State v Moer [2019] PGNC 475; N8390 (3 September 2019)

N8390

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR No. 662 OF 2018

THE STATE

-v-

JACOB OKONA MOER

Waigani: Koeget, J
2019: 21^st, 22^nd, 23^rd, August, 03^rd September

CRIMINAL LAW - Indictable offences – Armed robbery pursuant to section 386 (1) of the Criminal Code Act – Unlawful use of a Motor Vehicle pursuant to section 383 (2) of the Criminal Code Act – Convictions after a trial – sentences ordered to be served concurrently.

FACTS

On the evening of 24^th October 2017 between 7:30 and 8 o’clock, the complainant Shirley Pohei and husband drove to the gate of their residence located at Rainbow Estate in the National Capital District. The complainant stepped out of the vehicle, a Toyota Rav 4 to open the gate to their residence when the accused armed with a firearm and in company of accomplices approached her. The complainant threw her hand bag into the flower garden when she sighted the firearm. In that handbag were cash of K3,060.00 and her bank cards and mobile phone. The gun man took possession of the handbag and returned to the motor vehicle, a Ford Ranger, Wild Track, orange in colour and registration number: BCS 419.

The complainant’s husband drove away and return after the Ford Ranger, Wild Track Orange colour drove out of the crime scene. The complainant and husband drove to the Gerehu police station and reported the incident including the sighting of the get away vehicle, a Ford Ranger, Wild Track, orange colour.

The police radio operator alerted a motorised patrol around Gerehu suburb at night and informed them that the Ford Ranger Wild Track, orange in colour was spotted along the Gerehu - 9 Mile road. So the police proceeded to the location, spotted the vehicle and gave chase to Morata Number 4 settlement were the accused and another jumped out of the vehicle when it stopped momentarily and fled up to the mountain top in the dark. Three policemen walked on foot up to the top of the hill and apprehended the accused but his accomplice escaped into the darkness and fled to the bush.

The police investigation reveal that the correct registration number of the Ford Ranger Wild Track, orange colour, is BES: 119 and was stolen from Teika Tefatu the previous day and he reported it to the policemen on duty at the Boroko Police station.

The State alleges that when the accused in company of others, armed with a firearm and stole from the complainant with threat of actual violence, her handbag containing cash of K3,060.00 and the bank cards and a mobile phone, the actions contravene section 386(1),(2)(a)(b)(c) of the Criminal Code Act chapter 262.

The State further alleged that when the accused used the motor vehicle, the Ford Ranger, Wild Track, orange coloured bearing false registration number: BCS 419 without the consent of Teika Tefatu, who was in lawful possession, the actions contravened section 383 (2) of the Criminal Code Act chapter 262.

The State invoked section 7 of the Criminal Code Act as the accused was in company of others when the offences were committed.

The accused pleaded not guilty to the charges on arraignment on the above facts.

Cases Cited:

Gimble –v- The State [1988-89] PNGLR 271

Counsel:

Ms H. Roalokona, for the State
J. Gubon, for the State
Ms A. Peter, for the accused

3^rd September, 2019

1. KOEGET J: INTRODUCTION: The accused is charged with one count of Armed Robbery pursuant to Section 386(1), (2) of the Criminal Code Act chapter 262. He is also charged with Unlawful Use of a Motor Vehicle pursuant to section 383 (2) of the Criminal Code Act.

Evidence For the State

Trial

1. Witness: Teika Tefatu
   

2. He resides with wife and children at Yorkshire Estate at 8 Mile at the outskirts of Port Moresby city. He is employed by Petrolmin Limited Mineral Resource Lihir as Chief Executive Officer (“CEO”) of the company.

3. On Sunday 22^nd of October, 2017 he was with his family outside of the family residence till one o’clock in the afternoon when all retired to the house. He heard dogs barking loudly outside so his wife told him to open the louvers to see why the dogs were barking. As he drew the curtains, he saw two armed men running between the office and the house. The armed men ran to the door that has a small veranda outside and began banging it. So he went to assist the son to push the door firm to stop the entry of the armed men into the house. He thought of escaping out of the house to raise alarm but when he looked outside, saw the other person standing holding an object that resembled a gun pointed at him and so decided to remain in the house.

