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State v Uraken and Joku [1990] PGNC 39; N884 (28 June 1990)

Unreported National Court Decisions

N884

PAPUA NEW GUINEA

[NATIONAL COURT OF JUSTICE]
THE STATE
V
SIMON SULU URAKEN
AND
JACK CHARLES JOKU

Waigani

Jalina J
28 June 1990

CRIMINAL LAW - Armed robbery of Bank - Unspecified sum of money - University students - Conviction following trial - Sentence.

Cases Cited:

The following cases are cited in the judgment.

William Ukukul Gimble v The State SC 369.

The State v David Maip N 654.

The State v Frank Kagai [1987] PNGLR 320.

Counsel:

M Unagui, for the State.

F Pitpit, for Simon Uraken.

M Enda, for Jack Joku.

28 June 1990

JALINA J: Both prisoners have been found guilty of robbing the Westpac Bank’s Agency at PSA Haus on 18 October 1989 of a large but unspecified sum of money. They have also been found guilty of unlawful use of a motor vehic 18 October 1989 without thut the consent of its owner, Monica Salter. The facts of this case are sufficiently canvassed in my judgment on the verdict and as such I do not consider it necessary to repeat them here.

THE PRISONER SIMON SULU URAKEN.

He is aged 20 and comes from Aiome Village in the Madang Province. He is the second child in a family of five (5) children.

He has been educated up to preliminary year at the University of Papua New Guinea in 1987 but he did not complete preliminary year as he left in mid - 1987. After leaving the University in mid - 1987 he returned to his village in Madang where he has been assisting his uncle in a trade store business. In 1989 he returned to Port Moresby and was residing with his adopted parents at Gerehu until the commission of the offences for which he has now been convicted.

He has no prior convictions and has been in custody for eight and one half months.

On allocutus he said that he would like to be given court orders to transfer to the Corrective Institution in Goroka; his reason being that he has found it very hard to rehabilitate at Bomana as he has had a lot of influence from the hardcore criminals since his arrest and also that his being in Goroka would enable his parents to visit him. I later queried with his lawyer Mr Pitpit over his request for transfer to Goroka to enable his parents to visit him as it appeared odd to me that in the absence of information before me as to whether his parents lived in Gordon that he should be making that request for that reason. Mr Pitpit sought instructions from his client and informed me that his uncle from his mother’s side, a Mr Ubiti Utake who resides at Aukupa Village in the Eastern Highlands Province who was responsible for paying his school fees in the school days, has asked that, if sentenced, he be sent to jail there so that he could be visited by his relatives. As I have no information, let alone proper evidence on whether his parents are still alive and living in the Madang Province, and further that the request to transfer to the Bihute Corrective Institute, outside Goroka is not made by his parents, I doubt the genuineness of his request. If his parents are still alive and he comes from the Madang Province, why can’t he request a transfer to the Corrective Institution in Madang? If his parents are dead, and he has been living with his adoptive parents at Gerehu as he says, then it would be easier for them to visit him at Bomana. I am not satisfied that his uncle from his mother’s side (Mr Ubiti Utake) who paid his school fees and who live at Aukupa village in the Eastern Highlands Province has made a request for him to be transferred to Bihute, bearing in mind that there is evidence from Michael Sine Gola during trial that his mother comes from Gumine in the Chimbu Province. Furthermore I fail to see how he can avoid being influenced by hardcore criminals in another Corrective Institution. Consequently I refuse his request for an order that he be transferred to the Corrective Institution in Goroka. In any case I do not think I have the power to order the Commissioner for Corrective Institutions to transfer him or any prisoner to a Corrective Institution of his choice. I can only recommend a transfer and then it is for the Commissioner to decide. In the present case I refuse to make a request to the Commissioner for reasons I have given above.

In his submission on behalf this prisoner on sentence, Mr Pitpit has asked me to take into account that he did not master mind the offence. He was not the leader of the group. I have also been asked to take into account that there was no violence used and that no physical injury had been done to any person or property. About K13,000 of the money stolen has been recovered and in this respect I note that Mr Pitpit appears to be conceeding that at least K13,000 was stolen during the robbery notwithstanding any lack of proof of any specific amount during trial.

