State v Puraso (No 2) [2022] PGNC 139; N9595 (12 April 2022)

N9595

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]
CR (FC) NO. 107 OF 2021

THE STATE

V

REX PURASO

(NO 2)
Goroka: Miviri J
2022: 11^th April

CRIMINAL LAW – Section 87 (1) (a) CCA – Official Corruption – Trial – Public Servant Elementary Coordinator – Vehicle Recovered – Provincial Elementary School Coordinator – Primary School Teacher – First Offender – Medical Condition – Public Servant Abuse of Office – Benefit from Office – Conversion of Vehicle – Serious Prevalent Offence – Deterrent & Punitive Sentence.

Cases Cited:

Belawa v The State [1988-89] PNGLR 496
Golu v The State [1979] PNGLR 653
Lawi v The State [1987] PNGLR 183
Mako v State [2006] PGSC 29; SC889
Tardrew, Public Prosecutor v [1986] PNGLR 91
State v Hagei [2005] PGNC 60; N2913
State v Gigina [2018] PGNC 268; N7358
State v Duncan [2015] PGNC 279; N5010
State v Bonga [1989] PGNC 125; [1988-89] PNGLR 360; N766
State v Miguel [2002] PGNC 25; N2338
Yabara v The State [1984] PNGLR 378

Counsel:

L. Toidalema & K Umpake, for State
G. Apa, for Defendant

SENTENCE
12^th April, 2022

1. MIVIRI, J: This is the sentence after trial of the Prisoner whilst a public Servant employed by the Eastern Highlands Education Department as its Provincial Elementary Schools Coordinator who corruptly obtained a vehicle the property of the Eastern Highlands Provincial Government.
   
2. He was convicted after trial of Official corruption pursuant to section 87 (1) (a) of the Criminal Code. Which carried the maximum penalty of “Imprisonment for a term not exceeding seven years, and a fine at the discretion of the Court.” Depending on the seriousness, including the mitigating, extenuating circumstances of the case, the prisoner could be sentenced to that maximum sentence of seven years in jail, or a fine at the discretion of the Court. Even though this was so, it was trite that the maximum sentence was due the worst case of its kind: Golu v The State [1979] PNGLR 653. Here at the outset, it certainly was not the worst case of its kind, and therefore a determinate term of years was in order.
   
3. At the outset, relevantly between the 1^st January 2017 and 04^th August 2020 in Goroka, He was the Provincial Elementary Schools Coordinator with the Eastern Highlands Education Department. And as part of his duties relating to that office, he had in his custody a blue Toyota Land cruiser ten-seater registered number PAD 766. During the course of the standoff over the Provincial administrators position between one Solomon Tato, Samson Akunai and then Madam Julie Soso, the administration within was interrupted. He took advantage of that and converted that blue Toyota Land Cruiser registered number PAD 766 in his custody. He painted black over the original Eastern Highlands red paint to the bumper. Then tinted the window glasses and removed the original registration number PAD 766 and replacing it with a private number plate LBN 494. Then he painted the whole vehicle dark blue in colour.
   
4. The Director Transport and Civil Works for the Provincial Government registered the complaint with Police that the subject vehicle was missing. Following that the defendant was spotted in the vehicle on the junction between Mt Kiss and the road to North Goroka. The Police stopped and directed him to the Police Station. There he was interviewed where he responded and told the police that he had purchased it through close tender for K 5000.00. He had paid it to the Director Corporate Services, Mr Ben Ulopo. But it was not registered under his name, or that a transfer certificate was issued in his name confirming transfer from the Provincial Government to him. And it was not put on open tender.
   
5. To bypass exhibit P2 (52) the tender process of the Eastern Highlands Provincial Administration was a determined effort by the Prisoner to defy clear accountable process that in bold stressed accountability and transparency in the disposal of the vehicles. Because they were State assets that needed to be properly and lawfully disposed of with records kept showing balancing in accounts in what was disposed of. And there was proper acquittal at the end of the day. Moneys were properly accounted in appropriate government State accounts. And blanketed out by Exhibit P2 (53), “there are no such things as close tender of state properties, the closed tender is awarded on emergency case only.”
   
