N5392

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR 772 OF 2012

THE STATE

V

LEO KAMBAO

Waigani: Salika, DCJ
2013: 10 September

CRIMINAL LAW – what are the appropriate sentences to impose – Policeman breached the Search Act, the Arrest Act and the Constitution.
CRIMINAL LAW – Non compliance with Search Warrant Act – Non compliance with Arrest Act – Non compliance with Constitution
CRIMINAL LAW – Stealing property which came into his possession by virtue of his employment – s.372(6)(b).

Counsel:

Mrs Kuvi, for the State
Mr Mesa, for the Defendant

SENTENCE

10th September, 2013 

1. SALIKA DCJ: The prisoner in this matter was charged with one count of unlawfully using a motor vehicle namely a white Toyota Camry Sedan Registration No. BCW 580, the property of Kevin Aiaba and Lilian Lovuru, without their consent. That is count 1 on the indictment.

2. He is also charged with one count of stealing a Toshiba Laptop Computer valued at K2,500.00 the property of Lilian Lovuru. That is count 2 on the indictment.

3. He was found guilty of the two counts as charged on the indictment, after a trial.

4. On allocatus, the prisoner said sorry to the court for taking up the courts time. He also said sorry to his lawyer and to the State lawyer for taking up their time in dealing with his matter. He also said sorry to Kevin Aiaba and Lilian Lovuru for what had happened and for the time they took in this matter. He said he was very sorry for what happened and said he "got hooked up" for what happened.

5. It appears from the allocatus that he agrees with the findings of the Court that he was guilty of the two counts and that he had wasted the Court's time in running the trial on the charges. It is the prisoner's right as to how he wants to plead according to his own conscience. His lawyer only gives him advice and represents him in Court to be his advocate.

6. The prisoner also told the Court that he was a married man with young children all going to school. He lives at the Bagita Police barracks with his family.

Mitigating Factors

7. The mitigating factors in considering his sentence are that:

i.	He is a first time offender
ii.	Has served the country as a policeman for over twenty years
iii.	The vehicle, apart from a flat tyre, was returned in a good state
iv.	The goods stolen are only valued below K3,000.00
v.	Expressed remorse for his actions.

Aggravating Factors

8. The factors not in his favour in commanding the appropriate sentence are that:

i.	He is a serving policeman and that offenses were committed in the course of his duties.
ii.	His actions bring a bad name to the Royal PNG Constabulary
iii.	Computer was never recovered
iv.	The goods, that is the vehicle and computer, come into his possession in the course of his duties.

Issue

What is the appropriate sentence to impose on the prisoner?

9. The prisoner is a policeman of over 20 years standing in the service of the country. On that night, 21st July 2011, he pulled up beside Kevin Aiaba as Kevin awaited the gate to his sister's home to be opened. Kevin was told to get out of his motor vehicle to which he obliged. His motor vehicle was then driven by the prisoner to the Hohola Police Station. After Kevin had been questioned and assaulted at the police station, he was released and told to walk home.

10. Kevin should never have been told to walk home, after the search of his motor vehicle revealed that there was nothing in the motor vehicle that was suspected of having being used in the robbery. There was nothing in the vehicle that was reportedly stolen. There were no flex cards that were stolen in the vehicle. Kevin and his vehicle were ought to have been be released that night.

11. Kevin should not even have been told to go the Hohola Police Station. He should not have been told to get out of his own vehicle. If he was required at the Hohola Police Station he should have been told to drive there himself. Unlawful use of a vehicle includes unlawful possession and this case the prisoner took unlawful possession of the vehicle, if not from Tokarara then from Hohola Police Station.

12. After Kevin left the police station and started walking to his home at Tokarara, the prisoner with other policemen took his vehicle and went for a merry go around. In the vehicle were also 22 bottles of beer and the laptop. It seems that the prisoner and his mates had a jolly good time for the rest of the night.

13. The next morning Kevin and his wife came to Hohola in the hope of getting their car and the laptop computer back. This was not to be. They found that their car had a flat tyre and all that they had in their car was gone and in their place were foreign elements. On top of that the car key was not to be found at the Hohola Police Station. All these evidence showed that Kevin and Lilian's vehicle was unlawfully used by the prisoner and other policemen from the Hohola Police Station without their consent, expressed or implied.

14. The prisoner was very evasive in his evidence during cross-examination when he tried to minimise his role in the incident. What makes this crime a lot more severe is the fact that the vehicle was impounded while in the course of his duty as a policeman and the laptop computer was stolen in the course of his duty as a policeman or as s372(6)(b) puts it; the thing stolen came into his possession by virtue of his employment.

