Police v Pokom [2021] PGDC 87; DC6047 (15 July 2021)

DC6047

PAPUA NEW GUINEA

[IN THE DISTRICT COURT OF JUSTICE

SITTING IN ITS SUMMARY JURISDICTION]

B. No 1921 of 2019

CB No. 4366 of 2019
BETWEEN

THE POLICE
Informant

AND

CHARLES POKOM
Defendant

Boroko: S Tanei

2021: 15^th of July
      

SUMMARY OFFENCE – Failure to Safe Keep Firearm – s 51(1) – Firearms Act.

PRACTICE AND PROCEDURE- Sentence – Plea– principles of sentencing discussed and considered – Failure to Safe Keep Firearm- Mitigating Factors considered – Fine of K 2000.

Cases Cited

State –v- Dua [2013] PGNC 8; N4957
State –v- Sapik Tommy [2014] PGNC 103; N5647
Yalibakut –v- The State [2006] PGS 27; SC890

References

Legislation

Firearms Act 1978
Firearms (Amendment) Act 2018

Counsel

Senior Constable Mol Siboa, for the Informant

The Offender in Person

RULING ON SENTENCE

15^th July 2021

S Tanei: Charles Pokom pleaded guilty to the Offence of Failing to Safe Keep a Firearm in his possession on 29^th June 2021.

2. Initially, the Offender pleaded not guilty and this case was adjourned for trial since April 2019. He changed his plea to guilty following a plea bargain with the Prosecution in July 2021 just after his matter was set for trial on 26^th May 2021.

3 Submissions on sentence were made on 8^th July 2021.

4. This is my ruling on sentence.

FACTS:

5. The Offender, Charles Pokom was charged with one count of Failure to Safe Keep A Firearm in his Possession under section 51 (1) of the Firearms Act 1978.

6. The following are the facts to which the Offender pleaded guilty to.

7. The Offender is a Policeman bearing the rank of Constable and attached to the Gordons Police Station in NCD.

8. On 16^th April 2019 between 1.00 am and 2.00 am, the Offender was at the DAL Compound at 8 Mile, NCD.

9. The Offender and his friends had been drinking earlier that night. They invited a young woman to drink with them to which she agreed and joined them. They then proceeded to Chillie Peppers Club and continued to drink until past midnight when they drove off to 8 mile to drop off the woman.

10. Just before they dropped the woman off at DAL Compound 8 Mile, the Offender and the woman went off the vehicle and had sex in the bush.

11. The Offender had in his possession a Police issued Bush Master Rifle with serial number L116946.

12. While the Offender and the Woman were having sex, someone approached them, grabbed the rifle and ran off. The Offender tried to chase that person but that person ran away into the darkness and disappeared.

13. The Offender did not report the matter to his superiors until 18^th April 2019.

14. Police tried searching for the firearm at 8 mile and the nearby surroundings the days that followed but did not find it. The firearm is still at large.

15. The Offender was then invited to the station, cautioned, told of his rights, arrested and charged.

ANTECEDENT REPORT

16. The Offender is 29 years old and hails from Dumbola Village, North Waghi, Jiwaka Province. He is married with 2 Children. He is a Policeman and bears the rank of Constable currently stationed at Gordons Police Station.

ALLOCOTUS:

17. During Allocotus, the Offender apologised to the Court and said he was sorry for his actions. He also told the Court that he was administratively punished by his employer, the Police for, his actions in that he was suspended from duties and investigated. He stressed that he is a first time offender.

ISSUES:

18. The Court is faced with the issue of what penalty it should impose on the offender.

THE LAW

19. Section 51 (1) of the Firearms Act 1978 provides that;

51. SAFE CUSTODY.

(1) A person who has a firearm in his possession or control must take all reasonable precautions to ensure the safe-keeping of that firearm.

20. The Penalty provision in section 51(1) has been amended by Section 16 of the Firearms (Amendment) Act 2018. This offence now carries a penalty of A fine not exceeding K 10, 000.00 or imprisonment for a term not exceeding five (5) years.

SENTENCE
21. In deciding on sentence for a particular offence the Court must be guided by appropriate sentencing principles.

