilty and was a first time offender, whereas Walimini had pleaded not guilty, had a prior armed robbery conviction and did not express remorse for the death of the villager. I agree with Sevua J that despite the general 'one size fits all' rule set out in Gimble, each case has to be looked at on its merits.

28. I have done that and decided to treat the two prisoners equally. They were both members of the gang that abducted Senior Constable Isicas and committed two armed robberies. Their personal antecedents are similar. They are both young family men brought up in the Buvussi-Kavui area between Kimbe and Hoskins. There is good family and community support for them. They have no history of criminal activity. In addition, they both pleaded guilty. They expressed a similar degree of remorse. This was unlike their wilful murder trial where the first prisoner pleaded not guilty and incurred a relatively heavy sentence compared to the second prisoner, who confessed from the outset, pleaded guilty and expressed more remorse than the first. Now I will look at each count on each of the two indictments.

Count 1 on first indictment: armed robbery of Isicas Lelepe

29. In two recent Kimbe cases, I set out the approach to sentencing for armed robbery derived from recent Supreme Court decisions: The State v Aaron Lahu (2005) N2798 and The State v James Negol (2005) N2801. The approach is, first, to fix a starting point and then look at all the relevant considerations that aggravate or mitigate the offence. The starting point is fixed according to the general description given to the type of robbery, as follows:

• robbery of a house – 10 years;
  
• robbery of a bank – 9 years;
  
• robbery of a store, hotel, club, vehicle, on the road etc – 8 years;
  
• robbery of a person on the street – 6 years.
  

30. The robbery of Isicas Lelepe involved the robbery of a family home, next to a rural police station, so the starting point is 10 years. In Lahu and Negol I took the following things into account when determining whether to increase or decrease the head sentence or leave it at the starting point:

1. Did the offender and other members of his gang not commit actual violence during the course of the robbery?
   
2. Did the offender and other members of his gang not threaten the victims of the robbery with violence?
   
3. Did the offender and other members of his gang not put the victims or innocent bystanders in real danger of being injured or killed?
   
4. Did the offender and other members of his gang ensure that especially vulnerable victims such as children, women or older people were not threatened or treated badly?
   
5. Did the offender and other members of his gang steal money or property of a relatively small value?
   
6. Did the offender play a relatively minor role in the robbery?
   
7. Did the offender give himself up after the robbery?
   
8. Did the offender cooperate with the police in their investigations?
   
9. Has the offender done anything tangible towards repairing his wrong, eg offering compensation to the victims, repaying what he has stolen, personally or publicly apologising for what he did?
   
10. Has the offender pleaded guilty?
    
11. Has the offender genuinely expressed remorse?
    
12. Is this his first offence?
    
13. Can the offender be regarded as a youthful offender or are his personal circumstances such that they should mitigate the sentence?
    
14. Are there any other circumstances of the robbery or the offender that warrant mitigation of the head sentence?
    

31. Applying those things to the present case, and especially having regard to the fact that it was obviously a frightening experience for Isicas Lelepe, that no steps were taken to guard vulnerable victims and that police equipment, including a pump-action shotgun, was stolen, the head sentence should be 12 years.

Count 2 on first indictment: unlawful deprivation of liberty of Isicas Lelepe

32. In a recent Wewak case, The State v Enni Mathew and Others (No 2) (2003) N2563, Kandakasi J suggested the following principles should be applied when sentencing for unlawful deprivation of liberty:

Section 42 of the Constitution guarantees the liberty of a person. Hence, when a person unlawfully deprives the liberty of another is not only an offence but, also a breach of the victim's constitutional right. It is therefore, a serious matter to unlawfully deprive the liberty of another person. However, this does not mean an automatic imposition of the prescribed maximum sentence of 3 years. Instead, this requires a careful consideration of the particular facts surrounding the commission of the offence before arriving at a sentence.

A case of simple unlawful deprivation of liberty deserves a sentence ranging from a few months to say a year, while one, which involves violence and injury or damage to the victim, should attract an imposition of the maximum prescribed sentence of 3 years. Between these two ends could be cases that are neither serious nor simple cases of unlawful deprivation. They should attract sentences between 1 year and 2 years. Of course, other factors such as prior convictions and conviction after a trial are factors in aggravation dictating a higher sentence. On the other hand, a guilty plea by a first time offender may attract a lower sentence.

