State v Aup [2019] PGNC 347; N8015 (23 August 2019)

N8015

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR No. 147 OF 2018

THE STATE

V

KENNETH AUP

CR No. 508 OF 2018

THE STATE

V

DONALD STEVEN JOE

Waigani: Koeget, J
2019: 13^th, 14^th, 15^th, 20^th, 23^rd August.

CRIMINAL LAW- Indictable offence – armed robbery – section 386 (1), (2) (a), (b) and section 7 (1)(a) of the Criminal Code – Exercise of discretionary powers under section 19 of the Code.

CRIMINAL LAW – EVIDENCE – Tender of Confessional Statement of accused Donald Steven Joe as it is involuntary – Voir Dire notice filed in Court states document not admissible due to police assaults that induced offender to make statements that suited the police – In the Voir Dire the accused stated although police assaulted him, such assaults did not induce him to make the confessional statement – Statement made by the police so he exercised his right and refused to sign it – confessional statement is detail account of the accused’s admission of knowledge, plan and participation in the robbery – confessional statement admitted into evidence.
FACT

The victim Carolyne Karemo at all material times was employed by Bank South Pacific Ltd as a team leader at the Mini Bank South Pacific Foreign Exchange currency branch at Jackson’s International Airport, 7 Mile in the National Capital District.

On the morning of 5^th August 2016, at about 3:50 am she was picked up from her residence at Hohola in the National Capital District by a motor vehicle that appeared to be her normal pick-up vehicle. As the vehicle drove away from her residence, the person seated inside the vehicle behind pulled and held her against the seat. The other person seated next to her pointed a factory made pistol and warned her to cooperate, if she does not cooperate, they will do something to her family in the house. She was warned not to raise alarm.

The accuseds and accomplices armed with factory made pistol and guns entered the International Terminal and the BSP team leader opened the mini Bank South Pacific Foreign Exchange branch at Jackson’s Airport, 7 Mile. The BSP team leader was directed to open the safe and remove the cash and put them in the stockfeed bag and also a blue coloured shopping bag. The total amount of cash taken was K778,292.44, the property of BSP Ltd.

She was told to sit down and not to raise alarm while they escape. So she obliged and five minutes later, she raised alarm and informed her supervisors of the robbery. The State invoked section 7(1)(a) of the Code since all accuseds acted in concert, and aided each other in the commission of the offence.

Case Cited:

Nil

Counsel:
R. Galamo, for the State
O. Mandui, for the State
B. Popeu, for the Accuseds

TRIAL

23^rd August, 2019

1. KOEGET J: INTRODUCTION: The accuseds are charged with one count of Armed Robbery pursuant to Section 386(1), (2) (a) (b) of the Criminal Code Act chapter 262. The State also invoke section 7(1) (a) of the Criminal Code Act.

Trial:

2. The accused pleaded not guilty to the charge while the co-accused Kenneth Aup pleaded guilty and his case awaits the completion of the trial. When the State attempted to tender into court a confessional statement dated 27^th May 2017 purportedly that of the accused Donald Steven Joe, learned defence counsel raised an objection on the basis the confession was induced by threats and assaults by the police officers and the accused was not the maker of that statement.

Voir Dire: Evidence

3. A Voir Dire is conducted to determine the allegations of police brutalities. The State called the police investigator Senior Constable Forbes Banasi and Constable Joel Woyangu to testify that the accused was taken from Bomana Corrective Institution Services for interview. He was observed to be well and complained of no sores, swellings and discomforts. He was taken to the Boroko station, CID Administration office where the confessional statement was obtained.

4. Both maintain that they introduced themselves to the accused and told him the reason why he was with them in that office and he understood it.

5. The accused was cautioned and his constitutional rights under section 42 (2) of the Constitution were administered and he exercised them as recorded in the confessional statement. They denied assaulting the accused nor allowed any member of the Royal Papua New Guinea Constabulary to assault or threaten the accused. At the conclusion of the confessional statement, the accused was asked to read and sign on each page, but he refused as it is his right and so that is why the confessional statement is unsigned.

6. The accused on the other hand gave differing accounts, for instance his oral evidence on oath is that he was seriously beaten up by the policemen at the Boroko Police station after arrival from Bomana Corrective Institution Services (CIS).

7. He was handed over to a Lance Tutuma who held him by the shirt collar, lifted him up and shoved his head on to the concrete floor of the CID office at Boroko Police station. Then Lance Tutuma continued to assault and boot him in the face and abdomen. After the assaults, Senior Constable Forbes Banasi told him to crawl under the table in the office and directed him to squat there for a long time then directed him again to crawl out and sit in the chair in the office.

