State v Koke [2022] PGNC 168; N9619 (3 May 2022)

N9619

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR (FC) 110 OF 2021

THE STATE

V

PARU KOKE

Goroka: Miviri J
2022: 04^th April, 3^rd May

CRIMINAL LAW – PRACTICE AND PROCEDURE – UUMV Section 383 CCA– Plea – Son of policeman – Police Vehicle – Custody of Father Policeman Community Policing – Protection of State Public Property – Respect for Law & Order – Prevalent Offence – Offence resorted to over Family dispute – First time Offender – Substantial Damage to Vehicle – PSR & MAR favourable – Prevalent Offence – Deterrent Sentence.

Fact
Prisoner was son of a policeman who got keys to Police vehicle in the possession of his Father a Policeman. He drove out in it pursued leading to the vehicle involving in an accident with extensive damages as a result.

Held
Son of Policeman.
Police vehicle in custody of father.
Family dispute culmination.
Protection of State Properties in care of State Officials.
Favourable PSR MAR.
Punitive deterrent sentence.

Cases Cited:
Simbe v The State [1994] PNGLR 38.
State v Hagei [2005] PGNC 60; N2913.
State v Peter Guma, Junior Garu Greg, & Butsco Ber [2017] N6770.
Tardrew, Public Prosecutor v [1986] PNGLR 91
The State v Ananias [2006] PGNC 132; N3161
The State v Guba [2000] PGNC 78; N2020

Counsel:

K. Umpake & L. Toidalema, & J. Noma, for the State
G. Apa, for the Defendant

SENTENCE

03^rd May, 2022

1. MIVIRI J: This is the sentence of a son of a policeman who got the key to the Police Vehicle in the custody of his father a policeman and drove it out without a licence and a blue permit, causing an accident damaging the vehicle.
   
2. Prisoner went to where his father a policeman was asleep in the room. He carefully picked out the keys from his pocket without waking him. Then went outside, started the police vehicle registered number ZPD 941 a Toyota Land cruiser dark blue in colour in the care and control of his father onto the road heading towards North Goroka. The father was awoken and alerted by bystanders and went out trying to stop the Prisoner. But to no avail as the Prisoner drove away. The father pursued in another police vehicle. Prisoner drove onto the main road at McNicoll Street North Goroka heading to Eliot Street leading to Kefamo road. At 3 mile he slowed down and policemen pursuing told him to stop it, but he accelerated speeding up a hill towards a brick house. He swerved to the left side to right causing the vehicle to overturn at four mile damaging the vehicle. He was apprehended and charged for the matter by Police.
3. The charge is pursuant to section 383 unlawful use of motor vehicle which reads:

“(1) In this section, “unlawfully uses” includes the unlawful possession by any person of any motor vehicle or aircraft–

(a) without the consent of the owner or of the person in lawful possession of it; and

(b) with intent to deprive the owner or person in lawful possession of it of the use and possession of it temporarily or permanently.

(2) A person who unlawfully uses a motor vehicle or aircraft without the consent of the owner or of the person in lawful possession of the vehicle or aircraft is guilty of a crime.

Penalty: Imprisonment for a term not exceeding five years.

(3) This section applies without prejudice to any provision relating to the unlawful use of motor vehicles or aircraft of any other law, but an offender is not liable to be convicted under both this section and such a provision in respect of any one and the same unlawful use."

4. The maximum sentence due is imprisonment not exceeding five years. He will for certain be not sentenced to five years as that is reserved for the worst case of its kind. The facts and circumstances do not categorize this offence as the worst offence of its kind. The vehicle was a Police vehicle in the care and control of his father a policeman with Community Policing at the Goroka Police Station. Effectively that section of the Police Department is now no longer served by a vehicle for the People of Goroka. Prevention of law-and-order problems through this office is now denied the people of Goroka. The career of his father as a policemen has been questioned by his conduct.
   
5. Particularly when considered in the light of the fact that the subject vehicle was under the care and control of his father a serving policeman. Rightly and lawfully, it ought to have been parked at the Police station. This is a lesson for all Policemen and any other servants of the State who have State Property, public property, police vehicles, Government vehicles in their care and control. They do not own it but are allocated it in the course of their duties. When the official hours of duty have lapsed, it is my view that they should not continue to be in possession of the vehicle at their private residences. Let alone as here parked alongside the police issued accommodation at the police Barracks. It is understandable when a policeman, or a servant of the State is on call and therefore the Stationing of the vehicle alongside their homes.
   
6. Here the keys were in the possession of the father after hours and picked out of his trousers pocket. He contributed to the way it was accessed by his son the Prisoner. As such he is responsible for giving the scene for the son to come out and commit the offence. Had he looked after and cared for its security it would not have come out as it did. The prisoner had access to the vehicle because the father did not properly secure the keys a serving policeman. He is not an aider and abettor but his actions cannot be simply ignored without consequences bearing down on him under the Police Act for disciplinary Conduct unbecoming of a policeman. It is recommended that the Police Commissioner in his discretion deal with this ill discipline no care attitude in the care and maintenance of Police vehicles, State Properties. He should be charged disciplinary with the relevant charges under the Police Act.
   
