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State v Simanjon [2020] PGNC 372; N8637 (20 November 2020)

N8637

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR (FC) NO. 474 OF 2001

THE STATE

V

BENEDICT SIMANJON

Kimbe: Berrigan J
2020: 16^th, 19^th and 20^th November

CRIMINAL LAW – SENTENCE – S 383A(1)(a)(2)(b) of the Criminal Code – Guilty plea - Misappropriation of K910 by Provincial Police Commander – Offence by a serving police officer will normally attract a more severe punishment – the more senior the officer the more severe the punishment - Breach of trust – Abuse of authority – Impact on public confidence – Delay of twenty years caused by offender absconding whilst on bail - Sentence of 4 years of imprisonment – Fine of K1500.

Cases Cited:

Goli Golu v The State [1979] PNGLR 653
The State v Tardrew [1986] PNGLR 91
Wellington Belawa v The State [1988-1989] PNGLR 496
Lawrence Simbe v The State [1994] PNGLR 38.
The State v Niso (No 2) (2005) N2930
The State v Tiensten (2014) N5563
The State v Sari (2012) N5167
State v Satuheni (2013) N5554
State v Aitowa (2013) N5637
State v Magum (2011) N4524
State v Pasliu (2014) N5696
State v Morosake (2016) N6462
State v Naime (2005) N2873
The State v Dennis Vela (2004) CR 430 of 2004 - unnumbered judgment of Mogish J
The State v Paul Steven (2005) CR 1221 of 2004 – unnumbered judgment of Mogish J
Ben Wafia and Others v The State (2006) SC851
John Baipu v The State (2005) SC796
Kalabus v The State [1988] PNLGR 193
State v Solomon Junt Warur (2019) N7545

Legislation and other materials cited:

Sections 19, 383A(1)(a)(2)(b) of the Criminal Code.

Counsel

Mr A. Bray, for the State
Mr D. Kari, for the Accused

DECISION ON SENTENCE

20^th November, 2020

1. BERRIGAN J: In 2001 the offender was committed to the National Court on one count of stealing monies in the sum of K8209 being pension funds which had come into his possession on account of his employer.
   
2. Upon being granted bail the offender, a long-serving police officer with the Royal Papua New Guinea Constabulary (RPNGC) and the Provincial Police Commander of West New Britain, absconded. He has been at large for more than twenty years. He was apprehended on 6 August 2020 in Port Moresby and has been remanded in custody at Lakiemata Gaol here in Kimbe since 9 August 2020, having applied for and, unsurprisingly, been refused bail.
   
3. The offender pleaded guilty to one count of misappropriating K910 belonging to the State contrary to s. 383A(1)(a)(2)(b) of the Criminal Code, on the basis of the following agreed facts, which were confirmed by the depositions.
   
4. The offender was employed by the RPNGC as the Provincial Police Commander of West New Britain Province, stationed at Kimbe.
   
5. Pensioners of the RPNGC who resided in the West New Britain Province had their pensions sent from Police Headquarters to the Kimbe Police Station. The pensioners were required to collect their pensions from the police station. The pension monies were kept in the safe in the Office of the Provincial Police Commander.
   
6. Theresia Rovi was the Acting Provincial Administration Officer stationed at the Kimbe Police Station at the relevant time, and responsible for paying out the pensions.
   
7. On two occasions between 28 June and 10 July 2000 the offender directed Theresia Rovi to give him cash from the pension fund monies. In compliance with the directions of her superior, Theresia Rovi initially gave the offender the sum of K800. A few days later she gave him a further K110 at his request. The accused applied the monies to his own use and the use of others.
   
8. The monies belonged to the Independent State of Papua New Guinea, the offender’s employer for the purposes of s. 383A(2)(b) of the Criminal Code.
   

Sentencing Principles and Comparative Cases

9. In Wellington Belawa v The State [1988-1989] PNGLR 496 the Supreme Court identified a number of factors that should be taken into account on sentence for an offence of misappropriation, including:
   
   1. the amount taken;
   2. the quality and degree of trust reposed in the offender;
   100. the period over which the offence was perpetrated;
   4. the impact of the offence on the public and public confidence;
   5. the use to which the money was put;
   6. the effect upon the victim;
   7. whether any restitution has been made;
   8. remorse;
   9. the nature of the plea;
   10. any prior record;
   11. the effect on the offender; and
   50. any matters of mitigation special to the accused such as ill health, young or old age, being placed under great strain, or perhaps a long delay in being brought to trial.
       
