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State v Dau [2022] PGNC 70; N9508 (25 March 2022)

N9508

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]


CR (FC) No. 309 OF 2019


THE STATE


V


RUNNY DAU


Waigani: Berrigan J
2022: 18th and 25th March


CRIMINAL LAW – SENTENCE – OFFICIAL CORRUPTION - S 87(1)(a)(i)(ii) of the Criminal Code – Official corruption – S 407(1)(b) of the Criminal Code – Conspiracy to defraud – Customs Official – Effective sentence of four years of imprisonment.


Cases Cited:


Goli Golu v The State [1979] PNGLR 653
Lawrence Simbe v The State [1994] PNGLR 38
State v Yabara [1984] PNGLR 378
State v Miguel [2002] PNGLR 52
The State v Bonga [1988-89] PNGLR 360
The State v Jimmy Naime (2005) N2873
The State v Naime (2005) N2873
The State v Gigina (2018) N7358
The State v Kara (2018) N7360
The State v Konny (2019) N4691
The State v Doreen Tatut (2021) N9023
The State v Simon Kapi (2008) N3936
The State v David Kang [2009] PGNC 47
The State v Martha Agua [2011] PGNC 207; N4499
The State v Francis Yegiora [2012] PGNC 362; N4641
The State v Joyce Moripi [2017] PGNC 202; N6867
The State v Mako (2006) SC889
The State v Eliakim (2007) N3190
The State v Tardrew [1986] PNGLR 91


Legislation and other materials cited:


Sections 19, 87(1)(a)(i)(ii) and 407(1)(b) of the Criminal Code


Counsel


Mr Needham, for the State
Mr Kombri, for the Accused


DECISION ON SENTENCE


25th March, 2022


  1. BERRIGAN J: The offender, Runny Dau, was convicted following trial of one count of official corruption, contrary to s. 87(1)(a)(i)(ii), and one count of conspiracy to defraud the State, contrary to s. 407(1)(b) of the Criminal Code, respectively.
  2. Whilst employed as a Cargo Officer with the PNG Customs Service the offender conspired with others to defraud the State of tax and customs duty payable on cigarettes brought into the country in a shipping container imported by F&R Investment Limited. To this end she corruptly received K5000 on account of ensuring that the container would avoid inspection in the discharge of her duties, potentially enabling the importers to avoid payment of tax and customs duty of an estimated value of K2.8m. Suspicions had been aroused, however, and the cigarettes were seized after they left the wharf and destroyed.

Allocutus


  1. On allocutus the offender said: Thank you, Your Honour for giving me this opportunity to talk. I completed a Bachelor in Business Management, UPNG, after I completed my studies there, I started work with Customs. I was working with customs until the court found me guilty. I say sorry to the both lawyers for the time and the resources they have spent before this court. I also say sorry to this Honourable court that I have committed this crime and the court has spent its time. I also say sorry to the victim, PNG Customs for what I have done. It did not collect the taxes that it supposed to collect because of my wrong doing. I say sorry to the State that it was also supposed to collect taxes. I also say sorry to the people of Papua New Guinea that I’ve committed a crime that they did not benefit, some things that they are supposed to because of my wrong doing.

