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Kassman v The State [2004] PGSC 9; SC759 (20 August 2004)

SC759

PAPUA NEW GUINEA

[SUPREME COURT OF JUSTICE]

SCRA 55 OF 2001

PHILIP KASSMAN
Appellant

v

THE STATE
Respondent

Waigani
Coram: Jalina, Sawong & Batari JJ

26 November 2003
20 August 2004

CRIMINAL LAW – Appeal against conviction - Identification evidence – Unsworn statement of accused - Weight of evidence - Appeal dismissed.

CRIMINAL LAW – Appeal against sentence – Robbery – Robbery akin to robbery of a bank - Relevant considerations – Appeal dismissed.

Cases Cited:
The following cases are cited in the judgment:

R v Phillips Boike Ulel [1973] PNGLR 254
John Beng v The State [1977] PNGLR 471
Biwa Geta v The State [1988-89] PNGLR 153
Gimble v The State [1988-89] PNGLR 271
Public Prosecutor -v- Don Hale (1998) SC564
Tau Jim Anis -v- The State (2000) SC642

Counsel:
D. Koeget for the Appellant
J. Pambel for the Respondent

20 July 2004

BY THE COURT: The Appellant was convicted by the National Court in Waigani on 21st September 2001 of the offence of robbery following a trial and sentenced to a term of 10 years imprisonment.

He is appealing to this Court against both conviction and sentence. He challenges his conviction on the grounds that the evidence of identification is "very poor and insufficient" and that the conviction is unsafe in the circumstances. His ground of appeal against sentence is that, "The sentence should have been under the level of the charge."

At the trial, it was undisputed that on 22 November 1999, the victim of the robbery, Fred Ng of Gordons Service Station had gone to the ANZ Bank, Waigani Branch to deposit the company’s takings. He was held up by 4 men at gun point outside the bank and the money bag taken off him. The robbers also took from him, the keys to his vehicle intending to use it to facilitate their escape but when the vehicle failed to start, they tried to escape on foot and the appellant was caught together with one other suspect in the attempt. The money bags were also recovered.

The appellant contested on his trial, allegations against him that, he was one of the robbers who was chased out of the bank premises and subsequently caught by the police as he fled across the road towards Boroko Motors premises. He claimed that he was innocently present on the scene and was mistakenly caught when he and others ran for cover after police fired shots. His story was that he had just gotten off a bus at a bus stop next to ANZ Bank intending to see his father at Islander Hotel (now Holiday Inn) and was alerted by a commotion near the ANZ Bank. He went over to investigate but when police fired shots, he fled with others in different directions. It was then that police apprehended him. He gave unsworn evidence to that effect in his defence at his trial.

The evidence of identification came from State witness, Bernard Kono. He was the security guard supervisor on duty at the ANZ Bank premises when the robbery occurred. About 15 minutes before the bank opened, he noticed 4 men outside the bank and became suspicious of their movements. He also cautioned his fellow security guards to be on alert. A man of Chinese origin drove into the bank’s car park at about 9.00am and was held up at gun point by the 4 men. They got his car keys together with the money bag but then fled on foot when the vehicle failed to start. The other guards fought two of the robbers towards the gate while he intercepted another and retrieved the money bag after attacking him. He said one of those who ran out of the gate was the person who held the pistol at the door of the bank and described him as slim, tall with a beard, going bald and possibly of Kerema origin. He later identified the appellant and his co accused as the two robbers who were chased out of the gate.

Counsel for the appellant argued this witness’s evidence is far from reliable as he did not positively identify the person who held the gun out of the two who were apprehended soon after the robbery. The appellant was apprehended after the robbery but the witness did not positively say he was one of the robbers. He also argued that the evidence of this witness was lacking in detail on the role each robbers played during the robbery. On that basis and due to other inconsistencies, his story should not be accepted. In his judgment, the trial Judge closely analysed the victim’s evidence and accepted him as a witness of truth.

Bernard Kono’s evidence was supported by two policemen, Klink Memo and Penny Tolili. Both witnesses spoke of travelling in a police vehicle with 3 other policemen along Cameron Road towards the traffic lights. As they approached ANZ Bank, they were alerted by a commotion from the robbery. They stopped the vehicle in the middle of the road and at the same time, they saw people running from the gate of the bank premises. Klink Memo saw one of the suspects running out of the gate and across the road in front of their vehicle towards Boroko Motors. He pursued and apprehended that person at Boroko Motors yard. He brought the suspect to the vehicle where security guards identified him as one of those involved in the armed robbery. That person was the appellant whom the witness also gave his name as Philip Mega Kassman. Penny Polili spoke of two suspects who ran out of the gate and along Cameron Road in the direction of Daltron Electronics. He pursed and apprehended one of them whom he later came to learn of his name as Chris Seia. The defence suggested that the two men were part of the fleeing crowd caused by gun shots that police had fired upon their arrival at the scene of the robbery. They were therefore mistakenly apprehended. However, the witnesses clearly identified the accused as the person they saw running away from the bank. The appellant was seen running towards Boroko Motors. He was chased and apprehended shortly after the robbery.