In addition to the 8½ months he has spent in custody I have also been asked to take into account in favour of the prisoner that he has suffered to a certain extent through assaults by police. He has described in his evidence during trial the various assaults on him by the police which the policemen who gave evidence have categorically denied. Bearing in mind that there is evidence before me that there were many police vehicles and policemen involved in chasing the suspect vehicle and subsequently apprehending the prisoner and others, I find it difficult to believe the policemen that they did not assault the suspects (including this prisoner) to release their anger. From the report on injuries found by Dr Ninkama on the prisoner Jack Joku I now find that accused was in fact badly assaulted and as it appears that those policemen who gave evidence denying the assault have also lied on oath an offence of perjury appears to have been committed. The Public Prosecutor through the Police Commissioner should, in my view, seriously consider prosecuting them as well for perjury. Except were reasonable force is allowed by law to be used to prevent resistance to arrest, a policemen has no right to assault a suspect or a detainee.

After correctly pointing out the sentencing guidelines set by the Supreme Court in Simon Ukukul Gimble v The State SC 369 for armed robbery, Mr Pitpit has asked me to treat the accused as exceptional because of his clean record and exercise my sentencing discretion under s 19. I will refer to this later.

THE PRISONER JACK CHARLES JOKU

He was born in the West Sepik Province although his parents are originally from Sentani in Irian Jaya. All the members of his family are citizens of Papua New Guinea by naturalisation. He is the last born of five (5) children and comes from a Christain family who are members of the Dutch Reformed Church. He is aged 21 and single. Prior to entering the University of Papua New Guinea in 1987 he attended Gordon High School and then went on to complete Grades 11 and 12 at Passam National High School. He has been studying at the University until his suspension in 1989 such suspension having been effected prior to his commission of the offences for which he is now before the court. He has no prior convictions and has been in custody for 8½ months.

On allocutus he said that he accepted that the court has found him guilty and that he was sorry for wasting the court’s time. In fact he wanted to plead guilty to illegal use but not the robbery. The reason for that was that he had no plan in robbing the bank. He did not own a gun and was not a criminal. On 18th October he just drove the vehicle. He was influenced by the others to take part by being the driver.

After giving an account of various criminal activities on the UPNG campus in which he was implicated, he gave me a lecture on the principles of sentencing. With due respect to him, may I point out at the outset that I do not need to be lectured to on the principles of sentencing. I am aware of them.

In his address to me on sentence, his lawyer, Mr Enda, like his colleague Mr Pitpit for Simon Uraken, has asked me to be lenient on Jack Joku and exercise my sentencing discretion under Section 19 of the Criminal Code in view of his past clean record, his good educational background, the likelihood of his future being ruined if he is imprisoned, and most of the money having been recovered and consider suspending part of any custodial sentence I may impose. He relied on the State v Frank Kagai [1987] PNGLR 320 and The State v David Maip N 654. May I state here in respect of both prisoners that the facts of the above cases are different from the present one and as such I do not consider that a suspended sentence is appropriate bearing in mind that they have sought to conceal their involvement in this offence by pleading not guilty and then upon conviction come to this court pleading for leniency. One cannot have it both ways in my view.

Mr Enda has also asked me to take into account the punishment he has received through assault by police and to support his submission he has tendered a medical report by Dr Ninkama who examined Joku on 18th October, 1989; the day the prisoner was arrested. The report reveals, among other things, that he had a badly swollen left face that obliterated his left eye, some evidence of old blood in the nose and mouth, a cut over the back of his head and he also complained of some pain over his right wrist and both shoulders. X-rays done of the face showed a an undisplaced fracture of his nasal bone. He was on medication and observation for 24 hours and discharged on the next day, 19 October 1989. There is certainely evidence of assault and injury which is contrary to the evidence given by the police where they denied the assault. As I have indicated earlier, the Public Prosecutor through the Police Commissioner should consider charging the policemen concerned with perjury. If policemen cannot come to court and tell the truth when questioned by defence counsel about what happened in the course of their investigation it could result in injustice being done to accused persons. It is not right in my view for a person to be convicted left alone imprisoned on false testimony. For my part I will certainly take into account the assault in favour of both prisoners when I consider the appropriate sentence to be imposed.

