N3360

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR 525 of 2005

THE STATE

-v-

THOMAS WAKAI
ALBERT INE’E
MICHAEL HARIEHA
JOHN FRED

Waigani: Sevua, J
2006: 24 & 25 August &
27 October

CRIMINAL LAW – Sentence – Unlawful use of motor vehicle – Third accused took possession of vehicle for visiting sick relatives in hospital – Motor vehicle not used for that purpose – Instead third accused picked up other three accuseds –Confiscated two horse race machines at Hanuabada and Hohola – No lawful authority to use vehicle for that purpose – Conviction after trial – Offence very prevalent – Need for deterrence – Sentence of 4 years imprisonment.

CRIMINAL LAW – Sentence – False pretence – Second accused serving member of Police Force – Other accuseds not members of Police Force – All accuseds attired in Police field uniforms – Pretended to be police officers executing their duties – No authority from relevant Government authorities – Aggravating factors – Use of police field uniforms – Possession of semi-automatic rifle – Need for deterrence – Sentence of 3 ½ years and 2½ years imprisonment respectively.

Cases Cited: 

Rex Lialu v. The State [1990] PNGLR 487
The State v. Kuk Kuli (2006), unreported and unnumbered, (CR 399 OF 2004), 3rd May, 2006

Legislations Cited:

Criminal Code, ss. 383 and 404

Counsel

Ms. S. Luben, for State
Mr. G. Kaore, for Accuseds

SENTENCE

27 October, 2006

1. SEVUA, J: The four accuseds were convicted on 24th August, 2006 following a four days trial, and the case adjourned several times for sentence. They now appear for sentence.

2. The facts of this case have been canvassed in the trial, however for purpose of sentence I set them out here again.

3. On the night of 24th August 2004, in Port Moresby, the accuseds unlawfully used a motor vehicle belonging to the Church of Christ of the Latter Day Saints under the following circumstances. The accused, Michael Harieha was employed as a Supervisor by the said Church. On the evening of 24th August 2004, he approached one Jacob Omae, another Supervisor of the same Church who had lawful possession of the Church owned vehicle, a white Toyota Land Cruiser, 10 Seater, Registration BBJ 993 and asked Omae to get the Church vehicle to pick up his wife to visit sick relatives at Port Moresby General Hospital.

4. Instead of using the vehicle for that purpose, he picked up the other three co-accuseds, with Albert Ine’e armed with a HK semi-automatic rifle and drove to Hanuabada Village where they removed a horse race machine from the premises of Igo Mase under the pretext that the machines were illegal, and they were police officers executing their lawful duties. They then proceeded to Hohola where they removed another horse race machine from the premises of Mark Kabean while holding themselves out to be police officers executing their duty to remove "illegal horse race machines". However, they produced no Court order to that effect. The horse race machines were taken to the residence of John Fred at Kaugere Settlement.

5. The accuseds were stopped at East Boroko following a complaint to police, and were taken to Boroko Police Station were they were charged with two counts of armed robbery, and the Church vehicle detained at the station.

6. At the trial, they were indicted with one count of unlawful use of motor vehicle and two counts of false pretence in respect of the removal of the two horse race machines. They pleaded not guilty. Following a trial, the Court found them guilty and they are here now for sentence.

7. I have made findings of facts in my judgment on verdict delivered on 24th August this year, and I do not wish to repeat those facts here. However, I may only highlight some facts for purpose of sentence.

8. Mr. Kaore, counsel for the prisoners submitted the following in mitigation of sentence. First, he submitted that the Court should have mercy on the prisoners and be lenient on sentence. He asked for a probation and good behaviour bond, for each prisoner on the ground that the prisoners are first time offenders with previous good records. Secondly, the offence which they are convicted of, "were never premeditated but was an act that they believe was one of public interest to assist in removing illegal horse race machines due to public outcry that such machines have been exploiting children under age and deterring school children from their learning."

