State v Konny [2012] PGNC 77; N4691 (29 May 2012)

N4691

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR NO 215 OF 2012

THE STATE

V

ROBERT KONNY

Waigani: Makail, J
2012: 18th, 28th & 29th May

CRIMINAL LAW: Plea - Sentence - Multiple offences - Official corruption - Permitting escape from lawful custody - Mitigating and aggravating factors considered - Non-custodial sentence with strict conditions appropriate - Criminal Code, Ch 262 - Sections 19, 87(1)(a)(i) & 140(1).

Facts

The accused was indicted with two counts. First for official corruption and secondly, for permitting an escape from lawful custody under section 87(1)(a)(i) and section 140(1) of the Criminal Code, Ch 262 respectively. He received K700.00 from a third party and released a suspect who was arrested and detained at the police station cell for having in his possession large quantity of marijuana. He pleaded guilty to both charges, was convicted and sentenced.

Held:

1. For official corruption, the penalty is imprisonment for a term not exceeding 7 years and a fine at the discretion of the Court and for permitting an escape from lawful custody, it is imprisonment for a term not exceeding 3 years: section 87(1)(a)(i) & section 140(1) of the Criminal Code, Ch 262 respectively.

2. The offence of official corruption was created by Parliament to deter public officials from using their positions for personal gain or advantage because holding a position of power or authority may often than not be abused or misused.

3. The magnitude of the prisoner's responsibility as a police officer rendered insignificant his early guilty plea, his plea as a first offender, his plea of co-operating with the police during the investigations and admission to committing the offences, including matters stated in the pre-sentence report such as the adverse effect a custodial sentence would have on his family welfare and his unblemished record and distinguished service as a police officer.

4. Two strong mitigating factors were that first, the prisoner went after the suspect, re-arrested and detained him. Secondly, he returned the money to the Police Station Commander.

5. The prisoner was sentenced to a term of 3 years imprisonment in hard labour for the offence of official corruption and 1 year imprisonment in hard labour for the offence of permitting an escape. As the two offences were committed in a single transaction, applying the single transaction rule, both sentences were ordered to be served concurrently.

6. In addition, both sentences were wholly suspended and the prisoner was placed on good behaviour bond for 2 years and gave surety equivalent to his cash bail. His cash bail was converted to surety and finally, he was placed on probation for 1 year with strict conditions including community work.

Cases cited:

The State -v- Jimmy Naime (2005) N2873
Danny Mako -v- The State (2006) SC889
The State -v- Koivi Ipai (No 2) (2010) N4173

Counsel:

Ms H Roalakona, for the State
Ms J Pora with Mr K Wenge, for the Prisoner

SENTENCE

29th May, 2012

1. MAKAIL, J: The accused is indicted with two counts. First for official corruption and secondly, for permitting an escape from lawful custody under section 87(1)(a)(i) and section 140(1) of the Criminal Code, Ch 262 respectively. For official corruption, the penalty is imprisonment for a term not exceeding 7 years and a fine at the discretion of the Court and for permitting an escape from lawful custody, it is imprisonment for a term not exceeding 3 years.

2. He admitted these offences and was convicted. The facts upon which he was convicted are as follows; at all material times, he was a public servant and employed as a police officer and based at Gordons Police Station. On 28th September 2011, he was on duty and had the key to the police cell. A suspect by the name of Saki Kentefa was apprehended and detained at the police cell for reasons that he had in his possession large quantity of marijuana. An entry was made in the police occurrence book that the suspect was not to be released. A Max Mambu approached the prisoner and gave him K700.00 cash as a bribe for the release of the suspect. Upon receipt of the money, he proceeded to the police cell and opened the cell gate and allowed the suspect to escape.

3. I consider that the offence of official corruption was created by Parliament to deter public officials from using their positions for personal gain or advantage. You see, holding a position of power or authority may often than not be abused or misused. In my view the offence of official corruption is serious as wilful murder. It is deadly because it can kill a nation if it is not dealt with swiftly and sternly. It is like a cancer that grows in the human body and if not treated quickly, can grow big and cause death. Its impact on the society must never be under estimated. It has far reaching consequences. A nation's progress and development is dependent on its work force and if public officials who make up the bulk of the work force in this country indulge in corrupt activities, their actions can bring down the entire nation.

