State v Puring [2018] PGNC 394; N7506 (15 October 2018)

N7506

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR No. 832 & 833 OF 2017

THE STATE

V

KASI PURING

Kimbe: Miviri AJ
2018: 11, 12 September & 15 October

CRIMINAL LAW – PRACTICE AND PROCEDURE – Armed as to cause fear S70 CCA – Assault occasioning bodily Harm S340 CCA – Trial – abuse of authority by Policeman – discharge of firearm in public area – likelihood of serious injury or death – serious bodily harm of victim – policemen not above law – prevalent offence – strong deterrent and punitive sentence.

Facts
Prisoner was a policeman who went armed with a pistol to the victim discharged it at the victim’s foot and then assaulted him leaving him seriously injured.

Held
Abuse of authority
Serious bodily injuries
Police issued firearms discharged in public
Propensity to injure or kill
Strong deterrent sentence

Cases Cited:
In re Powers, Functions, Duties and Responsibilities of the Commissioner of Police [2014] PGSC 19; SC1388
Public Prosecutor v Kerua [1985] PNGLR 85
The State v Blasius Bana (2004) N2863
The State v Hagei [2005] PGNC 60; N2913
The State v Kule [2011] PGSC 47; SC 1138
The State v Leslie [1998] PGSC 22; SC560
The State v Lawrence Simbe [1994] PNGLR 38
The State v Mase [1991] PNGLR 88.
The State v Maip [2015] PGNC 195; N6091
The State v Ngotngot [2016] PGNC 178; N6364
The State v Paul Karl [2018] Cr 521 of 2011
The State v Raka [2018] PGNC 267; N7357
The State v Rangit [2017] PGNC 142; N6767
The State v Raphael [2018] PGNC 140; N7240

Counsel:

D Kuvi, for the State
J Woiwoi, for the Defendant

SENTENCE

15^th October, 2018

1. MIVIRI AJ: This is the sentence of a policeman Kasi Puring of Wampun, Markham, Morobe Province, who on the 13^th February 2016 at Morokea Village Oil Palm in Kimbe went armed in such a manner as to cause terror to one Vitalis Lakoya. He discharged his firearm at the foot of Vitalis Lakoya without lawful occasion. He also unlawfully assaulted him causing bodily harm. He is sentenced also for that conviction here.
   

Charge

2. The first conviction is contrary to section 70 Going Armed so as to cause fear, Criminal Code Act. It reads, “(1) A person who goes armed in public without lawful occasion in such a manner as to cause terror to any person is guilty of a misdemeanour.

Penalty; Imprisonment for a term not exceeding two years”

3. The second conviction is under section 340 “Assaults occasioning Bodily harm,” of the Criminal Code Act. It reads, “(1) A person who unlawfully assaults another and by doing so does him bodily harm is guilty of a misdemeanour.

Penalty: Imprisonment for a term not exceeding three years.”

4. Both convictions arise out of the same closely related facts on that same day and therefore would be considered together for the purposes of sentence. A concurrent sentence will be imposed upon the prisoner: Public Prosecutor v Kerua [1985] PNGLR 85 and Mase v The State [1991] PNGLR 88. Both the aggravating as well as the mitigating factors of the case will be detailed to come to a determinate sentence fitting of the offences.
   

Aggravation

5. The aggravating features at the outset prominent are that the Prisoner was not on official police duties. He was not in police uniform, or marked police vehicle, nor was he in pursuit and compliance of a lawful order of a court, or a lawful discharge of duty as a policemen. He was accompanied by a civilian a lawyer of Cakara Alam one Walters Mallo. And it is clear from the evidence that it had more to do with money that was given out by this company more than police work. Rivalry Logging companies more than criminal and normal police work. He was not justified in law in carrying arms as he did on this day against the complainant. He could have easily injured, maimed or killed the victim or another person within that location as it was a public frequented area. He showed complete and blatant disregard for the law.
   
6. The point is well set out by Justice David in the case of State v Maip [2015] PGNC 195; N6091 (6 October 2015) where 4 years IHL was imposed 1 year was ordered to be served in jail and 3 years was suspended for Grievous bodily harm pursuant to section 319 of the Code. There the court in considering sentence of a policeman, a senior Constable rural Police Station Commander who had shot and injured the victim with three gunshot wounds to the left leg which included; left lower thigh with stable fracture of the femur; left knee with proximal tibia head fracture; and left foot with soft tissue injury with no bone involvement. The primary functions of the police force is to preserve peace and good order in the Country and to maintain as necessary to enforce the law in an impartial manner; Constitution, section 197. A member of the police force is vested with powers to carry out these functions. So before a member of the Police Force is appointed, he or she is required to make and subscribe to an appropriate oath or affirmation undertaking to well and truly serve the country and its people as policeman or policewoman without fear or affection, malice or ill will until discharged and that he or she will seek and cause the peace to be kept and preserved, and will prevent, to the best of his or her power, all offences against the peace and that, he or she will, to the best of his or her skill and knowledge, discharge all the duties vested in him or her faithfully according to law; Police Act Section 4. So in carrying out Police Functions, a member of the police Force needs to be disciplined as force may be used in situations that warrant it. It must be reasonable force however. That is why the Police Force is described as a disciplined force. Members of all ranks must accord themselves with proper restraint and professionalism in carrying out these functions: Kule v State [2011] PGSC 47; SC 1138 (6 December 2011); State v Blasius Bana (2004) N2863. In State v Rangit [2017] PGNC 142; N6767 (5 May 2017) 4 years IHL was imposed 2 years was ordered to be served in custody and 2 years on non custodial term with conditions. He was a 15 year career policeman who punched the victim to the ground then got a police issued rifle and shot him on the leg at close quarters.
   
