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State v Kara [2018] PGNC 270; N7360 (17 July 2018)

N7360

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR (FC) 23 of 2018

THE STATE

V

JONATHAN KARA

Waigani: Miviri AJ
2018 : 3^rd &16^th July

CRIMINAL LAW – PRACTICE AND PROCEDURE – Plea – Official Corruption- Probationary Police constable – receipt of K200 – corrupt discharge of duties – detention suspect no legal basis – serious breach policeman – release of second prisoner without authority – deterrent and punitive sentence.

Facts
Accused was a probationary constable at Gordons Police Station. He took into custody a suspect of stolen property and detained him in the cells. But released him the next day after he was paid K200 by the relative of the detainee. Again he released another detainee in the cells charged for using offensive language without authority of the shift supervisor at the Police Station.

Held
Guilty plea.
Official Corruption
Aiding escape
Serious breaches of trust
Police probationary Constable
Deterrent and Punitive Sentence.

Cases:
Public Prosecutor v Kerua [1985] PNGLR 85
The State v Aihi (No 3) [1982] PNGLR 92
The State v Aua [1997] PGSC 17; SC535
The State v Bonga [1988-89] PNGLR 360
The State v Jimmy Naime [2005] PGNC 76; N2873
The State v Konny [2012] PGNC 77; N4691
The State v Mako [2006] PGSC 29 ; SC889
The State v Margret Gigina Cr (FC) 112 of 2018
The State v Mase [1991] PNGLR 88
The State v Miguel [2002] PGNC 25; N2338
The State v Raka [2018] PGNC 61; N7151

Counsel:

W. Malo for the State

W. Dickson, for the Defendant

SENTENCE

17^th July, 2018

1. MIVIRI AJ: This is the sentence of a Probationary Constable of Police Stationed at the Gordons Police Station who corruptly took into custody a detainee and then released him on payment of a fee.
   

Short facts

2. Jonathan Kara was employed as a Probationary Constable of Police at the Gordons Police Station. On the 1^st of February 2017, he took into detention Weirak Mark who he alleged was selling stolen mobile phones. He confiscated his mobile phone and detained him. On Friday 3^rd February 2017, a relative of the suspect came searching for him and met prisoner at the reception counter of Gordons Police Station. There he gave him K200 and prisoner released Weirak Mark from the cells without any documentation or records.
   
3. On Saturday 4^th February 2017, yet another detainee Moses Andia was arrested and charged for using insulting words by Sergeant Jimmy Maiko awaiting transportation to Badili. Prisoner released him from the cells without authority after he had got the cell keys from shift supervisor Senior Constable Foxy Kamin. He aided the escape of the detainee from the cells.

Charge

4. Prisoner has been charged firstly with Section 87 (1) which states:
   

" A person who

(a) being-

(i)employed in the public service, or the holder of any public office;

and

(ii) charged with the performance of any duty by virtue of employment or office, (not being a duty touching the administration of Justice),

corruptly asks, receives or obtains, or agrees or attempts to receive or obtain, any property or benefit for himself or any other person on account of anything done or omitted to be done, or to be done or omitted to be done by him in the discharge of the duties of his office; or

(b) corruptly gives, confers or procures, or promises or offers to give or confer, or to procure or attempt to procure, to, on or for any person, any property or benefit on account of any such act or omission on the part of a person in the public service or holding a public office, is guilty of a crime.

Penalty: Imprisonment for a term not exceeding seven years, and a fine at the discretion of the court.

(2) A person shall not be arrested without warrant for an offence against subsection (1)."

5. The second charge of the prisoner is that he is charged with Section 138(a) of the Code that he aided and abetted a prisoner one Moses Andia who was in lawful custody in that he was charged for insulting words contrary to Section 7 (b) of the Summary Offences Act to escape from that custody. Prisoner took the keys from the shift supervisor, opened the cells and let out the prisoner without compliance of the law. The maximum sentence under that section is 7 years imprisonment.
   

Plea

6. Prisoner has entered guilty pleas to both charges set out above unequivocally and the depositions tendered have in each case confirmed. No defence in law apparent or identifiable has come to light to sway otherwise than the confirmation of the guilty pleas in each case. Defence made application under Section 13 and 25 of the Probation Act for presentence report and Means Assessment Reports in the assistance and determination of an appropriate sentence against the prisoner. Both these reports are before me now Friday 17^th July 2018 in the determination of this sentence upon the prisoner.
   

