State v Akoko [2000] PGNC 84; N2061 (3 March 2000)

N2061

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]

CR. NO. 1240/99

THE STATE

-vs-

JOHN AKOKO

Lae : Injia, J
2000 : February 29th, March 3rd

CRIMINAL LAW – Sentence – Stealing – By policeman – Part of money recovered by police from major airport robbery – Need for strong punitive and deterrent sentence to restore public confidence in Police Force.

Cases cited:
Wellington Belawa .v. The State [1988-89] PNGLR 496

Counsel:
L. Rangan for the State
P. Ousi for the accused

3rd March 2000

INJIA, J: The accused is a former policeman. He was a member of the Police Task Force in Lae. The offence to which he pleaded guilty was committed in the course of performing his official duties as a member of the Police Task Force. He pleaded guilty to stealing the sum of K7,000 being part of the sum of K180,000 recovered by the Police Task Force from robbers who stole a total of K254,000 belonging to the Westpac Bank in a daring day-light robbery carried out at Nadzab Airport on 4 May 1999 which resulted in the fatal shooting by the robbers of a security guard employed by Securimax. The police Task Force contingent headed by the accused was called in to pursue the robbers. In the course of a fierce gun battle which ensued between the robbers and the Police Task Force behind the hills of Yalu village, the sum of K180,000 was, and to use the words of the accused, "spilled over" by the robbers which the police recovered. Upon seeing the money, the accused fell "tempted" by the occasion and kept for himself K7,000.00. The accused was arrested at Goroka with K5,528.40 in his pocket which police seized. By this time, the balance of K1,477.60 had already been used by him. He is currently appearing on Court bail of K1,000.00 and offered to repay part of the outstanding balance with this bail money if the Court gives him the opportunity.

He asked the Court to give him a chance by imposing a non-custodial sentence because: (1) He was "tempted" by the occasion to steal the money. (2) He led in the hot pursuit of the robbers resulting in a fierce gun-battle and risked his own life and succeeded in recovering substantial portion of the money stolen by the robbers. (3) There was no pre-planning involved. (4) He co-operated with the police in readily admitting the offence on several occasions. (5) He has served the police Force and the country for 9 years, most of the time with the Police Task Force with dedication and placed his life at risk at times. (6) He is a man of previous outstanding character and sound work discipline and well spoken of and respected by the community as evidenced in the affidavits of Police Inspector Peter Guiness Ben who is the officer in charge of Crime Investigation Division at Lae Police Station; the affidavit of Vagi Aukuve who is a village Court Magistrate of his home village, the affidavit of Martin Powis QPM who is the Operations Manager of Protect Security in Lae and a former police Detective Chief Inspector between 1985 - 1998, and the affidavit of Cosmos Inkisopo who is the Principal Legal Officer with the Lae City Authority. All these men are leaders in their own right and they say the offence he committed is out-of-character of the man they always knew him to be. (7) He offered to repay the outstanding money with K1,000 immediately and the balance in instalments. (8) He was suspended from work as a result of this offence and since then he has resigned from the police force. (9) This is his first offence. (10) He is a married man with children. (11) He is now employed by Negiso Distributors as a Manager. I agree with the accused’s counsel, Mr. Ousi that these are substantial mitigating factors and other extenuating circumstances of the offence pointed out by Mr. Ousi in his submissions, justifies exercise of greater leniency by this Court on sentence.

But it is only fair and just that these mitigating factors which are personal to the accused should be balanced against the severity of the crime he committed and the interests of the community. The facts briefly outlined earlier speak for themselves. The accused and other policemen were called in to pursue a gang of armed bandits who had committed a series of serious crimes. The accused was a senior member of a police elite squad which specialised in pursuing and apprehending armed felons on the run from the law. The operation was partly successful in recovering a substantial portion of the money but the suspects escaped. The accused, instead of returning all the money as entrusted upon him by law, dishonestly kept K7,000.00 for himself. Whilst I agree with Mr. Ousi that it was an act of stupidity occasioned by the situation in the "spur of the moment", his actions had grave ramifications for law enforcement in this country. The Police Force is a honourable and disciplined service which is loyal to the State and its people. A good, efficient and more importantly an honest and trustworthy police force is the pillar of a safe and prosperous society. There is no room in the police force for corrupt and dishonest policemen. The public confidence in the police force is eroded by the conduct of men and women in police uniform who go out of their call of duty to steal from the very community they are duty-bound by law to serve with honour and dignity.

This case marks the beginning of a new trend in the police force where corrupt policemen use their position to conceal, deceive and steal money recovered in the course of investigating serious crimes. As such, it ought to be visited with a stern punitive sentence in the form of custodial sentence to serve as a deterrent to the other potential offenders.

The mitigating factors outlined above obviously does credit to the accused’s call for leniency but not to the extent of complete exoneration from custodial sentence. Mr. Ousi referred me to the case of The State -v- Rudolp Rimbma Clay where I sentenced that policeman to a fine after I found him guilty of unlawfully wounding by firing a pistol to a security guard who interrupted his "womanizing" drinking party on the outskirts of Nadzab airport at night time. It is ironic that Mr. Clay is the police investigating officer in this case. Be that as it may, I do not think Mr. Clay’s case closely resemble the facts of the present case in terms of the degree of dishonesty and corruption and the serious nature of the offence committed. Mr. Ousi has also referred me to the sentencing tariff set out by the Supreme Court in Wellington Belawa -v- The State [1988-89] PNGLR 496 but those are only guidelines. I find the degree of trust reposed in the accused and the breach of it which has tendency to erode public confidence in the police force, both of which are relevant considerations mentioned in Wellington Belawa’s case, to be a compelling considerations.

The maximum punishment for the offence stealing money committed by a servant of the State which money came into his possession on account of his employer under S. 372 (7) is 7 years imprisonment. In all the circumstances, I consider a sentence of 5 years imprisonment in hard labour is sufficient and I impose the same. From this, I deduct the period of 3 months he spent in custody. Of the remaining balance of 3 years 9 months, I suspend 2 years of that sentence on the condition that (1) he repays the Westpac Bank the sum of K1,477.60 within 1 year. (2) That he will be of good behaviour bond for 2 years. He will serve the balance of 2 years and 9 months.
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Lawyer for the State : Public Prosecutor
Lawyer for the Accused : Warner Shand Lawyers