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State v Makao [2005] PGNC 13; N2996 (25 October 2005)

N2996

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]

CR NO. 1100 of 2004

THE STATE

-V-

DANNY MAKAO

WABAG: KANDAKASI, J.
2005: 20th and 25th October

DECISION ON SENTENCE

CRIMINAL LAW - Sentence - Particular offence – Official corruption by police officer – Asking and accept a bribe to release a detainee – Detainee suspected of attempted murder – Detainee released prior to completion of investigations – Prisoner demonstrating carelessness and disregard of police practice and procedure and breach of statutory requirements - Conviction after trial – First time offender – Offence an affront to respect for law and order and an affront to law enforcement – Stern deterrent sentence warranted – Seven years imprisonment in hard labour imposed – Section 120 (1) of the Criminal Code.

Cases cited:

Robert Yabara v. The State [1984] PNGLR 378.
State v. Kiap Bonga [1988-89] PNGLR 360.
The State v. Pablito P Miguel (06/12/02) N2338.
The State v. Raphael Kimba Aki (No.2) (28/03/01) N2082, the Supreme Court in Allan Peter Utieng v. The State (Unreported judgment delivered in Wewak on 23/11/00) SCR 15 of 2000.

Counsel:

Mr. M. Ruari for the State.
Mr. D. Kari for the Accused.

27th October 2005

KANDAKASI J: On Thursday last week, this Court found you guilty of one count of official corruption contrary to Section 120 of the Criminal Code. You committed the offence on 24th March 2004 here in Wabag, at the Wabag Police Station.

The Relevant Facts

Earlier on that day, you arrested and detained in the Wabag Police Station cells a Yapis Kaea on suspicion of attempted murder of another person in the Kandep District. Whilst the suspect was in the cells, you had him sign a then PNGBC and now BSP Bank withdrawal slip for K150.00, which you withdrew from his account and applied to your own personal use. Additionally, you asked and received from the suspect’s relatives a sum of K290 in cash, thereby bringing the total cash money you received to K440.00. Upon receipt of the K440.00, you released the suspect without making the necessary Occurrence Book entries, something you were personally obliged to do.

What you did was in breach of Section 18 of the Arrest Act, which authorizes only the Officers in Charge of Police Stations to release persons arrested and detained at police stations in appropriate cases. You also breached practice and procedure in the Police Force that, where there are specialized sections, the relevant sections attend to the rest of police investigations and police work once an alleged offender is brought to the police station. You were with the Highway Patrol but on the day of the offence, you crossed over and performed the duties and functions of the Criminal Investigations Division, despite your own unit was putting up a static traffic road block.

Address on Sentence

In your address on sentence, you asked the Court to order a pre-sentence report, which I granted reluctantly. In so doing, I ordered that such a report be furnished to the Court no later than 12:00 noon on 25th October 2005. The Probations Service has furnished the report as required. I will comment on it in the course of this judgment.

In addition to asking for a pre-sentence report, you asked the Court to note that, you are married with 4 children. Your children are aged 14, 12, 8 and 6 respectively. They are all in school. The children and their mother solely depend on you for their survival. So you asked if they could be allowed to live on your salary.

Additionally, you informed the Court that you are the only male child out of three children. Both of your parents are deceased and that your sisters are married to two different tribes. Your family land is vacant. Finally, you concluded by saying, this is your first ever offence and asked for a non-custodial sentence.

Your lawyer added by pointing it out that, you are 35 years old and come from Takaipos village in the Wapenamanda District of this Province. Your lawyer also informed the Court that, you joined the Police Force on 17th December 1989. Hence, you have been with the Police Force for almost 16 years to date. At the time of committing the offence, you held the rank of senior constable then commanding Highway Patrol unit 14 based at Yaibos. Further, your lawyer informed the Court that you completed grade 12. Your Lawyer concluded by saying, you have had an impeccable period of service to the State until the commission of the offence and urged the Court to note that and your other personal and family backgrounds before arriving at a decision on your sentence.