4. The two men broke open the door and entered the kitchen. The son was taken to the kitchen where his legs and hands were tied up with ropes. The two armed men ransacked the house and took with them four mobile phones, two laptops, children’s school bags, wallet and keys to the Ford Ranger, Wild Track, orange in colour, registration number: BES 119. The vehicle was parked in front of the office.

5. The robbers persistently asked him if there was money in the house or in the office safe. He repeatedly told them that no cash was kept in the house and the office. As he sat in a chair in the dining room and looked outside, he heard a bang and the gate to the office was eventually opened and the Ford Ranger, Wild Track, orange in colour was driven away. He proceeded to report the robbery to the police the same day and on 24^th October 2017 at twelve mid-day, he received a phone call from a policeman requesting a spare key for the Ford Ranger, Wild Track so he handed the spare keys when they attended his house.

6. On 25^th October 2017, he received a phone call from policeman at Boroko Police station requesting him to go and identify a motor vehicle. So he went to the police station and noticed the vehicle was the same one taken away from him by the robbers but it had a false registration number (BCS 419). He told the police that it was the vehicle he kept but stolen by the robbers and it belongs to MRL (“Mineral Resource Limited”) and it was allocated to him as he is the General Manager of that company.

2. Witness: Shirley Pohei
   

7. She is married and resides with husband and children at a rented accommodation at Rainbow Estate, Gerehu in the National Capital District. The accommodation she rents with her husband is located near the fuel station at Rainbow Estate.

8. On 24^th October 2017, she went to work in the morning and in the afternoon when she finished for the day, she returned home in a family vehicle. Her husband was the driver of the family vehicle and she sat as the off-sider. They drove to Rainbow Estate where the husband stopped the vehicle by road side and purchased couple of stubbies then they proceeded to the house. As they arrived at the entrance to the house, she went outside to open the gate to their residence. As she was opening the gate, she noticed a vehicle drive past their vehicle and reversed to the front of it. She heard someone shouted “hold-up” and a person ran towards them. She retreated towards their house when a man armed with a shot gun advanced to her so out of fear she threw her handbag containing cash of K3,060.00, a mobile phone and bank cards to the flower bed and moved away from the gun man. The gun man picked up the handbag and walked to the waiting motor vehicle. The gun man got into the vehicle and all drove and followed her husband. She did not recognize the face of the gun man because he wore a cap and it covered his face and it was dark as no street lights were switched on. The description she gave of the gun man is that he is short, not fat, dark skinned, and his is not a Highlander.

9. The person that approached her held an object that resemble a barrel of a shot gun and he had his fingers as if he was about to pull the trigger. She was escorted by the husband to the Gerehu police station where she reported the incident.

10. When she returned to the house at night, a policeman contacted her by mobile phone and told her to go to Waigani police station to identify a man in the cells. She went with her husband but could not identify the person because the police cells were dark as there were no lights. She returned home with the husband after the visit to the police station.

3. Witness: Steven Hanua
   

11. He is married to Shirley Pohei and resides with family in a rented accommodation at Rainbow Estate. On 24^th October 2017 he went to work with his wife in the morning and after work he went and picked up his wife in the family vehicle and both drove home to Rainbow Estate. It was about 7:50 pm and was dark when he drove and stopped the vehicle in front of the gate. His wife went out of the vehicle to open the gate when a vehicle drove from the rear of his vehicle to the front and as it is a “dead-end” road it reversed towards the front of his vehicle. The vehicle has a Ford Ranger, Wild Track, orange in colour and three men came out of the vehicle. One of the men went to his wife while two advanced to him as he sat in the vehicle. He noticed the neighbour’s gate on the left-hand side was open so drove to the neighbour’s premises then turn and drove out on to the street. He returned to the residence and switched off the head lights to the vehicle and waited in the dark. He saw the Ford Ranger drive past and disappear into the dark. He went into the house and picked up his wife and both went to Gerehu police station to report the incident. The man standing on his right-hand side was armed with a pistol.

