Lulip v The State [2000] PGSC 3; SC636 (31 March 2000)

Unreported Supreme Court Decisions

SC636

PAPUA NEW GUINEA

[SUPREME COURT OF JUSTICE]

SCRA 24 OF 1999
GIBSON LULIP
-APPELLANT-
THE STATE
-RESPONDENT-

Mount Hagen

Hinchliffe Injia Sawong JJ
27 March 2000
31 March 2000

CRIMINAL LAW - Sentence - Attempted Robbery - Robbery - Unlawful use of Motor Vehicle - Plea - Use of firearm - Firearm discharged - Person killed - Worst type of offence - 25 years imprisonment confirmed.

Counsel

Appellant in Person

K. Umpake, for the Respondent

31 March 2000

HINCHLIFFE INJIA SAWONG JJ: The appellant pleaded guilty to a charge of attempted robbery pursuant to S 387(1) and (3), a charge of robbery pursuant to S 386 and a charge of unlawful use of a motor vehicle pursuant to S 383 of the Criminal Code (Ch. 262) respectively.

The trial judge convicted him on each charge and sentenced him to 25 years, 8 years and 2 years imprisonment on each charge respectively on 15 March 1999. He made the sentences on the robbery and the unlawful use of motor vehicle charges, to be concurrent with the 25 years imprisonment on the charges of attempted robbery. Thus the total effective sentence was 25 years imprisonment. The appellant filed an appeal in person against the severity of sentence.

The facts which form the basis of the sentences are as follows. Prior to the offence being committed, the appellant and several other men heard that a group of local land owners were going to collect some royalty payments that particular day. And so they then deliberately planned to hold them up and rob those villagers. On 27 day of July 1999, the appellant and his accomplices armed themselves with several firearms and other weapons, waited for the returned of the villagers from Kimbe. As they waited a truck carrying the said villagers approached where the appellant and his accomplices were hiding, the appellant and another man who were both armed with the shotguns came out of their hiding place, onto the road and pointed their guns at the driver in an attempt to stop the said vehicle and its passengers. However, the driver did not stop. When the driver did not stop the appellant’s accomplice fired a shot at the front windscreen of the said vehicle and as the driver kept driving on, the appellant fired a shot from the firearm he was armed with. The first shot hit the off-sider of the truck hitting him on the head and injuring him. That man died that same evening. Despite these the said truck kept going and the appellant and his accomplices then held up another vehicle. This time it was Mitsubishi L200 Double Cab utility belonging to the Buvusi Health Centre. They used the said utility and followed the truck but to no avail. The appellant and his accomplices then abandoned the utility and escaped.

The trial judge considered the case of the attempted robbery to be amongst the worst type and imposed twenty five (25) years imprisonment.

The law is well settled that in an appeal against sentence, the onus is on the appellant to demonstrate that the trial judge fell into an error in the exercise of his sentencing discretion.

The appellant is now appealing against the sentence passed upon him. He raises three grounds and those are that:

(1) His grounds were not considered by the trial judge.

(2) The Public Solicitor did not present his case properly.

(3) The sentence is manifestly excessive.

In his written submissions the appellant submitted that the trial judge did not give proper consideration or weight to the facts that he had co-operated with the police and that he provided the police with vital information regarding the other persons who were involved in the commission of the crimes. He also submits that the trial judge did not give proper weight and consideration to the fact that a large amount of compensation had been paid, and when the sentences were imposed upon this, this amounted to a double punishment. He says that because of these factors the sentence was harsh and excessive.

Mr Umpake submitted that the lawyer from the Public Solicitor did represent the appellant properly and therefore there was no basis for that complaint. Mr Umpake further submitted that the trial judge did infact took into consideration the fact that compensation had been paid and that the appellant had surrendered to the police. He therefore submitted that these Complaints have no basis.

Next Mr Umpake submitted that whilst the sentence is the highest sentence imposed for attempted robbery handed down by the National Court, at this point in time, nevertheless given the circumstances of this case it is not excessive. He submitted that in the end the appellant has not demonstrated any error and therefore the appeal should be dismissed.

We accept the submissions put to us by Mr Umpake. In relation to grounds (1) and (2) of the Notice of Appeal, we note that the trial judge did make specific references in his decision in relation to the payment of compensation and the appellant’s surrender and co-operation with the police. We are of the view that these and other mitigating factors were given due consideration and weight by the trial judge in arriving at the sentence.

The trial judge considered the attempted robbery in this case, so serious that the various mitigating factors put before him did little to persuade him from imposing a stern punishment.

Whilst we accept that the sentence is the highest sentence for attempted armed robbery handed down by the National Court at this point in time, we are firmly of the opinion that it is not excessive in the circumstances of this case.

We too consider that this was among the worst type of an attempted robbery case. We say so because this was not a spur of a moment type of an offence. Here the appellant and his accomplices planned to carry out an unlawful purposes. The appellant and his accomplices then armed themselves with several firearms and other dangerous weapons. The appellant was armed with a firearm which was loaded and which was subsequently discharged.

He and the others waited in ambush for the victims. When the victims arrived at the scene, the appellant and another men went onto the road pointing their loaded firearms at the driver of the truck. When the driver did not stop, they fired directly into the truck. He and his accomplice’s paid little or no regard to the value of human life.

The maximum punishment for the crime of attempted robbery with aggravating factors is life imprisonment, see Criminal Code, s.387(3). Whilst sentences for this particular crime will normally be lower then sentences for robbery, there are those cases which will justify the imposition of heavier punishment and even the maximum sentence.

We are of the view that crimes of violence involving the use of firearms have become much more prevalent. The community is calling for heavier sentences as a deterrent.

In the circumstance, we find that the trial judge correctly imposed the sentences.

It follows that the Appeal must be dismissed and the sentences imposed by the National Court confirmed.

APPELLANT IN PERSON.

LAWYER FOR THE STATE: PUBLIC PROSECUTOR