N9252

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR 1804 OF 2016, 154 OF 2017 AND 1364 OF 2017

STATE

V

TONY KANDE, HENRY NAIO AND WILSON MUKA

Waigani:   Berrigan J
2021: 2nd and 5th November

CRIMINAL LAW– SENTENCE – ATTEMPTING TO OBSTRUCT THE COURSE OF JUSTICE – Section 136 of the Criminal Code – Police officers guilty of attempting to obstruct the course of justice, namely contempt proceedings against themselves and/or their fellow officers – Most serious instance of the offence – Maximum imposed.
Cases Cited:

State v Kiliki [1990] PGNC 104; [1990] PNGLR 216
State v Peril (2005) N2883 
State v Tokoye [2009] PGNC 268; N4210 
State v Naime (2005) N2873 
Goli Golu v The State [1979] PNGLR 653
Lawrence Simbe v The State [1994] PNGLR 38
Allan Peter Utieng v The State (2000) SCR No 15 of 2000
The Public Prosecutor v Vangu’u Ame [1983] PNGLR 424
Goli Golu v The State [1979] PNGLR 653
The State v Simanjon (2020) N8637
Sanawi v The State (2010) SC1076 
The State v Tardrew [1986] PNGLR 91 

References Cited:

Sections 19, and 136 of the Criminal Code

Counsel

Mr D Kuvi, for the State
Mr J Sebby, for the Offenders

DECISION ON SENTENCE
5th November, 2021

1.	BERRIGAN J: The three offenders, Constable Tony Kande, Senior Constable Henry Naio, and First Constable Wilson Muka, were convicted following trial of attempting to obstruct the course of justice, contrary to s 136 of the Criminal Code. 

2.	Contempt charges were issued by the National Court against Sergeant Pokop and ten police officers alleged to have frustrated the execution of a warrant for the arrest of the former Prime Minister, Peter O’Neill. From about 6 pm on Sunday, 19 October 2014 Chief Sergeant Patrick Premenga and Chief Sergeant Bernard Barum, in the company of other members of the National Fraud and Anti-Corruption Directorate, attempted to serve the contempt charges on Sgt Pokop, Ela Ravu and Henry Naio at each of their homes.  Sergeant Pokop and Ela Ravu refused to accept service.  Henry Naio was not home at the time.  CS Premenga and his men debriefed and returned to their homes. 

3.	Between 7 and 8 pm that evening three motor vehicles arrived at CS Premenga’s house. One blocked his driveway, and the others parked on the road beside his residence in Games Village.  Several armed police officers in uniform exited the vehicles.  Officers shouted at the neighbours to turn off their lights and go back inside.  Sgt Pokop, Tony Kande, Henry Naio, and two others stormed up the stairs to the verandah of CS Premenga’s house.  One of them called for Premenga to come outside.  When he came to the door they said they were going to kill him.  Kande, who was drunk, punched him hard with a clenched fist to the face.  Pokop pointed an M16 rifle at him.  Kande pointed a hand gun at the complainant’s face.  The gun triggered but failed to discharge.  Kande pointed the gun up into the air and it discharged into the ceiling.  Sometime later a second shot was fired, from an M16 rifle, into the rear driver side tyre of the complainant’s police-issued vehicle, which was parked in the driveway of his house.  The whole incident took about half an hour before the offenders and other policemen left. Wilson Muka did not go up to CS Premenga’s verandah but was amongst those officers who went to his house that night.  

4.	I found that each of the offenders threatened the complainant with the intention of obstructing the course of justice. Their conduct was a clear and deliberate attempt to stop or hinder the service of the contempt charges with a view to obstructing the court’s adjudication of them.

5.	Kande did so directly by punching the complainant and threatening him with a weapon whilst threats to kill the complainant were made, for the purposes of s 7(a) of the Criminal Code, and by encouraging and aiding those present to commit the offence for the purposes of s 7(c) of the Criminal Code.    

6.	Naio was not armed and stood behind Pokop and Kande but he too directly threatened the complainant by his immediate presence. He also aided Pokop and Kande to commit the offence through his presence and encouragement.  