4. Witness: Aroma Oroha
   

12. He is a policeman with the rank of a Constable and he is attached to the National Capital District Task Force. On the night of 24^th October 2017, he was on duty in a motorised patrol around Gerehu suburb. They drove along the Gerehu – 9 Mile road then turned and followed a dirt road leading to Gerehu Stage 5 and the driver stopped the vehicle and searched for fresh vehicle tyre marks on the dirt road.

13. A Ford Ranger, Wild Track, orange coloured drove past their vehicle and they followed it as it was about 10 – 15 meters in front. When they were close to the rear of the Ford Ranger, Wild Track, it accelerated so they pursued it into Morata number 4 settlement. It was a dirt road and there were lots of dust as the vehicles sped so could not see well but was able to see two men jump out of the Ford Ranger, Wild Track when it stopped momentarily then sped out again at high speed. The people selling goods at the informal markets told them that two armed men jumped out of the Ford Ranger and ran up to the mountain and they are frightened of those men. The supervisor stopped the vehicle and directed him and three others to walk to the top of the mountain in search of the two armed men.

14. The four of them walked to the top of the mountain where there are no houses and lights, they split and walked separately. He was armed with a police issued M16 bush master rifle. He saw two men sitting in the dark at the top of the hill and both fled when they sighted him. He fired a shot into the air and the accused stopped so told him to lay on his stomach face down.

15. He shouted for others to come and they apprehended him and tied his hands with his own belt. The suspect was taken to the police vehicle parked on the side of the road and taken to Waigani police station where he was formally charged and remanded in the police station cells. The names of the other policemen on motorised patrol with him that night are Constable Jack Aiso, Constable Harry Miri, Constable Kelly Kuling and supervisor was Senior Constable Raymond Mition. He knew the accused when he arrested him for alleged armed robbery at Ensisi Valley some years ago and the second occasion was at Eki Vaki primary school when he met him in the morning. He denies that the accused is a police informant.

5. Witness: Jack Aiso
   

16. He is a policeman attached to the National Capital District Task Force. On the evening of 24^th October 2017, he was with some policemen conducting a motorised patrol around Gerehu suburb when he heard on a police radio installed in the vehicle he was travelling in that there was an armed robbery at Rainbow Estate earlier that evening. The radio operator announced that the vehicle involved in the robbery at Rainbow Estate was a Ford Ranger, Wild Track, orange coloured and it was headed towards Gerehu Suburb.

17. So in response, the driver of the police vehicle travelled from Gerehu to 9 mile along the Gerehu – 9 mile road and at the turn off, a dirt road leading to Gerehu Stage 5, the driver stopped and parked the vehicle. The policemen went out and inspected the dirt road for possible fresh tyre marks on the ground. As they stood, a vehicle drove from the rear of the police hired vehicle and travelled ahead and when it was 10 – 15 meters away, police noted that vehicle fitted the description of the vehicle involved in the robbery at Rainbow Estate earlier that evening. So the driver of the police hired vehicle gave chase and as it drove close to the rear, the Ford Ranger, Wild Track, accelerated and produced a lot of dust in the air that affected their visibility and the driver of their vehicle slowed down the speed to avoid collision with on coming motor vehicles.

18. The police vehicle continued to follow the Ford Ranger, Wild Track until it reached the entrance to Morata 4 settlement where the vehicle stopped and two men jumped out and ran past the houses to the top of the mountain where no people lived. The police hired vehicle stopped at that location and some people in the community told the policemen that two armed men had jumped out of the vehicle and ran up to the mountain were it is dark and no people live there. The people in the community were fearful of the two armed men.

