State v Nason [2024] PGNC 90; N10744 (19 April 2024)

N10744

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR (FC) 130 OF 2022

THE STATE

V

ELIAS NASON

Waigani: Berrigan, J
2024: 9^th and 19^th April

CRIMINAL LAW – SENTENCE – OFFICIAL CORRUPTION – Section 87(1)(a)(i)(ii) of the Criminal Code – Corrupt receipt of K350 by police officer on account of releasing detainee from custody – Sentence of 4 years of imprisonment, partially suspended on conditions.

Cases Cited:
State v Naime (2005) N2873
State v Gigina (2018) N7358
State v Kara (2018) N7360
State v Konny (2012) N4691
State v Doreen Tatut (2021) N9023
Goli Golu v The State [1979] PNGLR 653
Acting Public Prosecutor v Aumane & Ors [1980] PNGLR 510
Lawrence Simbe v The State [1994] PNGLR 38
Garry Louha v The State (2023) SC2552
The State v Benedict Simanjon (2020) N8637
The State v Tony Kande & Ors (2021) N9252
The State v Nathan Manikumbu & Ors (2023) N10116
The State v Tardrew [1986] PNGLR 91
The State v Frank Kagai [1987] PNGLR 320

References Cited
Section 87(1)(a)(i)(ii) of the Criminal Code

Counsel
Ms L Ilave, for the State
Mr M Makeu, for the Offender

DECISION ON SENTENCE

19^th April 2024

1. BERRIGAN J: The offender, a police officer, was convicted following trial of corruptly receiving cash for himself in the sum of K350 on account of releasing a person detained in relation to a traffic offence from his custody, contrary to ss. 87(1)(a)(i)(ii) of the Criminal Code. The maximum penalty is imprisonment for a term not exceeding seven years, and a fine at the discretion of the court.
   
2. At about 7 pm on 3 October 2021 the offender and his officers stopped the complainant, Dr Scotty Kandelyo, on the road in Port Moresby for having a broken tail light. The complainant was with his wife and uncle at the time. He was immediately cooperative. He admitted that he was not aware that he had a broken tail light and that he was at fault. The offender and his officers directed the complainant to the down town police station where the complainant was held and questioned for several hours under the offender’s supervision. The complainant told the offender several times that he was at fault, that he would pay whatever the fine was but that he would not do so without a receipt and that he would not pay a bribe. The offender told him that he could pay cash but there would be no receipt. If the complainant wanted a receipt they would have to go to Boroko Police Station where he would be formally arrested and detained. The offender asked the complainant several times if he had any last words to say before he was arrested and charged. The complainant maintained that he was willing to pay the fine, he just needed a receipt. The offender told the complainant he should withdraw cash from the ATM outside the police station. The complainant initially refused to go to the ATM but eventually agreed. The offender appeared drunk and the complainant was afraid. It was not until the end of the offender’s shift, between 11 and 1130 pm, that the complainant was charged in relation to the broken tail light. He and his family were then taken to Boroko Police Station. At the offender’s direction an officer was placed inside the complainant’s own vehicle, which was accompanied by another police vehicle and a number of officers. At Boroko Police Station cells the offender made no attempt to correct or qualify a statement by the cells’ officer that the offence was a very serious one for which the complainant would be gaoled for 6 months. The cells’ officer told the offender that Boroko cells were full and that he should take the complainant and lock him up at Konedobu. It was then, in the car park outside the station and upon the desperate urging of his wife who was afraid for her safety and that of her husband if they returned down town, that the complainant told the offender that he would give them the money they wanted. The offender accepted K350 after haggling over the amount. He refused to provide his name, told the complainant to put his hazards on and made deliberately vague and spurious comments about the matter still being fresh which he had no expectation or intention of pursuing. The complainant reported the matter the following morning.
   

