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State v Aho (No 2) [2022] PGNC 274; N9745 (29 June 2022)

N9745

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR (FC) 100 & 101 OF 2021

THE STATE

V

GIPORAH AHO
(No 2)

Goroka: Miviri, J
2022: 13^th May, 29^th June

CRIMINAL LAW – PRACTICE AND PROCEDURE – Misappropriation Section 383A CCA – Money received for Bail – Trial – Policewoman 15 years’ service – First Offender – Serious & Aggravated Offence – Prevalent Offence – Money Paid in Possession of Defendant – Not recovered – Confidence Criminal Justice –Strong Deterrent Sentence – Concurrent Sentence – One Transaction – 3 years IHL Official Corruption – 4 years IHL Official Corruption – Concurrently 4 years IHL suspended on 4 years GBB on conditions.

Fact

Accused received K1400.00 from the complainants for bail. She did not charge the complainant nor did she lay any information on the matter. Nor was the matter processed in Court to a verdict and sentence. Money never recovered.

Held

Serious Aggravated offence
Trial
Deteriorating confidence
Criminal Justice
First offender
15 years’ service Constabulary
Strong deterrent & punitive sentence.
Concurrent sentence
4 years IHL suspended on
4 years GBB on conditions.

Cases Cited:

In re Powers, functions, duties and responsibilities of the Commissioner of Police [2014] PGSC 19; SC1388
Mollo, The State v [1988-89] PNGLR 49
Wartoto v State [2015] PGSC 1; SC1411
State v Poga [2021] PGNC 19; N8769
State v Gigina [2018] PGNC 268; N7358
State v Kara [2018] PGNC 270; N7360
State v Naime [2005] PGNC 76; N2873
Wellington Balewa v The State [1988-89] PNGLR 496
Tardrew, Public Prosecutor v [1986] PNGLR 91

Counsel:

J, Noma, for the State
V. Agusave, for the Defendant

SENTENCE

29^th June, 2022

1. MIVIRI J: This is the Sentence of policewoman who received money for the bail from the complainant who was charged presumably with assault and threatening words. She did not issue any documents to evidence back nor did she charge and process the complainant in court.
   
2. Prisoner was employed as a policewoman in the public Safety section at the Goroka Police Station and was on duty on the night of 23^rd November 2020. She took a complaint from one Mirriam Kitene Kohitete, against one Mazzie Soya for an allegation of assault upon her with a beer bottle at a public area. And Mazzie Soya was accompanied by two others Serah Auwo and Miriam Aitove who helped in her assault by the Complainant. They also swore at her. Acting on that complaint she took all three into custody at the Police Station cells after arresting them. They spent the night in the cells and the next morning accused stated bail was open to them in the sum of K3000.00. To which the complainant responded that they could not afford. But could afford K1400.00, K800.00 for the complainant and K300.00 each for the other two, giving the total figure K1400.00. This was paid and accused received the money K1400.00. She did not write out a receipt due to the complainants for the payment made. Nor did she produce an entry into the Occurrence Book. There was also no information laid in the District Court on the subject by the Accused. She received the money on account of her duties as a policewoman against the Complainant. And used the money personally benefitting herself. She abused her office and corruptly used the money.
   
3. The principal accused in the matter, Mazzie Soya complained to Police that together with her accomplices were not charged of the allegation made against them. Nor where they processed with the bail money that they paid receipted by the Accused. And charges laid of the complaint by Mirriam Kitene Kohitete. The police pursued upon the complaint and charged the Accused with firstly misappropriation pursuant to section 383A. And section 87 of official corruption. She denied both charges so a trial was conducted to prove the allegations.
   
4. The first conviction was sustained for misappropriation section 383A Criminal Code which reads; “(1) A person who dishonestly applies to his own use or to the use of another person –
   
   • (a) Property belonging to another; or
     
   • (b) Property belonging to him, which is in his possession or control (either solely or conjointly with another person) subject to a trust, direction, or condition or on account of any other person,
     

is guilty of the crime of misappropriation of property.