6. He really did not have an excuse in law for committing the offence. A seasoned public servant holding the position of Provincial Elementary School Coordinator he knew all alone the process and procedure to acquire the said vehicle, but never did accede to it. It was a very serious aggravating feature in his case. Especially considering the fact that, he was a trained teacher serving for almost 16 years and then rising to being an administrator in the role that he held of the Provincial Elementary Coordinator. Which role he held for almost 8 years at the time of trial. He had no bad record of service culminating in 33 years of service to the State, nor did he record any prior convictions. He was a 51-year-old man of the Seventh Day Adventist Christian Faith, married with four children originally from Karu village in Okapa District Eastern Highlands. He was arrested for the matter 16^th October 2020. He had been on bail until convicted on the 08^th April 22, when his bail was refunded and he was remanded in custody to await sentence.
   
7. He cooperated with Police in the location of the vehicle which was at the police Station at the time of sentence. In allocutus he was very remorseful as a Christian for what he did both before GOD and also to the Court, his family and community, and to the Eastern Highlands Provincial Administration including the division of Education where he was working. He was truly sorry for what he did to all. That it was his first time in Court. He pleaded for the mercy of the Court.
   
8. He recounted that he had a serious health issue for which he had endured for 28 years. This he evidenced with a medical report dated the 10^th April 2022 under hand of Edward Makao, Senior Health Extension Officer of the Emergency Department of the Goroka Provincial Hospital who confirmed the medical status of the prisoner in these terms. “ Mr Rex Puraso is in a very critical situation according to his underlying medical condition. He has a very bad chest and he might develop more complication with now the on-going minimal heart failure he is in. As an aging man this disease is life threatening and the prognosis is bad. For his urgent purpose He needs to be well placed close to his family members especially in times of emergency and attending to him with concern, love and care with lifesaving alternative.” It was confirmed at the outset that he was known confirmed chronic patient in the emergency department of recurrent chest infection and acute chronic asthma attacks for more than seven years. And which was confirmed by his chest Xray of the 23^rd March 2022. And treatment administered corresponded to the serious prevailing life-threatening situation upon him.
   
9. This was independent corroboration of the serious life-threatening situation that would be compounded by the sentence imposed on him in an Institution. It was an extenuating circumstance that was materially imposing upon the sentence that was to be imposed State v Hagei [2005] PGNC 60; N2913 (21 September 2005). And warranted a sentence be fitting that aspect to suit the justice due him taking account of the seriousness of the offence. Particularly considering also that he had spent his time and money in the care of the subject vehicle to ensure that it was in serviceable order to support his duties to the office that he held. It was a mitigating factor in his favour in the sentence due him. And particularly demanding that the vehicle was recovered at the police Station in a working status that could be delivered returned to the Eastern Highlands Education Division in particular the office of the Provincial Elementary Coordinator to keep the work called there flowing for the service to the People. Because there was no record before the court that he had been as a result of the conviction terminated from that service. It would appear that he was current and still engaged there in that position. He highlighted this fact with continuing work programs that he was intent on discharging to foster the developments in early child education within. Hence the aggregated did not warrant that he be disassociated from that fact. That it was beneficial to the Eastern Highlands Provincial Administration in the Education Division that he continued to serve as he did.
   
10. Particularly bearing that the vehicle had come into his possession on account of his duties to that office as elementary coordinator. He had used that position not in the sense observed in State v Gigina [2018] PGNC 268; N7358 (13 July 2018), where Accused was a Civilian Clerk in the Traffic Directorate of the Police Department. Complainant came to get an accident report relating to an accident. Accused told him, "igat save face stap kisim sampela moni kam na mipela bai wokim report bilong yu," We are friends give us some money and we will do a report for you. K400 was given by Complainant but report was not made. That in my view is classical case envisaged by this section also observed in Mako v State [2006] PGSC 29; SC889 (30 June 2006). What was already in possession on account of the State to serve its people, he converted to his own use by virtue of that position. It drew plainly a stern determined and punitive sentence followed given the facts in like manner drawing similar.
    
11. But it was necessary contextualized that the definition of the word corruption in State v Duncan [2015] PGNC 279; N5010 (20 November 2015) that sentence reflect that fact. Because dishonest discharge of the duties related to that office. Particularly considered in the light of the duties of the office of elementary school coordinator which was geared at very young children. It being classical dishonest application to own use of property that is of or relating to that office, Lawi v The State [1987] PNGLR 183. Corruption involved the serious and aggravating feature of fact of being dishonest. The evidence of corruptly receiving to himself what is due and of the office was misappropriation that demanded imprisonment to reflect its seriousness, Belawa v The State [1988-89] PNGLR 496. And it would not be erroneous to gauge it in the tariff and range proposed there applicable here. Particularly in respect of the amount that was taken but now recovered. As at the date of the sentence the vehicle was in the police Station Goroka. And could be retrieved the Education Division of the Eastern Highlands Provincial Administration.
    