19. The police supervisor directed him and other policemen to walk and search for the armed men so with the assistance from the community, they walked to the top of the mountain. They split and went in different directions searching for the armed men. He was armed with a M16 bush master rifle and he heard Constable Aroma Oroha shout and said he captured one of the armed men so went and assisted him to take the suspect to the police hired vehicle parked on the side of the road. The suspect was taken to Waigani police station and remanded in the cells.

EVIDENCE

For Defence

Witness: Jacob Okona Moer

20. He is from Lou Island in the Manus Province. He is married and resides with his family at Morata settlement in the National Capital District. He works with a small company as a carpenter, brick layer and welder. In 2017, he was engaged by Kay Monda, a businessman from Mt. Hagen to do maintenance on his residence at Hohola in the National Capital District.

21. He resides at Morata settlement along the Goa street several meters away from his residence.

22. On the morning of 24^th October 2017, between 7 am and 8 am he went to Kay Monda’s residence at Morata settlement with his tools. The other contractors engaged by Kay Monda were present at his residence and so he briefed the contractors of the security arrangement with the police at his dwelling house at Hohola. The businessman engaged the accused and others to carry out maintenance work on his dwelling house at Hohola. He advised the contractor that police personnel will be at the premises during the day time keeping a watch over the premises as there are issues with the wantoks of the previous owner.

23. Whilst at Kay Monda’s residence at Morata settlement, some police personnel attended the businessmen’s residence and advised the contractors that they will follow them to the residence at Hohola. So Kay Monda’s company vehicle transported him and the other contractors with their tools to the dwelling house at Hohola. Between 12:00 midday and 1 o’clock in the afternoon, the same group of policemen arrived at the dwelling house located at Hohola. They went in a Toyota 5^th Element blue in colour. They gave him betel nuts to chew and sometime later he was taken to the side of the police hired vehicle and asked to help them locate the vehicle, a CRV, white in colour involved in a robbery at the Paddy’s Bar the previous night. He knew the policemen as they apprehended him for a suspected robbery at Ensisi Valley in the National Capital District some years ago. He informed the policemen that he will obtain more information about that vehicle after work. He finished work at 5:30 in the afternoon and was transported by the company vehicle with other contractors to their residences at Morata settlement.

24. He had his bath, changed clothes and went to the power station, to a location where youths gather under the trees. He went to obtain from the youths the where about of the vehicle involved in the armed robbery at the Paddy’s Bar the previous night. The youths said there was a vehicle at Gerehu and they are going to see it so he went with them. He sat with the three other youths in the tray of the vehicle when they drove to Gerehu suburb. They drove to Gerehu stage 7 and stopped the vehicle and walked about 30 meters into the bush and meet some youths. The youths told him to wait and as he waited, a Ford Ranger, orange in colour was driven to that location.

25. The youths told him that the vehicle belongs to Gerehu and only Gerehu youths will travel in it. So youths from Gerehu boarded the Ford Ranger and went. He remained in the same vehicle with the same youths and drove to a street in Gerehu where Powes Parkop’s residence is located when he contacted the policemen and told them the vehicle is a Ford Ranger, orange coloured. The youths in the Ford Ranger asked if there were any police road blocks at Gerehu and he responded and said there was no police road blocks. They waited there for 30 – 40 minutes and the youths in the Ford Ranger asked if the Gerehu – 9 Mile road was clear. They drove to Morata settlement and the driver parked the L200, white in colour on the side of the road when the Ford Ranger, orange colour arrived and stopped immediately when the police vehicle arrived. The Ford Ranger drove out followed by the police vehicle. At that time he was with three other youths standing by the road side. As soon as the police vehicle drove away, the three of them walk through the Highlander’s blocks and went up to the top of the mountain. He went with one youth while the other went on his own. He walked with the other youth to the top of the mountain and sat down in the dark when policemen arrived. The other youth fled but he remained, so the police apprehended him and took him to Waigani police station and he was remanded at the police station cells.