10. In addition, the Supreme Court suggested that the following scale of sentences may provide a useful base, to be adjusted upwards or downwards according to the factors identified above, such that where the amount misappropriated is between:
    
    1. K1 and K1000, a gaol term should rarely be imposed;
    2. K1000 and K10,000 a gaol term of up to two years is appropriate;
    100. K10,000 and K40,000, two to three years’ imprisonment is appropriate; and
    4. K40,000 and K150,000, three to five years’ imprisonment is appropriate.
       
11. It is generally accepted that whilst the principles to be applied when determining sentence remain relevant and applicable, the ranges suggested in that case are now outdated because of the frequency and prevalence of misappropriation and related offences: see The State v Niso (No 2) (2005) N2930; and The State v Tiensten (2014) N5563.
    
12. In submissions on sentence, defence counsel acknowledged that this was a serious offence, involving a breach of trust by a senior member of the Constabulary. Whilst also acknowledging that his client has evaded justice for twenty years, he asked the Court to take into account his guilty plea, lack of prior conviction and prior good standing. Furthermore, it was submitted that his client has learnt his lesson and is willing to repay the monies but has been unsure as to whom he should pay them to. Counsel submitted that in all the circumstances, including time already served in custody, namely three months, thirteen days, a sentence of 12 months of imprisonment, wholly suspended would be appropriate.
    
13. The State submitted that this was a serious case of misappropriation warranting a strong message of specific and general deterrence having regard to the fact that the offence involved a serious breach of trust, by a senior officer, who took monies from the pensions of former officers who had served the police force. Furthermore, a penalty reflecting the impact on public perception and the inevitable loss of confidence in the police force was warranted. In addition the State asked the Court to take into account the fact that the offender had absconded and been on the run for twenty years until he was apprehended. In the circumstances it was submitted that a sentence of three to four years should be imposed, with no or only partial suspension being warranted.
    
14. There are few reported cases of misappropriation dealing with similar amounts. I have had regard to the following:
    
    1. The State v Sari (2012) N5167, Toliken AJ: the offender was working as a Cashier at the HQH Supermarket, Popondetta when he misappropriated K650 from a customer by swiping her card without her permission. He was sentenced to 1 years’ imprisonment in light labour. Five months was deducted for the period spent in pre-trial custody and the balance of 7 months was wholly suspended on condition that he enter into a recognizance of K200 to be of good behavior;
       
    2. State v Satuheni (2013) N5554, Geita AJ: the offender pleaded guilty to one count of misappropriation of K3,356.40, money belonging to Ganba Westbrook Technical High School, where he was employed as the school’s manager. He was sentenced to three years’ imprisonment, wholly suspended on conditions including restitution;
       
    100. State v Aitowa (2013) N5637, Murray J: the offender pleaded guilty to misappropriation of K990 belonging to Lanokapi Lutheran Primary School. The offender whilst employed at the school as a secretary had access to the BSP cheque book and wrote out three different cash payments totaling K990. Each of the cheques were signed with forged signatures. The offender was assisted by an employee of the bank where she cashed the cheque and applied the money to her own use. The offender was sentenced to the rising of the Court.
         
15. The following cases, whilst not dealing with misappropriation in every case, are of particular relevance as they deal with dishonesty offences by serving police officers:
    
    1. State v Magum (2011) N4524, Kawi J, in which the prisoner was a Police Woman Constable attached to the prosecution section of the Royal Papua New Guinea Constabulary, stationed at the Bialla Police Station. As a Police Prosecutor she was given the added responsibility of looking after bail monies. The bail monies were locked inside a safe which was kept in the Police Station Commander's Office. Only the prisoner had access to these monies. The prisoner obtained a sum of K2,950.00 which she used to pay certain Police Reservists who had been helping and performing police duties without pay. The offender pleaded guilty at an early opportunity and repaid the monies prior to her arrest. She was dismissed from the police force. She was married with five children, one of whom was disabled. She was sentenced to two years of imprisonment, wholly suspended;
       