7.	Whilst Muka was not immediately present on the verandah, he aided Pokop, Kande and Naio to commit the offence through his presence.  By his armed presence amongst such a large number of officers at the complainant’s house Muka also directly participated in the threatening behaviour intended to stop service of the contempt charges and obstruct justice.   

Allocutus 

8.	Each of the offenders gave detailed statements on allocutus which I have considered.
9.	Tony Kande said: Firstly, I’d like to say now before this Honourable Court, that I am very sorry for the offence we have committed against late Sergeant Premenga and family.  I am also aware that late Sergeant Premenga has recently passed away, and I offer my sincere condolences to his family during this time of sorrow for them.  If the court will allow, I am ready to make any form of compensation to the family of late Sergeant Premenga to show my real remorse in this regard to them as he is a workmate in the police force and we know each other but our superiors have divided us and created this problem between us causing this infighting amount ourselves. Secondly, this incident at late Sergeant Premenga’s house that time is a culmination of a number of confrontations between ourselves caused by the division in the police force by then Prime Minister and the Police Commissioner on one side ordering us to prevent the then Prime Ministers arrest, whilst the Director of the National Fraud Squad was aligned with the Chairman for Task Force Sweep with other politicians interested to remove the current Prime Minister and replace him using criminal allegation then. Hence, it was a political issue at the top level that divided the police force into two groups thereby causing infighting among us resulting in this incident that we are now before this Court. So I ask for the mercy of this court in sentencing here to consider this as I am also a victim of top level politics with politicians and bureaucrats and so is my work mate late Sergeant Premenga. Thirdly, I was already dismissed administratively from the Police Force in regard to this case and evicted from the Police house which I was living in with my family at Games Police Barracks at Waigani, NCD, some years back and was out of the Police force for about three years until recently this year that I was formally reinstated back to work.  And now me and my family reside at rental property in Hohola so I ask this Court to consider this and give me a non-custodial sentence as I will have been punished twice now for this same offence. Finally, I am the sole breadwinner of my big family of five people being my unemployed wife, my widow mother living with me and my three children who are all in school that need my continuous support, that if I am given custodial sentence their welfare and education will be seriously jeopardized that I ask this Court for mercy to give me a non-custodial sentence to serve outside under probation. That is all. Thank you Your Honour,
10.	Henry Naio said: Firstly, I’d like to say now before this Honourable Court, that I am very sorry for the offence we have committed against late Sergeant Premenga and family.  I am also aware that late Sergeant Premenga has recently passed away, and I offer my sincere condolences to his family during this time of sorrow for them. If the court will allow, I am ready to make any form of compensation to the family of late Sergeant Premenga to show my real remorse in this regard to them as he is a workmate in the Police force and we know each but our superiors have divided us and created this problem between us causing this infighting among ourselves. Secondly, this incident at late Sergeant Premenga’s house that time is a culmination of a number of confrontations between ourselves caused by the division in the police force then by Prime Minister then and the Police Commissioner on one side ordering us to prevent the Prime Ministers arrest then, whilst the Director of the National Fraud Squad was aligned with the Chairman for Task Force Sweep with other politicians interested to remove the current Prime Minister and replace him using criminal allegations then. Hence, it was a political issue at the top level that divided the police force into two groups thereby causing infighting among us resulting in this incident that we are now before this Court.  So I ask for the mercy of this court in sentencing her to consider this as I am also a victim of top level politics with politicians and bureaucrats and so is my work mate Sergeant Premenga.  Thirdly, I am a sick person with hypertension that I developed after my arrest in this case which has worsened over the 7 years whilst in court and a custodial sentence would not be conducive to my health so I again for the mercy of this Court to consider that and give a non-custodial sentence.  Finally, I am the sole breadwinner of my big family of ten people being my unemployed wife and nine children who are all in school that need my continuous support, that if I am given custodial sentence their welfare and education will be seriously jeopardized that I ask this court for mercy to give me a non-custodial sentence to serve outside under probation. That is all, Thank you Your Honour,

