The State v Danny Makao (2005) N2996

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

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

1

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.

Robert Yabara v. The State [1984] PNGLR 378, State v. Kiap Bonga [1988-89] PNGLR 360, The State v Pablito Miguel [2002] PNGLR 365, 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.

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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...