State v Tumaing [2018] PGNC 479; N7590 (3 October 2018)

N7590

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR NOS 316 & 317 OF 2018

THE STATE

V

JOHN TUMAING & NIXON KAVO

Madang: Cannings J
2018: 5, 27, 28 September, 3 October

CRIMINAL LAW – sentences – offence of failure to report corrupt gratification – Criminal Code, Section 97C(2) – guilty pleas – electoral officers receiving cash from candidate in course of counting period for an election.

The two offenders were assistant returning officers for an election conducted as part of the general election for the country. They each pleaded guilty to a charge of failure to report a corrupt gratification to a commissioned police officer, contrary to Section 97C(2) of the Criminal Code. In separate incidents on the same day, in the course of the counting period for the election, the first offender received K50.00 cash and the second offender received K500.00 from the same candidate in the election. The gift of cash in such circumstances was properly regarded as a corrupt gratification and they were each obliged by Section 97C(1) of the Criminal Code to report the gift at the earliest opportunity to a commissioned police officer. They each failed without reasonable excuse to report the matter to the police, thereby committing an offence under Section 97C(2).

Held:

(1) The maximum penalty for a Section 97C(2) offence is 12 months imprisonment or a fine of K1,000.00 or both. A useful starting point is six months imprisonment or a fine of K500.00.

(2) Mitigating factors common to each offender: pleaded guilty; no evidence that receipt of the cash had any bearing on counting for the election; fully cooperated with police; expressed remorse; first-time offender; good community record. In addition, for the first offender: only a small amount of money (K50.00) was involved; as for the second offender: he used none of the K500.00 given to him.

(3) Aggravating factors: these were serious incidents occurring in the counting period and should have been reported immediately to the police; such incidents can cast doubt on the integrity of an election.

(4) A fine would not reflect the seriousness of the offences. Each offender was sentenced to nine months imprisonment, which was fully suspended on conditions.

Case cited

The following case is cited in the judgment:

Saperus Yalibakut v The State (2006) SC890

SENTENCE

This was a judgment on sentence for the offence of failure to report a corrupt gratification.

Counsel

F K Popeu, for the State
D Ephraim ,for the offenders

3^rd October, 2018

1. CANNINGS J: This is the sentence for John Tumaing and Nixon Kavo who have each been convicted, after pleading guilty, of one count of failure to report a corrupt gratification under Section 97C(2) of the Criminal Code.
   
2. They committed the offences in separate incidents on 19 July 2017 in the counting period for the general election. They were both assistant returning officers for the Rai Coast Open seat.
   
3. John Tumaing received K50.00 cash from a candidate in the election for the Madang provincial seat, Peter Yama. That was, in the circumstances, properly regarded as a corrupt gratification given to him. He was obliged under Section 97C(1) of the Criminal Code to report that gift at the earliest opportunity to a commissioned police officer. That is what the law requires. He failed without reasonable excuse to report it. Therefore he committed an offence.
   
4. Nixon Kavo received K500.00 cash from the same candidate, Peter Yama. That was in the circumstances properly regarded as a corrupt gratification given to him. He was obliged under Section 97C(1) to report that gift at the earliest opportunity to a commissioned police officer. That is what the law requires. He failed without reasonable excuse to report it. Therefore he committed an offence.
   

ANTECEDENTS

5. Neither offender has any prior convictions.
   

ALLOCUTUS

John Tumaing: I am sorry for what I have done. I thought the election was over. Please show leniency. I am the breadwinner for my family.

Nixon Kavo: I am sorry for what I did. This is my first offence. I also ask for leniency.

OTHER MATTERS OF FACT

6. As the offenders pleaded guilty they will be given the benefit of the 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). In that regard, I take into account that:
   
   • they made admissions to Police;
   • neither of them sought the cash;
   • they were put in a difficult position by the candidate who gave them the cash;
   • the candidate was not charged, so there is an appearance that they are scapegoats;
   • Nixon Kavo did not use any of the cash (100 x K5.00 notes) he was given, as it was all recovered by the Police.
     

PRE-SENTENCE REPORTS

7. The Madang branch of the Community Based Corrections Service prepared a pre-sentence report on each offender.
   
8. John Tumaing: his age is unclear, but I estimate he is aged in his 40s (not 36 as he claimed and not 86 as reported in the pre-sentence report. He is from Sering village in the Saidor area of Rai Coast District. He is married with 6 children. He has a grade 12 education. He has been involved with various non-government organisations over the years in the Saidor area. He has been living near Balasigo market in recent times while this case has been going on. He has an informal sector income. His health is sound.
   
9. Nixon Kavo: he is aged 49. He is from Brim village in the Astrolabe Bay area of Rai Coast District. He is married with three children. He has a grade 12 education. He has been involved with various non-government organisations over the years. On some occasions he was employed as an electoral officer for Rai Coast Open MP. He has been living at Erima in recent times while this case has been going on. He has an informal sector income. His health is sound. He has been engaged in community activities especially the Lutheran Revival Outreach program.
   