THE PENALTY

Both counsel have correctly pointed out that the maximum penalty for armed robbery pursuant to section 386(2) of the Criminal Code is life imprisonment while the maximum penalty for unlawful use of motor vehicle without the consent of the owner is imprisonment for five years pursuant to section 383(1) (a) of the Criminal Code. Both Counsel have also correctly pointed out the sentencing guidelines for robbery which is set out in Gimble’s case. In that case sentencing guidelines’ were set for various categories of robbery. For robbery of a bank, which is the 2nd category, the Supreme Court said:

“Where a group of young first offenders, carrying weapons, use the threat of violence to rob a bank, we consider that a sentence of around six years imprisonment is appropriate in a contested case. A lesser sentence can be imposed where the offender pleads guilty. We consider that a sentence of around six years in justified in a contested case because bank staff are very vulnerable. They are only employees, they do not own the bank. Tellers are required to handle large sums of money every day of the week and they are readily accessibly by the public. These factors make them a tempting target for robbers. We believe that bank staff deserve the protection of a sentence adequate enough to deter potential robbers. If aggravating features are present a sentence of more than six years can be imposed; for example if actual violence is used.”

In respect of various points raised by both counsel in their address on sentence my views are as follows:

1. ـ Post Gecd Record and EducaEducational Background.

This does not hold good for them. They were attending or have attended the University of PapuaGuinehe hi inston for learning. They are note not scho school leol leaversavers at grade 6 or even grade 10. If highly educated people such as them are going to be engaged in criminal activities such as robbery, it makes everyone’s effort to try and contain the law and order problems in the country more difficult.

2. ҈ T60; Their Passive /ole

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This does not hold good for them either. Similar arguments were rejected by the Supreme Court in Gimble’s case where it said ge 3:

&#Mr. Gene next argued that the trial judge dige did notd not dist distinguish the accused’s lesser role; did not give proper weight to the fact that the accused was a watchman and not one of those who went inside and committed the assault. Again we do not think that the trial judge erred on this. The general rule is that all active participants in the crime should be sentenced on the same basis. The court does not normally stop to consider whether a particular prisoner actually held up the victim, or held the gun, or the iron bar, or was a watchman outside, or was the driver of the get-away vehicle. All are equally guilty because without each playing his full part the crime could not be perpetrated.”

3. ټ&##160; R60; Recovercovery of Most of the Money Stolen.

On this point, it was by sheer co-incidence that Constable Zachary Song and his two colleaguesd theSogeri resulting in their being chased and subsequbsequentluently apprehended. Otherwise they could have spent the money or not even been apprehended.

Taking all the above factors into account including the sentencing guidelines set by the Supreme Court in respect of a contested case, no one being injured and the absence of prior conviction in their favour, I sentence each of them to imprisonment in hard labour for 6 years for robbery. I deduct 1 year, being 8½ months for the period in custody and 3½ months for assault by police from the 6 year sentence. They have to serve another five (5) years.

As the motor vehicle has not been damaged I sentence each of them to imprisonment in hard labour for 1 year for unlawful use of the motor vehicle without the consent of the owner. This sentence is to be served cancurrently with the sentence for robbery.

I order that the rifle and the pistol be forfeited to the State pursuant to Section 73 (1) of the Firearms Act Ch 310 after the trial of their accomplice James Henry Noan or the hearing of an appeal they may lodge to the Supreme Court whichever takes place later.

I advise that if they are not happy with the sentence they may appeal to the Supreme Court within 40 days.

Lawyer for, the State: Public Prosecutor.

Lawyer for, Simon Uraken: Public Solicitor.

Lawyer for, Jack Joku: Martin Enda, Lawyers.