11.	Wilson Muka said: Your Honour, I stand before this Honourable court, to firstly sincerely apologise for the offences, I and my two other comrades were accused of committing against late Sergeant Premenga and family.  I’m aware of his passing and I offer my sincerer condolences to his family at this time of mourning.  To the family, please accept my apology as it was not a personal thing and I haven’t had a personal grudge with your father before the incident.  Your Honour, if the court allows me to make any form of compensation to the family of my late comrade, I am more than willing to do so, to show my real remorse to this regard. We are Melanesians and we do have our ways of sorting out such matters but I once again rely on this Honourable court. Your Honour, I want to make it clear before this Honourable Court, Your Honour, the State, and my Defence, that whatever that transpired on Sunday, 9th October 2014, was not a pre-planned attack it was an unfortunate act that came about on the heat of the moment and it was a political infighting, Your Honour, at the top level that caused factions within the police force that got us, ended up where we are here right now before this Honourable Court.  We took oath to serve the Government of the day, and that’s exactly what we did by directives from our higher peers however, Your Honour, we are bound to be in breach of a service of a court document, therefore, I ask the mercy of this Honourable court, in sentencing, to consider the fact as I am also a victim of the top level politics with politicians and bureaucrats and so is my comrade late Sergeant Premenga. Finally, Your Honour, I am the sole breadwinner of my big family of seven people, being my unemployed wife and six children who, are all in school and need my continuous support.  therefore, if this court gives me suspended sentence, my kids welfare, education will be seriously jeopardized so I ask the mercy of this honourable court for a non-custodial sentence. Your Honour, I am also the Officer-In-Charge of the Central Traffic Section where I have 15 officers reporting under me.   Your Honour, in my 20 years of serving the force I never being or came this far with such a case, and I feel the pinch of what its like to appear before a Honourable court like this, Your Honour, I swear before you that I will never come back to a court like this ever again.  Thank you, Your Honour.