Submissions on Sentence

3. The State submits that a sentence of between 2 and 4 years would be appropriate. It does not oppose suspension. It referred to the following cases in comparison:
   
   1. State v Naime (2005) N2873, Mogish J: the offender, a first constable, pleaded guilty to one count of official corruption for taking two horse race machines and delivering them to a third in return for K200. He was sentenced to 4 years of imprisonment, 18 months of which was suspended on his own recognizance. A fine of K300 was also imposed;
   2. State v Gigina (2018) N7358, Miviri J: the offender pleaded guilty to one count of official corruption. In her capacity as a civilian clerk in the Traffic Directorate of the RPNGC at police headquarters she corruptly received K400 for the preparation of an accident report. She was sentenced to 3 years of imprisonment wholly suspended on her own recognizance and the payment of a fine of K1000 within 7 days;
   100. State v Kara (2018) N7360, Miviri AJ: the offender, a policeman, pleaded guilty to one count of official corruption and one count of aiding a prisoner to escape lawful custody on account of receiving K200. He was sentenced to 3 and 5 years, respectively, reduced to 4 years on the principle of totality;
   4. State v Konny (2012) N4691, Makail J: the offender pleaded guilty to one count of official corruption and one count of permitting escape from lawful custody. He released a prisoner on account of receiving K700 from the prisoner’s relative. Later he went and arrested him and surrendered the money to his Police Station Commander. He was sentenced to 3 years and 1 year of imprisonment, respectively, to be served concurrently, wholly suspended.
      
4. Defence counsel submitted that a sentence of 3 years would be appropriate, wholly suspended. It referred to the case of:
   
   1. The State v Doreen Tatut (2021) N9023, Berrigan J: The offender cooperated fully with police and pleaded guilty at the earliest opportunity to one count of official corruption. The prisoner was employed as a Lodgement Officer with the Titles Section of the Department of Lands and Physical Planning. In addition to the usual fee, the offender corruptly received K450 from a customer for the purpose of issuing a replacement title as part of her usual duties. She was sentenced to three years, wholly suspended on conditions.
      

Consideration

5. I remind myself that the maximum penalty is reserved for the most serious instances of the offence: Goli Golu v The State [1979] PNGLR 653. Section 19 of the Criminal Code provides the Court with broad discretion on sentence. Consideration must be given to protection of the community, punishment, rehabilitation and deterrence: Acting Public Prosecutor v Aumane & Ors [1980] PNGLR 510, together with denouncement. Whilst comparative cases are useful, this sentence will be determined according to its own facts and circumstances: Lawrence Simbe v The State [1994] PNGLR 38.
   
6. At K350 the benefit received in this case is not large but there is no doubt that this was a serious case of official corruption. There are a number of aggravating features.
   
7. The offence was committed by a member of the police force with many years of experience, whilst the senior officer in charge, whilst under the influence of alcohol and in circumstances amounting to coercion.
   
8. The fact that the offence was committed by a police officer, a person whose very duty it is to uphold the law is of itself seriously aggravating.
   
9. So too is the fact that the offence is prevalent. Reports of police officers extracting bribes at roadblocks or whilst on patrol are notorious. For obvious reasons such offences are also difficult to detect and prosecute.
   
10. Not only is such conduct criminal but it is a complete abuse of scarce public resources – time, money and personnel. The offender should have used those resources and the power and authority entrusted to him as a police officer to serve and protect the community rather than line his pockets. It is disgraceful behaviour which undermines the public’s confidence in and respect for the Constabulary.
    
11. I note the comments by Mogish J in Naime, supra which have been endorsed many times. The Courts have made it clear that police officers must expect severe consequences when they breach the law: Garry Louha v The State (2023) SC2552; The State v Benedict Simanjon (2020) N8637 at [64]; The State v Tony Kande & Ors (2021) N9252 at [62] and [67]; The State v Nathan Manikumbu & Ors (2023) N10116 at [36], amongst others.
    
12. It is also essential when sentencing for corruption offence to ensure that it sends a decisive message of deterrence.
    
13. In mitigation this is the offender’s first offence.
    
14. The offender is from Tarabo Village, Okapa District, Eastern Highlands Province. His father is deceased but his mother and most of his siblings live in the village and are subsistence farmers. They are all of good standing and he is the first member of his family to have a criminal record.
    
