The State v Robert Konny (2012) N4691

• Jurisdiction: Papua New Guinea
• Judge: Makail J
• Judgment Date: 29 May 2012
• Docket Number: CR NO 215 of 2012
• Citation: (2012) N4691
• Court: National Court
• Year: 2012
• Judgement Number: N4691

Full Title: CR NO 215 OF 2012; The State v Robert Konny (2012) N4691

National Court: Makail, J

Judgment Delivered: 29 May 2012

N4691

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]

CR NO 215 OF 2012

THE STATE

V

ROBERT KONNY

Waigani: Makail, J

2012: 18th, 28th & 29th May

CRIMINAL LAW: Plea - Sentence - Multiple offences - Official corruption - Permitting escape from lawful custody - Mitigating and aggravating factors considered - Non-custodial sentence with strict conditions appropriate - Criminal Code, Ch 262 - Sections 19, 87(1)(a)(i) & 140(1).

Facts

The accused was indicted with two counts. First for official corruption and secondly, for permitting an escape from lawful custody under section 87(1)(a)(i) and section 140(1) of the Criminal Code, Ch 262 respectively. He received K700.00 from a third party and released a suspect who was arrested and detained at the police station cell for having in his possession large quantity of marijuana. He pleaded guilty to both charges, was convicted and sentenced.

Held:

1. For official corruption, the penalty is imprisonment for a term not exceeding 7 years and a fine at the discretion of the Court and for permitting an escape from lawful custody, it is imprisonment for a term not exceeding 3 years: section 87(1)(a)(i) & section 140(1) of the Criminal Code, Ch 262 respectively.

2. The offence of official corruption was created by Parliament to deter public officials from using their positions for personal gain or advantage because holding a position of power or authority may often than not be abused or misused.

3. The magnitude of the prisoner’s responsibility as a police officer rendered insignificant his early guilty plea, his plea as a first offender, his plea of co-operating with the police during the investigations and admission to committing the offences, including matters stated in the pre-sentence report such as the adverse effect a custodial sentence would have on his family welfare and his unblemished record and distinguished service as a police officer.

4. Two strong mitigating factors were that first, the prisoner went after the suspect, re-arrested and detained him. Secondly, he returned the money to the Police Station Commander.

5. The prisoner was sentenced to a term of 3 years imprisonment in hard labour for the offence of official corruption and 1 year imprisonment in hard labour for the offence of permitting an escape. As the two offences were committed in a single transaction, applying the single transaction rule, both sentences were ordered to be served concurrently.

6. In addition, both sentences were wholly suspended and the prisoner was placed on good behaviour bond for 2 years and gave surety equivalent to his cash bail. His cash bail was converted to surety and finally, he was placed on probation for 1 year with strict conditions including community work.

Cases cited:

The State -v- Jimmy Naime (2005) N2873

Danny Mako -v- The State (2006) SC889

The State -v- Koivi Ipai (No 2) (2010) N4173

Counsel:

Ms H Roalakona, for the State

Ms J Pora with Mr K Wenge, for the Prisoner

SENTENCE

29th May, 2012

1. MAKAIL, J: The accused is indicted with two counts. First for official corruption and secondly, for permitting an escape from lawful custody under section 87(1)(a)(i) and section 140(1) of the Criminal Code, Ch 262 respectively. For official corruption, the penalty is imprisonment for a term not exceeding 7 years and a fine at the discretion of the Court and for permitting an escape from lawful custody, it is imprisonment for a term not exceeding 3 years.

2. He admitted these offences and was convicted. The facts upon which he was convicted are as follows; at all material times, he was a public servant and employed as a police officer and based at Gordons Police Station. On 28th September 2011, he was on duty and had the key to the police cell. A suspect by the name of Saki Kentefa was apprehended and detained at the police cell for reasons that he had in his possession large quantity of marijuana. An entry was made in the police occurrence book that the suspect was not to be released. A Max Mambu approached the prisoner and gave him K700.00 cash as a bribe for the release of the suspect. Upon receipt of the money, he proceeded to the police cell and opened the cell gate and allowed the suspect to escape.

3. I consider that the offence of official corruption was created by Parliament to deter public officials from using their positions for personal gain or advantage. You see, holding a position of power or authority may often than not be abused or misused. In my view the offence of official corruption is serious as wilful murder. It is deadly because it can kill a nation if it is not dealt with swiftly and sternly. It is like a cancer that grows in the human body and if not treated quickly, can grow big and cause death. Its impact on the society must never be under estimated. It has far reaching consequences. A nation’s progress and development is dependent on its work force and if public officials who make up the bulk of the work force in this country indulge in corrupt activities, their actions can bring down the entire nation.

4. Acceptance of bribes by public officials from members of the public to circumvent a legitimate process poses a serious threat to the progress and growth of this country. Undoubtedly, it is a huge task for public officials to stand up against corruption where in Papua New Guinea, “wantok” system or “wantokism” is so entrenched that it would be considered a betrayal of the friendship, mate-ship, clanship or brotherhood relationship for one to refuse to do something for another if so requested. This is the difficult part. This is the challenge that confronts all when it comes to fighting corruption. I think it is also fair to say much effort has been put into by authorities and interested groups in conducting awareness on corruption but little on bringing those involved to justice.

5. Relating these observations to the present case, the prisoner circumvented a legitimate process. The legitimate process was the arresting and detaining of a suspected drug dealer by police for having in his possession a large quantity of marijuana under the Arrest Act and the Bail Act. It is common knowledge that illicit drugs are a growing concern for public authorities and interested groups in the country because of the negative impact they have on the society, especially on the younger members of the society.

6. Here was someone who was arrested and waiting to be tried by the Court. The prisoner accepted a bribe and released him. In the end, the suspect walked free and it is anyone’s guess, what he would have been doing now, had he not been re-arrested and detained. In my view, the fact that he circumvented a legitimate process is a serious aggravating factor and it would be wrong and the Court would be doing injustice to all if the prisoner is simply reprimanded.

7. In my view also, his suspension from duty for 21 days does not significantly mitigate the seriousness of his actions. It is a disciplinary action taken by the Commissioner of Police under the Police Act and did not stop the Commissioner from having him charged for these offences and dealt with under the criminal laws of this country. By disciplining him under these two different forms of disciplinary avenues, it shows that police officers who flout the laws can expect to face the full force of the law.

8. The prisoner held a position of trust. He is a police officer and at the relevant time, the Acting Shift Supervisor at Gordons police station. As a police officer he is duty bound to uphold laws; not to break them. The people and more importantly, the residents of the city of Port Moresby placed their trust in him that their property and lives will be protected by him and fellow police officers. They are responsible for maintaining law and order in the community so that it is safe for everyone to live in. If police officers like him start receiving bribes and release suspects or even prisoners from cell or prison, it is more likely that communities will be unsafe for the good and law abiding people of this country to live in.

9. The writing is now on the wall. These offences are increasing. In the past, they are unheard of. Perhaps, that explains the very little case law in our jurisdiction on these offences. The ones that have been recorded and reported are The State -v- Jimmy Naime (2005) N2873, Danny Mako -v- The State (2006) SC889 and The State -v- Koivi Ipai (No 2) (2010) N4173.

10. Briefly, in Jimmy Naime’s case (supra), the prisoner was a policeman. He pleaded guilty and was convicted for official corruption. He corruptly obtained from Hinaro Rosantina two Horse Race Machines for himself and other on account of him and gave them to another person namely Joseph in the discharge of his duties. In return, he and his accomplices were paid some monies. He received K200.00 for his efforts. Mogish, J imposed a term of 4 years imprisonment in hard...