SUBMISSIONS BY DEFENCE COUNSEL

10. Ms Ephraim submitted that a sentence of two months’ imprisonment or a fine of K200.00 would be sufficient. The candidate who gave them the cash was not charged and it would not be fair to send them to jail especially as they pleaded guilty.
    

SUBMISSIONS BY THE STATE

11. Mr Popeu submitted that although the offence might not look serious a strong deterrent sentence should be imposed as this was a case of corruption committed in the course of an election. Such practices are well known to be prevalent and they disturb the elections and can result in costly by-elections being required. A custodial penalty should be imposed, of two to four months imprisonment each.
    

DECISION MAKING PROCESS

12. To determine the appropriate penalty I will adopt the following decision making process:
    

• step 1: what is the maximum penalty?
• step 2: what is a proper starting point?
• step 3: what sentences have been imposed for equivalent offences?
• step 4: what is the head sentence?
• step 5: should the pre-sentence period in custody be deducted?
• step 6: should all or part of the sentence be suspended?
  

STEP 1: WHAT IS THE MAXIMUM PENALTY?

13. The offence that was committed by the offenders is created by Section 97C (duty of person offered gratification) of the Criminal Code. This provision also prescribes the maximum penalty, which is a fine of K1,000.00 or 12 months imprisonment or both. Section 97C states:
    

(1) A person who is corruptly offered or given a gratification shall report the offer or gift at the earliest opportunity to a commissioned police officer.

(2) A person who, without reasonable excuse, fails to comply with the provisions of Subsection (1) is guilty of an offence.

Penalty: A fine not exceeding K1,000.00 or imprisonment for a term not exceeding 12 months, or both.

STEP 2: WHAT IS A PROPER STARTING POINT?

14. I use a starting point of six months imprisonment or a K500.00 fine.
    

STEP 3: WHAT OTHER SENTENCES HAVE BEEN IMPOSED RECENTLY FOR EQUIVALENT OFFENCES?

15. Neither counsel alerted me to any precedent, nor have I been able to locate any.
    

STEP 4: WHAT IS THE HEAD SENTENCE?

16. The sentence for each offender will reflect some common mitigating factors:
    
    • pleaded guilty;
    • no evidence that receipt of the cash had any bearing on counting for the election;
    • fully cooperated with police;
    • expressed remorse;
    • first-time offender;
    • good community record.
      
17. As for John Tumaing: only a small amount of money (K50.00) was involved.
    
18. As for Nixon Kavo: he used none of the money and all of it was handed to the Police (and is now in the custody of the Court).
    

Common aggravating factors are:

• these were serious incidents occurring in the counting period and should have been reported immediately to the police;
• such incidents can cast doubt on the integrity of an election and on the people involved in elections, both candidates and electoral officials.
  

19. They should get the same sentence. A fine would not be appropriate as it would not reflect the seriousness of what happened. It is better to fix a head sentence, which is nine months imprisonment each.
    

STEP 5: SHOULD THE PRE-SENTENCE PERIOD IN CUSTODY BE DEDUCTED FROM THE TERM OF IMPRISONMENT?

20. Yes, it is one day in custody for each offender.
    

STEP 6: SHOULD ALL OR PART OF THE HEAD SENTENCE BE SUSPENDED?

21. I have given serious thought to Mr Popeu’s submission that a custodial term is required and it is natural to suspect that if both incidents had not been witnessed by supporters of another candidate, these two transactions/offences would have gone undetected. However, as they have pleaded guilty, I consider that it is appropriate to suspend the whole of each sentence on conditions, as follows:
    
    1. . must perform at least three hours unpaid community work each week at a place notified to the OIC, Community-Based Corrections Service, Madang, under the supervision of a reputable person appointed by the OIC, Community-Based Corrections Service, Madang;
    2. . must reside at a place notified to the OIC, Community-Based Corrections Service, Madang, and nowhere else except with the written approval of the National Court;
    3. . must attend his local Church every weekend for service and worship and submit to counselling;
    4. . must report to the OIC, Community-Based Corrections Service, Madang, on the first Monday of each month;
    5. . must not consume alcohol or drugs;
    6. . must keep the peace and be of good behaviour and must not cause any trouble for, or harass, the victim and his family;
    7. . must have a satisfactory probation report submitted to the National Court Registry at Madang every four months after the date of sentence and for that purpose shall attend the first probation review hearing in Court on 7 February 2019 at 9.00 am;
    8. . 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

22. John Tumaing and Nixon Kavo, having each been convicted of one count of failure to report a corrupt gratification under Section 97C(2) of the Criminal Code, are sentenced as follows:
    

Details	John Tumaing	Nixon Kavo
Length of sentence Imposed	9 months	9 months
Pre-sentence period in custody	1 day	1 day
Resultant length of sentence to be served	8 months, 3 weeks, 6 days	8 months, 3 weeks, 6 days
Amount of sentence suspended	8 months, 3 weeks, 6 days	8 months, 3 weeks, 6 days
Time to be served in custody	Nil, subject to compliance with conditions of suspended sentence	Nil, subject to compliance with conditions of suspended sentence

Sentenced accordingly
_________________________________________________________
Public Prosecutor: Lawyer for the State
Public Solicitor: Lawyer for the offenders