22 I adopt the sentencing process applied by His Honour Justice Cannings in the case of State –v- Dua (2013) PNGNC 8; N4957 and the case of State –v- Sapik Tommy [2014] PGNC 103; N5647. In those cases, the the following decision making process was used:

• step 1: what is the maximum penalty?
• step 2: what is a proper starting point?
• step 3: what sentences have been imposed for equivalent offences?
• step 4: what is the head sentence?
  

Step 1: what is the maximum penalty?

23. The prescribed maximum penalty under the Firearms (Amendment) Act 2018 is a fine of K 10, 000.00 or 5 years imprisonment. This is reserved for the worst case scenario.

Step 2: what is a proper starting point?

24. In this case the Offender pleaded guilty so he will be given the benefit of the doubt on mitigating factors (Yalibakut –v- The State [2006] PGSC 27; SC890).

25. In many cases where the offender pleads guilty, the Courts held that the sentence starts at the mid-point. In this matter the midpoint would be K 5000 fine or 30 months imprisonment.

Step 3: what sentences have been imposed for equivalent offences?

26. I have not come across any reported judgment that dealt with the offence that is currently before me.

27. In this situation, I will use the mid point and work my way up or down depending on the mitigating factors and the aggravating factors.

Step 4: what is the head sentence?

28. The head sentence shall be determined by considering all the factors of mitigation as well as aggravation.

29. The mitigating factors are;

1. Guilty Plea
2. First Offender

100. Administrative Punishment by employer
     

30. The aggravating factors are;

1. He failed to exercise his duty to keep the firearm safe.
2. The Firearm was never recovered.
   

31. Prosecutor Mol Siboa of Police Prosecutions submitted that this is a serious matter wherein on the Offender failed to properly keep it resulting in its theft. He submitted that the Offender be fined K 700.

32. The Offender did not make any submission on sentence apart from his allocotus.

33. From the two lists, the mitigating factors outweigh the aggravating factors. That is, the Offender pleaded guilty and saved the Court time, the Offender is a first offender and that he was administratively punished by his employer, the Police.

35. In the case of Acting Public Prosecutor –v- Aumane, Boku, Wapulai and Kone [1980] PNGLR 510 the Court discussed principles of sentencing and held that the purposes of sentences are for deterrence, separation, rehabilitation and retribution.

37. Despite the mitigating factors, it is my view that the offence is a serious offence. That is reflected in the amendment to the penalty provisions of the Firearms Act.

38. The Offender is a trained Policeman. He is bestowed the responsibility to protect state properties in his possession. His firearm is one of the most important tools of his trade and he must keep it safe at all costs. However, he grossly neglected his duty by leaving the firearm unattended while he was having sex in nearby bushes. His neglect has cost the Police Force the loss of one firearm which costs the State thousands of Kina.

39. It is my view that the sentence in this case must be deterrent in nature. It must make police officers protect their police issued firearms and keep them safe.

40. While the mitigating factors work in the Offender’s favour, I lean towards a non-custodial sentence. I also do not consider this case to fall under the worst case scenario.

41. Given the prevalence of this offence and the circumstances of this case, I will impose a fine of K 2, 000.00.

CONCLUSION

42. Taking into consideration all the factors, I find that the appropriate penalty would be a fine of K 2000.00

SENTENCE

43. The following is the sentence of this Court;

1. Charles Pokom, having pleaded guilty and being convicted of the offence of Failing to Safe Keep a Firearm in his Possession under section 51 (1) of the Firearms Act shall pay a fine of K 2,000.00
   
2. The Offender’s Bail of K 700 is forfeited and converted to pay part of the Court fine.
   
3. The Offender shall pay the remainder of K 1,300.00 within seven (7) days from the date of this Order. If the Offender fails to do that, he shall spend two (2) months in hard labour in prison at the Bomana Corrections Institution.
   
4. The matter shall return to Court on 26^th July 2021 at 9.30 am to check on compliance of Item 3 of these Court Orders.
   

Lawyer for the Informant Police Prosecutions

Lawyer for the Offender: In Person