33. I agree with what his Honour has stated and apply the principles he has suggested to the present case. Isicas Lelepe was detained against his will and threatened. But mitigating the seriousness of what was done to him was that he was not ill-treated or assaulted. I fix a head sentence of 2 years.

Count 3 on first indictment: armed robbery of Kapiura Trading

34. This offence involved robbery of a store, so the starting point is 8 years. However there are a number of major aggravating factors, the most serious of which is that during the course of the robbery an innocent person was shot and killed. That person was a police officer, Walter Ajimba, who from all accounts died valiantly in the line of duty. This puts this offence into the very serious category. The court accepts that neither of the prisoners now before the court was involved in the shootout. It is accepted that the first prisoner just sat in the vehicle at all times and that the second prisoner had a gun but did not fire any shots. However they were members of a heavily armed gang. When I apply the fourteen matters outlined above to this serious armed robbery, I conclude that the head sentence is 20 years.

Second indictment: escape from lawful custody by Kaki Kialo

35. The crime of escape is the only one in the Criminal Code that attracts a minimum, not a maximum, sentence. The penalty can be more than 5 years but not less. I accept Mr Inua's submission that this was not a violent escape. No one was assaulted or injured. It was a serious, mass escape but not of such a nature that a sentence of more than 5 years is warranted. The head sentence is therefore 5 years.

Summary

36. The head sentence for each of the seven offences is shown in the table below. The sixth column gives the total sentence for each prisoner on the assumption that all sentences in the present indictments are cumulative. The last column shows what would happen if all sentences were made cumulative upon the existing sentences for murder.

TABLE 1 - SUMMARY OF HEAD SENTENCES
AND THEIR CUMULATIVE EFFECT

Prisoner	Indictment 1, count 1 – armed robbery, Isicas Lelepe	Indictment 1, count 2 – unlawful deprivation of liberty, Isicas Lelepe	Indictment 1, count 3 – armed robbery, Kapiura Trading	Indictment 2 – escape from lawful custody	Subtotal	Existing sentence for murder	Total cumulative Sentence
First prisoner, Jacky Vutnamur	12 years	2 years	20 years	0	34 years	15 years	49 years
Second prisoner, Kaki Kialo	12 years	2 years	20 years	5 years	39 years	9 years	48 years

STEP 2 – CUMULATIVE OR CONCURRENT SENTENCES?

37. The principles to apply when deciding whether to make sentences cumulative or concurrent are those that the Supreme Court developed in Acting Public Prosecutor v Konis Haha [1981] PNGLR 205, Kidu CJ, Andrew J, Kapi J; and in Public Prosecutor v Kerua & Ors [1985] PNGLR 85, Kidu CJ, Bredmeyer J, McDermott J; and endorsed in Ian Napoleon Setep v The State (2001) SC666, Sawong J, Gavara-Nanu J, Kandakasi J.

That is:

• First, apply the "one transaction rule". Where two or more offences are committed in the course of a single transaction, all sentences in respect of the offences should be concurrent.
  
• Secondly, where the offences are so different in character, or in relation to different victims, cumulative sentences are normally applicable, eg burglary and violence to the householder, or assault plus escaping from custody, or sexual assaults on different victims.
  
• Thirdly, apply the "totality principle". When the court has arrived at appropriate sentences and decided whether they should be concurrent or cumulative, it must look at the total sentence and see if it is just and appropriate. If it is not, one or more of the sentences should be varied to get a just total.
  

38. Kandakasi J has lucidly explained the application of these principles in a number of recent cases, eg The State v Irox Winston (2003) N2347; The State v Enni Mathew and Others (No 2) (2003) N2563; The State v Obert Poesan Pokanas (2004) N2702. I will follow his Honour's approach.

39. The first two principles are really looking at the same issue from different angles. Are the offences part of a single transaction, thereby requiring concurrent treatment? Or are they so different in character that they warrant separate and cumulative treatment? I will ask these questions in relation to each prisoner.

