State v Ailya [2007] PGSC 32; SCRA 10 of 2007 (31 August 2007)

PAPUA NEW GUINEA
[IN THE SUPREME COURT OF JUSTICE]
SCR 10 OF 2007

STATE

V

MASOL AILYA

Mount Hagen:
Sakora, Davani and Lay JJ.
2007: 29 and 31 August

CRIMINAL LAW– armed robbery ─ appeal against severity of sentence ─ whether amount stolen adequately proven ─ whether mitigating circumstances given proper weight.

Cases Cited

PNG Cases
The State v Ogada Minjipa [1977] PNGLR 293
Norris v The State [1979] PNGLR 605
John Rumet Kaputin v The State [1979] PNGLR 559
Avia Aihi v The State (No.1) [1981] PNGLR 81 at 93
Avia Aihi v The State (No. 3) [1982] PNGLR 92
John Jaminan v The State (No.2)[1983] PNGLR 318.
Gimble v The State [1988-89] PNGLR 271
The State v Michael Rave and others [1993] PNGLR 85
State v Vincent Malara (2002) N2188
Richard Liri v The State SCRA 9/2006

Overseas Cases Cited
Browne v Dunn (1893) 6 R 67(HL)
References
Criminal Code

Counsel
Appellant in person
S. Kesno, for the State

DECISION

31 August, 2007

1. BY THE COURT: After a trial the appellant was found guilty of one count of armed robbery in the company of others and with the use of dangerous weapons. The trial was only on the issue of how much was stolen, the appellant having admitted that he was involved in the robbery but claiming that the amounts stolen was K11,000. Other evidence went in by consent. The trial Judge found that the amount stolen was K120, 000 being K100, 000 in cash and K20, 000 in gold dust and mercury. The robbery was from a container used as a gold buying Point at Porgera.
   
2. The appellant was convicted on the 8th of October 2004 and sentenced to 10 years five months imprisonment after deduction of pre trial custody, the head sentence being 12 years.
   
3. The appellant's notice of appeal was filed on the 26th of January 2007, two years two months and a little over two weeks after conviction. The grounds of appeal are " (1) decision and conviction of National Court; (2) sentence too excessive". He has had no legal assistance in the preparation of his application and his appearance before the court. The appellant's written submissions advise the court that "I am not appealing against the verdict of guilty on the charge of armed robbery".
   
4. Where a convicted person has not appealed within the 40 days prescribed by the Supreme Court Act Section 29(1) He has no right of appeal. The only avenue is to make an application for leave to review pursuant to s.55(2)(b) of the Constitution and the court must exercise its discretion in favour of the applicant on the application for leave. The court's discretion will only be exercised in exceptional circumstances where some substantial injustice is manifest, or the case is of special gravity: Avia Aihi v The State (No.1) [1981] PNGLR 81 at 93.
   
5. If leave to review is granted the appeal is about sentence only. A trial judge exercises a wide discretion in matters of sentence. On an appeal against sentence the appellant must show that there was an error by the trial judge which permits the appellate court to interfere with the sentencing discretion of the trial judge. Errors which might be made by the trial judge are:
   
   • mistake of fact:
   • acting on a wrong principle of law;
   • taking into account irrelevant matters;
   • failing to take into account relevant matters;
   • clearly giving too much or not enough weight to matters taken into account.
     
6. Even if no error can be identified, if the sentence is out of all proportion to the crime, error will be inferred: See Norris v The State [1979] PNGLR 605 at 612-613 per Kearney J. and Gimble v The State [1988-89] PNGLR 271 at 272.
   
7. The appellant does not take issue with the fact that he admitted taking part in the armed hold-up with the qualification that he only admitted taking K11,000 in cash. As the appeal against conviction has been abandoned we treat all of the appellant's submissions as being directed to sentence. His written submissions handed up to the court on the hearing fall into the following broad areas:
   
   1. on the strength of the evidence before the court the trial judge should not have found that there was K100,000 available to be stolen. The State's evidence was not sufficiently credible to prove the issue beyond reasonable doubt;
      
   2. the appellant was convicted on a plea of guilty to armed robbery of K11, 000 and the court used the admission as a blanket cover for a huge amount of money that was never proven properly when disputed;
      
   100. the trial Judge did not take into account properly the mitigating factors before arriving at sentence, including (i) his motivation for committing the crime (ii) the compensation paid on both sides (iii) that no one was injured in the robbery (iv) that he held a bush knife and not a gun (v) and that he patiently waited for trial when major breakouts from Baisu jail presented an opportunity to escape.
        
