State v Engo (No 1) [2013] PGNC 383; N9042 (14 October 2013)

N9042

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR NO. 343 OF 2011

THE STATE

V
SAMUEL SAMMY ENGO
(NO 1)

Alotau: Toliken, AJ
2013: 14^th October

CRIMINAL LAW – Particular offence – Attempted armed robbery and actual robbery of a bank – Trial – Involvement of accused in planning and participation – Verdict – Guilty – Criminal Code Ch. 262, ss 7, 384, 386(1)(2)(a)(b), 387(1)(a)(b)(2)(a)(b)

Cases Cited

Nil

Counsel

R. Auka, for the State
M. Arua, for the Accused

JUDGMENT OF VERDICT

14^th October, 2013

1. TOLIKEN, AJ: The accused was charged with one count of armed robbery and one count attempted armed robbery pursuant to Sections 386(1)(2)(a)(b) and 387(1)(a)(b)(2)(a)(b) of the Criminal Code (the Code) respectively. The State also invoked Section 7 of the Code.
   
2. Sections 386(1)(2)(a)(b) and 387(1)(a)(b)(2)(a)(b) relevantly provide:

386. The offence of robbery.

(1) A person who commits robbery is guilty of a crime.

Penalty: Subject to Subsection (2), imprisonment for a term not exceeding 14 years.

(2) If a person charged with an offence against Subsection (1)—

(a) is armed with a dangerous or offensive weapon or instrument; or

(b) is in company with one or more other persons; or

(c) at, immediately before or immediately after, the time of the robbery, wounds or uses any other personal violence to any person,

he is liable, subject to Section 19, to imprisonment for life.

387. Attempted robbery accompanied by wounding, or in company.

(1) A person who assaults a person with intent to steal anything, and, at, immediately before or immediately after, the time of the assault, uses or threatens to use actual violence to any person or property in order—

(a) to obtain the thing intended to be stolen; or

(b) to prevent or overcome resistance to its being stolen, is guilty of a crime.

Penalty: Imprisonment for a term not exceeding seven years.

(2) If the offender—

(a) is armed with a dangerous or offensive weapon or instrument; or

(b) is in company with one or more other persons,

he is liable to imprisonment for a term not exceeding 14 years.

(3) ...

3. The State’s allegations are that on 4^th day of May 2010, between 10.00 am and 12.00 noon, the accused and his accomplices entered the Bank South Pacific Branch in Alotau. They were armed with firearms. Customers were on the queue when the accused and his accomplices entered. Then one of the accused’s accomplices swung his firearm at Bank Staff Chris Orake who jumped out of the way to avoid being hit. However, the police were notified and realising that, the group ran out of the bank.
   
4. On their way out, one of the accused’s accomplices ripped out an Acer Flat Screen Computer Monitor and ran out with it. The accused also ran for get-away vehicle, but before he could get in, he was knocked to the ground by a Michael Dulo. Members of the public set upon him, assaulting him and restraining him until the police arrived. He was apprehended and taken to the police station. The State also
   

PLEA

4. The accused pleaded not guilty to the charge. He initially raised the defence of mistaken identity but at the trial, he pleaded lack of the requisite intention under Section 24 of the Code.

ISSUES

5. Did the accused plan and participate in the attempted robbery of the Alotau BSP Branch, and robbery of a computer monitor screen belonging to BSP, or was he innocently drawn into the attempted robbery of the bank and robbery?

DEFINITION OF ROBBERY

6. Section 384 of the Code defines the offence of robbery in the following terms:
   

S384 - DEFINITION OF ROBBERY.

A person who steals anything, and, at, immediately before or immediately after, the time of stealing it, uses or threatens to use actual violence to any person or property in order to obtain the thing stolen or to prevent or overcome resistance to its being stolen is said to be guilty of robbery.

ELEMENTS OF THE CHARGES

7. For the charge of robbery, the State must prove the following elements –
   
   • (i) The accused
   • (ii) Stole property
   • (iii) From another person
   • (iv) Whilst armed with a dangerous weapon; and
   • (v) In the company of others; and
   • (vi) Immediately before the time of stealing threatened to use violence.
     
8. And for the count of attempted robbery the following elements must be proved:
   
   • (i) The accused
   • (ii) With intent to steal
   • (iii) Assaulted another person
   • (iv) At, or immediately before or after stealing used or threatened to use actual violence
   • (v) Was armed with a dangerous or an offensive weapon or implement
   • (vi) In the company of one or more other persons.
     