The first prisoner, Jacky Vutnamur

40. I have fixed a head sentence of 10 years for the first offence, the armed robbery of Isicas Lelepe. The first question is whether the next offence he committed, unlawfully depriving Isicas Lelepe of his personal liberty was part of the armed robbery transaction? I say, yes, it was. It was all part and parcel of the same event, the aim being to acquire a high-powered firearm to use in the planned robbery of Kapiura Trading.

41. The next question is whether the Kapiura Trading robbery was part of the same transaction or sequence of events. There is a strong argument to say that they were different events, as the offences were committed at different places (Salelubu and Kapiura) and had different victims (Isicas Lelepe and his family and the Police Force at Salelubu; the store and staff and customers at Kapiura). On the other hand, as stressed by Mr Oiveka, the events were in the same general location, they happened on the same morning, and everything that was being done was in the prosecution of a single purpose: to rob the store. I am inclined to agree with Mr Oiveka's submission, though I must say that I have wavered on the way to accepting it and have ultimately been convinced that it is right by bringing into the equation the guilty plea of the prisoner. That means that all sentences imposed in the current proceedings will be served concurrently. The total sentence becomes 20 years.

42. Next I have to consider how that sentence relates to the sentence of 15 years imposed on the first prisoner for the murder of Walter Ajimba. I do not think that the fact that that sentence was imposed in a separate, earlier trial should necessarily disqualify him from the benefit of having the sentences imposed concurrently. The murder charge was tried separately to comply with the Criminal Code. I consider that the same principles should be applied even though the sentences are being imposed in separate proceedings. The question remains whether the murder of Walter Ajimba was a part of the single transaction consisting, at least, of the three offences for which the prisoner is being sentenced in the current proceedings. I conclude, again, that Mr Oiveka's submission should prevail. In reaching that conclusion, I have taken into account that the prisoner did not directly kill the person who he has been convicted of murdering. He should therefore get the benefit of the doubt for sentencing purposes. The result is that – subject to application of the totality principle – the first prisoner is susceptible to four separate sentences totalling 20 years, to be served concurrently.

The second prisoner, Kaki Kialo

43. He is being treated equally with the first prisoner for the three counts in the first indictment. He is therefore – subject to application of the totality principle – subject to three separate sentences totalling 20 years, to be served concurrently, on the first indictment. For the same reasons I gave for the first prisoner, the second prisoner's murder sentence should be served concurrently with the three offences on the first indictment.

44. As for the escape conviction there is a slither of an argument to say that his escape was part of the Kapiura Trading robbery transaction, as he was remanded in custody in connection with the offences for which he is now being sentenced. However, his escape from custody was an entirely different event, happening at a different time (in August 2004) in a different place (Lakiemata). It was not part of the single transaction constituted by the offences committed within a couple of hours in May 2003 in and around Kapiura. Therefore the 5 years sentence for escape is to be dealt with cumulatively upon the 20 years for the other three offences.

45. The result is that – subject to application of the totality principle – the second prisoner is susceptible to a total sentence of 25 years imprisonment; 20 years in respect of the first indictment and murder, and 5 years in respect of the second indictment.

STEP 3 – THE TOTALITY PRINCIPLE

46. I now look at the total sentence that each prisoner is potentially facing, to see if it is just and appropriate, having regard to the totality of the criminal behaviour involved. The court needs to guard against imposing a crushing sentence, ie one that is 'over the top' or manifestly excessive. In going through this process the court can make reference to general sentencing ranges for other serious offences and to the community perception of the relative seriousness of the different offences (Mase v The State [1991] PNGLR 88, Supreme Court, Kidu CJ, Amet J, Brown J).

47. 'Community perception' is an important yardstick. When courts are given a discretion about what sentence to impose, they need to assess and weigh in the balance what the prevailing community expectations are. In the present case the most serious crimes that have been committed are armed robberies. Alongside that the prisoners are serving sentence for a murder that occurred in the course of one of the robberies. What is the community expectation when sentencing someone convicted of this sort of crime? Sevua J had something to say on this point in a recent Kimbe case, The State v Raphael Walimini (2004) N2628. I referred to it earlier. The prisoner was sentenced to life imprisonment for his involvement in an attempted armed robbery of a PMV on the Buvussi Mountain, in which an innocent villager was shot dead. His Honour stated:

It is my view that, death resulting from the prosecution of an unlawful purpose, in this case, an attempted robbery is as serious as wilful murder itself. I consider that this is a very serious case than an ordinary robbery where only threats of violence are used.