The appellant and his co accused both gave unsworn statements on their defence. They both denied being part of the robbery but were at the scene for different reasons when they were caught up in the general melee that followed the robbery. The appellant said after he disembarked from a PMV at the bus stop next to ANZ Bank, he made his way across towards Boroko Motors but was distracted by people running out of the bank and shouting, ‘holdup, holdup.’ He walked to the main gate to the bank to investigate and at the same instant, a police vehicle stopped in front of him and others. A police man he said stepped out of the vehicle and discharged several shots into the air. Fearing for his own safety, he ran towards Boroko Motors for cover. He was arrested for no reason and that he is innocent of the charge.

The state of the evidence at the end of all the evidence comprised on the one hand, the sworn testimony from State witnesses and on the other, the unsworn statement of the appellant from the dock. In assessing the evidence, the trial judge had quite correctly alluded to the fundamental and well settled principle of law that, an unsworn statement, though is evidence in the case, does not have the same weight as sworn evidence: R v Phillips Boike Ulel [1973] PNGLR 254. Bearing that in mind, the trial judge carefully analysed all the evidence including the unsworn statements of the appellant and his co accused which contained broad allegations of false accusation and concluded that those general denials do not match the quality of the identification evidence of the three prosecution witnesses.

The trial judge also considered carefully the established principles of identification evidence by reference to the cases of John Beng v State [1977] PNGLR 471 and Biwa Geta v State [1988-89] PNGLR 153 in analyzing the evidence of identification and in applying the principles to the facts as he was entitled to find in his careful analysis of the evidence. On the evidence of identification he found the evidence of the State to be very clear and that, "the crucial evidence of identification came from Kono. He observed the accused for almost 15 minutes prior to the opening of the bank. ... This was not a fleeting glance." And that identification was corroborated and connected the appellant to the commission of the robbery by the evidence of the other two State witnesses.

The trial judge did not accept the appellant’s statement of innocent presence and there was enough evidence to discredit that assertion especially as the evidence of identification was overwhelming.

We cannot find where the trial judge may have misinterpreted any of the evidence. He heard the evidence at first instance, and we are satisfied that he had carefully observed and applied the principles governing the reception and consideration of the evidence. We are satisfied that the conviction of the appellant on the count of armed robbery as charged is supported by findings of certain facts which, unless a clear error of fact or reasoning on the part of the trial judge is shown, is very difficult for an appellate court to disturb. The appellant in our conclusion has not shown any such error on conviction by the trial judge. We would therefore dismiss the grounds of appeal against conviction.

ON SENTENCE

The ground of appeal against sentence in its extremely broad and vague wordings offer little to inform this court the precise nature of the appellant’s request for review of his sentence. It was therefore not surprising that the State argued that ground of appeal against sentence should be struck out on the basis of lack of particularity. Though the generality of the wording in the notice of appeal may have allowed certain manoeuvrability to counsel who was finally briefed for the appellant, it was of little or no assistance to the court when counsel did not file a supplementary Notice of Appeal or seek to file additional grounds that would clarify the initial ground. We proceeded to consider the appeal on the premise that the sentence was and is manifestly excessive in all the circumstances.

This was a deliberate attack on a bank customer outside the precincts of the bank. The victim was held up by four men armed with two pistols. They threatened him with violence as he was about to enter the bank and stole from him, K128,464.24. The robbery appeared to have been planned and well executed. The victim had driven into the safety of the bank’s car park and was about to enter the bank when he was attacked. He thought he had no reason to fear anything.

The trial judge had carefully considered these factors and concluded that this robbery did not strictly fall into a street robbery but is akin to a bank robbery. In Gimble v The State [1988-89] PNGLR 271, the Supreme Court first categorized robbery into: robbery of a house; robbery of a bank; robbery of a store, club, factory, vehicle etc and street robbery. The court suggested starting sentences of 7 years, 6 years, 5 years and 3 years respectively for each category in a contested case. The said case has recently come under review in Public Prosecutor -v- Don Hale (1998) SC. 564 where the Supreme Court considered the starting points to be outdated and suggested a term of 10 years for robbery of a home in the night by first young offenders armed with firearm. The 3 year increase denominator in Don Hale’s case was adopted in Tau Jim Anis -v- The State (2000) SC642 in a case involving robbery of a factory which is the third category of robbery in Gimble’s case.

The punishment for robbery is a maximum sentence of life imprisonment, and the trial Judge carefully considered the circumstances of the robbery and concluded that it "may fall between a street robbery and a bank robbery." Applying the 3 year denominator in Don Hale’s case the starting point in this case should fall around 8 years.

The conviction of the appellant followed a trial in which the trial judge found the evidence of identification reliable and convincing. It was committed at the door-steps of the bank by persons armed with firearms during broad day-light at a time and location where many people are expected to be present. Hence there was increased danger to the innocent by-standers. These are factors that the trial judge had carefully considered in concluding that it was a serious robbery with aggravated features. Although the sentence of 10 years is slightly above what might be the starting point of 8 years, we do not however consider that the sentence of 10 years was manifestly excessive in all the circumstances.

We find no error in the trial Judge's reasoning in imposing that sentence when considering the principles of sentencing as followed and applied by our Court.

We, therefore, dismiss the appeal and confirm the conviction and sentence.
_________________________________________________________________
Lawyer for the Appellant: Kassman Lawyers
Lawyer for the Respondent: Public Prosecutor