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State v Yarra [2018] PGNC 258; N7363 (13 July 2018)

N7363

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR (FC) 315 of 2017

THE STATE

V

JEFFERY YARRA

Waigani: Miviri AJ
2018: 28 June, 13 July

CRIMINAL LAW – PRACTICE AND PROCEDURE – UUMV s383 CCA– Plea – policeman – serious breach of trust – abuse of authority – prevalent offence– punitive and deterrent sentence.

Fact

Accused policeman without authority drove and used a vehicle impounded at the Police Station over a criminal allegation.

Held
Aggressive refusal to return vehicle.
Driven out
Police assistance to recover
Punitive deterrent sentence.

Cases:

The State v Ananias [2006] PGNC 132; N3161
The State v Guba [2000] PGNC 78; N2020
The State v Wakai [2006] PGNC 164 ; N3359

Counsel:

C Sambua, for the State
E Sasingan, for the Defendant

SENTENCE

13^th July, 2018

1. MIVIRI AJ: This is the sentence of a policeman who impounded a vehicle then unlawful drove and used it.
   

Short facts

2. Accused was a policeman stationed at Gerehu Police Station on the 23^rd June 2017 at Gerehu impounded and drove a Toyota Sprinter Sedan registered number BEZ 108 to Gerehu Police Station over an allegation of traffic accident. The owner of the vehicle one Kuk Wani came to retrieve it from the Police Station from accused who had its keys. Accused argued with him came out and drove off in the vehicle to his house. The next day Kuk Wani sought the assistance of the internal investigations police who assisted him and retrieved his vehicle from the house of the Accused.
   

Charge

The charge is pursuant to section 383 unlawful use of motor vehicle which reads;

“(1) In this section, “unlawfully uses” includes the unlawful possession by any person of any motor vehicle or aircraft–

(a) without the consent of the owner or of the person in lawful possession of it; and

(b) with intent to deprive the owner or person in lawful possession of it of the use and possession of it temporarily or permanently.

(2) A person who unlawfully uses a motor vehicle or aircraft without the consent of the owner or of the person in lawful possession of the vehicle or aircraft is guilty of a crime.

Penalty: Imprisonment for a term not exceeding five years.

(3) This section applies without prejudice to any provision relating to the unlawful use of motor vehicles or aircraft of any other law, but an offender is not liable to be convicted under both this section and such a provision in respect of any one and the same unlawful use."

3. The State Prosecutor has not proceeded with any other charges other than of the above in the matter to which accused has entered a guilty plea. There are no defences apparent or identifiable in the matter. The depositions tendered confirmed the plea and accordingly he was convicted.
   

Elements

4. In the State v Wakai [2006] PGNC 164; N3359 the defendant took possession of the vehicle by fraud that he would visit a relative at the hospital but did not. He changed the number plate on the vehicle, wore police uniform and drove to a location where there were gaming machines, informed them and said they were authorized to remove these machines and removed them. His use was unlawful and not authorized.
   
5. Here the subject vehicle Toyota Sprinter Sedan registered number BEZ 108 was impounded at the police Station over an allegation. The allegation was not formally recorded nor was it the case that the subject vehicle was real evidence in the case. It was the property of Kuk Wani and should have been returned to him. The use by the prisoner was illegal and unlawful. In any case it could not have been in the course of nor was it part of his duties when the prisoner was drunk and effected by alcohol and drove off in the vehicle after Kuk Wani went to pick it up. What prisoner did was consistent with his guilty plea and convictions confirmed.
   

Mitigation

6. Prisoner pleaded guilty saving valuable time and resources for the administration of the court. He was 48 years old a policeman holding the rank of Senior Constable and was the officer In Charge of Community Policing Gerehu Police Station. He was married with five children originally from Punona village Kainantu Eastern Highlands Province. He had served the police department for 29 years without any conviction or disciplinary issues. The conviction was his first. At the time of the commission he was effected by alcohol and was on duty.
   

Aggravation

7. Prisoner was effected by voluntary intoxication with alcohol and acted under influence at that time. He went in that state to get the key to the vehicle and drive out with it to his home where he parked it. There is no damage to the vehicle except that he kept it for a day until police internal investigations unit went and picked it back and returned it to the owner Kuk Wani who says that he spent K796 in repair but has produced no other material in this respects to confirm. In the presentence report produced before the court he asks for K15, 000.00 because he was denied the use of the vehicle. This is an extraordinary figure in view of the fact that the vehicle was taken over night and retrieved it could not be K15, 000 worth of damages.
   