Sentencing Guidelines, Comparative Cases and Submissions 

12.	Defence counsel submits in mitigation that each of the offenders are first time offenders.  
13.	Furthermore, that they are hardworking, career policemen who have served the force for more than ten years: Tony Kande for 14 years; Henry Naio for 21 years; and Wilson Muka for 19 years. They have each been involved in the policing of major crimes in NCD and Central Province.  Each of them are the sole breadwinners for their families.  Henry Naio also operates an SME which employees 15 people, who are dependent on it for their living.  
14.	Counsel submits that it has taken seven years since committal to stand trial in the National Court. Henry Naio suffers from hypertension developed in 2014 following his arrest, which has been exacerbated by the delay.  It is a grave injustice that after seven years they have only been convicted of a misdemeanour, attracting a maximum of 2 years.
15.	A custodial term would not be appropriate given that they have been involved in the apprehension of several notorious and high profile criminals who are now serving their terms at Bomana, as a result of which their safety is not guaranteed. 
16.	There was de facto provocation. It was not proper for the complainant to serve the documents on their colleagues on a weekend and at their homes.  If he had served the documents at their work places on Monday, the whole incident would never have happened and the offenders would not be before the Court.  
17.	Furthermore, the warrant of arrest could not be executed because the Police Commissioner was aligned with the Prime Minister, as he would normally be, and instructed the mainstream police force to prevent that, and Sgt Pokop, now deceased, called on the Armed Robbery Response Unit to prevent or stop any attempts by the Fraud Squad trying to execute the warrant on the Prime Minister.  So the three prisoners were only following the lawful orders of the Commissioner to prevent the arrest of the Prime Minister. The police force was divided and it was service of the contempt proceeding documents by the Fraud Squad members on the ARRU members that resulted in retaliatory action by the ARRU members at Sergeant Premenga’s residence. The offenders had no personal issue with Sergeant Premenga but were pursuing their instructions from their superiors.  
18.	Finally, neither the case against the former Prime Minister nor the contempt proceedings proceeded to finality.  As he sees it, it was a complete waste of time, effort and costs to pursue the case against the Prime Minister, which shows that it was politically motivated move to unseat him.  The offenders and the complainant are the victims of political power plays by politicians and bureaucrats at the top level which forced them to comply with lawful orders as members of a disciplinary force.  Both the complainant, and his clients, have been victimised by following lawful orders and are now sadly facing the consequences of that. 
19.	Counsel submitted that the offenders should be discharged pursuant to s19(1)(f) of the Criminal Code.  
20.	The State agreed in mitigation that the offenders are first time offenders.  It submitted in aggravation that the offenders were armed and in company, the victim was assaulted and threatened, including with a gun that was discharged into the ceiling. The offenders trespassed into the family home of the victim without lawful excuse, permission or a warrant. It was a traumatic event, and the offenders acted in a way unbecoming and uncalled for on the part of police officers who are expected to keep the peace and enforce the law. 
21.	The State submitted that the case was of the worst kind considering the use of a firearm, intentional assault, at a family home.  In response to the defence submission that the offenders were following orders, Counsel submitted that each of the offender’s made a deliberate choice to act as they did.  It called for a sentence of between 1 and 2 years.  The question of suspension was a matter for the Court.    
22.	There have been few reported sentences for offences against s 136 of the Criminal Code.  Both parties refer to the following cases. 
23.	In State v Kiliki [1990] PGNC 104; [1990] PNGLR 216  Brunton J found, following trial, that a letter written by a Lutheran preacher to a magistrate requesting that proceedings against seven men accused of the “carnal knowledge of an imbecile” be terminated temporarily and referred to the Social Concerns Office of the Lutheran Church, on the basis that it would cause a breakdown of peace in the community and that it would be better for one of the young men to marry the young woman concerned, was an attempt to pervert the course of justice.  Instead of passing sentence the offender was discharged upon his own recognisance of K500, without surety, for a period of two years, conditional upon his keeping the peace and being of good behaviour, pursuant to s 19(1)(f) of the Criminal Code.  
24.	Judicial attitudes have changed.  In my view, any attempt to interfere with the prosecution of seven men for sexual violence against a vulnerable person would be regarded very seriously today.  
25.	In State v Peril (2005) N2883 the mother of a 16-year-old complainant, and her accomplice, each pleaded guilty.  The offender sent her daughter to Rabaul so that she could not give evidence against her father on charges of incest.  Her daughter was brought back and the offender was told by the Police not to do that again. Before the date of trial, however, she again, with the assistance of her accomplice, attempted to send the child to Lae, before they were intercepted.  Instead of passing sentence, Davani J discharged the offender under s. 19 (1) (f) of the Criminal Code on her own recognizance of K200.00, without sureties, and conditions including good behaviour for two years.  In doing so Her Honour was greatly influenced by the fact that the offender had four very young children, who would be without either parent.  Her Honour considered the period served on remand of more than one year, one and a half months to be sufficient punishment and sentenced her accomplice to the rising of the court.
26.	In State v Tokoye [2009] PGNC 268; N4210 the offender pleaded guilty to swearing a false affidavit of service in civil proceedings before the National Court. Sagu AJ sentenced him to one year imprisonment, already served on remand.

27.	The offending in this case is far more serious than the cases referred to by the very fact that it was committed by serving police officers. 

28.	In State v Naime (2005) N2873 a policeman holding the rank of First Constable pleaded guilty to one count of official corruption, for taking two horse race machines and delivering them to a third person in return for K200.  In sentencing the offender Mogish J referred to two other cases, State v Paul Steven and State v Dennis Vela, and made the following comments, which I adopt (emphasis mine):
“In The State v Dennis Vela (supra) …. I said at p. 4 of my judgment:
"This is a very serious case of misappropriation. The prisoner is a policeman. He falls into a category of persons who should be familiar with the law by virtue of their training and employment. For a policeman to flout the law at the expense and to the detriment of the society that he is supposed to protect is inexcusable. When policeman commit crimes of this magnitude it brings into disrepute and ridicules the integrity of the police force. It undermines the work of the law abiding policeman and women. The community loses it’s confidence in the police force. And so when it comes to sentencing a policeman who has been convicted … the sentence should not only reflect the amount stolen but the high degree of trust ordinary citizens expect from police officers. Convicted and corrupt police officers have no place in the Constabulary. They are a disgrace to the uniform they wear and should be weeded out as soon as possible as a form of deterrence either through dismissal or imprisonment. Such stern punishment will send a strong signal to police officers to uphold the law they swore to protect. And that if they fail to live to these expectations then the consequences would be very severe. Police officers must be expected to be punished severely than ordinary citizens because of the office they hold and the greater responsibility, accountability they have."
I expressed similar views in the recent case The State v Paul Steven (supra). In that case, the prisoner, an Ancillary policeman stole a police issued firearm from the Port Moresby Police Station and kept it up at the 9 mile settlement…:
"Your action has no doubt cast a dark image over other hard work and honest ancillary policemen and woman not only in the NCD but also throughout the country. You are a disgrace to the uniform you wear. You have been dismissed from the force and that in some way is reassuring to the public that a corrupt policeman has been weeded from it's rank and file."

