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National Court of Papua New Guinea |
PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]
CR NO 1398 0F 2010
THE STATE
V
ALPHONSE AIWOL
Madang: Cannings J
2012: 15 March, 5 April, 17 May
CRIMINAL LAW – sentence – abuse of office by public servant – Criminal Code, Section 92(1) – guilty plea – IRC officer, for personal gain, charged taxpayers K900.00 for a certificate of compliance that was supposed to be free – sentence of 2 years
A man who was at the time of the offence an officer of the Internal Revenue Commission asked a husband and wife who were taxpayers for K1,500.00 for the purpose of issuing a certificate of compliance. They paid him K900.00 before becoming frustrated over not receiving a certificate. There was no such fee provided for by law, the offender acted for personal gain, and no certificate of compliance was forthcoming. He pleaded guilty to the offence of abuse of office. This is the judgment on sentence.
Held:
(1) The maximum sentence under Section 92(1) is two years, but if, as here, the offence is committed "for gain" it is three years.
(2) Mitigating factors are: pleaded guilty; the idea of receiving money from the taxpayers was not only his own; had intended to do the work he undertook to do; only a moderate degree of criminal intent; the amount of money he gained was relatively small; he co-operated fully with the police; already paid a heavy penalty by losing his job; no prior convictions; longstanding career in Public Service; co-operated with the court.
(3) Aggravating factors are: the victims received nothing for the money outlaid; the amount of money from their point of view was considerable.
(4) A sentence of two years was imposed, fully suspended subject to conditions including payment of compensation.
Cases cited
The following cases are cited in the judgment:
Saperus Yalibakut v The State (2006) SC890
The State v Colin Wosae (2010) N3996
SENTENCE
This was a judgment on sentence for abuse of office.
Counsel
J W Tamate & S Collins, for the State
W Dogura & G Peu, for the offender
17 May, 2012
1. CANNINGS J: This is the decision on sentence for Alphonse Aiwol who pleaded guilty to one count of abuse of office contrary to Section 92(1) of the Criminal Code, in circumstances of aggravation. He admitted abusing his office as Manager of the Goods and Services (GST) Division of the Internal Revenue Commission (IRC), Madang, by asking a husband and wife who were running a business, to pay to him a fee of K1,500.00 'on the side', to enable a certificate of compliance to be issued to them. They paid him K900.00 cash in three instalments over a period of several months without any sign of progress on issuance of the certificate. They confronted him, lost patience and reported the matter to his superiors. No certificate of compliance was issued. It then became a police matter.
2. He was originally charged with the offence of official corruption under Section 87 of the Code (which carries a maximum sentence of seven years imprisonment) and he was committed for trial on that charge. The matter was set down for trial on such a charge in the National Court, but then the Public Prosecutor (as he is entitled to under Section 525(1)(a) of the Criminal Code: see The State v Colin Wosae (2010) N3996) presented an indictment containing the lesser charge of abuse of office, to which the accused pleaded guilty. Section 92 (abuse of office) is in the following terms:
(1) A person employed in the Public Service who, in abuse of the authority of his office does, or directs to be done, any arbitrary act prejudicial to the rights of another is guilty of a misdemeanour.
Penalty: Subject to Subsection (2), imprisonment for a term not exceeding two years.
(2) If an act prohibited by Subsection (1) is done, or directed to be done, as the case may be, for purposes of gain, the offender is liable to imprisonment for a term not exceeding three years.
3. The elements of the offence under Section 92(1) are that the accused:
4. The circumstance of aggravation prescribed by Section 92(2) is:
5. There was sufficient evidence in the depositions presented to the court to establish beyond reasonable doubt that (1) the accused was employed in the Public Service; (2) he did an arbitrary act contrary to the rights of the husband and wife (the taxpayers) by requiring them to pay to him a fee that they were not obliged to pay; (3) that was an abuse of the authority of his office as GST Manager; and (4) he acted for purposes of gain, namely personal gain. Therefore his guilty plea was accepted and he was convicted as charged. He is now before the court to be sentenced.
ANTECEDENTS
6. The offender has no prior convictions.
ALLOCUTUS
7. The offender was given the opportunity to say what matters the court should take into account when deciding on punishment. He said:
I apologise for having committed this offence. I thank the lawyers and the court for the time that has had to be spent on my case. I thank the Heavenly Father. I believe that the situation I am in has made me a better person. I served for 33 years in the Public Service before committing this offence. I am married with seven children. I ask for the leniency of the court. I am prepared to pay back the K900.00 that was given to me but I need time as I have been unemployed since 2010. I am a first time offender. I hope not to come here again.
OTHER MATTERS OF FACT
8. As the offender has pleaded guilty he will be given the benefit of reasonable doubt on mitigating matters raised in the depositions, the allocutus or in submissions that are not contested by the prosecution (Saperus Yalibakut v The State (2006) SC890). The record of interview shows that the offender co-operated fully with the police and that there is another side to the story of how the arrangement was made for the exchange of money. He told the police that the taxpayers actually approached him and offered him money to facilitate the issuance of the compliance certificate: the idea of receiving money from the taxpayers was thus not only his own. He also said that the reason it was taking a long time to get the certificate issued is that he was working on it at home, not in the office. He intended to do the work he undertook to do.