The State urged the Court to note that, the crime of official corruption is a very serious problem in the country and is a prevalent offence. He also urged the Court to note that your conviction came after a trial. Further, after your conviction, you remain unremorseful and defiant. Furthermore, he urged the Court to note that, you have not restituted the money you took from Yapis Kaea and his relatives. Putting these factors against your only factor in mitigation namely, having no prior conviction, Counsel for the State urged the Court to give you a prison term of 7 years.

The Offence and Sentencing Trend

The offence of official corruption with which you have been charged and convicted of and its penalty is prescribed by Section 120 (1) of the Criminal Code in the following terms:

"120. Official corruption not judicial but relating to offences.

(1) A person who—
(a) being a justice not acting judicially, or being a person employed in the Public Service in any capacity not judicial for the prosecution or detention or punishment of offenders, 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, with a view to—
(i) corrupt or improper interference with the due administration of justice; or
(ii) the procurement or facilitation of the commission of an offence; or
(iii) the protection of an offender or intending offender from detection or punishment; 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 the justice or other person so employed, is guilty of a crime.
Penalty: Imprisonment for a term not exceeding 14 years, and a fine at the discretion of the court."

Both counsels were not able to draw the Court’s attention to any case on point that might be of assistance to me for sentencing purposes. My limited research took me to the cases of Robert Yabara v. The State [1984] PNGLR 378, State v. Kiap Bonga [1988-89] PNGLR 360 and The State v. Pablito P Miguel (06/12/02) N2338.

Speaking of the offence of bribery, Pratt J in the Robert Yabara case said:

"If such occurrences (bribery) became anything more than an extreme rarity they would destroy utterly the very structure of Government and the Rule of Law. As the Clifford Report says at 69 of Vol. 1 (Law and Order in Papua New Guinea (1983) Clifford, Morauta and Stuart):

‘Once started, corruption is hard to stop. Honest businessmen cannot remain competitive if other businessmen acquire competitive advantages through corruption. The easy money floating about in a corrupt society intoxicates many honest men tempted by the easy access to wealth. Imperceptibly corruption spreads through society like a cancer. By the time the State mobilizes to deal with it, the action is often too little and comes too late.’"

Subsequently, Barnett J., observed in the Kiap Bonga case that:

"The offence of official corruption is a serious one... Corruption is a growing problem in Papua New Guinea and involves policemen, public servants, politicians and other public office-holders. It is like a deadly social disease, which is spreading rapidly. It is difficult to prove as it relies on the honesty of the person who is offered the bribe and there are rarely independent witnesses to the event.

I am aware that many persons who have been accused of giving or receiving very large bribes are apparently managing to avoid prosecution or conviction. When a case has been successfully proved, however, this Court has a duty to treat the matter seriously."

Injia J., (as he then was) in the Pablito P Miguel case, accepted the above principles about the nature and seriousness of the offence, of official corruption and its growing prevalence but one which is extremely difficult to expose and detect, and once detected, the need to impose a punitive and deterrent sentence to deter others, becomes crucial.

Bearing the above principles in mind, the National Court in the Robert Yabara case imposed a sentence of 4 years imprisonment. In that case, Mr. Yabarra tried to bribe with K140.00 a District Court magistrate conducting committal hearings in relation to a number of false pretence charges against him. On appeal, the Supreme Court noted that, it was serious enough for the prisoner to lose his Parliamentary position and the salaries and other privileges that go with it. Nevertheless, the Court was of the view that the offence was serious enough to warrant the sentence imposed by the National Court and decided not to disturb it.

In the Kiap Bonga case, the Court imposed a custodial sentence of 4 months. There, the offender sought to bribe with K5.00 a police officer about to charge him for a traffic offence. Before arriving at that sentence, the Court noted that the amount of money involved was not great and so was the traffic offence for which the offender was to be charged. However, the Court noted that the principle involved was important, namely to administer law properly, we must rely on our police officers to be honest and anyone who attempts to corrupt or convert an honest police officer into a dishonest policemen is guilty of a serious offence.