7. A second fact that must be addressed is the consequence of Policemen and let alone any other men or women who tends to change their marital setting so that the children of the previous relationship are affected, particularly as here leading to serious criminal offences committed as a result to air. Children do not beg, nor do they ask to be born into this world. They are the result of the relationship between the father and the mother. Whatever affects the relations between the parents will affect the children. There must be responsibility for children by the parents. The parents of the prisoner are no different to the actions that has come out here. Particularly the father who is a policeman whose actions have led the son to where he has come out with the offence.
   
8. Because the prisoner reasoned in the presentence report that what he did was because of a family dispute. That his father had married a second wife who also naturally had children. But the father never supported him together with his other siblings, three girls currently in school with their mother. This was not verified by the father whose views were not obtained in the probation report. He was stationed at Kainantu Mining and could not be reached to verify. It did not excuse him in the commission of the offence. He should have seen out this offence to the sentencing. In my view for a Policeman, He demonstrates by this conduct a no care attitude that the subject vehicle was under his care and control. His son the prisoner was also under his care and control as the natural father. He has seen it fit not to contribute to the sentence, nor has he maintained through the office of the Provincial Police Commander his interest in the matter. That is seriously against his conduct both as a policeman and as a father of the prisoner.
   
9. These are facts that are relevant and important to the determination of an appropriate penalty against the prisoner. They are factors that tilt whether the penalty should be outright at the higher end of the scale or not. And if there is suspension what are the relevant factors that justify suspension. In allocutus, he was remorseful for the offence. A first-time offender he confirmed the reasons set out above for the commission. And was evidently out of character to him verified by his community leaders including one Mr. Ake Lvis Seove Community Leader Peace Mediator, Mr Erick Kokote Village Court Peace Mediator, and Steven Isembo SDA Church Elder. All said the prisoner was of a very good character. In the SDA local Church, he was a youth leader until he committed the offence. And practised good Christian values until the commission of the offence. He did not have any bad record within the Community and was not reputed with like behaviour in the past within. What he had done was out of character.
   
10. And this was evidenced strongly by his guilty plea with express intent to accept responsibility for what he had done. Which is very positive when a defendant takes the first step to correct the wrong, they have committed by taking responsibility for it. And not only that but accepting to right the wrong. Against this positive indications of the prisoner are the fact that the presentence report does not disclose that he has the material means to settle or pay for the damages done in quoted of K 55, 000.00 to repair the vehicle. His father who was in the direct care and control of the vehicle immediately before it was damaged by the son, prisoner has taken no responsibility for the actions. In sentencing these are relevant factors which are taken into account in the sentencing.
    
11. The aggravation is that prisoner is the son of a policeman who ought to have known better stemming from the fact of being so acquainted. And he was unlicensed and drove in the manner he did onto the public road putting the lives of those who were within and on the road in the public at risk either to their lives property. A vehicle driven by an unlicenced driver on a public road poses a very serious risk. And here that is evident by the accident that ensued after he took out that vehicle.

That is State funds to repair and to ensure the vehicle is on the road to fight lawlessness and disorder in the Community Town and the Province. It was in the hands of the Prisoner. He pleaded guilty but it must come with material to advance and make right the consequences result of his wrong. The police vehicle will need to be repaired maintained to go back to serving Goroka in policing. The material in the presentence report and the Means Assessment Report must demonstrate that Prisoner has no money or means to repair the vehicle. The Court is not embarking on a gamble in the sentence of the prisoner. He will materially make right the wrong he has committed. He must pay for the repairs to the Police State Vehicle. Suspended sentence without the means to make right the wrong must not be encouraged. There must be clear basis as to why the sentence is suspended, Tardrew, Public Prosecutor v [1986] PNGLR 91. It must be warranted as being an appropriate case for a non-custodial term of imprisonment. Section 19 (6) of the Criminal code spells out three broad categories that can be summarized upon which suspension can be considered in sentence, (1) where suspension will promote personal deterrence or reformation or rehabilitation of the offender; (2) where suspension will promote the repayment or restitution of the stolen money; (3) where imprisonment will cause excessive degree of suffering to the particular offender; for example because of his bad health.

12. Here the antecedent report of the prisoner denotes that he is supported by his father. He has no employment experience nor record. He is educated to grade 10 at Kabiufa Secondary School. He has no prior convictions. He really does not have the means to pay for the damages to the Police Vehicle. It is more than likely that his father will pay for the wrongs of the Son. Because the subject vehicle was in his possession when it was taken out by the Prisoner. The father will have to bear responsibility for his son’s actions. The key to the vehicle was in the pocket of the father taken out by the son who committed the offence. Part of the responsibility in the correction of the wrong must be borne out by the father. He ought to have known and taken measures to ensure the Police vehicle was safe in his custody. He is not the wrong doer in law and this observation does not derail that the responsibility is of the prisoner. But in the Code of discipline within the police force he is responsible for the action. Any damages can be taken out from his salary by the Police Department. His son committed the wrong where he lived as a police officer upon a vehicle in his care and custody. He is responsible because the son has no means to pay back the damage.
    