The remarks I made in those cases are equally applicable to this case. Policemen and women are accountable to the laws they enforce. They are not above the law. Just like everyone else they are equally subjected to the same laws. And if they flout the law, they must be dealt with severely. The least the community expects is to have dishonest or rogue policemen enforce the law. Those policeman and civilian who were with the prisoner that day and who received bribes should be investigated and appropriate charges laid against them.”

Consideration  

29.	The maximum penalty for attempting to obstruct the course of justice under s 136 of the Criminal Code is two years.  It is well established that the maximum penalty is reserved for the most serious instances of the offence:  Goli Golu v The State [1979] PNGLR 653.  
30.	I remind myself that s 19 of the Criminal Code provides the Court with broad discretion on sentence, and that every sentence should be determined according to its own circumstances: Lawrence Simbe v The State [1994] PNGLR 38. 
31.	Constable Tony Kande, 46 years old, is from Imero Village, Daulo District, Eastern Highlands Province. He is 46 years old, married with three young children from his second marriage, aged between 6 and 11, who are, together with his elderly mother, financially dependent on him.  His two older children from his first wife live in Australia.  He completed Grade 12 in 1997 and obtained a Diploma in Leadership and Management from Cornerstone Baptist College in Adelaide, Australia.  He is in generally good health albeit that he suffers arthritis.  
32.	He passed out from Bomana Police College in 1998 before joining active duty 14 years ago. Since then he has served with the Armed Robbery Response Unit and Armed Uniform Team, and is currently attached to the Criminal Investigation Division Motor Squad at Boroko Police Station.
33.	Sergeant Pou, OIC CID Motor Squad, provides a detailed reference in support of Constable Kande, whom he has known since high school, and regards as a dedicated family man and committed member of the community.  Constable Kande has served the Constabulary for 13 years and is a reliable, committed and dedicated team member.  He has been involved in the arrest and prosecution of many persons for serious offences of armed robbery, stealing, and serious fraud. 
34.	Senior Constable Henry Naoi, 44 years old, is from Mogom Village, Nawaeb District, Morobe Province. He is married and sole breadwinner for his four biological children, five adopted children, his grandmother, and grandchildren.  His second eldest son is attending the University of PNG, with the younger ones attending primary and kindergarten in private schools.   He is a leader in his tribe and plays an important role in it.
35.	He completed high school in 1996, completed police training at Bomana Police College, before graduating in 1997 with a certificate in accounting from the Institute of Business Studies.  He worked with the National Airport Corporation before joining the police force in 2000.  He passed out in 2001 and has devoted the last 21 years to serving the police in various positions, including in Mobile Squad, Highway Patrol, and the Armed Robbery Response Unit.  He has been involved in the arrest and prosecution of several high profile cases, including the K6.3 m May Bank robbery, Kerema BSP robbery and others he would prefer not to name.  He is currently stationed at Gerehu Police Station.
36.	He also owns a small enterprise directly employing fifteen people, who have families who depend on it for their income.   
37.	Prior to his arrest for this matter he was fit and healthy.  His health has since deteriorated due to the stress of the case and he now has hypertension, for which he receives medication and is regularly reviewed. A number of medical certificates are provided, the earliest from 2015.  According to a medical report provided on 21 September 2021 he is suffering from severe hypertension. 
38.	Inspector Hanson Tokally, Police Station Commander, Gerehu confirms that Senior Constable Naio is a dedicated, hard working officer who is an honest, reliable member of the force.
39.	David Siviling, Chairman of the Morobe Community Development Association says that Henry Naio is the eldest son of the former Chairman of the Association.  He has known the offender for many years and confirms that he is a highly respected officer, who is called on by the community when police assistance or leadership is required. 
40.	First Constable Wilson Muka is 41 years old, from Kilip Village, Banz sub District, Jiwaka. He is married with 6 children the eldest of which is 18 years of age, for whom he is the sole breadwinner. He is in good health. 
41.	He is educated to Grade 12.  He has served the Constabulary for 20 years in various capacities.  He is currently the OIC of Traffic, Central, supervising fifteen officers.  At the time of his arrest he was a member of the Armed Uniform Team, within the Armed Robbery Response Unit.  