The use of guns in crimes of violence has been, and still is, the subject of serious concerns by leaders and members of the community. The media must be applauded for taking this issue head on. The use of factory and homemade guns and pistols, even automatic weapons like M-16s have caused, and continue to cause unnecessary losses and sufferings to innocent citizens. Innocent law-abiding citizens are killed and sometimes maimed for life by ruthless criminals who have no respect for lives and property, and the rule of law. The innocent and law-abiding citizens are fed up with violent crimes like armed robberies and rapes and the list goes on. People are living in fear, which in turn causes unnecessary stress and pressure in their daily lives. Substantial amounts of moneys are being spent unnecessarily on erecting fences around homes and offices because of fear of attack by armed criminals. If we are not careful, this country will be ruled by armed thugs and criminals resulting in anarchy and chaos and the country becoming a lawless State.

Crimes of violence is not only a threat to individual citizens, it is also a serious threat to businesses and the economy of the country. Foreign investors would not want to invest their moneys in a country with serious law and order problems. Businesses have also suffered at the hands of armed criminals therefore crimes of violence like armed robbery or attempted armed robbery are also a threat to the economic prosperity and wealth of the nation.

48. I consider that his Honour was accurately reflecting community sentiments and expectations. People everywhere in PNG are fed up with violent crime. They hate living in fear. They expect the courts to impose lengthy sentences on those convicted of violent crime. I now consider each of the prisoners in turn.

First prisoner, Jacky Vutnamur

49. The first prisoner is facing a potential 20 years imprisonment. That would be an addition of 5 years to the 15 years he is already serving for murder. I consider that despite the very serious nature of the crimes he committed, that would be a crushing sentence. I take into account that his role in everything that happened was relatively passive. He was not the mastermind of the plan to rob the store. He did not directly threaten the police officer who was abducted. He did not threaten the police officer's family. He did not threaten any of the customers in the store. He did not directly kill the person who he has been found guilty of murdering. He has no criminal background. However he made probably the biggest mistake of his life in getting involved in very serious criminal activity, which culminated in an innocent person being murdered. Considering his circumstances in totality, I will impose a total sentence of 17 years imprisonment. This covers all the offences on the first indictment and the sentence for murder.

Second prisoner, Kaki Kialo

50. The second prisoner is facing a potential 25 years imprisonment. Twenty years of that relates to the first indictment and murder conviction. Five years relates to the second indictment, the escape conviction. I think it is better to still treat the escape matter separately, at this stage.

The first indictment

51. A sentence of 20 years on the first indictment would be an addition of 11 years to the 9 years he is already serving for murder. I consider that despite the very serious nature of the crimes he committed, that would be a crushing sentence. I take into account that he had a mid-range level of involvement in everything that happened. I accept his statement in allocutus at face value: that he was not the mastermind of the plan to rob the store and that he did not even know some of the gang members. However, he voluntarily went ahead with the plan and he carried a gun while the store robbery was taking place. He did not directly threaten the police officer who was abducted. He did not threaten the police officer's family. He did not directly kill the person who he has been found guilty of murdering. He has no criminal background. However, like the first prisoner, he made probably the biggest mistake of his life by getting involved in very serious criminal activity, which culminated in an innocent person being murdered. His case can now be compared to the first prisoner's as far as the first indictment is concerned. I applied the totality principle to the first prisoner and arrived at a just and appropriate sentence of 17 years. In the case of the second prisoner, I consider his total sentence should be less. He should continue to get credit for his early, almost immediate, surrender to the police and confession; for his cooperation; and for his consistent guilty pleas and expression of remorse. I imposed a sentence for murder on the second prisoner that was 6 years less than that imposed on the first prisoner. Given all the circumstances of the case, I think it is fair and just to maintain that parity. Therefore I will impose a total sentence on the first indictment of 11 years.

