Mako v State [2006] PGSC 29; SC889 (30 June 2006)

SC889

PAPUA NEW GUINEA
[IN THE SUPREME COURT OF JUSTICE]

SCR 42 OF 2005

BETWEEN:

DANNY MAKO
Appellant

AND

THE STATE
Respondent

Mt Hagen: Los, Manuhu, Gabi, JJ.
2006: June 28 & 30

DECISION

CRIMINAL LAW – Appeal against conviction – Official corruption – Evidence – Amount of money corruptly received reduced - Conviction upheld.

CRIMINAL LAW – Appeal against sentence – Official corruption – Sentencing trends – Sentence reduced.

Cases cited:

The State v Kiap Bonga [1988-89] PNGLR 360.
The State v Pablito Miguel (2002) N2338.
The State v Jimmy Naime (2005) N2873.

Counsel

The Appellant in person.
J Kesan, for the Respondent.

30 June 2006.

1. BY THE COURT: This is an appeal against conviction on one count of judicial corruption and against a sentence of seven years.

2. On 24 March 2004, the appellant arrested a suspect for attempt murder and had him detained in the police cells at Wabag Police Station. The arrest and detention was entered in the Occurrence Book.

3. While the suspect was in the cells, the appellant gave him a withdrawal slip which he filled and the appellant took the withdrawal slip to the bank where K150.00 was withdrawn. The suspect says that the appellant did not give him the K150.00. The appellant says that the suspect took the money.

4. Sometimes later, on the same day, the appellant released the suspect without entering the release into the Occurrence Book.

5. There were arguments on whether the appellant had the authority to release the suspect. The appellant insists that he had the authority to release the suspect because he was the officer in charge of a Station and the arresting officer in relation to the suspect.

6. The evidence is not clear on whether the appellant was aware of his authority or lack of authority. For that reason, the court will give the appellant the benefit of the doubt. Wrongly or rightly, the appellant believed that he had the authority to release the suspect.

7. The next issue is whether the appellant received any money to secure the release of the suspect. The State concedes that the evidence on K290.00 which was said to have been received from the suspect’s relatives was based on hearsay evidence. But on the basis of direct evidence from the suspect, the trial Judge found that the appellant received K150.00.

8. The trial Judge considered the appellant’s denial and the suspect’s testimony. The trial Judge did not believe the appellant. He believed the suspect. The trial Judge was entitled to make a finding and he found that the appellant received K150.00.

9. The final issue is whether the appellant corruptly received K150.00 from the suspect. The appellant denied receiving the money so he was not able to say what the K150 was for. The suspect stated that that money was for his bail but there was no record of the suspect being allowed bail. After receiving the money, the suspect was released by the appellant without any entry in the Occurrence Book.

10. On these facts, the trial Judge was entitled to infer that the appellant received the money for the release of the suspect. The receiving of K150 without any proper or lawful explanation and the subsequent release of the suspect has all the appearance of an improper dealing.

11. In the circumstances, the trial Judge was entitled to find that the appellant corruptly received the money for the release of the suspect. Accordingly, we find no identifiable error in the conviction and we confirm it.

12. In relation to sentence, the appellant says that 7 years is too excessive. In the case of The State v Kiap Bonga [1988-89] PNGLR 360, a sentence of 4 months was imposed on a man who tried to bribe a policeman with K5.00. In The State v Pablito Miguel (2002) N2338, a sentence of 4 years was imposed on a foreigner who tried to bribe a tax officer with K500.00. In The State v Jimmy Naime (2005) N2873, a policeman was sentenced to a partly suspended sentence of 4 years for receiving K200.00. He had to serve 2 years in hard labour.

13. In Jimmy Naime’s case, it was noted that official corruption within the Police Force is on the rise and a deterrent sentence is needed. The exact degree of corruption within the Police Force is, in the absence of statistics, any one’s guess. There have not been very many cases of official corruption coming before the courts.

14. The court is generally mindful of the sentencing guidelines in misappropriation and stealing cases. In misappropriation cases, for instance, for amounts between K20,000.00 to K30,000.00, a sentence of only 3 years can be imposed. The same may be said for crimes of violence. A sentence of 7 years could be imposed for manslaughter. For these reasons, for corruptly receiving K150.00, the sentence of 7 years is an excessive sentence. The trial Judge has, therefore, made an identifiable error.

15. The appellant has been dismissed from the Police Force after 17 years of service. The dismissal is itself a punishment. The money the appellant received was not substantial, which goes to show how foolish the appellant was when he received the money. The appellant is married with children. He must have learnt a lot of lessons already from his actions. All he wants now is for him to be permitted to start a new life.

16. In all the circumstances, the sentence of 7 years is quashed, set aside and substituted with a sentence of 5 years. From the court records, the appellant has already served a total of 8 months and 2 weeks. The remaining sentence of 4 years, 3 months and 2 weeks is fully suspended on condition the appellant enters into a good behaviour bond for 3 years.

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The Appellant appeared in person
Public Prosecutor: Lawyer for the Respondent