9. The problem I have with that submission is that there is no evidence at all that firstly, a Court of law has declared those machines illegal and ordered their removal, and secondly, the prisoners were lawfully authorized to remove what they described as "illegal horse race machines." I can recall that some time ago some concerns were raised in the media about school children using horse race machines. However, if these machines were deemed illegal by a Court, there is no evidence of that before me. Most of all, had the prisoners been lawfully authorized to execute an order of a Court, or had instructions or directions from the Commissioner of Police, Gaming Board or National Capital District Commission, the prisoners failed to adduce evidence of that. Therefore, I am not inclined to accept that the prisoners were carrying out a lawfully sanctioned operation. I have covered that issue in my judgment on verdict.

10. Thirdly, counsel submitted that the prisoners are reputable members of the community. Thomas Wakai is a self employed businessman and a Village Court Clerk at Koki. He is a contractor with the National Capital District Commission and is married with two children. Albert Ine’e is a member of the Royal Papua New Guinea Constabulary attached to the Special Services Division at McGregor Barracks. He has five children who are attending Primary School. Michael Harieha is a Church Elder and a Security Supervisor with The Church of the Latter Day Saints. He has a big family including his mother. John Fred is a self employed electrician. He was last employed by Eda Ranu. He has eight dependents with two children attending schools. All the prisoners are bread winners for their families.

11. I do not recall if the prisoners’ antecedent reports were formally tendered. However, I have had the liberty of perusing each antecedent report and have taken into account the things that are in their favour.

12. From these reports, I am able to ascertain the following. Thomas Wakai was educated to Grade 10 at Badihagwa High School. He operates his own business, Wakai Maintenance, and is also a Village Court Clerk at Koki. He is a Seventh Day Adventist. Albert Ine’e attended De La Salle High School prior to enlisting in the Police Force. His antecedent report does not state his level of education, however it is obvious he did reach high school. Michael Harieha was educated to Grade 6. He was born and bred at Kaugere in Port Moresby. He is married with five children ranging from age 11 to 22 years. John Fred is married with four children and attended Don Bosco Technical School, but it is not known what level of education he reached. He was also born and bred at Kaugere. All the prisoners are first offenders, and their antecedent reports show that.

13. Mr. Kaore’s further submissions were that the prisoners are all professionals in their various fields. Incarcerating them will make them lose their jobs and deprive their families of what they are benefiting from. The children will be the most affected as they will lose their education because their school fees will not be paid.

14. I consider that the effect of incarceration on the prisoners and their families is a matter the prisoners should have considered before they decided to embark on this illegal operation. Courts have often said that the offender’s family welfare should not be used to escape criminal punishment. See: Sakora, J’s sentiments expressed in The State v. Kuk Kuli, (2006) unreported and unnumbered, (CR 309 of 2004), 3rd May, 2006.

15. It was further submitted that the prisoners are not a threat to the society and they have decent employment. Counsel cited Rex Lialu v. The State [1990] PNGLR 487; in relation to the exercise of sentencing discretion. That is a case in which the Supreme Court was determining an appeal against severity of sentence in a manslaughter case. It is of no assistance to this Court. Counsel therefore pleaded for a non-custodial sentence or a suspended sentence.

16. On penalty, I consider that the offence of unlawful use of motor vehicle is very serious and prevalent, and it calls for a custodial sentence. Usually the offence is associated with the crime of armed robbery, therefore the circumstances of this case are not akin to an unlawful use of motor vehicle relating to an armed robbery. Nevertheless, the fact that the vehicle was not used for the purpose it was given is a serious factor. In my view, even if the facts of this case are not related to an armed robbery situation, it is still a criminal offence which needs to be deterred with punitive sanction. The maximum penalty for this offence is 5 years and it has become a very prevalent offence indeed. Perhaps the reason it is very prevalent is because of the maximum penalty provided by law. Perhaps, the Parliament should amend the Code by increasing the maximum penalty to say, 10 years or 15 years. That might deter offenders.