    2. State v Pasliu (2014) N5696, Salika DCJ: the offender pleaded guilty to stealing K4200, contrary to s272(1) and (6)(b) and (10) of the Criminal Code, for which the maximum was 7 years of imprisonment. A constable was entrusted with the responsibility of keeping K4200 as an exhibit to be used as evidence in another matter. He gave the money to the 52 year old offender, his supervisor and a sergeant, with over 30 years of experience. The offender stole the money and used it himself. The offender was asked to return the money but never did. The Court considered that the offence involved a clear breach of trust having regard to the fact that the offender was the constable’s supervisor and had in fact been given the money for safe keeping. Furthermore, the prisoner was in a position of command, control and influence. Whilst accepting that the offender would lose his job as a result of the offence, the Court declined to suspend his sentence, noting his failure to lead by example those who worked under him, and finding that his failure to restitute demonstrated a lack of any real remorse. He was sentenced to two years of imprisonment;
       
    100. State v Morosake (2016) N6462, Auka AJ: the offender pleaded guilty to misappropriating K4,600 in bail monies. He was a police officer based at the Popondetta Police Station, attached to the Prosecution Section. He was sentenced to 2 years’ imprisonment, wholly suspended with conditions.
         
16. 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. The maximum for that offence is seven years, compared to the maximum here of ten years. The offender was sentenced to four years imprisonment in hard labour. One week spent in custody was deducted and eighteen months suspended on condition of good behaviour, with the balance of two years, five months and one week to be served in custody. In addition, the prisoner was fined K300.
    
17. 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) the prisoner pleaded guilty to false pretence and misappropriating K28, 000.00 from the State. In sentencing the prisoner to two years imprisonment on the first count of false pretence and four years imprisonment on the second count misappropriation to be served concurrently 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. Following a tip off police went to 9 mile and recovered the weapon. The prisoner said he took possession of the firearm because Police did not pay him his allowances. In sentencing the prisoner to 4 years I said:

"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.”

18. The sentence in this matter will be determined having regard to its own facts and circumstances: Lawrence Simbe v The State [1994] PNGLR 38.
    

Considerations on Sentence

19. Having regard to the principles outlined in Wellington Belawa, the following matters have been taken into account in determining sentence.
    
20. It is well settled with respect to offences concerning dishonesty that, in general terms, the greater the amount involved the more serious the offence. The offence in this case involves a sum of K910. Even taking into account the fact that K910 was worth a lot more in real terms twenty years ago than it is today, the amount is not as large as that in many other cases that come before the National Court. Be that as it may, this is a very serious case of misappropriation.
    
21. The offender was not only a serving police officer at the relevant time but the Provincial Police Commander and the most senior law enforcement officer in the province. There can be no excuse for his behaviour. As an officer sworn to uphold and enforce the law, the offender would have appreciated more than most the gravity of his offending.
    
22. The offence involved both a serious breach of trust and a serious abuse of authority. Whilst the offender was not the official custodian of the pension monies he was, as the Provincial Police Commander, necessarily responsible for ensuring the safe keeping of the monies, which were maintained by his staff and retained in the safe in his office. That is the very reason the monies were kept there in the first place, in what should have been one of the most secure places in the province.
    
23. Furthermore, the offender abused his authority to direct his subordinate, the administrative officer directly responsible for the safe keeping of those monies, to hand them over to him.
    
24. The offence cannot be described as “spur of the moment”. It involved two separate incidents on two separate days during the relevant period and required planning and forethought on the part of the offender to gain access to the monies through his subordinate.
    
25. It is not in dispute that the monies were applied for the offender’s own use. The offender suggested that some of the monies were used to assist a fellow officer but he does not deny that he acted dishonestly. He knew very well those monies were pension monies and not his to deal with as he pleased. A few days later he applied a further sum to his own use.
    
26. Furthermore, the monies belonged to the State and its people, both of whom the offender had sworn an oath to serve. Moreover, the monies were intended for pensioners of the RPNGC, the offender’s former colleagues and those who had dutifully served their country, and earned the right to enjoy the monies in their retirement.
    
27. No restitution has been made to date.
    
28. Whilst the impact of the offence on the public in monetary terms might not have been great, the impact on public confidence has been grave.
    
