N6145

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR 1186 OF 2014
CR (FC) 194 OF 2014

THE STATE

-v-

SOMBU SALVATOR MOLKAWUL
(N0.2)

Vanimo: Geita J
2015: 16, 17, 18, June
2015: 4, 8, 10, 19 November

CRIMINAL LAW – Sentence after trial –unlawful compensation demand – Criminal Code Section 390A (a) (iii) – former Police Station Commander for Vanimo – K10, 000 paid under his name – Money shared with police officers who assisted him 

CRIMINAL LAW –Sentence after trial – Abuse of office – Criminal Code Section 92 (1) - Official police letterhead used to make the demand – Recommendation for his dismissal from the Police Force – Recommendation for all police officers who assisted to be charged and removed from the force –

CRIMINAL LAW – Prisoner sentenced to maximum 7 years to be served concurrently – Restitution of K10,000.00 within one week – Whole of the sentence suspended with 3 years Probation with conditions - Prisoner to do 2,688 hours free community work – Vanimo Probation Officer to supervise and provide monthly report to Court.

Cases Cited:

Public Prosecutor v Jawodimbari [2006] PGSC 28; SC 891
State v Lucas Yohura [2003] PGNC 105; N2366
State v Tau Laulaola Pakai (2010) PGNC, N4215
State v Titus Kep (2004) PGNC 151; N2616

Counsel:
Mr. Emmanuel Thomas and Mr. Joseph Kesan, for the State
Mr. George Korei, for the Accused

JUDGMENT ON SENTENCE

19 November, 2015

1. GEITA J: You were found guilty after trial on 10th November, 2015 with one count of Abuse of authority and one count of demanding compensation in Vanimo thereby contravening s390A (a) (iii) and s92 (1) of the Criminal Code respectively. The penalty under those two sections is 7 years and the maximum in the other, 3 years.

Brief Facts

2. The facts are relatively clear but for purposes of this ex tempore are found on your conviction following trial are in brief. The charges arising out of an incident of assault on you by the victim on 4 December, 2014 in Vanimo. At that time you were Police Station Commander and at the time you demanded compensation by writing a letter on Police official letterhead and you exerted pressure by extortion to make that demand. 

Antecedents

3. No prior convictions have been recorded against your name.

Allocutus 

4. In allocutus or when asked if you have anything to say with regards to the type of sentence this court should consider for you, you basically said this was your first time in court and you have been in the Police Force since 1983, clocking almost 32 years until you resigned this year April 2015 as a result of this crime. You have five dependents, you were concerned about some of the businesses that you were running including the nine (9) workers that you are employing and you therefore asked for leniency. You also asked to be placed on probation. 

Aggravating Factors 

5. Of concern to this court is that during your allocutus there was no demonstration of genuine remorse for what you have done. None of that was shown to this court. So that will go against you. You were so worried about yourself, you were so worried about your family, so worried about your business, you were not worried about the trouble that you did and you just brushed it aside. No genuine remorse for the wrong you did, sending very sad signals. You were found guilty after trial which resulted in a trial which has cost the State obviously a lot of money to run this case and given the duration of this circuit almost twelve months now to conclude this matter. Having said that, I must acknowledge that maintaining your innocence is your constitutional right and you have every right to do that and leave up to the State to prove the charges that is all very well. But if you know in your heart that what you have done is wrong it's always nice to say so and you get that out of the way but you have cost the State a lot of money in running this trial.

Mitigating Factors

6. You have no prior convictions and you register a very distinguished Police service record.

Pre-sentence Report and Means Assessment Report

7. I also looked at your pre-sentence report which your lawyer requested on your behalf. I must place on record my thanks to Mr. Ben Kasanda for preparing a Pre-sentence Report and Means Assessment Report. They are good and they go to help assist the court in deciding on a punishment which is fair under the circumstances. Your Means Assessment Report looks very healthy in that you have several businesses running; you are in a position to make restitution. Your pre-sentence report again speaks very highly of you and undoubtedly so because you have been a Police Commander here in this Province for a fair while and have done a lot of good work for the province and people look up to you. I note your family background, your education, your marital status, community history. In fact the man that you assaulted has had a change of heart and now thinks that you should be let off. 

