The State v Danny Makao (2005) N2996

• Jurisdiction: Papua New Guinea
• Judge: Kandakasi J
• Judgment Date: 27 October 2005
• Citation: (2005) N2996
• Docket Number: CR No 1100 of 2004
• Court: National Court
• Year: 2005
• Judgement Number: N2996

Full Title: CR No 1100 of 2004; The State v Danny Makao (2005) N2996

National Court: Kandakasi J

Judgment Delivered: 25 or 27 October 2005

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]

CR NO. 1100 of 2004

THE STATE

-V-

DANNY MAKAO

WABAG: KANDAKASI, J.

2005: 20th and 25th October

DECISION ON SENTENCE

CRIMINAL LAW- Sentence - Particular offence – Official corruption by police officer – Asking and accept a bribe to release a detainee – Detainee suspected of attempted murder – Detainee released prior to completion of investigations – Prisoner demonstrating carelessness and disregard of police practice and procedure and breach of statutory requirements - Conviction after trial – First time offender – Offence an affront to respect for law and order and an affront to law enforcement – Stern deterrent sentence warranted – Seven years imprisonment in hard labour imposed – Section 120 (1) of the Criminal Code.

Cases cited:

Robert Yabara v. The State [1984] PNGLR 378.

State v. Kiap Bonga [1988-89] PNGLR 360.

The State v. Pablito P Miguel (06/12/02) N2338.

The State v. Raphael Kimba Aki (No.2) (28/03/01) N2082, the Supreme Court in Allan Peter Utieng v. The State (Unreported judgment delivered in Wewak on 23/11/00) SCR 15 of 2000.

Counsels:

Mr. M. Ruari for the State.

Mr. D. Kari for the Accused.

27th October 2005

KANDAKASI J: On Thursday last week, this Court found you guilty of one count of official corruption contrary to Section 120 of the Criminal Code. You committed the offence on 24th March 2004 here in Wabag, at the Wabag Police Station.

The Relevant Facts

Earlier on that day, you arrested and detained in the Wabag Police Station cells a Yapis Kaea on suspicion of attempted murder of another person in the Kandep District. Whilst the suspect was in the cells, you had him sign a then PNGBC and now BSP Bank withdrawal slip for K150.00, which you withdrew from his account and applied to your own personal use. Additionally, you asked and received from the suspect’s relatives a sum of K290 in cash, thereby bringing the total cash money you received to K440.00. Upon receipt of the K440.00, you released the suspect without making the necessary Occurrence Book entries, something you were personally obliged to do.

What you did was in breach of Section 18 of the Arrest Act, which authorizes only the Officers in Charge of Police Stations to release persons arrested and detained at police stations in appropriate cases. You also breached practice and procedure in the Police Force that, where there are specialized sections, the relevant sections attend to the rest of police investigations and police work once an alleged offender is brought to the police station. You were with the Highway Patrol but on the day of the offence, you crossed over and performed the duties and functions of the Criminal Investigations Division, despite your own unit was putting up a static traffic road block.

Address on Sentence

In your address on sentence, you asked the Court to order a pre-sentence report, which I granted reluctantly. In so doing, I ordered that such a report be furnished to the Court no later than 12:00 noon on 25th October 2005. The Probations Service has furnished the report as required. I will comment on it in the course of this judgment.

In addition to asking for a pre-sentence report, you asked the Court to note that, you are married with 4 children. Your children are aged 14, 12, 8 and 6 respectively. They are all in school. The children and their mother solely depend on you for their survival. So you asked if they could be allowed to live on your salary.

Additionally, you informed the Court that you are the only male child out of three children. Both of your parents are deceased and that your sisters are married to two different tribes. Your family land is vacant. Finally, you concluded by saying, this is your first ever offence and asked for a non-custodial sentence.

Your lawyer added by pointing it out that, you are 35 years old and come from Takaipos village in the Wapenamanda District of this Province. Your lawyer also informed the Court that, you joined the Police Force on 17th December 1989. Hence, you have been with the Police Force for almost 16 years to date. At the time of committing the offence, you held the rank of senior constable then commanding Highway Patrol unit 14 based at Yaibos. Further, your lawyer informed the Court that you completed grade 12. Your Lawyer concluded by saying, you have had an impeccable period of service to the State until the commission of the offence and urged the Court to note that and your other personal and family backgrounds before arriving at a decision on your sentence.

The State urged the Court to note that, the crime of official corruption is a very serious problem in the country and is a prevalent offence. He also urged the Court to note that your conviction came after a trial. Further, after your conviction, you remain unremorseful and defiant. Furthermore, he urged the Court to note that, you have not restituted the money you took from Yapis Kaea and his relatives. Putting these factors against your only factor in mitigation namely, having no prior conviction, Counsel for the State urged the Court to give you a prison term of 7 years.

The Offence and Sentencing Trend

The offence of official corruption with which you have been charged and convicted of and its penalty is prescribed by Section 120 (1) of the Criminal Code in the following terms:

“120. Official corruption not judicial but relating to offences.

(1) A person who—

(a) being a justice not acting judicially, or being a person employed in the Public Service in any capacity not judicial for the prosecution or detention or punishment of offenders, corruptly asks, receives or obtains, or agrees or attempts to receive or obtain any property or benefit for himself or any other person, on account of anything done or omitted to be done, or to be done or omitted to be done, by him, with a view to—

(i) corrupt or improper interference with the due administration of justice; or

(ii) the procurement or facilitation of the commission of an offence; or

(iii) the protection of an offender or intending offender from detection or punishment; or

(b) corruptly gives, confers or procures, or promises or offers to give or confer, or to procure or attempt to procure, to, on, or for any person, any property or benefit on account of any such act or omission on the part of the justice or other person so employed, is guilty of a crime.

Penalty: Imprisonment for a term not exceeding 14 years, and a fine at the discretion of the court.”

Both counsels were not able to draw the Court’s attention to any case on point that might be of assistance to me for sentencing purposes. My limited research took me to the cases of Robert Yabara v. The State [1984] PNGLR 378, State v. Kiap Bonga [1988-89] PNGLR 360 and The State v. Pablito P Miguel (06/12/02) N2338.

Speaking of the offence of bribery, Pratt J in the Robert Yabara case said:

“If such occurrences (bribery) became anything more than an extreme rarity they would destroy utterly the very structure of Government and the Rule of Law. As the Clifford Report says at 69 of Vol. 1 (Law and Order in Papua New Guinea (1983) Clifford, Morauta and Stuart):

‘Once started, corruption is hard to stop. Honest businessmen cannot remain competitive if other businessmen acquire competitive advantages through corruption. The easy money floating about in a corrupt society intoxicates many honest men tempted by the easy access to wealth. Imperceptibly corruption spreads through society like a cancer. By the time the State mobilizes to deal with it, the action is often too little and comes too late.’”

Subsequently, Barnett J., observed in the Kiap Bonga case that:

“The offence of official corruption is a serious one… Corruption is a growing problem in Papua New Guinea and involves policemen, public servants, politicians and other public office-holders. It is like a deadly social disease, which is spreading rapidly. It is difficult to prove as it relies on the honesty of the person who is offered the bribe and there are rarely independent witnesses to the event.

I am aware that many persons who have been accused of giving or receiving very large bribes are apparently managing to avoid prosecution or conviction. When a case has been successfully proved, however, this Court has a duty to treat the matter seriously.”

Injia J., (as he then was) in the Pablito P Miguel case, accepted the above principles about the nature and seriousness of the offence, of official corruption and its growing prevalence but one which is extremely difficult to expose and detect, and once detected, the need to impose a punitive and...