42.	Inspector Lua Kingsley, Staff Officer, Central Provincial Police Headquarters, has known First Constable Muka for 10 years and says that he is a humble, kind and respectful officer to both colleagues and members of the general public.  He is committed and hardworking and has been involved in the conviction of several criminals. He was appointed OIC Traffic in recognition of his service. 
43.	Detective Chief Inspector Robert Volo, Acting Superintendent CID, NCD, has known all three officers since they were selected in 2008 to join the Major Organised Crime Investigation Team, under the leadership of Detective Sergeant Mangu, Superintendent Operations, Andy Bawa, and Metropolitan Superintendent Fred Yakasa.  They were involved in securing several convictions until the unit was disbanded in 2011 having achieved its purpose. The officers then served in Vanimo as part of Operation Sunset Merona. They are respected members of the team fighting crime in the city. 
44.	In mitigation this is the offender’s first offence in each case.  Each of them are of prior good character. Each of them have provided long and dedicated service to their country as members of the Constabulary, in various capacities, and all have contributed to the apprehension and successful prosecution of dangerous criminals.
45.	It is also clear that this case has had and will continue to have a significant impact on each of the offenders themselves.  I assume that they will lose their positions with the Constabulary after many years of service. I note that Henry Kande was previously dismissed in relation to the offence, before being reinstated.   Given their ages, each of them will likely struggle to find employment in the future.  
46.	The impact on their families will also be great. Each of them have young and extended families who depend on them financially and emotionally. Each are concerned about the impact their incarceration will have in particular on their children and their education.  
47.	These matters are serious but all of them are regrettable but unavoidable consequences of the offending.  It is also well established that except in very extreme circumstances, the impact on family is not ordinarily a relevant consideration on sentence: Allan Peter Utieng v The State (2000) SCR No 15 of 2000; The Public Prosecutor v Vangu’u Ame [1983] PNGLR 424.    
48.	No extenuating circumstances existed at the time of the offence.  
49.	I reject the suggestion that the offence was provoked by the conduct of CS Premenga or the Fraud Squad whilst attempting to serve the charges, or by the fact that they did so on a Sunday evening.  
50.	Counsel continues to refer to the contempt charges as “contempt proceeding documents”, and maintains that they should have been served through the offenders’ superiors.  These were not administrative or disciplinary charges.  These were contempt charges issued by the National Court. 
51.	I find some of defence counsel’s submissions rather extraordinary.  
52.	Putting aside the fact that there is no evidence about these matters, whether or not the Prime Minister’s matter or the contempt charges proceeded to finality is beside the point.    
53.	As for the suggestion that the offenders were directed to stop the service of the arrest warrant on the Prime Minister, that matter is not before me and I heard no evidence about that.  
54.	I also reject the submission that the offenders were following orders when they threatened CS Premenga.  The issue of justification or compulsion was not raised at trial.  It was initially the offenders’ case that they were not present at CS Premenga’s house at the time.  Kande and Muka both filed notices of alibi, albeit that they ultimately chose not to rely on them.  Naio admitted that he went to the complainant’s house that night but only after the incident had taken place.    I found that each of the offenders were there and rejected defence counsel’s submission that they were just showing their frustration. Each of them were willing participants and intended to stop the service of the contempt charges, with the intention of obstructing the course of justice.  
55.	Regardless of any infighting within the Constabulary, it was not for the offenders to take the law into their own hands.  It was for the Court to determine whether the allegations of obstructing the arrest warrant were true or not, or whether any particular individual had a valid defence.  As long-serving police officers the offenders would have appreciated that better than anyone.
56.	Nevertheless, I do accept that each of the offenders are genuinely respectful of these proceedings, and the verdict, and that they are genuine in their expressions of remorse about the offence, and its impact on CS Premenga and his family. 
57.	It is the case that the offence occurred in October 2014.  Whilst the offenders were not committed in 2014 as submitted by counsel, it appears that they were prosecuted on a piecemeal basis.  Kande was committed to the National Court on 28 November 2016, Naio on 20 February 2017 and Muka on 20 November 2017.  