8. The appellant's first submission is that the court did not take into account in sentencing that he committed the crime because he was upset that the victim's tribe cut his father and took a 15 seater bus in which his father was travelling. That submission is not correct. It can be seen at appeal book page 68 line 11 the trial judge said:
   

"he also said that while he was around where they were buying gold, he was disturbed upon being informed of the death of his father back in the village, back in his village of Yokos, in the Wapenamanda District at the hands of the persons from the victim,Pato Harete's line of Pawas village. That then led him to commit the robbery against Pato Harete in reprisal for his father's death. What the accused says is not a known defence in law on charges of robbery. Though it might give some insight into his reasoning process and in appropriate cases might constitute legitimate explanation for the offence. But in this case in his subsequent plea in mitigation, he asked leniency as his father needed his support in his old age. This contradiction only affirms my view on his demeanour and it does not give him any explanation for the robbery.

9. The appellant now explains away the point of contradiction mentioned by the trial judge by saying that the expression "killed dead," which he used in referring to his father's serious knife wounds is a common Enga expression when someone is seriously injured although not yet dead. This is fresh evidence and unsworn. We cannot place any weight upon it for the reasons we set out in paragraph 20. Even if it was accepted, it shows that the appellant acted in a manner understandable in his custom, but not acceptable to the law.
   
10. The appellant's next submission is that he admitted taking K 11,000 in cash and submits that that was the only amount of money held by Kelly Ambi at the time. The court was bound to make its decision on the weight of the evidence before it. The court had before it the sworn testimony of two State witnesses establishing that earlier that day K100,000 had been brought to the gold buying point at which the robbery took place and that money was still there immediately before the robbery. Further there was sworn evidence that the appellant picked up the handbag which contained K100,000 or K75,000 (K25,000 being on the counter), and that there were four others with the appellant.
    
11. Against that sworn evidence the court had only the unsworn testimony of the appellant. An unsworn statement does not have as much weight as sworn evidence because it has to be taken into account that the appellant had given up the right to give sworn evidence which would have been tested by cross-examination. However he chose to give an unsworn statement from the dock in which he was protected from cross-examination and from prosecution for perjury. Such a statement has some weight, but not much, it has more weight than counsels submissions, the tribunal of fact can give such weight to it as it considers it deserves having regard to all of the evidence: see The State v Michael Rave and others [1993] PNGLR 85 Dougherty J. and the cases there cited.
    
12. The trial judge was entitled to say that he preferred the State's sworn evidence from two witnesses against the unsworn statement from the dock of the appellant. The weight of the evidence was that K100,000 cash and K20,000 in gold and mercury was taken during the robbery. The indictment charged that the appellant was in company of others and that was established by the evidence. Whether that money was taken by the appellant or by one of his accomplices is a matter to be taken into account on sentence. However the court was bound to treat the robbery as one involving K 100,000 in cash and K20, 000 in property because that is what the weight of the evidence established.
    
13. Next the appellant submits that the trial judge in his decision at appeal book page 67, line 20, said "At this point it is not clear whether he was disputing the amount actually taken from the robbery or whether he was disputing the amount received from the proceeds of the K100, 000". The appellant submits that he was not saying he received K11,000 from the proceeds of K100,000 but the total amount that he stole was K11,000. When one looks at the trial judge's judgment, it is quite clear that the quotation referred to in this paragraph is taken from part of the judgment where his Honour is explaining what took place before the decision was taken to vacate the guilty plea, enter a not guilty plea and have a trial primarily on the issue of how much was stolen in the robbery. Once that course was taken the decision on verdict was made, not on admissions, but on the evidence we referred to in paragraph 12.
    
14. The appellant also makes a number of submissions to the effect that inconsistencies in the evidence established that the State witnesses were unreliable and that as a consequence it had not been established beyond reasonable doubt that K100,000 was there to be stolen. The first point is that in his evidence, Kelly Ambi said (appeal book page 35 line 20) " Q.:, before the robbery, did you buy some gold-you said you bought some gold, how much gold did you buy? Ans: K10,000. Earlier in his evidence (appeal book page 34 line 19) Kelly said "I had gold dust worth K15,000". The appellant submits that this is an inconsistency. In our view all that the witness was saying was that he spent K10,000 to buy gold dust which was worth K15,000 to his employer once transported to Mount Hagen and sold to the buyer there.
    