Aggravation

7. Abuse of an office is a very serious matter particularly here where the prisoner was a Probationary Police Constable holding that office and performing duties called for under Section 197 of the Constitution to preserve peace and good order in the country the highest law of the land section 10 and 11. It is not maintenance of the law in an independent and impartial way when convictions such as the present are made out against members of the Police. Especially of a probationary constable who has just enlightened from the Police College Bomana into the real world of policing to fall square head on into these very serious offences. He ought to be fresh out of the books and should know the law by heart. He has no excuse to behave as he did here. Complete defiance of the rule of law by an officer of the law cannot be a light matter and will be not a light matter against the prisoner here given his facts and circumstances. He committed two very serious offences two days apart from each other that he has pleaded guilty to.
   
8. Both offences are distinct and separate offences by time here 2 days apart from each other and date and in that regard will be considered separately in the determination. As such each will be sentenced cumulatively and apportioned by Totality and appropriated: Public Prosecutor v Kerua [1985] PNGLR 85 and Mase v The State [1991] PNGLR 88. The enforcement of law to instil its rule in the community cannot be a light matter against any policemen or public official holding a public office let alone the prisoner. Detention of a citizen paralysing freedom as it is known in law without any basis in law and profiting from such detention tarnishes the good name of Police. Here it was K200 in cash and the detention was a day after taken into custody. It is not a light matter in view of the prevalence of this offence especially against Police. Which has in many instances not only led to criminal action but civil suit that have drawn into the treasury of the State. In passing sentence the court is mindful of these and will give due consideration in the sentence passed here.
   

Mitigation

9. On the other hand the prisoner has seen the spiral of his action that termination is not remote given the circumstances of the offence. He was a probationary Constable for 3 years as at that time of the offence. The conviction now imbedded to his record in life effecting any future prospects of employment. He pleaded guilty and saved court time and administration in the prosecution of the matter. He is a first time offender aged 26 years old at the time of the offence married with 2 young children. He was educated to grade 12 Hagen Secondary School is originally from Kelua number 2 village Central Hagen, Western Highlands Province.
   
10. He is likened to Mako v The State [2006] PGSC 29 ; SC889 (30 June 2006) where the appellant also a policeman charged a suspect for attempted murder locked him in the cells at Wabag then produced a blank bank withdrawal slip to the suspect who signed. The appellant took it to the bank withdrew K150 and sometimes later that day released the suspect from the Wabag Police cells. He appealed against his conviction on the basis that it was not established that indeed there was exchange of K150 and that the sentence of 7 years IHL was manifestly excessive. The Supreme Court upheld the appeal against sentence and reduced it to 4 years IHL balance served in custody was deducted and the remainder was suspended on conditions viewing that his 17 years career in the police Force now terminated was itself a punishment hence the 7 years was excessive. Conviction was confirmed. In the State v Bonga [1988-89] PNGLR 360 prisoner was arrested and charged by traffic police for illegal parking and was waiting to be taken to Boroko Police Station to be locked up. Prisoner gave K5.00 to the Police informant to forget the matter. He was convicted and sentenced to 4 four months IHL. The Constable who reported was a new recruit to the police. His actions were commended by the court. In the State v Miguel [2002] PGNC 25; N2338 (6 December 2002) the prisoner gave K500 to the tax assessment officer to induce favourable company returns for his company. He was convicted after trial and a sentence of 4 years IHL was imposed. The court viewed that it was serious when money was offered so that the public official exercise his duties inclined to the defendant. In State v Raka Cr 77 of 2016 (20 March 2018) [2018] PGNC 61; N7151 (12 February 2018) 3 years IHL was suspended because the police sergeant in that case was terminated of his 30 years service. Further he went out brought both prisoners into custody to serve out their terms. In State v Margret Gigina (2018) N7358, she had paid back the money K200. She was 58 years old and had served in the Police Department for 42 years to the end of her public service life. And was still employed as at the date of the conviction and sentence. She was sentenced to 3 years suspended upon payment of K1000 fine within 7 days. The prisoner is relatively young and has just started out in public service with breaches of the law accredited to his CV not a good name at all. And has no place in the Royal Papua New Guinea Constabulary.
    