29. The people of Papua New Guinea are entitled to have confidence in the country’s principal law enforcement agency at all levels, but particularly in its senior officers. I have no doubt that the fact that a dishonesty offence was committed by the most senior law enforcement officer in the province must necessarily have caused a loss of public confidence in the Constabulary, not just in West New Britain but more broadly.
    
30. I turn now to the subjective circumstances of the offender. The offender is from Akurang in the Angoram District of East Sepik Province. He has two places of residence, both three bedroom homes, one in Gordons in Port Moresby and another at the Smugglers Inn Hotel in Madang Province. The house in Port Moresby was acquired in 2017 and houses his first wife and four children whilst his second wife and one child occupy the Madang property. He has twelve grandchildren.
    
31. He and his brothers own a hundred hectares of land in Akurang, on which the family cultivate vanilla and cocoa. His family are leaders in the local community. Two of his children support him through work on the farm.
    
32. In mitigation this is the offender’s first offence. He is previously of good character and has a very high standing in the community.
    
33. The offender was a long-serving police officer at the time of the offence. Until that point he led a distinguished career. According to the record of service provided in the pre-sentence report, he was educated to Grade 11 before enrolling as an officer cadet in 1967. He graduated as a Sub Inspector in 1969. In the subsequent 27 years the offender appears to have served his country with distinction, rising through the ranks to hold senior positions, both in training and in command, including that of Deputy Divisional Commander at Headquarters, and Provincial Police Commander in no less than three provinces.
    
34. The offender was first posted to Arawa Police Station and then held the following positions: Tomaringa Mobile Squad (1976); Igam Training (June 1977 to June 1978); Training Police College Bomana (June 1978 to June 1979); Mobile Squad Kila Barracks (1979 to 1981); Kiunga Operation OK Tedi Mine Opening (1982); Started Mobile Squad Wewak (1983); Instructor Bomana Police College (1984 to 1986); Regional Police Training Officer Momase Region based in Lae (1986 to 1987); Regional Training Officer New Guinea Islands based in Rabaul (1987 to 1988); Deputy Director Speed Services Division (1988 to 1992); Executive Officer Bomana Police College (1992 to 1995); Provincial Police Commander South Fly Daru (1996); Deputy Divisional Commander based at Konedobu Port Moresby (1997); Provincial Police Commander, Madang (1997 to 2000); and Provincial Police Commander West New Britain Province (5 May 2000 until suspended on 14 August 2000).
    
35. Sir Peter Yama provided a character reference for the offender, who he has known as a detective in the Criminal Investigation Division for over 45 years. He regards the offender as a very effective, efficient, trustworthy, no-nonsense officer who is a loving and caring father who would lay down his life for his subordinates, or anyone, as a leader. Furthermore, he noted the great work of the offender in conducting community awareness, among other achievements, whilst serving in Madang.
    
36. The State has submitted that the offender’s absconding should be taken into account as an aggravating factor. I agree that his extended refusal for almost twenty years to submit to the judicial process might be regarded as a deliberate attempt to frustrate the administration of justice. As a police officer he would have well appreciated the reduced likelihood of a successful prosecution as evidence was inevitably lost and memories faded over time.
    
37. A Court may not, however, take into account on sentencing, as aggravating factors, facts which themselves constitute separate offences with which an offender has not been convicted, or facts which do not form part of the offence with which he has been convicted: Ben Wafia and Others v The State (2006) SC851; John Baipu v The State (2005) SC796.
    
38. The offender has not been charged with breaching his bail conditions under s 28 of the Bail Act. Nor did his absconding form any part of the offence with which he has been convicted.
    
39. Accordingly, despite the egregious nature of the absconding by a person in his position, I will not take it into account as an aggravating factor against him. It is nevertheless an important factor on sentence. In particular, for the reasons discussed below, it renders nugatory any benefit the offender might otherwise have received for the twenty-year delay in bringing his matter to completion. It is also relevant when considering the age of the offender at the time of sentence. Finally, it speaks volumes about the limited progress made by the offender towards rehabilitation, despite the passage of time, and the limited nature of his remorse.
    
