State v Ningis [2013] PGNC 119; N5331 (14 August 2013)

N5331

PAPUA NEW GUINEA
]IN THE NATIONAL COURT OF JUSTICE]

CR 367 of 2011
CR 43 of 2013

BETWEEN:

STATE

AND:

CHRIS NINGIS (JUNIOR) BUTZERE and JOHN BENO PEROZ

Waigani: Salika, DCJ
2013: 06, 14 August

CRIMINAL LAW – sentencing – kidnapping for reasons – offence of kidnapping for ransom – just as serious as robbery – robbery of a bank – threats to lives.

Cases Cited:

State v Kwalimu Goina [1982] PNGLR 112
Gimble v The State [1988 – 89] PNGLR 271
Philip Kassman v The State (2004) SC759

Counsel:

Mrs Kuvi, for the State
Mr Dickson, for the Defendants

14th August, 2013

SENTENCE

1. The prisoners in this matter were found guilty to 10 counts of kidnapping for ransom and one count of robbery after a trial.
   
2. The facts have been canvassed in my decision on their guilt, which were that on 11th December, 2009 the prisoners held up the victim Ruby Arrabella and her workmates of the Microfinance branch at Koki. Microfinance is a bank set up for grassroots people by the government to serve their needs. After holding them up, the prisoners and others realized that Ruby and her workmates did not have the key to the safe kept at the Bank. The prisoners then took Ruby and other bank employees as hostages and took them to Ruby's home at Koki. At Ruby's home were her husband, children, her mother and other relatives. Upon arriving at her house her husband, children and relatives were also held up as hostages under house arrest in their own home.
   
3. The prisoners and their hostages spent the night there and on the next morning, to cut the long story short, they robbed the Microfinance Bank of K50,000 and after they received the money the hostages were released.
   
4. The prisoners then made their get away and were arrested and charged some 6 months later.
   
5. This type of robbery resembles the Madang Bank robbery, the Kerema Bank robbery, the Mineral Refinery robbery and the Italiprassios robbery. Those other robberies were masterminded by the now late William Kapris. There is no evidence that William Kapris was involved in this robbery. However, the modus oparandi in this robbery is strikingly similar to those other robberies.
   
6. These robberies now a days have reached another level in the criminal world. They are getting more and more sophisticated and daring. The modus oparandi used in this case is frightening and raises serious issues of security. For example, the victims were held up at gunpoint by men who were in full police uniforms. The police uniforms were said to have been bought or borrowed from serving police officers who are either relatives or friends of the prisoners.
   
7. This trend in crime is and must be a matter of great and serious concern to the citizens and non citizens alike. The lives of people are put at great risk by serving policemen who allow themselves to be bribed for the use of their uniforms and weapons in return for money or some other benefit. Who do we turn to for protection and for our security if our policemen are involved in these criminal schemes? It is frightening to say the least.
   
8. Moreover, the prisoners were in radio contact on their walkie talkies and mobile phones. They appeared to know police movements and took great care in avoiding police.
   
9. Another noticeable factor is the motor vehicle that was used to hold up the victim which was a hired vehicle and was used to great effect. Banks and hire car companies need to consider putting up closed circuit television (CCTV) in their premises.
   
10. Our security providers especially the Police Force and the National Intelligence Organization must be properly trained and equipped to fight this new trend in crime, otherwise we will find it hard to combat this new ways of committing crimes.
    
11. Both prisoners expressed regret and sorrow for their actions. They said they were sorry for what they did to the victim, her husband and her relatives and workmates and the victim's very young children. They also said they were sorry for breaking the law and both asked for leniency from the Court.
    
12. Both prisoners also suffered at the hands of police in that they were both shot by police when they tried to escape. They now suffer permanent injuries to their legs.
    
13. Both prisoners have families. They are both married. John is 31 years old and has 2 children. The children are now living at Koki with relatives. Chris Ningis (Junior) is 29 years old. He too is married with one child. Both are first offenders.
    
14. Factors in their favour are:
    
    • - Both expressed remorse
    • - None of the kidnapped person was physically assaulted.
    • - None of the hostages suffered any injury.
    • - Both have suffered as a result of being shot by police.
      
15. Factors against them are:
    
    • - Serious crime by use of sophisticated methods.
    • - Crime was planned over a period of time and executed to perfection.
    • - Firearms were used.
    • - Police uniforms were used to commit crime.
    • - Hostages were subject to threats by the prisoners.
    • - Hostages were detained in their own home with children.
    • - Hostages held for over 12 hours.
    • - None of the money stolen was recovered.
    • - Robbery of bank.
      
