The State v Elias Nason

• Jurisdiction: Papua New Guinea
• Judge: Berrigan, J
• Judgment Date: 19 April 2024
• Neutral Citation: N10744
• Citation: N10744, 2024-04-19
• Counsel: Ms L Ilave, for the State,Mr M Makeu, for the Offender
• Docket Number: CR (FC) 130 OF 2022
• Hearing Date: 09 April 2024,19 April 2024
• Court: National Court

N10744

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]

CR (FC) 130 OF 2022

The State

v.

Elias Nason

Waigani: Berrigan, J

2024: 9^th and 19^th April

CRIMINAL LAW — SENTENCE — OFFICIAL CORRUPTION — Section 87(1)(a)(i)(ii) of the Criminal Code — Corrupt receipt of K350 by police officer on account of releasing detainee from custody — Sentence of 4 years of imprisonment, partially suspended on conditions.

Cases Cited:

State v Naime (2005) N2873

State v Gigina (2018) N7358

State v Kara (2018) N7360

State v Konny (2012) N4691

State v Doreen Tatut (2021) N9023

Goli Golu v The State [1979] PNGLR 653

Acting Public Prosecutor v Aumane & Ors [1980] PNGLR 510

Lawrence Simbe v The State [1994] PNGLR 38

Garry Louha v The State (2023) SC2552

The State v Benedict Simanjon (2020) N8637

The State v Tony Kande & Ors (2021) N9252

The State v Nathan Manikumbu & Ors (2023) N10116

The State v Tardrew [1986] PNGLR 91

The State v Frank Kagai [1987] PNGLR 320

References Cited

Section 87(1)(a)(i)(ii) of the Criminal Code

Counsel

Ms L Ilave, for the State

Mr M Makeu, for the Offender

Public Prosecutor: Lawyer for the State

Public Solicitor: Lawyer for the Offender

DECISION ON SENTENCE

19^th April 2024

1. Berrigan J: The offender, a police officer, was convicted following trial of corruptly receiving cash for himself in the sum of K350 on account of releasing a person detained in relation to a traffic offence from his custody, contrary to ss. 87(1)(a)(i)(ii) of the Criminal Code. The maximum penalty is imprisonment for a term not exceeding seven years, and a fine at the discretion of the court.

2. At about 7 pm on 3 October 2021 the offender and his officers stopped the complainant, Dr Scotty Kandelyo, on the road in Port Moresby for having a broken tail light. The complainant was with his wife and uncle at the time. He was immediately cooperative. He admitted that he was not aware that he had a broken tail light and that he was at fault. The offender and his officers directed the complainant to the down town police station where the complainant was held and questioned for several hours under the offender's supervision. The complainant told the offender several times that he was at fault, that he would pay whatever the fine was but that he would not do so without a receipt and that he would not pay a bribe. The offender told him that he could pay cash but there would be no receipt. If the complainant wanted a receipt they would have to go to Boroko Police Station where he would be formally arrested and detained. The offender asked the complainant several times if he had any last words to say before he was arrested and charged. The complainant maintained that he was willing to pay the fine, he just needed a receipt. The offender told the complainant he should withdraw cash from the ATM outside the police station. The complainant initially refused to go to the ATM but eventually agreed. The offender appeared drunk and the complainant was afraid. It was not until the end of the offender's shift, between 11 and 1130 pm, that the complainant was charged in relation to the broken tail light. He and his family were then taken to Boroko Police Station. At the offender's direction an officer was placed inside the complainant's own vehicle, which was accompanied by another police vehicle and a number of officers. At Boroko Police Station cells the offender made no attempt to correct or qualify a statement by the cells' officer that the offence was a very serious one for which the complainant would be gaoled for 6 months. The cells' officer told the offender that Boroko cells were full and that he should take the complainant and lock him up at Konedobu. It was then, in the car park outside the station and upon the desperate urging of his wife who was afraid for her safety and that of her husband if they returned down town, that the complainant told the offender that he would give them the money they wanted. The offender accepted K350 after haggling over the amount. He refused to provide his name, told the complainant to put his hazards on and made deliberately vague and spurious comments about the matter still being fresh which he had no expectation or intention of pursuing. The complainant reported the matter the following morning.

Submissions on Sentence

3. The State submits that a sentence of between 2 and 4 years would be appropriate. It does not oppose suspension. It referred to the following cases in comparison:

a. State v Naime (2005) N2873, Mogish J: the offender, a first constable, pleaded guilty to one count of official corruption for taking two horse race machines and delivering them to a third in return for K200. He was sentenced to 4 years of imprisonment, 18 months of which was suspended on his own recognizance. A fine of K300 was also imposed;

b. State v Gigina (2018) N7358, Miviri J: the offender pleaded guilty to one count of official corruption. In her capacity as a civilian clerk in the Traffic Directorate of the RPNGC at police headquarters she corruptly received K400 for the preparation of an accident report. She was sentenced to 3 years of imprisonment wholly suspended on her own recognizance and the payment of a fine of K1000 within 7 days;

c. State v Kara (2018) N7360, Miviri AJ: the offender, a policeman, pleaded guilty to one count of official corruption and one count of aiding a prisoner to escape lawful custody on account of receiving K200. He was sentenced to 3 and 5 years, respectively, reduced to 4 years on the principle of totality;

d. State v Konny (2012) N4691, Makail J: the offender pleaded guilty to one count of official corruption and one count of permitting escape from lawful custody. He released a prisoner on account of receiving K700 from the prisoner's relative. Later he went and arrested him and surrendered the money to his Police Station Commander. He was sentenced to 3 years and 1 year of imprisonment, respectively, to be served concurrently, wholly suspended.

4. Defence counsel submitted that a sentence of 3 years would be appropriate, wholly suspended. It referred to the case of:

a. The State v Doreen Tatut (2021) N9023, Berrigan J: The offender cooperated fully with police and pleaded guilty at the earliest opportunity to one count of official corruption. The prisoner was employed as a Lodgement Officer with the Titles Section of the Department of Lands and Physical Planning. In addition to the usual fee, the offender corruptly received K450 from a customer for the purpose of issuing a replacement title as part of her usual duties. She was sentenced to three years, wholly suspended on conditions.

Consideration

5. I remind myself that the maximum penalty is reserved for the most serious instances of the offence: Goli Golu v The State [1979] PNGLR 653. Section 19 of the Criminal Code provides the Court with broad discretion on sentence. Consideration must be given to...