Community Attitudes

8. The Ward councilor from Wesdeko settlement has also attested to your good working in that community and asked that a non-custodial sentence be imposed on you. The outgoing Provincial Police Commander Mr. Gesa has also had a lot of high praise for you. And he has testified about your unblemished record and he says that he does not condone the crime that has been committed. So that is basically what he is saying but I find it very hard for the top Police Officer in this town not to denounce what you have done is wrong but to give credit to the wrong that has happened, very disheartening in my view. In other words he is saying, that's fine police officers can go and do what they are doing, and I am saying, that is not right, you don't encourage it. 

9. I also looked at the statements from several people who have been interviewed, Richard Waisu, Lazarus Kalai, Henry Walai, Mathias Carl, Anna Jerry and they are all saying that you are a role model and they are telling this court that you are not a corrupt man. He is not corrupt as claimed, and I am saying I am greatly disturbed because that now it fringes the integrity of this Court after finding you guilty we have your community saying that you are not corrupt. That is very dangerous. And on that note I must send out a very strong message to the Probation Officer, "You ought to be very careful in introducing matters into Court because these can amount to contempt of Court. After this Court has found the prisoner guilty, you tell this Court that he is not a corrupt man?. If you are in this Court right now then you must stop that practice. Likewise, a Robert Nalia, from Vanimo Police Station staff officer, he is telling this Court that Sombu is not a corrupt person as alleged. What do you mean I ask? The court has found him guilty and you are now judging this Court? You can all be dragged into court for contempt of court. I know it is not your fault; the fault should lie with the Probation Officer for bringing this type of information into Court. I have said earlier on, Probation Office and the reports are good as they help the court but if those reports are challenging the integrity of Court then you have something coming. Contempt proceedings can come against you, who are you to challenge the Court? The Court has already found this man guilty and you are all telling this court that he is not corrupt. 

10. I next turn to your family concerns, you say you have two wives, with six children, you are worried about their welfare, you are worried about their education, you also worry about the 9 workers you employ, and their livelihood and they are going to be affected. In response this is what two previous National Courts have said. When people are found guilty and they come to Court and tell court that they are worried about their families, Courts have said that's too bad, they must not escape punishment for the wrongs that they have committed. The Courts have said far too often people who are found guilty come and tell Court they are worried about their family and their family business concerns. Far too often such excuses have been used to avoid what is a just and fair punishment on the offender. And I am saying your case is no different in my view. In another National Court case of The State v Lucas Yovura 2003 N2366 National Court Judge Kandakasi had this to say:

"It is a little too late to talk about an offender's personal background including the needs of his family's concerns once he is proven guilty according to Law. His background and concerns should have little or no weight against the need to impose a sentence or punishment that best be-fits an offence he has committed in the particular circumstances in which the offence was committed". 

That is what Judges have said. Similar sentiments were expressed in another National Court Judgment The State v Taulaula Pakai (2010) N4215, this is what another Judge said, I quote:

"An offender should consider his family obligation and commitments first before he goes out and commits an offence. A plea for leniency to avoid the suffering of one's family should have little or no weight when an appropriate sentence is being considered." 

So the Court's position is that, alright we can take your family concerns into account but they are all your own doing. I too share the same views in the two judgments and will adopt them and apply them in your case. 

Defence Submissions

11. The Court has been referred to the case of Arthur Jawodimbari by your Lawyer. That is a Supreme Court decision in 2006. In that case the same laws were broken s92 (1) (a) Abuse of Office. Two senior public servants in Oro Province defrauded their Provincial Government and used the similar excuses like yours. In that case the Court felt short of convicting them and placed them on probation. The State appealed against that decision and the Supreme Court held that the Court below was wrong in not convicting them. Because a lot of time had gone by and the judge in this case had left, the Supreme Court substituted with a conviction and ordered a prison term of two (2) years and suspended it. That is the background in Jawodimbari's case. So your lawyer has asked that I rely on that case and consider leniency in sentencing. 