13. Photographs taken firstly, frontally of ZPD 941 show very extensive damage to the left-hand side crushing the passenger door as well as the cabin. From the right side of it shows that it is a very extensive damage. Which is clearly borne out by the quotation for repair issued by KBM Motors dated the 22^nd October 2020 in the sum of K 55, 000. 00 to repair the subject vehicle. It is community policing vehicle. All in a spate of drunkenness of the prisoner resorting to the unlawful use of the motor vehicle culminating. It is not a light matter viewed in this way. He is aged 18 years old who is making full admissions to the offence on the 17^th October 2020 when spoken to by Police in the matter. He explained that he went and got the key when his father was asleep in the room. He started the engine and drove out. He saw the policemen trying to stop him. He did not stop driving until he lost control at Numutoka lodge and overturned the vehicle damaging it. And he was drunk at the time with a bottle of beer that he had drank earlier on.
    
14. Given the observation set out above, what is the appropriate sentence for the prisoner?
    
15. In my view at the outset a strong deterrent and punitive sentence is in view against. He has pleaded guilty and is a first-time offender with the presentence report recommending probation in his case. The offence is out of character no doubted prompted by the reasons he sets out above. In the State v Ananias [2006] PGNC 132; N3161 (11 September 2006) the prisoner took a ride in the stolen motor vehicle. He pleaded guilty he was medical unwell at time of trial. The court imposed two years part of which was suspended. In State v Guba [2000] PGNC 78; N2020 (19 December 2000) the court imposed 6 years IHL upon the prisoner for two counts of unlawful use of motor vehicle reduced on plea bargaining. Cumulative sentences were imposed but reduced on the basis of totality. In State v Peter Guma, Junior Garu Greg, & Butsco Ber [2017] N6770(18^th May 2017), plea bargaining saw armed robbery reduced to unlawful use of motor vehicle against the defendants who were sentenced to 3 years IHL but suspended on Probation orders for the same period.
    
16. This is not an armed robbery per se and therefore the sentencing would be different drawn out by the facts circumstances posed here. And the discretion of the Court in sentencing must not be chained by rigid determinations pronouncements set out by the Courts. In my view they are guides only helping, because a particular case will draw its own sentence: Simbe v The State [1994] PNGLR 38. Here given all set out above I determine that the sentence proportionate to the gravity of the offence is 3 years IHL and I so impose that upon the prisoner.
    
17. He has been in custody now for 1 year, 5 months and 21 days given that he was taken into custody on the 17^th October 2020. In my view that is sufficient time for him to see his life after commission of the offence and to pay for what he did here. Realistically he cannot pay back in monetary terms he does not have the means to. That will be deducted from his head sentence. Which leaves 1 year 6 months 9 days IHL in jail. That is suspended because he is a first offender, who has pleaded guilty and the reasons he advances in the commission of his offence are genuine reasons. Children must be cared for not disbanded abandoned because the parents have gone different paths in life. These in my view are extenuating circumstances that draw a sentence different: State v Hagei [2005] PGNC 60; N2913 (21 September 2005), than the ordinary.
    
18. Given these in the exercise of my discretion pursuant to section 19 (6) of the Criminal Code Act, I hereby suspended on an 18 months’ Probation Order the remaining 1 year 6 months 9 days IHL in jail on the following Conditions:

(i) You shall enter into a probation order for 18 months on conditions.

(ii) You shall within 48 hours report to the Probation Officer.

(iii) You shall be resident at Mipenek village at all times in the course of your probation period.

(iv) You shall not leave this place of resident or Goroka without leave of this court during the course of your probation period.

(v) You shall perform 600 hours of community work at a worksite to be approved by the Probation Office.

(vi) You shall keep the peace and be of good behaviour at all times.

(vii) You shall not take liquor or any form of intoxicating substance or drugs during the period of your probation.

(viii) You shall attend your local SDA Church every Sunday for worship whilst on probation.

(ix) You shall undergo counselling from your local Akemeku SDA Church Elder Steven Isembo for number of times as may be determined by the counsellor.

(x) The Probation Officer shall file a report on the responses and progress of the probationer every five months and at any other time or interval as the National Court may order upon application.

(xi) The first report by the Probation officer shall be filed 05^th October 2022 in the Goroka National Court.

(xii) In a breach of any of these Probation Orders your Probation shall lapse and you shall be arrested to serve the whole term of your sentence now suspended in jail.

Ordered Accordingly

__________________________________________________________________Public Prosecutor: Lawyer for the State

Public Solicitors: Lawyer for the Defendant