7. In the State v Ngotngot [2016] PGNC 178; N6364 (29 July 2016) two policemen beat one Miriam Papakat with a softball bat and a fan belt wounding her both were charged with intent to cause Grievous Bodily Harm but were found guilty of causing grievous bodily harm pursuant to section 319 of the Code. Both were sentenced to 5 years IHL but gave effect to the complainant’s wishes for compensation and a non custodial term. The court acceded imposing with conditions for payment of cash K6000 customary Tolai Shell money of 200 param within 6 months. She also suffered extensive injuries as a result of assault by the prisoners.
   
8. Here the victim suffered extensive injuries also depicted out by Doctor Orovu Sere Service Emergency Registrar of the Port Moresby General Hospital examined him on the 1^st March 2016. He observed the following injuries: multiple lacerations/ knife wounds to his right upper eyebrow, forehead, left hand and left knee. And also patient complained of bilateral bleeding ears with reduced hearing, abrasions to upper arm with the shoulder as well as generalized pains bumps and bruises. And that the multiple wounds show healing process after initial empirical treatment but disfigurement from scarring tissues remain. He concluded that it had been assessed to be caused by severe police brutality and should be dealt as grievous bodily harm. This is the seriousness of the conduct of the prisoner. He may have not directly assaulted but the injuries are such that he as the Non Commissioned officers in charge was responsible for it by the hand of his men in his presence.
   
9. It is also described by evidence in the way the gun was used. Prisoner held his hand but Vitalis removed his hand and asked him why he wanted to hold him. “Dispela man kirap na rausim wanpela pistol aninit long jacket bilong em na laik sutim lek bilong Vitalis na pointim go daun long lek tasol em abrarus. Mi lukim simuk kamap long graun na mi tink man bilong mi polis sutim pinis.” This man took out a pistol from under his jacket and wanted to shoot Vitalis leg and pointed it but he missed. I saw smoke came out of the ground and I thought that police had already shot my husband. At that time my daughters Paskalin and Lusian were there and together we saw what the police did to our father. I was really afraid and the children and grand children were also very scared and cried when the gun fired. We did not know why the police came and did that to our father. I was afraid and begged the police not to shoot our father. This policeman with another pulled my husband went and assaulted him. And this policeman shot twice again with the gun into the air. And pulled our father into the vehicle parked on the other side of the creek. When we wanted to follow the other policeman who held a big gun fired into the air and said if we came closer he would shoot us. I was worried about my husband and followed them to the vehicle where they put him inside. And before they drove off they threw empty bottles of beer out of the vehicle. And I went and got this empty beer bottle and later gave it to police when they came to get my story. I also gave them an empty bullet casing that I got from the place where police shot Vitalis my husband.
   
10. The excerpts of this evidence showed the seriousness of his actions. It reflected very badly upon the good name of the Royal Papua New Guinea Constabulary and hard working men and women of the Constabulary. He had no excuse for a 22 year career policeman and the years of that service ought to have instilled and schooled in him to be better and to lead his men against what they were doing on that day. It aggravated more against him when on trial he refused to disclose names of the others who were involved in the assault of the victim. He knew it was wrong yet saw no goodness in disclosing even upon conviction he pleaded for his own good but did not demonstrate similar as in State v Raka [2018] PGNC 267; N7357 (20 March 2018) where the prisoner a police sergeant of 30 years service released two criminals from the police cells. Upon being found he went of his own volition apprehended and brought both back to stand trial in the court for which both were eventually sentenced. That is not the situation here against the prisoner he has not made right his wrong. There has been no remorse for the wrong let alone compensation. He has offered in the allocutus explaining that he did not want to be seen to be bribing a state witness in the matter initially. Now that he has been found guilty he seeks to pay. In my view it works both ways he has not pleaded guilty he has denied the charges which have been sustained after trial. It is not a genuine intent to pay from the heart as in the case of yet another policeman State v Paul Karl [2018] Cr 521 of 2011 (20 September 2018) who paid K11, 000 on the 17^th February 2017 even before he took the guilty plea to Manslaughter. Eighteen (18) years IHL was imposed taking everything into account. That is not the situation with the prisoner here. I do take into account that the prisoner has been terminated as a result of this offence had he not been terminated the sentence would have been higher.
    