11. In State v Konny [2012] PGNC 77; N4691 (29 May 2012) the prisoner went out and brought back the suspect and returned the money to the police station commander. The offence there arose from the same set of facts which is not the case here. Nor is it the case here that the prisoner has returned the money K200. He is aggravated when he releases another prisoner within two days from the first. His case is the same with State v Jimmy Naime [2005] PGNC 76; N2873 (23 June 2005) blatant abuse of authority disguised under the pretext of discharging duties under section 197 of the Constitution profiting. He has aggravated because he is not content with one offence but goes onto a second offence two days apart. Comparably his allocutus in the light of these is light compared and does not effect the gravity of the offence in total.
    
12. Here is a career that has merely started and this offence will have dire consequences. The money involved here is K200. But prisoner has pleaded guilty and expressed remorse. The presentence report together with the means assessment reports are in his favour detailing out the background above. There is no reason disclosed as to why the prisoner committed the offence. He was earning K520 per fortnight as a probationary Constable. And had a house all in his work provided by State at no cost to him. It was not worth what he did he had no reason to commit the crime. The maximum penalty for official corruption under Section 87 (1) is 7 years imprisonment or a fine at the discretion of the court. Obviously this is not the worst case of its kind therefore the maximum of 7 years is not in view but a determinate term of years is in order: Aihi v The State (No 3) [1982] PNGLR 92. Except for the amount all other facts are the same as in Mako’s case and a proportionate sentence given would be 4 years IHL and I so impose that upon the prisoner. He is therefore sentenced to 4 years IHL for the crime of official corruption pursuant to Section 87 (1) of the Criminal Code. This sentence will be cumulative to the sentence for aiding a prisoner to escape from lawful custody pursuant to Section 138 of the Code.
    
13. The maximum penalty under which is imprisonment for a term not exceeding 7 years. Again the maximum is reserved for the worst case. Given the facts and circumstances here it is not the worst case and therefore will draw a determinate term of years: Aihi v The State (No 3) (supra). It is viewed with Aua v The State [1997] PGSC 17; SC535 (28 November 1997) because that too is a case of a policeman who released two prisoners in custody at the Boroko Police Station in exchange for K150. He had used his uniform and swayed a young policeman to release the prisoners. He also had a prior conviction for stealing and so the court there imposed 5 years IHL.
    
14. The facts of the present case are similar to that case in all respects except that the prisoner here does not have a prior conviction but has been convicted of another offence of official corruption pursuant section 87 (1) facts set out above. To my mind these facts and circumstances draw the same sentence given that like cases should be treated alike. There are no extenuating circumstances apparent or identifiable to sway a different approach to the sentence proportioned other than of 5 years IHL and I so impose that upon the prisoner for the crime of aiding a prisoner to escape. He is and was a policeman being probationary does not in my view effect the way he should be treated as that was not the criteria in Aua’s case. He being a reservist so here the sentence is 5 years IHL against the prisoner for the crime of aiding an escape pursuant to section 138 of the Code and I so impose that upon the prisoner.
    
15. Because the offences are apart by time and date in their commission and against different victims and also for the reasons in law set out above the 5 years IHL is cumulative to the sentence of official corruption of 3 years IHL. The head sentence for the offences against the prisoner is 8 years IHL. Considering the principles of Totality discussed and set out above, the head sentence should be varied to be proportionate to the gravity of the offence but not manifestly excessive. In my view considering all the factors set out above the proportionate sentence given that he has pleaded guilty is a first offender and that he now has very real prospects of losing his employment as a policeman and his future prospects of employment are ruined, a fair and proportionate sentence would be 4 years IHL. And I so impose that upon the prisoner. I make no orders for suspension as the aggravation of the offence outweighs and there are no proper bases set out in the presentence report to so sway. The offence is now a very prevalent offence and must be rooted out with strong deterrent and punitive sentence and this I do here. I deduct the time in custody forth with. I further order that his bail money is refunded forthwith. He will serve the balance in jail forthwith.
    
16. Four (4 ) years IHL less time in custody. Balance is to be served in jail. Bail is refunded forthwith.
    

Ordered Accordingly

__________________________________________________________________Public Prosecutor : Lawyer for the State

Public Solicitors : Lawyer for the Defendant