9. I am prepared to give him the benefit of the doubt on these matters. They do not provide a defence to the charge but explain how the exchange of money occurred and tend to lessen the degree of criminal intent involved in the scheme.
PRE-SENTENCE REPORT
10. Alphonse Aiwol is from Megiar village in the Sumkar District of Madang Province. He is 52 years old and married to two wives and has seven children. He has stable marriages. His parents are deceased. He has ten brothers and sisters. He lives in the village and he is well regarded there. He has a grade 10 education and has worked in the Public Service for 33 years, including 27 years with the IRC. He lost his job in 2010 due to commission of this offence. He is now unemployed and is finding things tough financially. Three of his children are of school age. He would like to repay the K900.00 that he obtained from the taxpayers. He is recommended for probation.
SUBMISSIONS BY DEFENCE COUNSEL
11. Ms Peu highlighted the guilty plea, the lack of prior conviction, the offender's long and previously unblemished record in the Public Service and his co-operation with the police. The sentence should be no more than one year, all of which should be suspended.
SUBMISSIONS BY THE STATE
12. Mr Collins agreed that there were many mitigating factors and submitted that a sentence of two years would be appropriate and offered no objection to a fully suspended sentence.
DECISION MAKING PROCESS
13. To determine the appropriate penalty I will adopt the following decision making process:
STEP 1: WHAT IS THE MAXIMUM PENALTY?
14. As the circumstance of aggravation was charged in the indictment the maximum penalty is three years imprisonment.
STEP 2: WHAT IS A PROPER STARTING POINT?
15. I will use the midpoint of 18 months.
STEP 3: WHAT OTHER SENTENCES HAVE BEEN IMPOSED FOR EQUIVALENT OFFENCES?
16. I have been unable to locate a suitable precedent.
STEP 4: WHAT IS THE HEAD SENTENCE?
17. The head sentence will be determined by working within the range of zero to three years, with a starting point of 18 months.
18. Mitigating factors are:
19. Aggravating factors are:
20. Though the number of mitigating factors is greater than the number of aggravating factors, the aggravating factors are substantial and I consider that a sentence of only one year (as suggested by defence counsel) would not sufficiently reflect the seriousness of the offence. I agree with the State's position. The appropriate head sentence is two years imprisonment.
STEP 5: SHOULD THE PRE-SENTENCE PERIOD IN CUSTODY BE DEDUCTED FROM THE TERM OF IMPRISONMENT?
21. Yes. I decide under Section 3(2) of the Criminal Justice (Sentences) Act that there will be deducted from the term of imprisonment the whole of the pre-sentence period in custody, which is: one week.
STEP 6: SHOULD ALL OR PART OF THE HEAD SENTENCE BE SUSPENDED?
22. This was a non-violent crime. The offender has already paid a heavy price for what he did by losing his job. He has received a good pre-sentence report. He appears to have learned his lesson. He wants the chance to compensate the victims. The proposal for a non-custodial sentence is not opposed by the State. This is a good case for a suspended sentence. As to the amount of compensation, the offender should pay to the victims not only the amount of K900.00 that they gave him, but an extra amount, of K300.00, which will be the real component of compensation as it will compensate the victims for the stress and inconvenience the offender caused them. As the offender is presently unemployed I will allow him three months to meet the payment. Therefore the balance of the sentence will be suspended on the following conditions:
(a) must within three months after the date of sentence pay to the victims the total sum of K1,200.00;
(b) must report to the Probation Office within three days after the date of sentence and settle on a community work program, involving at least three hours unpaid community work each week at a place notified to the Probation Office;
(c) must appear before the National Court at Madang on 23 August 2012 or at such other time set by the Court to prove compliance with condition (a);
(d) must reside at a place notified to the Probation Office and nowhere else except with the written approval of the National Court;
(e) must not leave Madang Province without the written approval of the National Court;
(f) must attend his local Church every weekend for service and worship and submit to counselling;
(g) must report to the Probation Office on the first Monday of each month between 9.00 am and 3.00 pm;
(h) must not consume alcohol or drugs;
(i) must have a satisfactory probation report submitted to the National Court Registry every six months after the date of sentence;
(j) if the offender breaches any one or more of the above conditions, he shall be brought before the National Court to show cause why he should not be detained in custody to serve the rest of the sentence.
SENTENCE
23. Alphonse Aiwol, having been convicted of one count of abuse of office contrary to Section 92(1) of the Criminal Code in circumstances of aggravation under Section 92(2), is sentenced as follows:
| Length of sentence imposed | 2 years |
| Pre-sentence period to be deducted | 1 week |
| Resultant length of sentence to be served | 1 year, 11 months, 3 weeks |
| Amount of sentence suspended | 1 year, 11 months, 3 weeks |
| Time to be served in custody | Nil subject to compliance with conditions |
Sentenced accordingly.
___________________________
Public Prosecutor: Lawyer for the State
Public Solicitor: Lawyer for the offender
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