58.	A lapse of time between the commission of an offence and the imposition of sentence is not a mitigating factor of itself: In R v Law; Ex parte A-G [1996] 2 Qd R 63.  Delay may be a relevant consideration on sentence but it will depend on the circumstances.  In determining whether delay is a mitigating factor consideration should be given to the reason for the delay.  Section 37(3) of the Constitution guarantees a fair trial within a reasonable time.  Where there has been a failure on the part of enforcement authorities or the judicial process to bring an offender to justice within a reasonable time that may properly constitute a factor in mitigation.  This may be particularly relevant where an offender has cooperated with authorities from an early stage.  Consideration should also be given to the conduct of the offender him or herself and their role in the delay. For obvious reasons a person who absconds should not benefit by the delay he himself has caused.  Delay may also be relevant where the offender has made demonstrable progress towards his or her rehabilitation during the period of delay.  As in any case delay must be balanced against all the other factors for consideration, including the nature and seriousness of the offence. 

59.	It is now 7 years since the offences were committed, and there was a delay following committal in each case of between four and five years.   Such delay is to be avoided. It must be balanced, however, against the seriousness of the offending. 

60.	The offence of attempting to obstruct the course of justice is a very serious offence because it constitutes an attack on the system of justice itself.  
61.	Both counsel, but particularly defence counsel, fail to grasp the gravity of the offending in this case.  
62.	The essential reason that the offence in this case is so serious is that it was committed by serving police officers whose sworn duty it is to uphold the law, and serve and protect the course of justice.  Moreover, the offenders attempted to obstruct the course of contempt proceedings instituted by the National Court of this country, in relation to very serious allegations concerning the frustration of attempts to serve a warrant of arrest on the serving Prime Minister.  What is more, the proceedings they attempted to frustrate were against themselves and/or their fellow officers.  For those reasons alone this case must be regarded as a most serious instance of the offence: Goli Golu v The State [1979] PNGLR 653 applied.   
63.	In addition, the offending involved serious threats of violence. It was committed at night, and in the company of others.  It was not spur of the moment and it was not short-lived.  It affected not just the complainant, but took place at his home, in the presence of his family.  It involved the use of firearms, one of which was pointed at the head of CS Premenga before it discharged into the ceiling.  The experience for all concerned must have been terrifying.    
64.	It was apparent from CS Premenga’s testimony and his comments to Probation Services that the offence had a profound impact on him, and his family.  I am informed that CS Premenga has recently died.  The cause of his death was not made known and it has not been suggested that the offence caused or hastened his death.  I do note the offers by each of the offender’s to pay compensation to his family as a sign of their genuine remorse.
65.	In The State v Simanjon (2020) N8637, I said at [56] that dishonesty offences by serving officers cannot be tolerated:
“They denigrate the good service of dedicated officers, and threaten the morale and discipline of the police force.  Ultimately, such offences bring the force into disrepute and undermine the very confidence in the Constabulary which is so essential to maintaining the rule of law.” 
 