Antecedents

11. The prisoner is 41 years old married with three children ages from 13, 11, and 4 years old originally from Wampun, Kaiapit, Morobe Province. He is a none practising Seventh Day Adventist. Since passing out of Bomana Police College on the 27^th November 1996 he has served 22 years rising to the rank of senior Constable. And during that service has not drawn any criminal conviction or disciplinary offence. He is a first time offender and experienced policemen. He cannot be likened in his experience to a probationary Constable. He is well versed in the use of firearms particularly when to draw and not to draw given that he is a mobile squad member. The evidence of the case do not show any justification for drawing the weapon as he did at a public frequented area, Morokea village oil palm block.
    
12. The description of the witnesses in my view fit that he was drunk at that time with the others accompanying him. And the weapons were discharged by drunken police personal affected by alcohol in a public area. Not only the prisoner but also the others who were in support and with him. And the witnesses describe by their evidence how fearful they were for themselves as well as the victim over the repeated discharge set out above. I view the conduct as very serious warranting a stern punitive and deterrent sentence upon the prisoner for the offence. Not only is this engagement by a logging company Cakara Alam against its rival Evergreen Company but of police personal in a civil matter not a criminal matter. And the repeated assaults inflicted so much more that the victim suffered bodily injuries outweigh any mitigation. It is a very serious matter when civil servants of the State policemen are engaged by private companies to inflict terror upon its own citizens. It is not a light matter and a clear message must be sent to all that the Courts will not tolerate such behaviour. Guns or firearms of the State in the possession of police personnel or other disciplined personnel must be used for the good of the country and its citizens not to do as here as did the prisoner and those who accompanied him.
    
13. The Royal Papua New Guinea Constabulary is one of the oldest state Institution whose name has been drawn into dishonour and disrepute by the conduct of the prisoner and those who were with him. The integrity of good hard working policemen and women has been dismantled by his behaviour reflecting badly on all. It is no ordinary matter when the Constitutional dictate of section 197 is abused in this manner by a police personnel let alone a senior Constable of 22 years experience. The public and citizens of the country must respect the Royal Papua New Guinea Constabulary and if the law protects policemen and women State v Raphael [2018] PGNC 140; N7240 (27 April 2018); Leslie v The State [1998] PGSC 22; SC560 (7 August 1998) in the same way that law also protects the citizens of the country. No man is above the law, all are equal in law and Policemen will not be law unto themselves because that would be ill discipline and disorder and unlawfulness in society. Enforcement of the law starts with the Police as enforcers of the law and therefore when as here a serving policeman a senior Constable breaches as here it must be rippled out into all that the Courts will not tolerate nor condone such behaviour. The Sentence will reflect.
    
14. In view of all above balanced out with the Presentence and means assessment reports what is set out above outweigh any recommendation to deal with the matter lightly. It is a very serious matter and must be deterred at its roots ill discipline breach of the Constitution and laws by policeman. Time must be spent in custody to reflect. Those who see the wrong point out the wrong enforce what is right in law must take the speck out of their eye to be able to see well. If it is they that offend it is no light matter but a matter that reflects the heart of law enforcement and should be immediately corrected. Each case will be dictated by its own facts and circumstances in the sentence that is drawn: Lawrence Simbe v The State [1994]PNGLR 38.
    
15. The sentence of the court in all the circumstances proportionate against the prisoner Kasi Puring of Wampun is 1 year IHL for the offence contrary to section 70 Going Armed so as to cause fear, Criminal Code Act. And the sentence of the Court for the crime of Section 340 “Assaults occasioning Bodily harm,” of the Criminal Code Act is 2 years IHL.
    
16. In the exercise of my discretion in view of the fact that conviction for both offences arise from the same or closely related facts, I order that both sentences will be served concurrently. The effective sentence is therefore 2 years IHL. Time in custody will be deducted forthwith. He will serve the balance in jail.
    
17. I further order that his bail moneys are refunded forthwith.
    
18. There are no extenuating circumstances identifiable or apparent to deviate nor realign other than the sentence here considered as proportionate to the gravity of the matter: State v Hagei [2005] PGNC 60; N2913 (21 September 2005).
    
19. There is only one master that all Policemen and women and department agencies of Government serve that is the Constitution and the State and no other: In re Powers, Functions, Duties and Responsibilities of the Commissioner of Police [2014] PGSC 19; SC1388 (2 October 2014).
    

Orders Accordingly,

__________________________________________________________________Public Prosecutor: Lawyers for the State

Emam Lawyers : Lawyers for the Defendant