4. Acceptance of bribes by public officials from members of the public to circumvent a legitimate process poses a serious threat to the progress and growth of this country. Undoubtedly, it is a huge task for public officials to stand up against corruption where in Papua New Guinea, "wantok" system or "wantokism" is so entrenched that it would be considered a betrayal of the friendship, mate-ship, clanship or brotherhood relationship for one to refuse to do something for another if so requested. This is the difficult part. This is the challenge that confronts all when it comes to fighting corruption. I think it is also fair to say much effort has been put into by authorities and interested groups in conducting awareness on corruption but little on bringing those involved to justice.

5. Relating these observations to the present case, the prisoner circumvented a legitimate process. The legitimate process was the arresting and detaining of a suspected drug dealer by police for having in his possession a large quantity of marijuana under the Arrest Act and the Bail Act. It is common knowledge that illicit drugs are a growing concern for public authorities and interested groups in the country because of the negative impact they have on the society, especially on the younger members of the society.

6. Here was someone who was arrested and waiting to be tried by the Court. The prisoner accepted a bribe and released him. In the end, the suspect walked free and it is anyone's guess, what he would have been doing now, had he not been re-arrested and detained. In my view, the fact that he circumvented a legitimate process is a serious aggravating factor and it would be wrong and the Court would be doing injustice to all if the prisoner is simply reprimanded.

7. In my view also, his suspension from duty for 21 days does not significantly mitigate the seriousness of his actions. It is a disciplinary action taken by the Commissioner of Police under the Police Act and did not stop the Commissioner from having him charged for these offences and dealt with under the criminal laws of this country. By disciplining him under these two different forms of disciplinary avenues, it shows that police officers who flout the laws can expect to face the full force of the law.

8. The prisoner held a position of trust. He is a police officer and at the relevant time, the Acting Shift Supervisor at Gordons police station. As a police officer he is duty bound to uphold laws; not to break them. The people and more importantly, the residents of the city of Port Moresby placed their trust in him that their property and lives will be protected by him and fellow police officers. They are responsible for maintaining law and order in the community so that it is safe for everyone to live in. If police officers like him start receiving bribes and release suspects or even prisoners from cell or prison, it is more likely that communities will be unsafe for the good and law abiding people of this country to live in.

9. The writing is now on the wall. These offences are increasing. In the past, they are unheard of. Perhaps, that explains the very little case law in our jurisdiction on these offences. The ones that have been recorded and reported are The State -v- Jimmy Naime (2005) N2873, Danny Mako -v- The State (2006) SC889 and The State -v- Koivi Ipai (No 2) (2010) N4173.

10. Briefly, in Jimmy Naime's case (supra), the prisoner was a policeman. He pleaded guilty and was convicted for official corruption. He corruptly obtained from Hinaro Rosantina two Horse Race Machines for himself and other on account of him and gave them to another person namely Joseph in the discharge of his duties. In return, he and his accomplices were paid some monies. He received K200.00 for his efforts. Mogish, J imposed a term of 4 years imprisonment in hard labour and suspended 18 months and placed him on good behaviour bond. He deducted 1 week for pre-trial custody and ordered the prisoner to serve 2 years, 5 months and 1 week in prison. Finally he imposed a fine of K300.00.

11. I whole heartedly agree with and endorse the observations by his Honour that:

"Crimes committed by policemen and women in the course of their duties is on the rise. It is becoming an entrenched habit where policeman commit crimes under the disguise of lawful duties. Corruption in the Constabulary is a very serious offence warranting immediate custodial sentence as a form of deterrence. Policemen and women are by virtue of their employment protector of life and property. They are invested with powers over and above any ordinary citizen. And so when it comes to the exercise of those powers, they are expected to exercise those powers within the ambit of the law."