15. The offender lives with his wife and his two younger children at Gordons Police Barracks, where he has lived for more than a decade. He is the sole breadwinner for his wife and two young children and provides support to his extended family back in the village. He has two young children still of school age, one in Grade 1 and one in Grade 9. Two other children are over 18. He is the solder breadwinner for his family.
    
16. The offender is of prior good character. The offender has been employed with the RPNGC for the past 30 years since he joined after finishing Grade 10. He has served across the country.
    
17. Senior Sergeant Gabi Namu, Supervisor Town Police Station Public Safety, describes the offender as a hard working and resilient policeman with an impeccable record over 30 years of service. The offender has never been disciplined and S/Sgt Namu is shocked by the offending. He asks the Court to have mercy on the offender. He and his fellow officers stand ready to help the offender in terms of rehabilitation.
    
18. Nao Mase Oala, Community Leader, Member for Mirigini, Motu Koita Assembly also speaks highly of the offender. He has known him for several years and has first hand experience of his strong work ethic, dedication and willingness to help those in need in the community. He is confident that the offender has learnt from his actions and is remorseful and pleads for him to be given a chance to rehabilitate within the community.
    
19. I accept that the offender is truly remorseful for his conduct in this case. The offender apologised to the Court, the complainant and to his family in allocutus. I accept his statement, given in simple language, to the effect that he appreciates that what happened “was bad” for the complainant. His statements to Probation Services are also insightful. He admitted that he was aware of the potential consequences when he “crossed the line of his duty” and he stands ready to go to prison if that is what the Court orders. He would prefer to stay outside to help his children but he does not want to use them as an excuse for his freedom.
    
20. The impact of the offence on the offender will be severe. It is inevitable that he will lose not only his employment as a police officer after many years of dedicated service but also his pension in accordance with the provisions of the Police Act, 1998. It is likely his family will lose their home of ten years. Given his age, education and experience there is no doubt that he will struggle to find employment in the last working years of his life. And for what? K350 that he likely shared with at least one other officer.
    
21. Do police officers realise what is at stake if they break the law not only for the Constabulary and the community but for themselves and their families?
    
22. There are no matters of mitigation special to the offender. At 52 years of age he is not a young man. I appreciate that time in custody may be made more difficult because of his prior service but it is the responsibility of Correctional Services to ensure his security and welfare in accordance with its obligations under the Correctional Services Act. Similarly, it is well established that except in very extreme circumstances the impact on an offender’s family is not ordinarily a relevant consideration on sentence.
    
23. Having regard to all of the circumstances I sentence the offender to 4 years of imprisonment to be served without hard labour and a fine of K700 to be paid within 3 months. No time has been spent in custody to date.
    
24. I have seriously considered the issue of suspension.
    
25. The materials before me from various different sources demonstrate that the offender now appreciates the gravity of the offending, that he failed in his duty as a police officer and that he truly regrets his conduct and the impact it had on the complainant. The offender has lost much as a result of the offence after a lifetime of dedicated service and he will not easily forget the serious nature of his conduct. In all the circumstances I am persuaded that he is suitable for suspension and that service of most of the sentence in the community, with conditions, will best serve his rehabilitation. This is not an exercise in leniency but an order made in the community interest: The State v Tardrew [1986] PNGLR 91; The State v Frank Kagai [1987] PNGLR 320.
    
26. It is, however, my view that some time in custody is required to drive home the serious nature of these offences.
    
27. I make the following orders:
    

Order

(1) The offender is sentenced to 4 years of imprisonment without hard labour and a fine of K700 to be paid within 6 months.
(2) 3 years, 11 months of the sentence is suspended on condition that the offender:

1. serve a total of 40 hours of community service with the Motu Koita Assembly under the supervision of Probation Services within the first 6 months of his sentence; and
2. enter into his own recognisance to keep the peace and be of good behaviour for the period of his sentence.

(3) The offender’s bail monies and those deposited by his guarantors are to be refunded.

Sentence accordingly.

_______________________________________________________________
Public Prosecutor: Lawyer for the State
Public Solicitor: Lawyer for the Offender