The State v Jonathan Kara

• Jurisdiction: Papua New Guinea
• Judge: Miviri AJ
• Judgment Date: 16 July 2018
• Citation: (2018) N7360
• Court: National Court
• Year: 2018
• Judgement Number: N7360

Full : CR (FC) 23 of 2018; The State v Jonathan Kara (2018) N7360

National Court: Miviri AJ

Judgment Delivered: 16 July 2018

N7360

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]

CR (FC) 23 of 2018

THE STATE

V

JONATHAN KARA

Waigani: Miviri AJ

2018 : 3rd &16th July

CRIMINAL LAW – PRACTICE AND PROCEDURE – Plea – Official Corruption- Probationary Police constable – receipt of K200 – corrupt discharge of duties – detention suspect no legal basis – serious breach policeman – release of second prisoner without authority – deterrent and punitive sentence.

Facts

Accused was a probationary constable at Gordons Police Station. He took into custody a suspect of stolen property and detained him in the cells. But released him the next day after he was paid K200 by the relative of the detainee. Again he released another detainee in the cells charged for using offensive language without authority of the shift supervisor at the Police Station.

Held

Guilty plea.

Official Corruption

Aiding escape

Serious breaches of trust

Police probationary Constable

Deterrent and Punitive Sentence.

Cases:

Public Prosecutor v Kerua [1985] PNGLR 85

The State v Aihi (No 3) [1982] PNGLR 92

The State v Aua [1997] PGSC 17; SC535

The State v Bonga [1988-89] PNGLR 360

The State v Jimmy Naime [2005] PGNC 76; N2873

The State v Konny [2012] PGNC 77; N4691

The State v Mako [2006] PGSC 29 ; SC889

The State v Margret Gigina Cr (FC) 112 of 2018

The State v Mase [1991] PNGLR 88

The State v Miguel [2002] PGNC 25; N2338

The State v Raka [2018] PGNC 61; N7151

Counsel:

W. Malo for the State

W. Dickson, for the Defendant

SENTENCE

17th July, 2018

1. MIVIRI AJ: This is the sentence of a Probationary Constable of Police Stationed at the Gordons Police Station who corruptly took into custody a detainee and then released him on payment of a fee.

Short facts

2. Jonathan Kara was employed as a Probationary Constable of Police at the Gordons Police Station. On the 1st of February 2017, he took into detention Weirak Mark who he alleged was selling stolen mobile phones. He confiscated his mobile phone and detained him. On Friday 3rd February 2017, a relative of the suspect came searching for him and met prisoner at the reception counter of Gordons Police Station. There he gave him K200 and prisoner released Weirak Mark from the cells without any documentation or records.

3. On Saturday 4th February 2017, yet another detainee Moses Andia was arrested and charged for using insulting words by Sergeant Jimmy Maiko awaiting transportation to Badili. Prisoner released him from the cells without authority after he had got the cell keys from shift supervisor Senior Constable Foxy Kamin. He aided the escape of the detainee from the cells.

Charge

4. Prisoner has been charged firstly with Section 87 (1) which states:

" A person who

(a) being-

(i) employed in the public service, or the holder of any public office;

and

(ii) charged with the performance of any duty by virtue of employment or office, (not being a duty touching the administration of Justice),

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 in the discharge of the duties of his office; 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 a person in the public service or holding a public office, is guilty of a crime.

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

(2) A person shall not be arrested without warrant for an offence against subsection (1)."

5. The second charge of the prisoner is that he is charged with Section 138(a) of the Code that he aided and abetted a prisoner one Moses Andia who was in lawful custody in that he was charged for insulting words contrary to Section 7 (b) of the Summary Offences Act to escape from that custody. Prisoner took the keys from the shift supervisor, opened the cells and let out the prisoner without compliance of the law. The maximum sentence under that section is 7 years imprisonment.

Plea

6. Prisoner has entered guilty pleas to both charges set out above unequivocally and the depositions tendered have in each case confirmed. No defence in law apparent or identifiable has come to light to sway otherwise than the confirmation of the guilty pleas in each case. Defence made application under Section 13 and 25 of the Probation Act for presentence report and Means Assessment Reports in the assistance and determination of an appropriate sentence against the prisoner. Both these reports are before me now Friday 17th July 2018 in the determination of this sentence upon the prisoner.

Aggravation

7. Abuse of an office is a very serious matter particularly here where the prisoner was a Probationary Police Constable holding that office and performing duties called for under Section 197 of the Constitution to preserve peace and good order in the country the highest law of the land section 10 and 11. It is not maintenance of the law in an independent and impartial way when convictions such as the present are made out against members of the Police. Especially of a probationary constable who has just enlightened from the Police College Bomana into the real world of policing to fall square head on into these very serious offences. He ought to be fresh out of the books and should know the law by heart. He has no excuse to behave as he did here. Complete defiance of the rule of law by an officer of the law cannot be a light matter and will be not a light matter against the prisoner here given his facts and circumstances. He committed two very serious offences two days apart from each other that he has pleaded guilty to.

8. Both offences are distinct and separate offences by time here 2 days apart from each other and date and in that regard will be considered separately in the determination. As such each will be sentenced cumulatively and apportioned by Totality and appropriated: Public Prosecutor v Kerua [1985] PNGLR 85 and Mase v The State [1991] PNGLR 88. The enforcement of law to instil its rule in the community cannot be a light matter against any policemen or public official holding a public office let alone the prisoner. Detention of a citizen paralysing freedom as it is known in law without any basis in law and profiting from such detention tarnishes the good name of Police. Here it was K200 in cash and the detention was a day after taken into custody. It is not a light matter in view of the prevalence of this offence especially against Police. Which has in many instances not only led to criminal action but civil suit that have drawn into the treasury of the State. In passing sentence the court is mindful of these and will give due consideration in the sentence passed here.

Mitigation

9. On the other hand the prisoner has seen the spiral of his action that termination is not remote given the circumstances of the offence. He was a probationary Constable for 3 years as at that time of the offence. The conviction now imbedded to his record in life effecting any future prospects of employment. He pleaded guilty and saved court time and administration in the prosecution of the matter. He is a first time offender aged 26 years old at the time of the offence married with 2 young children. He was educated to grade 12 Hagen Secondary School is originally from Kelua number 2 village Central Hagen, Western Highlands Province.

10. He is likened to Mako v The State [2006] PGSC 29 ; SC889 (30 June 2006) where the appellant also a policeman charged a suspect for attempted murder locked him in the cells at Wabag then produced a blank bank withdrawal slip to the suspect who signed. The appellant took it to the bank withdrew K150 and sometimes later that day released the suspect from the Wabag Police cells. He appealed against his conviction on the basis that it was not established that indeed there was exchange of K150 and that the sentence of 7 years IHL was manifestly excessive. The Supreme Court upheld the appeal against sentence and reduced it to 4 years IHL balance served in custody was deducted and the remainder was suspended on conditions viewing that his 17 years career in the police Force now terminated was itself a punishment hence the 7 years was excessive. Conviction was confirmed. In the State v Bonga [1988-89] PNGLR 360 prisoner was arrested and charged by traffic police for illegal parking and was waiting to be taken to Boroko Police Station to be locked up. Prisoner gave K5.00 to the Police informant to forget the matter. He was convicted and sentenced to 4 four months IHL. The Constable who reported was a new recruit to the police. His actions were commended by the court. In the State v Miguel [2002] PGNC 25; N2338 (6 December 2002) the prisoner gave K500 to the tax...