The second indictment

52. As for the escape this looks like the second biggest mistake of his life. I take into account the reasons he gave for escaping from custody and the fact that he was only at large for six days and that he did not resist arrest upon being caught at the police roadblock. The sentence must remain at the statutory minimum of 5 years. However, I set a minimum period of incarceration of one year and suspend the remaining 4 years on condition that the prisoner enter into a community work program that must be approved by the court and will continue for 4 years after his release from prison.

Total

53. The second prisoner will serve a total prison sentence of 12 years, being 11 years on account of the first indictment and murder, and one year on account of the second indictment.

STEP 4 - SHOULD ALL OR PART OF THE SENTENCES BE SUSPENDED?

54. No. Not yet anyway. I explained the reasons in my earlier judgment on sentence for murder (The State v Jacky Vutnamur and Kaki Kialo (No 2) (2005) N2868). Except for the second prisoner's escape sentence (part of which has already been suspended) these are sentences for violent crimes involving death of an innocent person. Therefore immediate suspension of any part of the sentences on the first indictment is out of the question. That leaves the question of whether suspension of the sentences at some later time is appropriate.

55. In my earlier judgment on sentence for murder (The State v Jacky Vutnamur and Kaki Kialo (No 2) (2005) N2868) I sentenced:

• the first prisoner to 15 years, 9 years of which must be served and the balance of 6 years of which may be suspended by order of the National Court if and when an application for suspension is granted; and
  
• the second prisoner to 9 years, 5 years of which must be served and the balance of 4 years of which may be suspended by order of the National Court if and when an application for suspension is granted.
  

56. I qualified the sentences in that way as both prisoners received good pre-sentence reports, indicating that they had strong community and family support. They had made genuine efforts to reconcile with the relatives of the deceased police officer. I considered that this was an appropriate exercise of my sentencing discretion under Section 19 of the Criminal Code. I also took into account that in the normal course of events both prisoners will get a remission of one-third of the period of their sentences under Section 120(1) of the Correctional Service Act. It is important to understand how the system works. The relevant law is Sections 120 and 121 of the Correctional Service Act, contained in Part IX of the Act (status of detainees). (For a history of the remission system, see the National Court judgments of Bredmeyer J in Tom Amaiu v The Commissioner of Corrective Institutions and The State [1983] PNGLR 87; and Akuram J in The State v Yakoto Imbuni and Others [1997] PNGLR 400.) Section 120 (remission to be granted) states:

(1) Subject to this section, the Commissioner shall grant to a detainee remission equal to one third of the period of sentence.

(2) A remission shall not be granted in respect of—

(a) the period of any sentence imposed on a detainee in consequence of a conviction for escaping or attempting to escape from lawful custody; or

(b) that period of a sentence which elapses between the escape and recapture of a detainee who escaped from lawful custody; or

(c) the period of any sentence imposed on a detainee for a corrective institution offence of rural lock-up offence.

(3) Where a detainee is returned to custody pursuant to Section 26 of the Parole Act 1991, the detainee shall—

(a) be granted by the Commissioner remission equal to one third of the period of sentence served by the detainee prior to release on parole; and

(b) not be eligible for remission on the period of sentence served while on parole subject to the Parole Act 1991; and

(c) not be deemed to be serving the sentence for any period which elapses between the laying of the charge for breach of parole and being returned to custody pursuant to Section 26 of the Parole Act 1991; and

(d) be deemed to be serving the sentence of imprisonment if in custody pursuant to Section 25 of the Parole Act 1991; and

(e) be eligible for remission on times spent in custody prior to a determination under Section 27 of the Parole Act 1991.

(4) In the case of a detainee who, immediately before the coming into operation of this Act, was a detainee under the Corrective Institutions Act (Chapter 63) repealed by Section 169, the provisions of this Act shall apply in respect of the calculation of remission (and loss of remission) to any portion of the sentence served before that coming into operation as they apply in respect of that portion of the sentence to be served after that coming into operation.

