State v Lyande [2002] PGNC 123; N2204 (13 March 2002)

N2204

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]

CR 994/99

THE STATE

-v-

ANTON LYANDE

Mt. Hagen : Jalina, J.
13th March 2002

CRIMINAL LAW – Sentence – Policemen - Sentence suspended on probation with Conditions – Failure to comply with conditions – Warrant of arrest issued after failure to comply with Conditions – Compliance with conditions after arrest - Not sufficient compliance – Shows insincerity of heart – Compliance after arrest demonstrate contempt and disrespect towards the Court.

Counsel:

J. Kesan for the State

B. Aipe for the Probationer

SENTENCE UPON BREACH OF PROBATION ORDER

13th March 2002

JALINA, J.: The above named accused and his co-accused Dickson Philip appeared before the National Court in Wabag on 14th May 2001, and pleaded guilty to a count each of making a false declaration and stealing moneys which were payable by the Department of Works in Wabag to one Dickson Lakaio as compensation for damage which were going to be caused to his properties during sealing of the road at Lenki Village, Wabag. The disturbing aspect of the case at the time of initial hearing on 14th May 2001, was that the accused Anton Lyande, a Reserve Police Constable at Wabag Police Station, and his co-accused Dick Philip constantly threatened staff at PTB Wabag over the above payment before the payment was released to them.

After following the normal procedure in plea of guilty cases including the administration of the allocutus and hearing counsel, I imposed a sentence of 18 months imprisonment in hard labour on each accused. After deducting period in custody, Anton Lyande had 17 months and 27 days to serve while Dick Philip had 17 months and 25 days.

Upon further consideration of their plea for leniency, I suspended the whole of their respective sentence and released them on probation with conditions. The conditions imposed upon Anton Lyande were:

"1. You shall pay K1,000.00 to Dickson Lakaio no later than 14th August 2001.

2. It is further ordered that your bail moneys be refunded and be paid to Dickson Lakaio as part payment."
   

So both accuseds were given 3 months to repay the victim. According to the District Court depositions both accuseds were on K600.00 bail so the refund and payment of such bail money to the victim would have had the accused Anton Lyande with only K400.00 to repay.

On 26th September 2001, the State Prosecutor, Mr. Kesan filed an affidavit dated 25th September 2001, from the victim Dickson Lakaio stating among other things that the accused Dick Philip had only partially complied with the probation condition by paying only his bail refund of K600.00 and that the accused Anton Lyande had failed to pay any money and had therefore failed to comply with the court order.

The Probation Officer, Mr. Andrew Rai also filed on 26th September 2001, an application for breach of probation. I then issued a Warrant of Arrest for the accuseds to be arrested and brought before the Court to show cause why the suspended sentence should not be imposed by the issue of Warrant of Commitment.

By November 2001, it came to my notice that the accused Anton Lyande was still working at Wabag Police Station as Reserve Constable in spite of the warrant for his arrest having been issued on September 2001. So on 20th November 2001, I wrote to the Provincial Police Commander attaching a copy of the warrant and pointing out that the failure of police to arrest the accused Anton Lyande who was in breach of a lawful order of the Court showed that there was one law for the police and a different law for ordinary people.

The accused Anton Lyande was finally arrested a week or so before 24th January 2002, which was when I issued a Warrant of Commitment on Remand at Baisu CIS and to be brought before the Court on 4th February 2002, in Wabag. His case could not be dealt with then as Defence Counsel, Mr. N’dranoh was on recreation leave.

He however, appeared before me in Mt. Hagen on 4th March 2002, when I convened the Court to deal with Wabag remandees at Baisu CIS who had gone on hunger strike due to purported long delays in having their cases heard. It was then decided that his case be heard in Mt. Hagen this week. During his brief appearance on 4th March 2002, he explained that the money had already been paid but the victim Dickson Lakaio indicated that he had not received any.

During the hearing yesterday, Mr. Kesan referred to an affidavit from the Probation Officer, Mr. Andrew Rai which was filed in this Court on 28th February 2002. Mr. Rai deposes in that affidavit among other things to the fact that after the accused Anton Lyande was released on probation on 14th May 2001, he read the terms of the Order and the accused understood same and that on 14th August 2001, he checked the National Court Registry in Wabag and discovered that nothing was paid to the Registry by both probationers. Mr. Rai also deposes to the accused being paid a salary of K150.00 per fortnight and is also a proprietor of a security firm with the Department of Enga. The accused denied through his lawyer of being an owner of a security firm.