12. In Danny Mako's case (supra), the appellant appealed against the decision of the National Court on conviction and sentence of 7 years imprisonment for official corruption. He arrested a suspect for attempted murder and had him detained in the police cells at Wabag Police Station. The arrest and detention was entered in the occurrence book. While the suspect was in the cells, the appellant gave him a withdrawal slip which he filled and the appellant took it to the bank where he withdrew K150.00. Sometimes later, on the same day, he released the suspect without entering the release in the occurrence book. The Supreme Court dismissed the appeal on conviction but upheld the appeal against sentence for the reason that it was excessive. It reduced it to 5 years and deducted 8 months and 2 weeks for time served in prison and suspended the balance of 4 years, 3 months and 2 weeks on condition that the appellant enter into a good behaviour bond for 3 years.

13. The case of permitting an escape is Koivi Ipai (No 2). In that case, the prisoner a policeman and cell guard denied a charge of permitting a prisoner to escape from custody at Boroko Police Station. The escapee was never found or apprehended again. He was found guilty and sentenced to 10 months imprisonment which was wholly suspended and put on probation with strict conditions. Kawi, J when sentencing the prisoner found that the prisoner's case was aggravated by a number of factors, one of which was the breach of his duty as a police officer to uphold, maintain and enforce the rule of law.

14. In the present case, the magnitude of the prisoner's responsibility as a police officer renders insignificant his early guilty plea, his plea as a first offender, his plea of co-operating with the police during the investigations and admission to committing the offences. Further, the matters stated in the pre-sentence report such as the adverse effect a custodial sentence would have on his family welfare and his unblemished record and distinguished service as a police officer have very little effect when they are compared with the magnitude of his responsibility as a police officer. As a police officer, it is expected of him to be above reproach. He failed and should not expect any leniency for his actions.

15. However, he has redeemed himself from his sins. He did that by going after the suspect and re-arresting him. He brought him back to the police station and had him detained. In addition, he returned the money to the Police Station Commander. In my view, these two acts mean a lot. I consider them has strong mitigating factors because not only do they show the prisoner's outward expression of remorse, but also demonstrate that he realised that he had done a terrible thing; he had betrayed his loyalty, his oath, his fellow police officers, his people and very importantly his family by accepting the bribe and permitting the suspect to escape. He has saved himself and restored some confidence in him. Thus, at the end of the day, the State lost nothing. The State was able to have the suspect charged and prosecuted. This is unlike the case of Koivi Ipai (No 2) where as noted, the escapee was never found or apprehended again after the prisoner permitted him to escape.

16. In the end, exercising my discretion under section 19 of the Criminal Code, Ch 262, it is the judgment of the Court that he is sentenced to a term of 3 years imprisonment in hard labour for the offence of official corruption and 1 year imprisonment in hard labour for the offence of permitting an escape. As the two offences were committed in a single transaction, applying the single transaction rule, I order both sentences be served concurrently. In addition, I wholly suspend both sentences and place the prisoner on good behaviour bond for 2 years and order that he give surety equivalent to his cash bail. His cash bail shall be converted to surety. Finally, I order that he be placed on probation for 1 year with the following conditions:

(a) The prisoner shall perform community work in and around the Gordons Police Station including but not limited to cutting grass, making and cleaning flower gardens, cleaning drains, etc every Mondays and Fridays of each week between the hours of 8:00 am and 4:00 pm for a period of 1 year.

(b) In performing the community work, the prisoner shall report to the Gordons Police Station Commander to be assigned work each on those appointed days.

(c) The prisoner shall not leave the National Capital District during the period of the suspended sentence unless with the leave of the Court.

(d) The Probation Officer shall attend to the prisoner to ensure that he complies with conditions 1, 2 and 3 above.

(e) The Probation Officer shall compile a report for the prisoner and present to the Court for review at the end of each three months at the National Court circuit at Waigani.

(f) If for whatever reason the prisoner breaches these conditions, he shall serve the balance of the term of the suspended sentence of 3 years as at the time of the breach.

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Public Prosecutor: Lawyers for the State
Paul Paraka Lawyers: Lawyers for the Prisoner