15. The maximum penalty for the offence of unlawful use of a motor vehicle under s383(2) is a term of imprisonment not exceeding 5 years. The maximum penalty for stealing under s.372(6)(b) is a term of imprisonment for a period not exceeding 7 years. Section 372(6)(b) reads:

(b)	came into the possession of the offender by virtue of his employment,

he is liable to imprisonment for a term not exceeding seven years

16. As alluded to earlier, the severity of the offences are escalated in this case by the mere fact that the offences were committed by a policeman while on duty. Ordinary people, citizens or non-citizens, need not suffer at the hands of policemen in this way. Never should this behaviour be allowed to grow and flourish in the Police Force.

17. A policeman may without a search warrant arrest a person whom he believes on reasonable grounds, that person is about to commit an offence or has committed an offence. In this case, there was no evidence that Kevin was about to commit an offence or had committed an offence. The search at Tokarara ought to have sufficed and he ought to have been allowed to go about his business that is to go into his sister's yard. All this would have been in compliance with s.3 of the Search Act which says:

3.	CIRCUMSTANCES WHERE PERSONS MAY BE SEARCHED.

(1)	Where a policeman believes on reasonable grounds that a person has in his possession–

(a)	 anything that has been stolen or otherwise unlawfully obtained; or
(b)	 anything used or intended to be used in the commission of an indictable offence,

he may stop and search that person in accordance with Section 4 and, where applicable, exercise the power of seizure under Section 10(1).

(2)	Subject to Section 4, where a policeman believes on reasonable grounds that it is necessary to do so, he may, at the time of arresting a person, search his person, the clothing he is wearing and any property under his immediate control–

(a)	for the purpose of ascertaining whether he is concealing a firearm or other offensive weapon; or

(b)	for the purpose of preventing the loss or destruction of evidence relating to the offence for which he was arrested, and, where applicable,

may exercise the power of seizure under Section 10(2).

(3)	Where a person in lawful custody is to be detained in a place of confinement he may, immediately before he is so detained, be searched at that place of confinement by a policeman or a member of the Correctional Service, as the case requires in accordance with Section 4, who may, where applicable, exercise the power of seizure under Section 10(3).

(4)	The owner of a craft or a person in command of a craft or a person authorized by either of them or a policeman may in accordance with Section 4, search a person intending to board the craft and, where applicable, may exercise the power of seizure under Section 10(3).

(5)	Where a person in command of a craft suspects that a person on board the craft constitutes a danger to the safety of the craft he may, or persons authorized by him may, search that person in accordance with Section 4 and, where applicable, may exercise the power of seizure under Section 10(4).

18. Under s.10 of the Search Act a policeman may seize anything that he believes on reasonable grounds to be stolen or that the thing seized was used or as intended to be used in the commission of an offence as that the thing seized is evidence to prove that a crime was committed. In this case the prisoner and his colleagues searched the car and none of the elements under s10 of the Search Act existed. Upon the search of Kevin, his vehicle and all there was in the vehicle ought to have been returned to him. In this case the prisoner did not comply with s10 of the Search Act. Section 10 of the Search Act says:

10.	CERTAIN PROPERTY MAY BE SEIZED.

(1)	Where, during the course of a search that is authorized by this Act, a policeman finds any thing that he believes on reasonable grounds–

(a)	has been stolen or otherwise unlawfully obtained; or
(b)	has been used or is intended to be used in the commission of any indictable offence; or
(c)	will provide evidence of an offence,

he may seize that thing.

(2)	For the purposes of Sections 3(2), 5(2) and 5(3), where the person searching finds a firearm or offensive weapon he may seize it.

(3)	For the purposes of Sections 3(3) and 3(4), where the person searching finds any thing which in his opinion may be dangerous or inexpedient to leave in the possession of the person searched he may seize that thing.

(4)	For the purposes of Sections 3(5) and 5(4), where the person searching finds any thing that in his opinion–

(a)	constitutes a danger or is capable of constituting a danger to the safety of the craft; or

(b)	is capable of being used to threaten a person on the craft,

he may seize that thing.

19. When the vehicle was impounded the prisoner was required to make a list of everything that was seized in a permanent register of property. He was required to list the vehicle and its description, the laptop computer and its description, the remaining bottles of beer and anything that was in the vehicle. That is a requirement under s12 of the Search Act. It says:

12. POLICE TO MAINTAIN RECORD OF THINGS SEIZED, ETC.

Where any thing is seized by a policeman under this Act or is handed to a policeman, he shall enter in a permanent register of property–

(a)	 a full description of the thing including where appropriate, a note of any identification marks; and

(b)	the time and date the thing was seized or received by him and in the case of things received by him the name and address of the person who handed the thing to him; and

(c)	the place and the person from whom the thing was seized; and

(d)	other details as are prescribed.