Mr. Kesan has submitted that as the accused was clearly in breach of the Probation Order, the suspended sentence be enforced. Payment made after arrest was not compliance with the terms of the Probation Order.

Mr. Aipe has submitted upon instructions from the accused as well as from the accused speaking from the dock that the accused used the K600.00 to buy betelnuts from Lae and tried to raise the K1,000.00 from such sale but was unsuccessful. The accused himself stated that he first paid K700.00 into the National Court Registry and later paid the remaining K300.00 to bringing the total amount owing to the victim to K1,000.00. Mr. Aipe also submitted that the accused be given another chance.

In considering whether or not I should enforce the suspended sentence by issuing a Warrant of Commitment, let me point out at the outset that in spite of the accused being a policeman and having used threats to obtain the money from PTB Wabag, the Court was lenient and released this accused and his colleague on probation instead of immediate incarceration.

I have said to many accused persons I have released on probation that whether or not they end up in jail for breach of probation was in their hands. And if they do end up in jail for breach of conditions of probation, then neither the Court nor the lawyers, nor the police should be blamed but themselves. They are in a position to steer their lives away from jail but by their breach of probation conditions especially where an element of disrespect and contempt towards an order of a Court is present, it clearly demonstrates their willingness to go to jail rather than enjoying their freedom outside in the community and with their families.

In the present case, the accused Anton Lyande has in my opinion acted in total disregard and disrespect to a lawful order of the National Court. His first action in total disregard and contempt was that instead of refunding his K600.00 bail moneys and paying to the victim as ordered by the Court, he used the money on other things.

He said through his lawyer, Mr. Aipe that he used to buy betelnuts to raise the full amount of K1,000.00. But he ought to have realised that if he paid the K600.00 bail moneys to the victim, he would have had only K400.00 to pay by the deadline of 4th August 2001.

He was also employed as a Reserve Constable at Wabag Police Station and no doubt he was paid a salary. Yet he made no attempt to at least make some payment each fortnight.

What concerns me most is that he is a policeman who has acted in total disregard towards an order of the Court. He also acted in a manner that showed total disrespect towards the National Court. He appears to have thought that the National Court was in Wabag to play games people play in Enga where no one wants to do anything against anyone including reporting them to the police even though their action is clearly against the law.

The accused Anton Lyande was a policeman and since policemen are enforcers of the law as are the Courts, I expected him to comply with the Court Order. Instead he chose to disregard it. Furthermore, even after the warrant was issued for his arrest, he still failed to pay. As I said earlier, even up to 20th November 2001, when I wrote to the Provincial Police Commander, he was still employed as a policeman. A person who was dishonest by stealing was allowed to continue working as a policeman. If policemen are going to behave in that manner and treat Court Orders with total disregard and contempt, this beautiful country of ours is heading for disaster.

The accused finally paid some money to the Acting Registrar, Mr. Peter Nend. He said that he first paid K700.00 then later he paid K300.00. To my mind payment after issue of a Warrant of Arrest or after arrest is too late. Such late payment particularly after arrest demonstrates insincerity of heart.

In these circumstances I am not prepared to accede to the request of Defence Counsel, Mr. Aipe and further release him on probation as he cannot be trusted to comply with whatever conditions I may impose. Furthermore, I consider that as a deterrent to the accused Anton Lyande and other probationers including policemen who may be released on probation, that actions which demonstrates total disrespect and contempt towards the Court and rule of law cannot and should not be tolerated, I order that a Warrant of Commitment be issued for Anton Lyande to serve the suspended sentence after deduction of period spent in custody after his arrest in late January 2002.

I issued his Warrant of Commitment on Remand on 24th January 2002, so the period I deduct from the suspended sentence of 17 months, 27 days is 54 days from 17th January 2002. The 54 days are equivalent to 1 month, 3 weeks and 3 days. This leaves 16 months and 3 days which I order him to serve in hard labour at Baisu Corrective Institution.

I further recommend that he be dismissed from the Police Force.

His K1,000.00 be refunded to him or be deposited into his Bank Account by the Assistant Registrar which ever he shall prefer.
_____________________________________________________________________
Lawyer for the State : Public Prosecutor
Lawyer for the Probationer : Public Solicitor