(2) An offender guilty of the crime of misappropriation of property is liable to imprisonment for five years except in any of the following cases when he is liable to imprisonment for ten years-

(a) where the offender is a director of a company and the property dishonestly applied is company property;

(b) where the offender is an employee and the property dishonestly applied is the property of his employer;

(c) where the property dishonestly applied was subject to a trust. Direction or condition;

(d) where the property dishonestly applied is of a value of K2000 or upwards.

(3) For the purposes of this section-

(a) property includes money and all other property real or personal, legal or equitable, including things in action and other intangible property;

(b) a person’s application of property may be dishonest even although he is willing to pay for the property or he intends to restore the property afterwards or to make restitution thereof to the person to whom it belongs or to fulfil his obligations afterwards in respect of the property;

(c) a person’s application of property shall be taken not to be dishonest, except where the property came into possession or control as trustee or personal representative, if when he applies the property he does not know to whom the property belongs and believes on reasonable grounds that such person cannot be discovered by taking reasonable steps;

(d) persons to whom property belongs to include the owner, any part owner, any person having a legal or equitable interest in or claim to the property and any person who. Immediately before the offender’s application of the property, had control of it.”

5. She was looking at maximum sentence of 10 years imprisonment because the property was of her employer the State but She did not have the necessary paperwork made out, nor did She endeavour since the 24^th November 2020 to have that money properly accounted into the purse of the public. This was despite the instruction of her shift supervisor, Chief Sergeant Narapel for her to deposit that cash K1400.00 into the bank account. She did not nor did she process the witness and the co accused criminally through the criminal justice system. Her actions defeated the confidence in the criminal justice system resorted, and the basis of the rule of law standing tall to see and weed out all evil. What she did defeated and destroyed the confidence of that system. It was no light matter considering she was policewoman holding the rank of First Constable of Police who had served the Constabulary for almost 15 years with a very clean record of service.
   
6. That reflected her discipline over 15 years of disciplined unselfish service to the State and its people. For which she was commended regarding that she was a single mother with very young children who were depended on her for their survival. Here they were, the first boy who was aged 12 years old and attending primary school doing grade 6, a second child who was also a boy doing grade 4 and the last was 5 years old in elementary school. They were depended on her as their mother. She was 33 years old with no prior criminal record having served the Royal Papua New Guinea Constabulary without any bad record until this present offence. Her experience would have been her aid in showing that what she did was clearly criminal. And would have prevented her. It was not her case that the subject money in question was ever paid back to the police, or to the State. Therefore, it was a very serious matter against her plea for the non-custodial sentence.
   
7. Policemen women were the symbol of the law in flesh and blood who showed the way for all in the community. She was not a probationary Constabulary who had just joined the Constabulary. She was a seasoned officer of the Royal Papua New Guinea Constabulary. And the role she played for the last 15 years of service was clearly in her favour to be the lamp leading against the evil here. It was a simple matter of issuing the bail receipt laying the information giving the file to the prosecution to lead in court. She would not be in court for the convictions now. She is a first offender and it will be on her record of service that she is a convicted prisoner of the state for misappropriation and official corruption section 87 of the Code.
   
8. That second conviction OFFICIAL CORRUPTION is set out as follows:
   

(1) 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 that 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).

9. She is liable to be sentenced to a maximum sentence for that offence of imprisonment not exceeding seven (7) years. Because what she did proved corrupt use of particular office for gain. And secondly it must be proved the duty imposed by holding of office. The criminal Justice system starts from the day the police play their role upon complaint registered in the occurrence book at the police Station. It is not a light duty and the Supreme Court has seen out that fact In re Powers, functions, duties and responsibilities of the Commissioner of Police [2014] PGSC 19; SC1388 (2 October 2014) where the powers of the Commissioner of Police under section 197 of the Constitution are made very clear. He is not answerable to anyone in the duties that he discharges, in the laying charging of information as was the case here, including its withdrawal. It effectively is a protection of the criminal justice system from corruption, decay of law and order and the rule of law in the communities, Province, and the State. When read with Mollo, The State v [1988] PGNC 68; [1988-89] PNGLR 49 (6 May 1988), it is a very degrading offence and is a constitution function by the highest law of the land, the Constitution section 197 which is not a light matter. The Courts have protected the powers in criminal justice, not even civil proceedings can defeat it, nor set is aside in the way it rolls, Wartoto v State [2015] PGSC 1; SC1411 (27 January 2015).
   