40. Delay may be a relevant consideration on sentence but it will depend on the circumstances. Where there has been a failure on the part of authorities or the judicial process to bring an offender to justice within a reasonable time that may properly constitute a factor in mitigation. See s. 37(3) of the Constitution. That is particularly so where an offender has cooperated with authorities from an early stage. Where the offender has made progress towards his or her own rehabilitation during any period of delay that may also count in his or her favour in mitigation.
    
41. In this case there has been a delay of more than twenty years between the commission of the offence and sentence. But there has been no unfairness to the offender as a result of the delay. The delay is of the offender’s own making.
    
42. The offender was committed in December 2000. Warrants for the offender’s arrest were first issued in March 2001 and again in May 2015. He was eventually apprehended in 2020. It is disappointing that the Constabulary took no steps to apprehend the offender in the intervening period when it appears that he has been living freely, with his family, in a popular suburb in Port Moresby and a well-known establishment in Madang. The failure of the Constabulary to apprehend a former senior member accused of misappropriating State monies for almost twenty years does not reflect well on it. That can hardly be a matter in the offender’s favour, however. Of all people, the offender must be taken to know that no-one is above the law. His repeated refusal to submit to the judicial process cannot be countenanced.
    
43. Nor will I give the offender the benefit of any anxiety suffered whilst he has been at large. As indicated, it does not appear that he has been living “on the run”, constantly “looking over his shoulder” in fear of his imminent apprehension. Quite the contrary. Even assuming that there was some anxiety, all he had to do was surrender himself to the nearest police station. He knew that better than anyone.
    
44. The offender expressed very limited remorse on allocutus. Instead he stands on his past record which, given the lapse of time, is of significantly lower value now than twenty years ago.
    
45. The offender told the Court that he had joined the police force in 1975 and served the country for 27 years, during the Bougainville Crisis and as Chairman of the Police Officers Cadet Board, responsible for recruiting the new generation of officers, including the current Police Commissioner. He trained Officers in Charge and served the police force in many other ways. He complained that he has been held at Lakiemata Gaol for 14 weeks with no visitors other than his lawyer. He said that he took the money to assist another officer but he does not deny that he acted dishonestly in taking the pensions monies for his own use and the use of another. He sought a non-custodial sentence on the basis that he has served a sufficient sentence in Lakiemata and asked the Court to consider his contributions to the State and his willingness to repay the monies within the next 24 hours. In conclusion he said that he had been a part of the police force since Independence: “Much has been achieved but there remains much to be done” .
    
46. A guilty plea is ordinarily a matter to be taken into account in mitigation on sentence. It may be indicative of remorse and a willingness to facilitate the course of justice on the part of the offender. It may also be taken into account on the separate utilitarian or objective ground that it has saved authorities and the court the time and expense of a trial and spared witnesses the inconvenience, and in some cases the distress, of testifying. In general terms, the earlier the plea the greater its weight and the more favourable it will be for the offender. In some cases a guilty plea when taken in combination with other relevant factors will be of little to no weight: Kalabus v The State [1988] PNLGR 193; State v Solomon Junt Warur (2019) N7545.
    
47. The offender’s guilty plea is of limited weight in this case. It comes twenty years after the event and only upon his apprehension. As is demonstrated by the offender’s allocutus, it is not indicative of any great remorse. I do, however, take it into account as indicative of some remorse, and on the basis that it has saved the time, expense and inconvenience of a trial.
    
48. Whilst no submissions were made on the point by counsel, I do find that the impact of the offence on the offender has been and will continue to be significant. He lost a senior position in the police force and I am sure his standing in the community also suffered as a result. The offender was not fired, instead he resigned because, in his words, “the case continued to be prolonged”. What he fails to mention is that he had already absconded by that stage.
    
49. There is no doubt it will be difficult for the offender given the nature of the offence to find formal employment again in the future. At 62 years of age, however, it is unlikely that he would seek to do so in any event and such a consideration is accordingly of limited weight. He is also more fortunate than many. He owns two high covenant houses and benefits from his family farm in Angoram.
    
50. The offender’s age is a relevant factor in determining sentence. At 62 he is now experiencing some short sightedness. He complained to Probation Services that he requires immediate medical attention for an issue with his hip but no medical reports were provided in this regard.
    