Analysis of Evidence in the trial

(a) Undisputed Evidence in the trial:

• - There was an armed robbery at Yorkshire Estate, 8 Mile on the afternoon of Sunday 22^nd of October 2017 where the dwelling house was broken into and the robbers stole four mobile phones, two laptops, a wallet and children’s school bags.
  
• - A Ford Ranger, Wild Track, registration number: BES 119, orange in colour was driven out of the company premises by the robbers without the permission of the custodian Teika Tefatu.
  
• - The break and enter and theft of personal belongings including the motor vehicle at Yorkshire Estate at 8 Mile was reported on the same day to the policemen at Boroko Police station.
  
• - The stolen orange coloured Ford Ranger, Wild Track, with false registration number BCS 419 was used in a robbery at Rainbow Estate, Gerehu on the night of 24^th October 2017. The complainant’s handbag containing cash of K3,060.00, a mobile phone and bank cards were taken by the robbers.
  
• - At night (24^th October 2017) the accused was apprehended by the policemen on the top of a mountain at Morata number 4 settlement. The accused’s accomplice fled the scene at the location on the top of the mountain. There are no houses and no people living there. It is a bush with grass and trees and there is no light at all.
  

Disputed facts in the trial:

- Whether the accused was a police informant.

- The accused gave no names of the policemen who requested him to obtain information from the youths about the identity of the vehicle used in the robbery at the Paddy’s Bar prior to 24^th October 2017 and where it can be located. He did not provide the phone numbers of these policemen that requested him to assist them with the information.

- Since he knew that the vehicle located at Gerehu was not involved in the robbery at the Paddy’s Bar, then it is logical he had no reason to go to Gerehu that night.

- The accused did not provide the registration number of the motor vehicle L200, white in colour. He gave no other details of the motor vehicle L200 nor the name of the owner and the driver of that vehicle on the night of 24^th October, 2017.

- In my view this was a false explanation he gave for him being at Gerehu travelling to Morata settlement in the Ford Ranger, orange in colour when intercepted by the police.

- The accused obtain no information from Andrew Andix in relation to the identity of the vehicle used in the robbery at the Paddy’s Bar so gave none to the policemen as a result.

- The Highlanders residing at the entrance to Morata settlement told the policemen that two men jumped out of the vehicle and ran into the dark and they are residing in fear of them. This account is consistent with the evidence of Constable Aroma Oroha that he saw two people jump out of the Ford Ranger, Wild Track and ran into the darkness. With the assistance of the residents at the entrance to Morata 4 settlement the accused in company of Andrew Andix was located in the bush at the top of the mountain at Morata settlement. The accomplice “Andrew Andix” fled the scene and he was not apprehended by the police. The accused stated that “Foti” left himself and Andrew Andix and went away before the policemen arrived so that admission demonstrates there were initially three people that jumped out of a vehicle at the entrance to Morata settlement.

- If he was a police informant, then what was he doing with “Andrew Andix” in a secluded location on the top of the mountain where there are no houses or lights and no people living at that location?

- The only reasonable conclusion is that both were involved in the robbery at Rainbow Estate and they were hiding from the policemen pursing them in a hired motor vehicle.

Findings

26. I accept the evidence of the State witnesses that on the night of 24^th October 2017 the Ford Ranger, Wild Track, orange in colour with false number plate: BCS 419 travelled from Gerehu to Morata number 4 settlement when the police hired vehicle intercepted and gave chase.

27. I also accept the State witnesses evidence that two persons jumped out of the orange coloured Ford Ranger, Wild Track when the vehicle stopped momentarily at the entrance to the Morata 4 settlement.

28. The accused stated that on the night of 24^th October 2017, at the entrance to Morata settlement when he jumped out of the vehicle, he was in company of “Andrew Andix” and “Foti”. So three persons jumped out of the vehicle at the entrance to Morata 4 settlement. This admission is consistent with the State witnesses account.