16. In the case of the State v Kwalimu Goina [1982] PNGLR 112, the National Court there said:
    

"the intent to extort, and threats of injury which accompany extortion demands, give the act of detaining its serious quality, and a short duration of detention does not affect the serious quality."

In this case the prisoner demanded the keys to the Banks safe so that they could have access to the money kept in the safe. The Manageress and her staff were told that no harm would come to them and their families if they co-operated. This to me is a serious threat. In other words if they did not co-operate there and their families lives would be in danger. The threat is as serious as the robbery itself, if not perhaps more serious than the robbery. It is the cost to human lives that were at stake. That is why on the Saturday 13th December 2009, the Bank officers co-operated to take the money out of the safe and gave it away to the robbers because they knew they could replace the money but not the human lives.

17. The case for which the prisoners have been convicted of is serious. The Courts recognize the need for alleviation of such crimes. One way to do that is to impose stiff custodial sentences that will make the offender think seriously about changing their lives and becoming better persons in society.
    
18. Counsels have cited the oft cited case of Gimble v the State [1988-89] PNGLR 271. That case sets out the range of sentences for different types of robberies. That case suggested 6 years as the starting point for robberies of a bank in a contested case. Time has moved on and the range of sentences have increased. Banks are and will always be prone to be robbed.
    
19. Counsel also referred me to the Supreme Court case of Philip v The State (2004) SC 759. In that case the Supreme Court confirmed a 10 year sentence for robbery of a bank.
    
20. I however note that this robbery is a far more serious type of robbery in that the Bank Manageress and her family were held hostages to commit the robbery. Their lives were in great danger. The maximum penalty for this type of robbery is life imprisonment.
    
21. I note too that the prisoners have suffered somewhat from this crime in that they were both shot by police. They were in the process of escaping when shot. They brought that predicament upon themselves. Had they not tried to escape they would not have suffered this.
    
22. They have been in custody for some time. John has been in custody for 3 years, 2 months and 2 weeks while Chris too has been in custody for 3 years, 2 months and 2 weeks.
    
23. Under s.354(1) the maximum penalty the Court may impose is 14 years imprisonment. However, s.354(2) says where the persons kidnapped is set free without suffering grievous bodily harm the offender is liable to imprisonment not exceeding 10 years. In this case all the hostages were set free upon handover of the K50,000 and none of them suffered grievous bodily harm. Therefore the maximum term they can be imprisoned for is 10 years.
    
24. In relation to the robbery charge the maximum penalty under s.386(2) is life imprisonment, subject to s.19 of the Criminal Code Act. The case authority of Gimble v The State [1988-89] PNGLR 271 sets the starting point at 6 years.
    
25. That decision was 15 years ago and is now out-dated. In the circumstances the Supreme Court authority of Philip v The State (2004) SC 759 may be the more relevant authority to rely on and I will rely on that authority in considering sentence in this matter for robbery.
    
26. Taking into account all the mitigating factors in their favour and the aggravating factors, I sentence them in the following way:
    

John Beno:

- 1st Count - 5 Years IHL
- 2nd Count – 5 Years IHL
- 3rd Count – 5 Years IHL
- 4th Count – 5 Years IHL
- 5th Count – 5 Years IHL
- 6th Count – 5 Years IHL
- 7th Count – 5 Years IHL
- 8th Count – 5 Years IHL
- 9th Count – 5 Years IHL
- 10th Count – 5 Years IHL
- 11th Count – 12 Years IHL

3 Years, 2 months and 2 weeks are taken off from the 12 Years for period spent in custody. The balance to serve is 8 Years 9 months and 2 weeks.

Chris Ningis (Junior)

- 1st Count - 5 Years IHL
- 2nd Count – 5 Years IHL
- 3rd Count – 5 Years IHL
- 4th Count – 5 Years IHL
- 5th Count – 5 Years IHL
- 6th Count – 5 Years IHL
- 7th Count – 5 Years IHL
- 8th Count – 5 Years IHL
- 9th Count – 5 Years IHL
- 10th Count – 5 Years IHL
- 11th Count – 12 Years IHL

3 Years, 2 months and 2 weeks is taken off for time in pretrial custody from the 12 Years. The balance he will serve is 8 Years 9 months and 2 weeks.

All these sentences are to be served concurrently as they are all part of one chain of events.
___________________________________________________

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