In response to pleas of previous good character and prominence, the Court said:

"The accused’s counsel says he is a man of previously good character and has been a prominent member of his local church. He has a large family. He has no formal education. I accept those submissions.

"Nevertheless, what he did was to attack the system of law enforcement itself and for that it is appropriate that he serve a prison sentence as a clear warning to others not to offer bribes to the police...."

Finally, in the Pablito P Miguel case, the Court gave careful consideration to giving the prisoner a non-custodial sentence in view of a substantial offer of court fine money. The Court also considered the issue of whether a wholly or partly suspended prison sentence would be appropriate. Ultimately, the Court decided against either of these options reasoning that neither of them would adequately respond to the seriousness and growing prevalence, yet not so readily exposed and prosecuted, nature of this kind of corrupt practice, which require a strong punitive and deterrent sentence in the form of custodial sentence, as a warning to other potential offenders. Commenting specifically on paying a fine as a punishment, the Court there said:

"It would not seem right and just that when the very offence involves the use of money by the offender to bribe a public official, he should be allowed to "pay his way out of jail", with the use of money, whatever the amount of money may be. To allow that to happen sets a dangerous precedent for others to expect the same treatment – that the more affluent members of our community will avoid real punishment by paying money. By real punishment, I am referring to a punitive and deterrent sentence in the form of custodial sentence. A fine or a suspended sentence in my view would not have sufficient punitive and deterrent effect. And speaking of the affluent, both locals and expatriates in our country, their good personal, educational, church, prior good character, guilty plea, remorse and concern over the welfare of their young family, cannot deter imprisonment. These are very attributes, which get him into a position of influence and respect, but they abuse those attributes to engage in corrupt practices. And when they do, such attributes have little or no effect in preventing a custodial sentence. Also these are things which should help him decide against committing the offence in the first place."

The prisoner in that case, offered a Tax officer K500.00 to induce the tax officer to aid him in processing Income Tax Assessment to expedite the liquidation of the company he was associated with. Despite pleas of being a first time offender and poor health, the Court imposed a custodial sentence of 4 years in hard labour.

Sentence in Your Case

Your case appears to be the first ever case in which a police officer is an offender. Police officers are the first in the system of law enforcement. They arrest and charge offenders either upon their own witnessing of the commission of an offence or on the complaint of other persons. They are therefore under an obligation to uphold the law and do so without impartiality, fear or favour. If this first point of law enforcement breaks down, the entire law enforcement system from committal (in the case of indictable offences) to trial conviction and sentence and serving the term of sentence imposed would break down. No doubt, this would result in a total break down in law and order and there would be chaos in the country.

The cases I have reviewed above concern only with cases other than a police officer asking for and receiving a benefit as in your case purposely to prevent the prosecution and punishment of an offender. Therefore, there is no case directly on point to assist me in arriving at an appropriate sentence for you. The cases I have reviewed above show without repeating what they say about the offence, is that the offence you committed is a serious one and that a strong deterrent custodial sentence is called for. Proceeding on from what those cases say about the offence, I am of the view that, where a police officer asks for and receives a benefit to prevent the prosecution and or punishment of an offender is committing an offence that is more serious than an offender as in the case of Kiap Konga. As the past-decided cases have said, the offence you committed is prevalent but few are detected and prosecuted. We hear of the serious negative impact such an offence is having on the society today. Hence, strong deterrent sentences are called for in a bid to prevent other would be offenders from committing the offence.

I now need to consider what sentence is appropriate for you. Consistent with the past judgments in this type of cases, a non-custodial or part suspended and part custodial sentence is not an option I am prepared to consider because of the seriousness of the offence. Therefore, I reject the pre-sentence report’s recommendation for a non-custodial sentence. What I need to consider is, what term of years of imprisonment is appropriate. Before answering that question, it is necessary for me to consider the factors that are in your favour as well as the factors that are against you.