29. The State witnesses stated that there were four men involved in the armed robbery at Rainbow Estate earlier on the night of 24^th October 2017. Since the accused stated that two persons were with him at the entrance to Morata number 4 settlement, the fourth person was the driver of the orange coloured Ford Ranger, Wild Track, with false registration number: BCS 419. So reasonable inference is that the accused in company of Foti, Andrew Andix and the driver were in that vehicle on the night of 24^th October, 2017. The accused admitted that the orange coloured Ford Ranger, Wild Track was a stolen vehicle.

Verdict

30. In my view the accused was involved in the armed robbery at Rainbow Estate with Andrew Andix, Foti and the driver earlier that night before the police intercepted their vehicle as they were returning to Morata 4 settlement. Therefore, I find that all the elements of the offences are established and the State has proved its cases against the accused beyond reasonable doubt. The accused is found guilty on the charges of Armed Robbery and Unlawful Use of a Motor Vehicle.

ISSUES

31. The issue for the Court to determine is what are the appropriate sentences the Court should impose upon the prisoner.

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.

“Section 383. Unlawfully using motor vehicle, etc.

(1) In this section, “unlawfully uses” includes the unlawful possession by an person of any motor vehicle or aircraft -

(a) without the consent of the owner or of the person in lawful possession of it; and

(b) with intent to deprive the owner or person in lawful possession of it of the use and possession of it temporarily or permanently.

Penalty: Imprisonment for a term not exceeding five years.”

PERSONAL PARTICULARS

32. The prisoner is 36 years of age and is married with three children whose ages range from 2 years to eight years. The children reside with their mother at Morata settlement in the National Capital District. The prisoner is educated up to grade 6.

AGGRAVATING FACTORS

33. The prisoner in company of others committed the offences and dangerous weapons, a pistol and shot gun were used in the robbery. Some cash and bank cards with mobile phones were stolen during the robbery.

MITIGATING FACTORS

34. The prisoner is a first-time offender. He has been in custody awaiting disposal of the case for two years and nine months. He admitted the commission of the offence of Unlawful Use of a Motor Vehicle so saved valuable time of the court.

35. Although the prisoner has limited formal education, he was able to find semi skilled jobs in the city such as plumbing, carpentry, brick laying etc to earn salaries to sustain live for himself and family.

SENTENCES

36. The prisoner in company of others committed the offence of armed robbery at dusk at Rainbow Estate of Gerehu suburb in the National Capital District and fire arms were used to frighten the victim and so out of fear she threw away her hand bag containing cash, mobile phone and bank cards. The victim received no injuries in the hold-up.

37. The offence of armed robbery is a very serious offence in the Criminal Code. The maximum sentence is life imprisonment. The sight of the pistol instilled fear in the victim, fortunately she was not harmed. The offence of robbery was committed with aid of a stolen motor vehicle and so the offences were committed on the same day with difference of few hours apart.

38. The tariff of sentences for such offences were set out in the Supreme Court decision in the case of Gimble –v- The State [1988-89] PNGLR 271. The sentence would fall within category D of the tariff. Such offence is prevalent in the country and are committed by persons of similar age as the prisoner.

39. The prisoner admitted that he knew the vehicle he travelled that night was a stolen vehicle. The vehicle was not damaged when confiscated by the police.

40. Both offences were committed few hours apart so sentences imposed ought to be concurrent upon each other.

41. The accused is sentenced to be imprisoned for 8 years in hard labour for armed robbery. The pre-trial custody period is ordered to be deducted and the balance is 5 years 2 months.

42. The accused is further sentenced to 4 years in hard labour for the offence of Unlawful Use of a Motor Vehicle. The sentence for Unlawful Use of a Motor Vehicle is to be served concurrently upon the sentence for armed robbery.

43. So the total sentence the prisoner is to serve is 5 years and 2 months. The sentences are to be served at Bomana Goal.

Accordingly ordered
________________________________________________________________
Public Prosecutor: Lawyer for the State
Public Solicitor: Lawyer for the Accused