As it is, because the car and the laptop computer were illegally seized, s.12 of that Act was not complied with. If the items were properly seized, the goods would have been deemed to have been in the possession of the State. Police officers must be taught these things properly so that they apply the laws, the Search Act and the Arrest Act in accordance with the law. The failure to adhere to the Search Act and the Arrest Act as has happened in this case could render them liable for criminal and civil prosecution. It is an onerous responsibility for the policemen and women.

20. The command and control of policemen and women in police stations, in shifts need a major overhaul. Only last week I dealt with another policeman in the matter of the State v William Tasion (2013) N5393. In that case, I sentenced the policeman to imprisonment for a period of 12 years imprisonment. In that case command and control was lacking and found wanting. In this case there was no command and control. You were a senior N.C.O or non-commissioned officer present. Someone may have been the shift supervisor but still you are a senior N.C.O present. You should have been exercising the command and control there and then but you did not. You fell for something else.

21. There appears to be a general breakdown of command and control in police stations and in police units like the shift duties, and yet these are the backbones of police work. People lay complaints at police stations and when they lay the complaints, it is usually to those who are on shift duty. I am saying these things because our people are on most occasions not served adequately and properly. Only last Friday, 6/9/13 the Port Moresby Metropolitan Commander called for discipline in the rank and file of the police personnel in the National Capital District. While his address was to the NCD policemen and women I extend that call to all the policemen and women in the country. His statement is reported in The National newspaper this morning 10/9/13 which I quote "Residents of Port Moresby have lost confidence and trust in the Metropolitan Command for we have continuously shown ill-discipline and have been poor in providing constant and consistent police service to the public. If we do not have that trust and confidence of the public, we will surely lack their support which we as enforcers of the law need to fight crime in our city "-National Newspaper page 7- "Bawa calls for discipline".

22. On the same page of the same National newspaper on page 7 a community leader from Talasea raised similar concerns – the article is titled – "Police Conduct Concerns Talasea Leader". That leader raised concerns that the "conduct and behaviour of police officers attached to the mobile squad based in Kavugara, West New Britain was unbecoming of law enforcers and a disgrace to the Royal PNG Constabulary". He said the policeman had been seen drinking and driving in their new police vehicle given to them by the West New Britain Provincial Government. He said they have been sighted on many occasions, carrying women around in these vehicles while drinking. After drinking they go out on patrols where innocent villagers and bystanders are assaulted.

23. That is a profound statement from the top policeman in the National Capital District. If he believes in what he says, then the police in the NCD need to re-organise themselves to gain back the trust and confidence. Incidents such as the one were Kevin Aiaba was detained and his motor vehicle illegally impounded or seized needs to be put to a complete stop. Command and control must be reinforced to achieve discipline and then trust and confidence, will follow after that.

24. This is the response from the Provincial Police Commander. He confirms that several allegations about the conduct of these officers had been made but no one has laid any formal complaints against them.

25. He confesses that he is well aware of their conduct but says "how can we deal with the officers responsible when a formal complaint hasn't been made".
He said unless a formal complaint is laid there is nothing much he can do as PPC.

Surely you do not need a complaint to instil discipline on a regular basis the rank and file under your command. He can do it any time, all the time and at special occasion.

26. I appear to have painted a bad picture of the members of the police force but I say these things in the hope that command and control will be restored and discipline, trust and confidence can in turn be restored as a consequence. There are of course very good, honest hard working policemen and women in the police force whom we can trust. We urge them to continue to work with that total honesty, commitment and legality. We make these statements at the opening of Legal Year Ceremonies every year but they appear to go through one ear and come out the other. So I think this is a timely reminder 3 months before we finish off the year.

27. Considering your case I take into account that you are a first time offender and that you have served the country for over 20 years. You have expressed remorse for your actions. However what you did is unbecoming of a senior N.C.O and a policeman for that matter. You breached the Search Act, the Arrest Act and the Constitution. Your breaches are serious. There is no place for such illegal practices in the people's police force. The sentences are:

i.	1st count – 18 months	I.H.L
ii.	2nd count – 2 years I.H.L

Both sentences are to be served concurrently with each other.
_______________________________________________________

Public Prosecutor: Lawyer for the State
Public Solicitor: Lawyer for the Defendant