I note your personal and family backgrounds as put to the Court both by yourself in your own address in sentence, the pre-sentence report and in your lawyer’s submission on your behalf. These factors are however, of no consequence has any adverse impact your sentence might have against your family, is the very consequence of your own actions. As I noted in a number of cases already as in The State v. Raphael Kimba Aki (No.2) (28/03/01) N2082, the Supreme Court in Allan Peter Utieng v. The State (Unreported judgment delivered in Wewak on 23/11/00) SCR 15 of 2000 observed that an offender should consider his background first before committing any offence. Implicit in that is the fact that, it is a little too late to talk about an offender’s personal background including the needs of his family once 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 befits an offence he has committed in the particular circumstances in which the offence was committed.

Now turning to the matters that I can and should take into account, I note that you only have one factor in your favour, which is the fact that this is your first conviction. That means you have had no prior convictions and or that you have not been in trouble with the law before. You have had an impeccable record of service to the nation as a policeman. Nevertheless, as the Court said in the Kiap Konga case, what you did was to attack the system of law enforcement itself. This, therefore, calls for a prison sentence as a clear warning to other police officers not to ask for and accept bribes in return for abandoning criminal investigations and or prosecutions against suspected or clear offenders.

Against the only one factor in your mitigation, there are a number of aggravating factors against you. Firstly, the Court convicted you after a trial. In the trial, you did not call any evidence in rebuttal of what the State had against you. Therefore, you wasted the Court’s time and therefore public funds running the trial. The sentence must therefore reflect your not guilty plea and conviction after a trial.

Secondly, you remain unremorseful, even after the Court had found you guilty after a trial. This, I note is a continuation of your attitude toward the commission of the offence reflected in your record of interview with the police. You did not cooperate with the police in relation to their investigations and in particular their conduct of the record of interview with you. The evidence of this is in your failure to answer specific questions put to you about the offence itself and the particulars of the offence. You chose instead to adopt a consistent line of "I will tell the Court." In adopting that line of response, you of course showed disrespect for police work, something you agreed to uphold at the time of your recruitment into the Police Force. Whilst I do appreciate that you have a right to remain silent, you are not any other ordinary citizen but a police officer who should have appreciated and showed respect for police work by answering the questions put to you instead of adopting an evasive response. In these circumstances, I do not accept the pre-sentence report’s statement that, you are sorry for committing the offence, which I consider is not a genuine expression of remorse.

Thirdly, as early as the 1980s, both the Supreme and National Courts noted that the offence of bribery is very serious and a prevalent offence. Since that time, the offence is far more rampant. The newspapers, radios and electronic media, report almost on a daily basis of the level and recurrence of this offence throughout the country. There is also a very active campaign against corruption by a number of organizations such as Transparency International. Despite these efforts, the prevalence of the offence has not dropped but has increased. The increase is up to a point where no government service is available without some form of bribery or benefit variously described as "bus fare", "lunch money" or such like passing from the one seeking a service to a public service who is employed and paid by public money already to provide services to the public. This has to stop and the only way to do that is to impose sterner punishments against those who are caught and successfully prosecuted.

Finally, I note that, the amount of money you took from the suspect and his people have not being recovered to them. Hence, in the absence of any evidence to the contrary, I take it that, you applied that money to your own use.

I accept the State’s submission that, the offence you committed is a very serious offence. This is so notwithstanding the amount of money involved. Taking into account all that has been said about the offence by both this and the Supreme Court as well as the factors operating for and against you, I do not consider a sentence up to the prescribed maximum of 14 years imprisonment is appropriate. Instead, I consider a sentence beyond what has already been imposed in the past cases, which are not as serious as your case because of your position as a law enforcing agency, is appropriate. The maximum imposed to date appear to be 4 years as in the cases of Pablito P Miguel and Robert Yabara. Hence, I consider a sentence beyond 4 years is appropriate. Accordingly, I consider a custodial sentence of 7 years is warranted. Accordingly, I impose that sentence against you. Of that, I order that the time you have already spent in custody awaiting your trial and sentence be deducted leaving you with the balance to serve in hard labour. A warrant of commitment in those terms shall forthwith issue.
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Lawyers for the State : Public Prosecutor
Lawyers for the Prisoner : Public Solicitor