57. Section 121 (special remission) states:

(1) The Commissioner may, by instrument, grant special remission of any sentence or sentences of imprisonment as an incentive to or reward for good conduct while an emergency exists in the correctional institution where the detainee is serving a sentence of imprisonment.

(2) Special remission granted under Subsection (1) shall not exceed four days for each day or part of a day on which emergency exists.

58. Remission of sentences is not automatic. But it seems that in most cases a prisoner will get remission of one-third of his sentence. So it is useful to consider what will happen in the present case in the normal course of events. The first prisoner, being originally sentenced to 15 years, would be granted a remission of 5 years, resulting in an effective sentence of 10 years. By ordering that he serve a minimum of 9 years, the previous sentence was indicating that he might be granted an early release of one year. As for the second prisoner, he was originally sentenced to 9 years. He would expect a remission of 3 years, resulting in an effective sentence of 6 years. As with the first prisoner, the previous sentence was indicating that he might be granted an early release of one year.

59. The question arises, now that I am imposing sentences that, in effect, subsume the earlier sentences: what should be done about the minimum periods set? Keep them intact? Do away with them altogether? Or vary them?

60. Keeping them intact would not be proper as the prisoners have been convicted of more offences and their total sentences have increased. Doing away with them altogether could possibly be justified on the grounds that I may have been too generous in imposing minimum periods that expired before the normal one-third remission period took effect and that both prisoners have been convicted of very serious offences in addition to the murder conviction. However, I am inclined to think that, having held out the prospect of an early (but conditional) release, it would be harsh and oppressive to now quash that prospect, especially as both prisoners have come back to court and pleaded guilty. I have decided that I will maintain the pattern established in the earlier sentences by setting a minimum period that must be served and a balance that may be suspended by order of the court.

The first prisoner, Jacky Vutnamur

61. He is now facing a total sentence of 17 years imprisonment, inclusive of his previous sentence for murder. He will, in the normal course of events, get a one-third remission of 17 years x 1/3 = 5 years, 8 months; leaving an effective sentence of 11 years, four months. I will set a minimum period in custody of 11 years.

The second prisoner, Kaki Kialo

62. He is now facing a total sentence of 12 years imprisonment, inclusive of his previous sentence for murder but excluding 4 years for his escape conviction that I have already suspended. He cannot get any remission of his sentence for escape (see Section 120(2)(a) of the Criminal Code). So he will, in the normal course of events, get a one-third remission of 11 years x 1/3 = 3 years, 8 months, of his 12-year sentence, leaving an effective sentence of 8 years, 4 months. I will set a minimum period in custody of 8 years.

SENTENCE

63. The Court makes the following order:

(1) The sentences imposed on Jacky Vutnamur and Kaki Kialo on 21 July 2005, in CR Nos 1532-1541 of 2003, are revoked and replaced by the following sentences.

(2) Jacky Vutnamur, having been convicted of one count of murder, two counts of armed robbery and one count of unlawful deprivation of liberty, is sentenced to a total of 17 years imprisonment in hard labour, subject to the following:

• (a) a minimum of 11 years must be served in custody; and
  
• (b) the balance of 6 years may be suspended by order of the National Court if and when an application for suspension is granted.
  

(3) Kaki Kialo, having been convicted of one count of murder, two counts of armed robbery, one count of unlawful deprivation of liberty and one count of escaping from lawful custody, is sentenced to a total of 16 years imprisonment in hard labour, subject to the following:

• (a) 4 years (in respect of the conviction for escape) is suspended immediately on condition that the prisoner enter into a community work program that must be approved by the court and will continue for 4 years after his release from prison; and
  
• (b) a minimum of 8 years must be served in custody; and
  
• (c) the balance of 4 years may be suspended by order of the National Court if and when an application for suspension is granted.
  

(4) For the avoidance of doubt:

• (a) suspension of either of the above sentences will only come into effect if and when ordered by the National Court; and
  
• (b) there shall be deducted from the terms of imprisonment the period in custody that each prisoner has already spent in relation to this matter.
  

Sentenced accordingly.
_______________________________________________________
Public Prosecutor: Lawyer for the State
Public Solicitor: Lawyer for the First Prisoner
Paul Paraka Lawyers: Lawyer for the Second Prisoner