10. So, the offence of misappropriation and official corruption that the prisoner has committed is not a light matter considering. Particularly if seen out in the backdrop of all set out above. But it must also be considered that She has served the Constabulary without a bad name or a conviction for 15 years. The amount she took is not as large as that set out by who was given a 2 years suspended sentence in State v Poga [2021] PGNC 19; N8769 (17 February 2021) where the amount was K6000.00 for which she was suspended on condition to pay back that money. Here the sum is K1400.00 and a trial has been run. Yet another case that is relevant in this matter is that of a civilian clerk employed by the police in the traffic directorate who got K400 that he shared with another within for the provision of an accident report to the complainant. She pleaded guilty to official corruption section 87 and was sentenced to 3 years IHL wholly suspended on 3 years GBB on condition that she pay K1000 fine within 7 days from the date of sentence or revert to jail for failing, State v Gigina [2018] PGNC 268; N7358 (13 July 2018).
    
11. The facts in the cases set out above are not as serious as that of State v Kara [2018] PGNC 270; N7360 (17 July 2018), he was a probationary police constable who released from custody a first detainee on payment of K200.00 then a second detainee also on the payment of a fee that he used personally. He pleaded guilty to aiding prisoners to escape and also official corruption pursuant to section 87 of the code. He was sentenced to 5 years IHL for the offence of aiding prisoners to escape section 138 and 3 years for the crime of official corruption section 87. Both were cumulative but reduced to 4 years on the principles of totality. So effective sentence was 4 years IHL all to be served in jail after time on remand deducted. The facts circumstances here would not be as serious compared. And would not be likened to State v Naime [2005] PGNC 76; N2873 (23 June 2005) a lot more serious because he profited with the use of the horse race machines.
    
12. Here she started out very good in her police work but stopped short of writing out a bail receipt in each case and laying the information in the District Court for the offences the accuse were indicted with. She did not complete the process on the level she started which is very serious. But would not be warranting a jail term in custody bearing in mind that her facts and circumstances fall into category two of K1000 to K10,000.00 appropriating 2 years imprisonment given Wellington Balewa v The State [1988-89] PNGLR.496. She took K1400.00 and was in a very serious breach of trust placed upon her given. She was a law officer, a policewoman who held the rank of First Constable. And was a first offender with a very good record standing firm for 15 years except for this offence. She was a single mother with three young children under her provision. Imprisonment was extreme given her facts circumstances with like offence give set out above. Where much higher amounts were misappropriated. It was a trial but balanced out with all above in the light of Tardrew, Public Prosecutor v [1986] PGSC 10; [1986] PNGLR 91 (2 April 1986), there was room enough to accommodate so that as a first offender she would learn to respect the rule of law. And that she maintained her record of service in the constabulary except for the offence. Deterrence was in order but not to the extend that her life after service was thrown to ruins. She was tasked to remedy make good the wrong and turn a new leaf.
    
13. It was a serious abuse of office as a policewoman therefore for the crime of misappropriation pursuant to section 383A she is sentenced to 3 years IHL and that sentence will be served concurrently with the sentence of Official corruption which is imposed as 4 years IHL.
    
14. Effectively that is 4 years imprisonment in IHL but that sentence is suspended wholly on 4 years good behaviour bond on the following conditions;
    
15. That within 21 days expiring on Monday 1^st August 2022 she is to pay back K1400. 00 to Mazzie Soya.
    
16. Secondly, she is fined K1000.00 to be paid within Monday 1^st August 2022.
    
17. And in each case of payment, she is to file proof of payment Tuesday 2^nd August 2022 in the Court after due payment in each case.
    
18. If She defaults in observing the conditions here she will be arrested and will serve the suspended sentence of 4 years imprisonment IHL in jail.
    

Ordered Accordingly.
_____________________________________

Public Prosecutor: Lawyer for the State

Public Solicitor: Lawyer for the Defendant