15. Then the appellant points to an advice given to him by the police as to why he was in custody(appeal book page 84 exhibit D2 Q4 "... yourself plus some others held a man namely Kelly Ambi at gun and bush knife point stole cash money K100,000 cash in bag, gold worth K18,000 gold and cash in box was about K2000 total of K120,000...”. He submits this is further evidence of inconsistency in the evidence of the amount stolen. We reject that submission because all the police were doing was giving him a general overview of why he was in custody based on their understanding of the case at the time. As a result of further evidence gathering the police understanding of what the precise details of the case are can change from time to time and be refined until the case is ready for committal proceedings.The police statement cannot be compared with the evidence of Kelly Ambi because we do not know what source the police had at the time on which to base their statement. The difference was not put to Kelly Ambi in cross-examination, and it would be wrong to draw an inference from it for the reasons mentioned in paragraph 19.
    
16. The appellant challenges Pato Harete’s evidence on the basis that he did not mention the K15,000 stand-by money from which Kelly Ambi said he spent K10,000 buying gold nor the K5,000 worth of mercury nor the K15,000 worth of gold mentioned by Kelly Ambi. He argues that as those items along with the K100,000 were the property of Pato Harete he should have mentioned them. While the evidence of the two State witnesses was not identical, it has to be kept in mind that the appellant through his counsel could have cross examined on the issue if it was part of the appellant’s defence that the items did not exist. Pato Harete was called specifically to give evidence on the source and delivery of the K100,000. He was not asked about the other items. We do not consider the discrepancy castes any doubt on the evidence given.
    
17. The appellant submits it was important that Pato Harete, when asked did he count the K100,000 replied that the company accountant counted it and he gave it as it was to Kelly Ambi. It is submitted that the answer was not direct and good. However we consider it is clear that the witness was saying he did not count it. Later Kelly Ambi gave evidence that he did count it. So we do not see this point as casting any adverse inference on the evidence of the State.
    
18. Kelly Ambi said that there was a copy of a receipt for the K100,000 with him. The appellant submits this receipt should have been produced. Pato Arete did not mention the receipt. It was open to the appellant to call for the production of the receipt if he wanted to show that it did not exist or showed a lesser sum than K100,000. He did not do that. It’s production was not necessary for the State’s case. It’s non production does not create a reasonable doubt in respect of the evidence of two sworn witnesses that there was K100,000..
    
19. Pato Harete said that only Kelly Ambi worked for him. Bell Harete in his statement to police (appeal book page 79) claimed that he was “assisting my brother buying gold”. The appellant submits this shows Pato Harete was not a truthful witness. However Bell does not say he works for his brother, nor in what capacity he assists. Nor was that claim put to Pato Harete in cross examination. It would be wrong to draw an adverse inference from such a discrepancy when the witness whose evidence is to be challenged was not given the opportunity to comment. It may have been an untrue claim, or it may have been true but Pato did not regard Bell, his brother, as a worker in the sense of being an employee. If the appellant wanted to rely on the point the time to take it up was when Pato Harete was giving his evidence. A defendant must put the substance of his case to the prosecution witnesses: Browne v Dunn (1893) 6 R 67(HL); The State v Ogada Minjipa [1977] PNGLR 293; John Jaminan v The State (No.2)[1983] PNGLR 318. No weight can be given to alleged discrepancies when the witness was not given an opportunity to explain.
    
20. The appellant says he too was a gold buyer and he knows how much gold buyers have in cash and K100,000 is far too much. This is new evidence not put forward by the appellant at trial. No application has been made to admit fresh evidence. No new evidence can be admitted on an appeal unless the court grants leave: The Supreme Court Act Sections 6 and 8. As the appellant is not legally assisted we do not dwell on the fact that an application to admit new evidence has not been made. One of the conditions imposed on the exercise of the court’s discretion to admit new evidence is that it must be “fresh”, that is evidence which did not exist or was not available to the appellant at the time of trial. Evidence which was available and could have been disclosed to the trial judge should not be admitted on an appeal except in an exceptional case: John Rumet Kaputin v The State [1979] PNGLR 559 (Prentice CJ, Raine and Wilson JJ). As the appellant’s proposed new evidence comes from his own personal experiences prior to trial, that evidence was available at trial. No exceptional reason has been advances as to why the evidence should be admitted now. We will not allow the use of this evidence on the appeal.
    
21. It is submitted by the appellant that the “trial judge convicted me on the plea of guilty in the robbery of K11,000. He applied that admission as a blanket cover on a huge sum of money that was never proven properly when I disputed it.” We consider that this submission is completely wrong as perusal of the transcript and the two judgments on verdict and sentence of the trial judge show. The appellant was not convicted on a plea. When it became apparent that his guilty plea was not an unequivocal plea to the charge the judge entered a “not guilty” plea and a trial was held. Some evidence of by-standers who observed the robbery went into evidence by consent. The evidence of the gold trader, Pato Harete and his employee Kelly Ambi was given in the usual way and tested by cross examination. The appellant was convicted after a trial.
    