8. The vehicle was photographed upon retrieval by Internal Investigations unit. From the driver's side there is no damage to the vehicle. From the back there is no damage to the vehicle. From the front of the vehicle there is no damage to it. These are set out by the four photographs before me. There is also no report from the mechanical fault that Kuk Wani paid K796.00. I am satisfied that the vehicle was not damaged in any way and was returned in the same order as when it was taken by the prisoner in the offence.
   
9. This was a very serious abuse of authority by a policeman in uniform who had no excuse to behave as he did, an experienced officer of 29 years service and holding the rank of senior Constable and officer in Charge of Community Policing at Gerehu Police Station. He ought to have known better. What he did brought the reputation of the police force seriously into question and demeaned. Particularly with the back drop that the police under section 197 of the Constitution were discharged with primarily preserving peace and good order. And in so doing maintaining and enforcing the law in impartial and objective manner. It appeared that the prisoner was not doing this but contributing to destabilising peace and good order by the way that he acted. His experience ought to have enlightened that if indeed there was a wrong committed there were procedures to satisfy to ensure his actions were impartial and independent. As it is he did not appear to have done so here. His action brought disrepute and discontentment to the good name of all other hard working policeman and woman.
   

Issue

10. What is the appropriate sentence for the prisoner?
    

Sentence

11. In the light of all these a strong deterrent and punitive sentence is in view against. But balanced out with the fact that he has pleaded guilty is a first time offender who has maintained that record since joining the Police Force in 1989 now as at the time of sentence 29 years of service to the State as a policeman. He has pleaded guilty and the presentence report is in his favour recommending probation.
    
12. The maximum penalty is imprisonment for a term not exceeding five years. In the State v Ananias [2006] PGNC 132; N3161 the prisoner took a ride in the stolen motor vehicle. He pleaded guilty he was medically unwell at time of trial. The court imposed two years part of which was suspended. In State v Guba [2000] PGNC 78; N2020 the court imposed 6 years IHL upon the prisoner for two counts of unlawful use of motor vehicle reduced on plea bargaining. Cumulative sentences were imposed but reduced on the basis of totality.
    
13. Here is a single count against the prisoner a police officer who drove off in the vehicle impounded. But retrieved by internal investigation unit at his residence. He has been suspended as a result of this charge on the 16^th September 2017 which was uplifted on the 6^th October 2017. Presently he is back on duty and serving as a policeman. He has promised in the presentence report to change his ways in the light of this conviction. He has an unblemished recorded tainted now by this conviction that will remind that should he not adhere his career will be done away with, seriously effecting his family particulars I take account of in the presentence report furnished.
    
14. In all the circumstances a sentence proportionate to the gravity of the offence is 3 years IHL and I so impose that upon the prisoner. That sentence is fully suspended on a probation order for the same period on the following Conditions:-

(i) You shall enter into a probation order for 3 years on conditions.

(ii) You shall within 48 hours report to the Probation Officer.

(iii) You shall be resident at Games Village House number 164 Waigani National Capital District Port Moresby at all times in the course of your probation period.

(iv) You shall not leave this place of resident or Port Moresby without leave of this court during the course of your probation period.

(v) You shall perform 600 hours of community work at a worksite to be approved by the Probation Office.

(vi) You shall keep the peace and be of good behaviour at all times.

(vii) You shall not take liquor or any form of intoxicating substance or drugs during the period of your probation.

(viii) You shall attend your local Lutheran Church every Sunday for worship whilst on probation.

(ix) You shall undergo counselling from your local Lutheran Pastor for number of times as may be determined by the counsellor.

(x) The Probation Officer shall file a report on the responses and progress of the probationer every five months and at any other time or interval as the National Court may order upon application.

(xi) The first report by the Probation officer shall be filed 13^th December 2018 in the Waigani National Court.

(xii) In a breach of any of these Probation Orders your Probation shall lapse and you shall be arrested to serve the whole term of your sentence.

Ordered Accordingly,
__________________________________________________________________Public Prosecutor: Lawyer for the State
Public Solicitors: Lawyer for the Defendant