State Submissions

12. The government's lawyer has argued and rightly pointed out that the section that you have been charged with has its origins in land compensation cases where the abuse of demands on compensation and referred me to the case of The State v Taitus Kep & 4 Others (2004) N 2616. In that case several people were found guilty for demanding compensation with threats to be made within seven (7) days. If those threats were not met there will be trouble in the province. They all pleaded guilty. In that case the four of them were all sentenced to four (4) years in imprisonment. The Court said at that time that it was necessary to send them to jail because of economic considerations to the nation. The court said it was not good for people to demand compensation unnecessarily with threats because that was hindering development in our country.

13. Now applying all that to your case in deciding what the appropriate sentence should be based on the factual situations before me. I have had the benefit of submissions from both lawyers on all relevant issues including the supporting cases referred to me. In this case a trial was conducted and you found guilty. I am saying here that to my mind, the two are very serious as they touch on the fabric of our society. Wantok system at home, at our workplaces, the demand for compensation for work done for others in the form of little favors, food, money etc. When practiced in very high offices by very well placed senior public servants it becomes very frightening. Our people become complacent and gradually accept it is a part of our custom and therefore think that it is good as has happened in this case. In my view the two crimes you have committed are very serious and as such must be stopped at all costs to save it from infiltrating into our society and pollution our society more so the Police Force in which it occurred. And it becomes very worrying when our policeman and woman engage in this type of corrupt activity. Policing is compromised and a dangerous trend indeed and if I may be allowed to use the words of the prisoner, I'm quoting "Mi papa bilong trobol, larim bilong ol". It follows in my view that all those policemen and policewomen, who also benefited in this crime, must also go down with the "papa bilong trobol", they are all equally as guilty as the prisoner.

14. I have touched on your suitability for probation; I have touched on your pre sentence report and your means assessment report. At the end of the day, my task as the trial Judge and sentencing Judge is exercised judicially based on all the evidence before me from both sides. And I must emphasis here that each case is different with its particular and peculiar circumstances. In most situations will ultimately determine the kind of sentence that must be imposed. 

15. Before I move on to the sentence proper; I pause here to make some recommendations. I urge that these recommendations be noted and followed through by all authorities concerned without fail. 

1.	That the prisoner be dismissed from the Police Force forthwith. I take note that he has already resigned. That is fine.

2.	All those policemen and women named in the judgment on verdict including those who benefited from the proceeds of this crime be investigated and charged with police disciplinary procedures and dismissed from this Police Force with immediate effect. I name some who are already affected: Sgt. Lukwick Hoi, Constable Billy, Auxiliary Tobby Bapia, Michael Saun. I have frequented this province for almost 2 or 3 years now and I am concerned about this province. I have come to like this province and I am saying here that Vanimo Province must be rid of corrupt policemen and policewomen. 

Sentence

16. Now coming back to this sentence that I should impose upon you. (Stand up please). In the present case I will impose a head sentence of 7 years for count 1 and for count 2 I will impose a head sentence of 3 years. I am imposing the maximum sentence as I consider the crimes serious. Those counts you will serve concurrently and had you pleaded guilty to the two counts, the maximum head sentence would have been avoided. In the exercise of my jurisdiction under s19 of the Criminal Code, I pronounce the following orders:

1.	From the head sentence of 7 years the whole of the sentence will be suspended with the following conditions:-

a)	You will be placed on probation for 3 years with all probation reporting conditions to be supervised by Vanimo Probation Office,

b)	You must make restitution of K10, 000.00 to Vanimo Amgrim Ltd within 1 week from today with a receipt to be filed into Vanimo Registry,

c)	As part of your probation condition, you must carry out 2, 688 hours of free community work to be supervised and monitored by Vanimo Probation Office. Such reports to be kept and filed monthly to Vanimo Sub Registry. I will want to know. And upon breach, you will be further prosecuted and made to appear and receive judgments in respect of your breaches and to the portion of sentence.

d)	From that term, deductions will be made for the time you have already spent in custody with your bail returned to you.

Counsels those are the decisions of this court, extempore. I will prepare a full judgment in due course. 

Sentence accordingly,

_______________________________________________________________
Public Prosecutor: Lawyer for the State
M.S. Wagambie Lawyers : Lawyer for the Prisoner