12. That the quality and degree of trust upon the Prisoner in that position he abused was high comparably. Which is amply discussed set out above. And the period he committed is set out also above. The use he had fostered and effect upon himself as well as the office and the administration. His own history and restitution did not demand that, it was the most extreme case of its type. His case in my view fell into category four set out by that case of 5 years imprisonment for an amount within K40, 000.00 to K 150, 000.00. Which was a useful guide to be gauged with the facts of the case here given the estimation from the photographs depicting the vehicle. Strictly he was not charged with misappropriation, but it was an essential element of dishonesty drawing parallel.
    
13. His case was not the same as observed by this Court in State v Bonga [1988-89] PNGLR 360, where K5.00 was offered to the policeman by the defendant to drop the traffic charges preferred against him. Four months imprisonment was imposed because of the prevalence of the offence. The converse is State v Miguel [2002] PGNC 25; N2338 (6 December 2002) where four years imprisonment was considered appropriate in the case of the defendant paying the Tax Assessment Officer K500.00 to induce him to make favourable Company tax returns. The Court determined it to be appropriate for custodial sentence not a fine. It is not as serious as the case of Yabara v The State [1984] PNGLR 378, sentencing of a member of Parliament who offered a bribe to a magistrate in leaving the money K140.00 on the table of the magistrate, so that he discharges his judicial duties to suit the convenience of the Member of Parliament then.
    
14. The facts and circumstances here are not likened in the seriousness and call for imprisonment to be served in custody. Rather the peculiar circumstances here determine otherwise than a custodial term. Consistent with Tardrew, Public Prosecutor v [1986] PNGLR 91, this would be an appropriate case observed there for a non-custodial term of imprisonment balancing. Because in my view under section 19 (6) of the Criminal Code three broad categories can be summarized upon which suspension can be considered in sentence, (1) where suspension will promote personal deterrence or reformation or rehabilitation of the offender; (2) where suspension will promote the repayment or restitution of the stolen money; (3) where imprisonment will cause excessive degree of suffering to the particular offender; for example because of his bad health.
    
15. The application here falls on all fours and would warrant that a non-custodial sentence would be proportionate and fitting the offence here against the prisoner. He has asthma that would deteriorate to his survival and would not warrant in view that the vehicle is at the heart. The Eastern Highlands Provincial Administration in its Division of Education would want the vehicle PAD 766 returned to its administration to continue duties in the office of the Provincial Elementary School Coordinator. And a fine is appropriate to him that he would be dished more had it not being for his health condition. Accordingly, it is determined given that the appropriate sentence here is 3 years imprisonment in hard labour upon the Prisoner Rex Puraso for the conviction of official corruption pursuant to section 87 (1) (a) of the Criminal Code imposed 08^th April 2022. Which sentence is fully suspended on a three-year good behaviour bond upon the payment of a fine of K2000.00 to be paid within five working days receipt to be produced to court forthwith. Further condition is for the immediate delivery of the subject vehicle blue Toyota Land Cruiser 10-seater registered number PAD 766 to the Eastern Highlands Provincial Administration Education Division forthwith. And receipt of the delivery filed into Court within 48 hours expiring Friday 15^th April 2022 at 9.30am. The five days in custody since his conviction on the 08^th to today 12^th April 2022, he has had to spent in jail is sufficient warning to him of the seriousness of the offence. He would have secured more had it not being for his medical condition.
    
16. The moral is that Public Servant are servants not masters in the office they are bestowed by the People of Papua New Guinea.
    
17. The formal orders of the Court are:
    
    • (i) 3 years IHL suspended on 3 years GBB on condition that he pays within five (5) working days a fine of K2000.00 forthwith from date of this sentence 12^th April 2022 expiring 19^th April 2022.
      
    • (ii) And further that the Blue Toyota Land Cruiser 10 seater registered number PAD 766 be delivered forthwith to the Eastern Highlands Provincial Administration Education Division, receipt of Delivery filed into Court within 48 hours expiring Friday 15^th April 2022 at 9.30am.
      
    • (iii) Both receipts of payment and delivery to be furnished to Court forthwith for suspension to take effect.
      
    • (iv) Should he fail both conditions then the suspended sentence of 3 years IHL to take effect forthwith as of 20^th April 2022 forthwith and a warrant will issue to that effect.

Orders Accordingly.

__________________________________________________________________

Public Prosecutor: Lawyer for the State

Public Solicitor: Lawyer for the Defendant