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State v Naime [2005] PGNC 76; N2873 (23 June 2005)

N2873

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]

CR: 229 of 2005

THE STATE

V

JIMMY NAIME

Waigani: Mogish, J
2005: June 17th & 23rd

CRIMINAL LAW - Sentence- Policeman charged with official corruption- Pleaded guilty-Prevalent offence within the Police Force- Need for a deterrent sentence - Partial custodial sentence considered appropriate- Sentenced to 4 years imprisonment in hard labour- 18 months suspended and placed on good behaviour bond for 2 years- I week pre-trial period deducted- Serve the balance of 2 years and 5 months- Fined K300.00.

Held:

1. 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.

Cases cited:
The State v Dennis Vela Cr. 430 of 2004 (June 24th 2004)
The State v Paul Steven CR: 1221 of 2004 (May 11th & 12th May 2005).

Counsel:
Mr. Mark for the State
Mr. Kaluwin for the Prisoner

DECISION ON SENTENCE

MOGISH, J: The prisoner pleaded guilty to a charge of official corruption laid pursuant to s. 87 of the Criminal Code Act (CCA). The Indictment alleged that "he on the 18th day of July 2004 at Edevu Sawmill, Brown River in Papua New Guinea being employed in the Public Service, namely Royal Papua New Guinea Constabulary and charged with by virtue of such employment with the duty of a policeman corruptly obtained from Hinaro Rosantina two Horse Race Machines for himself and other on account of him giving the said two horse race machines to another person namely Joseph in the discharge of his duties."

The facts are as follows. The prisoner is a policeman holding a rank of a First Constable. At the time of the offence he was attached to the Hohola Police Station. On the 18th July 2004 the prisoner drove a police vehicle bearing registration number ZGB.329 belonging to Hohola Police to Edevu Sawmill near Brown River with two other policemen and three civilians. He drove up to a trade store belonging to one Hinaro Rosantina, and removed two horse race machines and returned back to Port Moresby. One of the policemen with him handed to Hinaro Rosanta a piece of note with the name of Michael Tovot written on it. The two horse race machines were then delivered to an Asian man known as Joseph at Section 29 Lot 6 Spondia Street, Hohola # 3. In return, the prisoner and his accomplices were paid some monies. The prisoner received K200.00 for his efforts.

Hinaro Rosantinaa was concerned about his machines and so the next morning he reported the matter to the local police at Edevu Police Post. Through their initial inquires it was revealed that the policemen were from ther Hohola Police Station. He was assured by the Police Station Commander that he would speak to the policeman concerned and have the machines returned back to him. Unfortunately nothing eventuated and so on the 27th July 2004 Hinaro Rosantina formally lodged a complaint with the CID at 6 mile. Following police investigation, the prisoner was identified, apprehended and arrested for this offence.

In his statement on allocatus the prisoner pleaded to be placed on good behaviour bond for the sake of his aged parents, his wife and children.

The prisoner is 34 years old and comes from Harevavo village, Ihu District of the Gulf Province. He is married and has two children, one aged 2 and the other age 9 years old. Both his parents are alive and very old. He is the third born in a family of two brothers and a sister. The highest level of education he attained was Grade 10 at Busu High School in 1989. In 1993 he joined the Royal Papua New Guinea Constabulary to become a police man. He is still a serving member of the Constabulary.

Mr. Kaluwin submitted that peer pressure took the better of the prisoner that day. In his record of interview the prisoner said he listened to Constable AllanYuith and drove up to Edevu Sawmill. He said at Hinaro Rosantino’s trade store he remained in the vehicle while the other two policemen and three civilians removed the machines from the trade store. He also said they had no search warrants or court orders to remove the machines.

In mitigation I take into account the prisoner’s plea of guilty, his statement on allocatus, his expression of remorse, his lack of prior conviction, his long serve to the Constabulary and the State.

The effect of all these mitigatory factors however lapse into insignificance given the gravity and enormity of the crime that he has committed and freely admitted to.

The maximum prescribed sentence for this offence pursuant to s. 87 is imprisonment for a term not exceeding seven years, and a fine at the discretion of the Court.

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. In this case, they flouted the law to their benefit. They did not obtain any search warrant or court orders to remove the horse racing machines. They just walked into the premises of Rosanta and removed the machines. They abused the community’s trust. If the prisoner suspected that the machines were being illegally used, then they had the powers under existing laws to search the premises and if their suspicions are proven, charge the owner, confiscate the machines and bring them back to the Hohola Police Station for safe custody where it can be used as part of the State’s case during the trial against the owner. From the reading of the depositions it is clear to me that the prisoner’s never intended to charge the owner of the gaming machines or to keep the machines at the Hohola Police Station. The evidence points to a collusion between the prisoner, his accomplices and the Asian man by the name of Joseph. The machines were never intended to be brought to Hohola Police Station where the prisoners are attached. Instead they were taken to an Asian man by the name of Joseph. For their efforts, they were paid by that man. The prisoner received K200.00.