8. However, in the unsigned confessional statement dated 27^th May 2017, he states Senior Constable Forbes Banasi scolded him and took him to the Police Station cells and locked him up. He was taken from there to Bomana Corrective Institution Services. He maintains that the confessional statement is not his. The policemen wrote the statement, printed it and he refused to sign it.
The unsigned confessional statement is in detail and it is a statement of a person who was present when it was planned, knew how it will be executed, when it will be executed and how many persons will be involved. The statement sets out where the accused was picked up in the early morning, where they travelled before picking up the BSP team leader from her residence and how she was held up in the vehicle as it travelled to Jacksons International Airport. It contains accounts of how the robbers gained entry into the International airport, who opened the safe and took the cash out from the safe, and how they escaped to Taurama (“End of the World”) where the money was shared. The accused received his share then travelled to Manu Auto Port by PMV bus and then to his residence at Gerehu. No other person can make such detailed account of a robbery except those that participated in the commission of the offence. This is the accused’s admission of knowledge, planning and participation in the robbery. In my view, this is his statement and so it is admitted into court.

9. Since the unsigned Confessional Statement is admitted into court, the issue to be determine at this stage is what weight should be given.

10. The accused knew of the consequence of being imprisoned for a long period of time if convicted, thus he refused to sign the statement so that in court he can contest the admissibility of the statement as in this case.

11. It is a trite law that an accused person can be convicted on his or her confession alone. So in this case, sufficient weight is attached to the unsigned confessional statement and so the accused is found guilty as charged.

Verdict

(1) The accused is found guilty as charged.

ISSUE

12. What is the appropriate sentence the court should impose on the prisoners?

LAW

“Section 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 offensive weapon or instrument;
• (b) is in company with one or more other persons; or
• (c) at, immediately before or immediately after, the time of robbery, wounds or uses any other personal violence to any person;
  

he is liable subject to section 19, to imprisonment for life.”

Kenneth Aup

PERSONAL PARTICULARS

13. He is 40 years of age and is married with 3 children and reside with their mother in the National Capital District.

AGGRAVATING FACTORS

14. This is a very serious offence committed in company of others. The prisoner and others used fire arms in the commission of the offence. A substantial sum of monies were stolen and none recovered.

MITIGATING FACTORS

15. The prisoner made admissions when he gave confessional statement to the police. He gave account of the part he played in the commission of the offence.

16. He pleaded guilty to the charge and saved valuable time of the court. He is a first time offender and he has been in custody awaiting disposal of the case for 2 years and 3 months. During the armed hold-up of the BSP team leader, he successfully persuaded the accomplices not to harm her and so she was not harmed at all.

Donald Steven Joe

PERSONAL PARTICULARS

17. The prisoner is 32 years of age and is a widower. He was a peer educator with the Catholic church prior to the commission of the offence.

AGGRAVATING FACTORS

18. The offence was committed in company of others and the prisoner and accomplices were armed with factory made firearms. The offenders stole substantial amount of cash and none was recovered. Such offence is prevalent in the country these days. He was convicted after a trial.

MITIGATING FACTORS

19. The prisoner is a first time offender. He has been in custody for 2 years 3 months waiting disposal of this case.

SENTENCES

20. This was a robbery in which a bank employee was held up with firearms by the prisoners and others and she was directed to follow their instructions, failing, something will be done to her family in the house. The bank employee was not harmed because the prisoner Kenneth Aup successfully persuaded accomplices not to do so. A large amount of cash was stolen and none recovered by the police.

21. The prisoner Kenneth Aup made early admission to the police and pleaded guilty to the charge in court so saved valuable time. He played an important role in persuading the accomplices including the prisoner Donald Steven Joe not to harm the BSP team leader. So a reduction in sentence will be accorded unlike his accomplice Donald Steven Joe who was convicted after a trail. So the following sentences are imposed:-

(a) Kenneth Aup

He is sentenced to be imprisoned for 8 years in hard labour. Since he has been in custody for 2 years and 3 months, this period is deducted. The balance of 5 years 9 months are to be served at Bomana Corrective Institutional Services.

(b) Donald Steven Joe

He is sentenced to be imprisoned for 10 years in hard labour. The pre-trial custodial period of 2 years 3 months is deducted and the balance of 7 years 9 months are to be served at Bomana Corrective Institutional Services.
______________________________________________________________
Public Prosecutor: Lawyer for the State

Public Solicitor: Lawyer for the Accused