22. If, as he claims the appellant did not take the balance of the money and property then those with him must have done so. He knew when he went into the container with his friends that a crime of robbery was proposed. He had the gun and was the leader. The appellant now wishes to deny he had a gun, but that cannot be permitted for the reasons we mention in paragraphs 19 and 20. It is new evidence he did not give on the trial and it was not put to Kelly Ambi in cross examination that the appellant did not carry a gun. The evidence of Kelly Ambi was that the appellant held a pistol which he put in Kelly Ambi’s mouth. The appellant relies on the evidence of Bell Arete which went into evidence by consent to support the submission that he held a bush knife. Bell Arete said (at appeal book page 79 line 25) “...I then saw the suspect ...standing with a long blade bush knife...(in front of the container). However, a little later in his statement (line 35 he said “I saw...Masol...walked out of the container. Saw their pockets filled with cash and saw Masol holding a factory made pistol.” By leading the group and holding the gun he assisted those with him to also commit the offence of robbery. Criminal Code s7 provides that:
    

“When an offence is committed, each of the following person shall be deemed to have taken part in committing the offence and to be guilty of the offence and may be charged with actually committing it-

( c) every person who aids another in committing the offence;”

23. By assisting his friends in the robbery the appellant is guilty of robbery of the amount taken by them as well as the amount taken by himself.
    
24. Finally the appellant submits the trial judge did not take into account the mitigating factors in his favour, being:
    
    1. He did not hurt anybody. It is clear from his words at appeal book p72 line 38 that the trial judge had in mind that the sentence is higher if someone is hurt. He mentions at page 71 line 2 “...there was no actual violence...”. It should be noted that "... if the sentencing judge does not expressly refer to all the matters urged in mitigation before him, it is not to be inferred that he has not taken them into account; the proper presumption is that he has considered each important matter put before him, and given it due weight, it is for the appellant to show that this did not occur, or that some error was made in the process.": See Avia Aihi v The State (No. 3) [1982] PNGLR 92 Kidu CJ, Kearney DCJ, Greville-Smith J. Andrew J., and Kapi J. per Kearney DCJ. In our view there is no reason to consider that the trial judge did not take into account that no one was injured in the robbery.
       
    2. Compensation was paid. The trial judge took the fact that compensation was paid and the considerations surrounding whether it was really paid by the appellant or by his relatives into account beginning at appeal book page 70 line 30 up to appeal book page 71 line 22. That compensation was paid was put to the State witness Pato Harete in cross-examination (appeal book page 30 line 8 and following) and he said that the appellant’s line and not the appellant gave the compensation. The appellant had the opportunity at trial to give contrary evidence but did not do so. For the reasons we mention in paragraph 20 the appellant cannot be permitted now to give contrary evidence that it was him personally who paid the compensation.
       
    100. He is a young man with a young family and respected the law and waited patiently for his trial when opportunities for escape presented themselves. The trial judge noted at appeal book page 71 line 5 that the appellant was 23 years of age, married with a young family and is a first time offender. At line 25 his Honour noted that the appellant “...was not tempted to join the escapees...”. So all those matters were taken into account.
         
25. Armed robber is a serious crime and increasing sentences has not deterred the frequency with which it is committed. As long ago as 2002 sentences for robbery of a store with aggravating circumstances were as high as 15 years. One such case was State v Vincent Malara (2002) N2188. In that case a group robbed a store of K18,228, K2660 in cheques and K5831 in cigarettes. Guns and knives were used and a security guard was cut on the head. The sentence was 15 years. Recently the Supreme Court imposed a sentence of 15 years where the appellant had appealed against a sentence of 8 years in the case of Richard Liri v The State SCRA 9/2006 unreported unnumbered decision of Sevua, and Kandakasi JJ, (Gabi J dissenting) Kokopo 22nd February 2007. An additional aggravating factor in that case was that the appellant was a policeman.
    
26. In our opinion the trial judge took into account all of the mitigating circumstances and gave them proper weight to arrive at a sentence in respect of which no error has been demonstrated. If it is any comfort to the appellant we say that even if the amount stolen was established to be only K11, 000, it is unlikely that in the circumstances a sentence of less than 10 years would have been imposed.
    
27. For those reasons we do not consider that the appellant has shown that the case is of special gravity or that there has been any substantial miscarriage of justice. We refuse leave to review the decision of the trial judge and confirm the sentence imposed.
    
28. ORDERS:
    
    1. Leave to review the decision of the National Court refused;
    2. Sentence of the National Court of 12 years less pre-trial custody confirmed

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Public Prosecutor: Lawyer for the State