Policeman or any public servants are not entitled to receive any monies in the performance of their official duties. All they are entitled to receive are their salaries per fortnight including any entitlements sanctioned by law like overtime. To receive any monies as a result of an unlawful exercise of police power is corrupt and whoever is involved in one way or another should be investigated and charged.

It is a pity and indeed surprising that the prisoner has been the only one charged for this offence. Why this has happened leaves a lot to be desired from the Police Station Commander at Hohola and the CID at 6 mile. These policeman and the civilians have been identified. They include Constable Allan Yuith, Constable John Kondol, Elvis from Buka and two other whom he can identify. These men should be investigated and brought to justice to face the music. They are deemed to be accomplices by operation of s.7 of the Criminal Code Act. Why they have not been charged to date does not reflect well on the authorities who are expected to apply the law firmly and fairly.

Over the past years I have dealt with a lot cases involving policemen. Two that comes into my mind are The State v Dennis Vela Cr. 430 of 2004 (June 24th 2004) and The State v Paul Steven CR: 1221 of 2004 (May 11th & 12th May 2005).

In The State v Dennis Vela (supra) the prisoner pleaded guilty to false pretence and misappropriating K28, 000.00 from the State. In sentencing the prisoner to two years imprisonment on the first count of false pretence and four years imprisonment on the second count misappropriation to be served concurrently I said at p. 4 of my judgment:

"This is a very serious case of misappropriation. The prisoner is a policeman. He falls into a category of persons who should be familiar with the law by virtue of their training and employment. For a policeman to flout the law at the expense and to the detriment of the society that he is supposed to protect is inexcusable. When policeman commit crimes of this magnitude it brings into disrepute and ridicules the integrity of the police force. It undermines the work of the law abiding policeman and women. The community loses it’s confidence in the police force. And so when it comes to sentencing a policeman who has been convicted of a the sentence should not only reflect the amount stolen but the high degree of trust ordinary citizens expect from police officers. Convicted and corrupt police officers have no place in the Constabulary. They are a disgrace to the uniform they wear and should be weeded out as soon as possible as a form of deterrence either through dismissal or imprisonment. Such stern punishment will send a strong signal to police officers to uphold the law they swore to protect. And that if they fail to live to these expectations then the consequences would be very server. Police officers must be expected to be punished severely than ordinary citizens because of the office they hold and the greater responsibility, accountability they have."

I expressed similar views in the recent case The State v Paul Steven (supra). In that case, the prisoner, an Ancillary policeman stole a police issued firearm from the Port Moresby Police Station and kept it up at the 9 mile settlement. Following a tip off police went to 9 mile and recovered the weapon. The prisoner said he took possession of the firearm because Police did not pay him his allowances. In sentencing the prisoner to 4 years I said:

"Your action has no doubt cast a dark image over other hard work and honest ancillary policemen and woman not only in the NCD but also throughout the country. You are a disgrace to the uniform you wear. You have been dismissed from the force and that in some way is reassuring to the public that a corrupt policeman has been weeded from it's rank and file."

The remarks I made in those cases are equally applicable to this case. Policemen and women are accountable to the laws they enforce. They are not above the law. Just like everyone else they are equally subjected to the same laws. And if they flout the law, they must be dealt with severely. The least the community expects is to have dishonest or rogue policemen enforce the law. Those policeman and civilian who were with the prisoner that day and who received bribes should be investigated and appropriate charges laid against them.

In this case I consider that an immediate custodial sentence is appropriate. Acknowledging the prisoner’s plea of guilty and the consequences it entailed, I am prepared to partially suspend part of the sentence.

The judgment of the court is that the prisoner is sentenced to four years imprisonment in hard labour. I order that eighteen months be suspended and that he be placed on good behaviour bond for 2 years. I also order that one week be deducted for the period he has been in custody awaiting the completion of this case. The prisoner shall serve the balance of 2 years and 5 months and 1 week at Bomana Correctional Institution. In addition I fine the prisoner K300.00. I order that his bail monies of K300.00 be converted to paying this fine.

_________________________________________________________________
Lawyer for the State: Public Prosecutor
Lawyer for the Prisoner: Public Solicitor