66.	Those comments are even more applicable here.    
67.	Public confidence in the criminal justice system depends in very large part on the hard work and integrity of the police force.  They are at the front line of law and order.  The public are entitled to expect that those sworn to enforce and uphold the law will do so without fear or favour.  It is a serious attack on the system of justice, and on public confidence in it, that the very people responsible for enforcing the laws of the country decide that those laws do not apply to them or their colleagues.  No-one is above the law.   
68.	I have taken into account the offenders’ personal circumstances, and the factors in mitigation, including their prior good character and long years of dedicated service.  I recognise that these are very strong factors in their favour but I am duty bound to impose a sentence that properly reflects the seriousness of the offending.  The matters in mitigation are far outweighed by the matters in aggravation.  
69.	The principles governing parity discussed in Gimble were extensively considered and clarified in Sanawi v The State (2010) SC1076 applying Mario Postiglione v The Queen [1997] HCA 26;  (1997) 189 CLR 295; affirmed recently in David Kaya and Philip Kuman v The State (2020) SC2026: (emphasis mine):
"The parity principle upon which the argument in this Court was mainly based is an aspect of equal justice. Equal justice requires that like should be alike but that, if there are relevant differences, due allowances must be made for them. In the case of co-offenders, different sentences may reflect different degrees of culpability or their different circumstances. If so, the notion of equal justice is not violated. On some occasions, different sentences may indicate that one or other of them is infected with error. Ordinarily correction of the error will result in there being a due proportion between the sentences and there will then be equal justice. However the parity principle, as identified and expounded in Lowe v The Queen [1984] HCA 46;   (1984) 154 CLR 606, recognises that equal justice requires that, as between co-offenders, there should not be a marked disparity which gives rise to 'a justifiable sense of grievance'. ..
Discrepancy or disparity is not simply a question of imposition of different sentences for the same offence. Rather, it is a question of due proportion between those sentences, that being a matter to be determined having regard to the different circumstances of the co-offenders in question and their degrees of criminality..."
70.	There are no great differences between the offenders’ personal circumstances.  They are each about the same age and each have young children and extended families who are dependent on them.  They are all long serving police officers, of similar, if not the same, rank, and years of experience and service.  

71.	As for the offending, Constable Kande was certainly the most aggressive. He was drunk, and he threatened CS Premenga with a gun to his head, which fired into the ceiling.  He is very lucky that the gun did not discharge until he pointed it into the ceiling.  If it had, Premenga would almost certainly have died that night and Constable Kande would be facing a much graver penalty.  I make it clear, however, that I am sentencing each of the offenders on the basis of what in fact transpired that night.  Whilst Naio was not himself armed, he was an active participant on the verandah and urged the others on.  In the circumstances, there should be no disparity between the sentences imposed on Tony Kande and Henry Naio and I sentence them to two years of imprisonment. 

72.	The appropriate sentence in the case of Wilson Muka is less straightforward.  As above, it is my strong view that the circumstances of this offence must be regarded as the most serious.  Muka’s intention was to attempt to obstruct the course of justice, whether he was on the verandah or not.  In my view the maximum is, on its face, also warranted in his case. It would, however, fail to recognise that the conduct of Kande and Naoi was more serious.  Accordingly, I intend to impose a penalty of eighteen months to recognise his reduced culpability. 

73.	To date no time has been spent in custody.

74.	The offenders’ families, their referees and Probation Services support their pleas for suspension. In The State v Tardrew [1986] PNGLR 91 the Supreme Court set out three broad, but not exhaustive, categories in which it may be appropriate to suspend a sentence, namely: where it will promote the general deterrence or rehabilitation of the offender; where it will promote the repayment or restitution of stolen money or goods; or where imprisonment would cause an excessive degree of suffering to the particular offender, for example because of bad physical or mental health. 

75.	Suspension is not appropriate in the circumstances of this case. Restitution is not relevant here.  

76.	I am not satisfied that the offenders would suffer excessively in prison.  I appreciate that the offenders may be responsible for the incarceration of several offenders now in Bomana.  I do not dismiss their concerns about their safety and security out of hand in the circumstances. It is the responsibility of Correctional Services to ensure their security and welfare in accordance with its obligations under the Correctional Services Act.  For obvious reasons, it would be wrong as a matter of principle for an offender to escape custody on the basis that he or she is a police officer.  

77.	Similarly, whilst it is clear that Tony Kande requires medication and regular review, his condition is one that can be treated whilst in custody.  He is entitled to receive reasonable and necessary health care pursuant to s 141(1) of the Correctional Services Act 1995.  

78.	In conclusion, a custodial term is not only appropriate but required in this case to deter others from committing similar offences and to maintain public confidence in the justice system. 

79.	I make the following orders:

Orders

(1)	Tony Kande and Henry Naio are each sentenced to two years of imprisonment to be served at Bomana Correctional Institution without hard labour.

(2)	Wilson Muka is sentenced to 18 months of imprisonment to be served at Bomana Correctional Institution without hard labour.

(3)	Any deposited bail monies are to be refunded.  

Sentences accordingly.
________________________________________________________________   
Public Prosecutor:   	Lawyer for the State		
Public Solicitor:   	Lawyer for the Accused