17. The two counts of false pretences are also serious in my view. The prisoners were attired in police field uniforms, and apart from Albert Ine’e, the other three prisoners are not uniformed members of the Police Force. Even then Albert Ine’e was not entitled to use his field uniforms and carry a rifle to execute what was an illegal operation. Like the findings of facts I made in my judgment on verdict, the prisoners were not lawfully authorized by any authority to conduct what they themselves described as the removal of "illegal horse race machines", which I described in my judgment on verdict as akin to a police sting operation.

18. As I said, they were not authorized by a Court order, and if they were, they failed to produce any evidence of that. They were not acting under any lawful authority from the Police Force or Gaming Board. Therefore, it is my view that, the wearing of police field uniforms together with possession of a semi-automatic weapon amounted to aggravating circumstances. In the eyes of the public, the prisoners were police officers, when in fact, they were not, except for Albert Ine’e whom I consider to be very foolish in participating in this unlawful operation. He ought to have known better.

19. The maximum penalty for false pretence under s.404 is 5 years. Whilst I accept that the prisoners are first time offenders, I consider that it is necessary to deter them personally by imposing a custodial sentence. Perhaps if they had not been stopped at East Boroko that night, they might have continued to illegally enter private premises and remove horse race machines. Or perhaps, they might continue the next day. They must therefore be deterred personally. But the punishment must also be a deterrence to the public in case members of the public and the Police Force act likewise.

20. Whilst counsel has pleaded for a non-custodial sentence and a release on probation and good behaviour bond, I consider that, had the prisoners pleaded guilty and made this submission, the Court might well have considered that plea seriously. However, it is my view that this trial was a complete waste of time. There was no legal defence and I think the trial was run on the basis that the prisoners acted in accordance with a Court order, which was never produced in evidence. Therefore whilst the prisoners pleaded not guilty in the exercise of their constitutional rights, the trial was a waste of Court’s time and public money. The quality of the performance of defence counsel was quite poor and this is a concern that must be seriously considered. Even the quality of prosecution was below the standard expected. As far as I am concerned, the level of professionalism in this case was far lacking that the Court will need to raise concerns about the performances of counsel. However, in my view, the prisoners took a gamble and lost the bet.

21. I have considered the statements made by the prisoners in allocutus. They have apologised to the Court, but they should apologise to the victims, not the Court. I have taken into account their expression of remorse. However I really do no understand, how and why the prisoners decided to participate in an illegal operation. They must therefore suffer the consequences of their unlawful conduct.

22. I am of the view that a non-custodial sentence is inappropriate. The prisoners are not uneducated young teenagers, they are mature adults. They are all married with large families. They would have had more common sense, but they did not behave as mature and good trustworthy adults. Their actions were contrary to law and they should have known better. It is too late to be concerned about their families. As I said, they should have thought about that prior to engaging in this illegal operation, unlawful and unauthorized as it were. I therefore consider that they must be punished with immediate custodial sentences.

23. On the first count of unlawful use of motor vehicle, I sentence each prisoner to 4 years imprisonment with hard labour. In relation to the second count of false pretence, which is the first court of false pretence, I sentence each prisoner to 3 years 6 months imprisonment with hard labour. In respect of the third count of false pretence, which is the second count of false pretence, I sentence each prisoner to 2 years 6 months imprisonment with hard labour.

24. I order that the sentences of 3½ years and 2½ years respectively for the second and third counts be served concurrently with the sentence of 4 years for the first count.

Counsel has not assisted the Court with any period of reduction and the sentence will reflect that, unless counsel wishes to make submissions on that issue now.

25. I further order that 2 years be suspended on condition that each of the prisoners enter into their own recognizance in the sum of K1,000.00 surety (not cash) to keep the peace and be of good behaviour for 2 years after the completion of their sentences.

Orders accordingly.

_____________________________________

Public Prosecutor: Lawyer for State
Kaore Lawyers: Lawyer for Prisoners