51. I accept that at his age any sentence of imprisonment will be difficult. It will of course also be difficult for his wives and family. These are the inevitable consequences of the offender’s own conduct, however, and matters he would have well appreciated as a law enforcement official when he first offended, and then when he persistently failed to submit to the court process.
    
52. There are no matters of mitigation special to the offender.
    

Sentence

53. The offender has been convicted of one count of misappropriating K910 contrary to s. 383A(1)(a)(2)(b) of the Criminal Code. Section 19 of the Criminal Code provides the Court with broad discretion on sentence. 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. Although this case does not fall within that category, the offence remains a serious one.
    
54. I have taken into account the offender’s personal circumstances. I have also taken into account his guilty plea, his lack of previous conviction, his exemplary prior good character, and the significant contributions made as a long serving police officer up to and until the year 2000.
    
55. Those are factors in his favour but they are far outweighed by the aggravating factors in this case, in particular the nature of the offence, the position held by the offender, and the breach of trust and abuse of authority involved. Dishonesty offences are prevalent and this case warrants both specific and general deterrence.
    
56. This case involved a serious dishonesty offence by a senior officer whose duty it was to protect and serve the law. Such offences 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.
    
57. I adopt the comments of both the Chief Justice and Mogish J that as a general rule offences conducted by serving police officers must attract more severe punishments. The Court must strongly condemn dishonesty offences by any officer within the police force and it follows, in my view, that in general terms, the more senior the officer, the more severe that punishment must be.
    
58. Accordingly, I decline to sentence the offender within the ranges proposed in the first two categories of Wellington Belawa. As the Supreme Court made clear those categories contain suggested or guideline tariffs to be adjusted upwards or downwards as appropriate in the particular circumstances of any case. See also Rex Lialu v The State [1990] PNGLR 487; Lawrence Simbe v The State [1994] PNGLR 38; and Kumbamong v The State (2008) SC1017.
    
59. Having considered all of the above matters, including comparative cases, I sentence the offender to 4 years of imprisonment in light labour. I deduct the time spent in custody to date.
    
60. 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.
    
61. The offender’s family and Sir Peter Yama support his plea for suspension. His family are concerned for his age and health and have pledged to repay any monies so that he might be given a community based sentence in lieu of custody. Probation Services expressed the view that he has shown remorse for the offence and regard him as a suitable candidate for probation. The means assessment report confirms that he has funds available to make restitution.
    
62. I am of the strong view that suspension is not appropriate in the circumstances of this case. There is nothing to suggest that despite his age, the offender would suffer excessively in prison. Nor is suspension warranted to promote restitution. The offender has indicated he is able to repay the monies immediately. It is a hollow gesture after twenty years. It might compensate the State for its loss but it will not assist those who might have benefited from the monies in their retirement at the time. Nor am I satisfied that suspension would promote the offender’s rehabilitation. He has shown little remorse and even less appreciation for the gravity of his offending, as demonstrated by his comments on allocutus and his comments to Probation Services that upon release he intends to set up a consultation firm on policing and law and order “to advocate awareness on major and minor crime affecting society”, not by way of sharing the lessons of his own offending, I might add, but as a result of his experience in the police force.
    
63. Whilst I do not intend to order restitution, it is my view that in addition to serving a custodial term, the offender should pay a fine of K1500 pursuant to s. 19(1)(b) of the Criminal Code.
    
64. I note the offender’s comments that whilst the police force has done much for this country, much more remains to be done. Let his conduct not diminish the reputation of those past and present officers who serve the Constabulary and the State with distinction. Let it not impede the essential work of the Constabulary into the future. Furthermore, let this be a warning to any officer who might consider flouting the law. You are not above the law. You will be apprehended and you will be held to account.
    
65. I make the following orders. Upon his request, I recommend that the offender serve his sentence at Bomana Correctional Institution in the National Capital District, having regard to s 37(20) of the Constitution.
    

Orders

(1) The offender is sentenced to four years of imprisonment in light labour, which I recommend is to be served at the Bomana Correctional Institution in the National Capital District.
(2) Three months, fourteen days, spent in custody will be deducted from the time to be served, leaving a balance of three years, eight months and 16 days to be served.
(3) A fine of K1500 is to be paid to the State within one month of today’s date.

_______________________________________________________________
Public Prosecutor: Lawyer for the State
Public Solicitor: Lawyer for the Offender