THE EVIDENCE

State

9. The State called the four (4) witnesses namely Sergeant Winzie Kinzie, Michael Dulo, Chris Orake and James Gabriel. It was tendered 13 x Exhibits with consent including bthe accused’s Record of Interview.
   

Defence

10. The accused testified on oath but did not call any witnesses.

PROVEN FACTS

11. From the evidence I find the following. On the morning of 04^th of May 2010, between 11,30 am and 11.46 am, the accused walked into the Alotau Branch of the Bank South Pacific. He was in company of 4 other men, one of whom the accused identified as Charlton Eric, an acquaintance of his from Gerehu in the National Capital District. Another was identified by State witness Chris Orake and Michael Bato as Tommy Maiva Baker. Three of the men, one of whom was Tommy Baker and a tall man with pink cap entered the bank first and stood at the side bench. The tall man was talking on his mobile phone as he entered the bank. Chris Orake told him to go outside and continue his conversation there. He then walked the man out of the bank but the man pushed a red and yellow bag to Tommy Baker as he was walking out. After leaving the man outside the bank, Chris Orake went back into the bank and was assisting a friend of Michael Bato when two men pushed security guard Philemon into the bank. They were armed with home-made guns. As this was happening, the tall man returned and forced a bank officer Herowai Kapigeno into the bank. The two men pointed guns at Chris Orake. One of them swung his gun at him but missed causing Orake to fall to the floor.
12. The robbers then ordered the customers to lie on the floor and the accused who was armed with a home-made shot gun started to check the customers for their mobile phones. As he was doing that, his accomplices unsuccessfully tried to get one of the bank officers, James, to open the door into the main area of the bank.
    
13. By that time, the police were alerted, and sensing this, the robbers hastily ran out of the bank. One of them ripped off a computer screen or monitor from the lending table and ran out of the bank with it to a waiting get-away vehicle.
    
14. The accused, being the farthest from the door, ran out last. He made for the get-away vehicle with a home-made shotgun and pistol in his hand. He was, however, felled from behind by Michael Dulo, one of the customers in the bank that morning who immediately followed after the accused as he ran out. The two struggled and other members of the public set upon the accused and belted him up. He was later handed over to the police.
    

DELIBERATIONS

Whether accused planned and participated with others in the attempted robbery and robbery.

15. Was accused part of the gang that planned the robbery? The accused said he was not. He said he was told by his friend Charlton to meet him at the bank so that he would give him some money from monies he was paid from a contract. He said he did not know about the planned robbery.
    

14. Intention as a state of mind is not easy to prove as it is hard to probe into the mental process of an accused person or anybody for that matter. However, the necessary intention or mens rea can be manifested by outward actions of a person. In other words, intention is often manifested and displayed in actions.

15. Hence, can it be reasonably been inferred from the facts above stated that the accused merely was caught up inadvertently in a robbery attempt that he knew nothing about?

16. The facts do not support that assertion. The accused was in the bank with the others armed with a home-made gun. He went around the customer area checking the customers who were lying on the floor for their mobile phones. He ran out of the bank - not casually walked out as he testified - with the home-made gun and a pistol in hand for the get-away vehicle but was knocked down by Michael Dulo before he could get on the vehicle.
    
17. These to me are not the actions of an innocent man. Rather, they are the actions of a man who was with the group which came with the intention to rob the bank that morning. It can be reasonably be inferred that he had planned with his accomplices to rob the bank and they did everything preparatory to the act of robbery. Their efforts were, however, frustrated or thwarted and they failed in getting any money from the bank though one of them ran off with a computer monitor.
    
18. In all these the accused and his accomplices were acting together, aiding and abetting each other. While the accused may not have physically ripped out and carried away the computer monitor but one of his accomplices did, he is caught by Section 7 of the Code and therefore as equally criminally liable for the acts of his accomplice.
    

CONCLUSION

19. The prosecution evidence clearly proved beyond a reason doubt all the necessary elements of both charges the accused was indicted with. For the charge of attempted robbery, the accused and his accomplices entered BSP on the date in question with intent to steal from the bank. They were armed with dangerous weapons, namely guns. And at, during and after the act, they assaulted bank staff members such Chris Orake. Bank clients who were at the bank were threatened as well.
    
20. For the count of armed robbery, one of the accused’s accomplices ripped off and carried away a computer monitor belonging to the bank with threats and actual violence. The accused was in company of this other person and others, and they were armed with firearms.
    

VERDICT

18. The accused, therefore, is guilty of one count of attempted robbery and one count of robbery as charged. I convict him accordingly.
__________________________________________________________________
Public Prosecutor: Lawyers for the State
Paraka Lawyers: Lawyers for the Accused