Sentencing Principles and Comparative Cases

  1. The maximum penalty for each offence is 7 years of imprisonment. I am grateful to both counsel for their helpful submissions.
  2. Defence counsel submitted that whilst the Court will be minded to impose a penalty that will serve as a deterrent to others in the PNG Customs Service he urged the Court to take into account that the offender only benefited K5000. She has already lost her job and the conviction is already a significant punishment. In addition, he asked me to take into that on the evidence, Lin Zhong, owner of the premises at 9 Mile where the container of cigarettes was delivered was convicted of unlawful possession of smuggled goods, fined K40,000, to serve 4 years in default. In addition, there were others involved at Customs who have not been prosecuted. Simon Rui was given immunity. PNG Customs and the State have not acted fairly. Furthermore, PNG Customs have not said what the actual loss to the State was. He submitted that a sentence of one year on each offence, to be served concurrently, wholly suspended, would be appropriate, together with a fine of K5000 given the extent to which she benefited.
  3. He referred to the following comparative cases on official corruption:
    1. The State v Bonga [1988-89] PNGLR 360, the prisoner was sentenced to 4 months IHL after a trial, for offering K5 to a police officer to drop traffic offences charges against him.
    2. The State v Naime (2005) N2873, Mogish J: a policeman holding the rank of First Constable pleaded guilty to one count of official corruption, for taking two horse race machines and delivering them to a third person in return for K200. The maximum for that offence is seven years, compared to the maximum here of ten years. The offender was sentenced to four years imprisonment in hard labour, less time spent in custody. Eighteen months suspended on condition of good behaviour. A fine of K300 was also imposed;
    1. The State v Gigina (2018) N7358, Miviri AJ: The prisoner, a civilian clerk in the Traffic Directorate of Police, at the Police Headquarters in Konedobu, pleaded guilty to one charge of official corruption. She asked and received K400 from the complainant in order to prepare an accident report for him, keeping K200 for herself and giving K200 to another policeman. She was sentenced to 3 years imprisonment in hard labour, wholly suspended on condition of a good-behaviour bond and payment of a fine of K1000 within 7 days;
    1. The State v Kara (2018) N7360, Miviri AJ: The prisoner was a police officer who pleaded guilty to official corruption and aiding a prisoner to escape from lawful custody. He was given two-hundred kina (K200) to release a detainee from the Gordons Police Station. He was sentenced to 3 years and 5 years, respectively, to be served cumulatively, but reduced to four years on the basis of totality.
    2. The State v Konny (2019) N4691, Makail, J: the offender pleaded guilty to official corruption and permitting an escape from lawful custody. He released a prisoner after receiving K700 from the prisoner’s relative. Later, however, he went and rearrested him and surrendered the monies to his Police Station Commander. He was sentenced to 3 years and 1 year, respectively, to be served concurrently, and wholly suspended;
    3. The State v Doreen Tatut (2021) N9023, Berrigan, J: The offender, was employed as a Lodgement Officer within the Titles section of the Department of Lands and Physical Planning. When a customer applied for a replacement of the title to his property, in addition to taking the requisite application fee, the offender asked for and obtained K450 in cash for herself to issue the replacement title. She was sentenced to 3 years, wholly suspended, on conditions, together with a fine of K2000.
  4. Counsel referred to the following cases on conspiracy to defraud:
  5. The State submitted in mitigation that the offender was of prior good character but that was to some extent ameliorated by the fact it was that prior good character that allowed her to hold the position of trust she occupied. In aggravation it submitted that the offender was a mature woman in a job of high responsibility. She was not a passive person in the conspiracy. She well understood how to direct staff to ensure the container was processed uninspected. General deterrence was of high importance. The sentence imposed on Zhang was of little relevance. The loss of the duties on the scale to its rightful owners the people of Papua New Guinea is significant. It submitted that a sentence of about one year would be appropriate on count one, and count two could attract a shorter, concurrent term of imprisonment. The State opposed anything more than marginal suspension. This was not a case of a one-off failure of character. The offender willingly participated, and at times, directed, a dishonest enterprise that compromised a highly important government function for personal gain.
  6. In support of its submissions it referred to:
    1. State v Yabara (1984) PNGLR 378, the Supreme Court dismissed an appeal against sentence of four years of imprisonment imposed on a Member of Parliament after trial for judicial corruption. He had been charged with seven offences of false pretence in relation to committal proceedings for which he had appeared before a magistrate of the District Court placed an envelope containing K140 in cash on the magistrate’s table. The maximum penalty in that case was 14 years;
    2. The State v Miguel (2002) N2338, Injia, J: the offender was found guilty following trial of bribing a member of the public service, contrary to s 97B of the Criminal Code. He paid a Tax Assessment Officer K500 to induce him to make favourable Company Tax returns in order to expedite the liquidation process of his company. He was sentenced to four years of imprisonment;
    1. The State v Mako (2006) SC889 the Supreme Court reduced a 7-year sentence to five years for a police officer who, following trial had been convicted of receiving a bribe of K150 to release a person in custody. He was released on probation after serving 8 months and 2 weeks;
    1. The State v Eliakim (2007) N3190, Cannings J: A man pleaded guilty to one count of conspiracy to defraud and one count of stealing money from his employer. The amount involved was K3,369.01. He was a field supervisor in a company and he planned with two others to submit false attendance sheets for ghost employees and obtain pay cheques. He put the plan into action over a three-month period until caught. He was sentenced to three months imprisonment, wholly suspended on condition of restitution.
  7. Section 19 of the Criminal Code provides the Court with broad discretion on sentence. Whilst guidelines and comparative cases are very relevant considerations, every sentence should be determined according to its own circumstances: Lawrence Simbe v The State [1994] PNGLR 38.

Consideration


  1. The offender is 34 years of age. She is from Anda Village, Anglimp, Jiwaka Province, but has lived in Morata, Port Moresby, for many years, with her extended family, and children. She is a single mother to two children of her own, one in grade four and the other who is one and a half years old. She has two adopted sons whose ages are not made known.
  2. The offender is well educated. She graduated from the University of Papua New Guinea in 2012 with a Bachelors Degree in Business Management. She was employed by PNG Customs in 2014 as Cargo Management Officer at Motukea Wharf until the offence.
  3. In mitigation this is the offender’s first offence. She is of prior good standing. She has expressed remorse on allocutus, but it is of limited value given her denials to Probation Services.
  4. I accept that the offending has impacted on her standing in the community. She is the only member of her family to complete higher education and obtain employment in the public service. She has lost her position at PNG Customs as a result of the offending. There can be no doubt that any time spent in custody will have a significant impact upon her family and in particular her children, one of whom is very young. These are unfortunately matters that the offender has brought upon herself.
  5. There are no matters of special mitigation.
  6. Whilst this is not the most serious instance of either offence, attracting the maximum, it remains very serious: see Goli Golu v The State [1979] PNGLR 653.
  7. The offender was a Cargo Officer in PNG Customs. Whilst not a member of senior management, it was part of her role to clear containers from the wharf, an important and critical responsibility. The offence involved a serious breach of public trust. Those who are entrusted to exercise the power and authority of public office, at any level of the public service, must be accountable to the people: The State v Doreen Tatut (2021) N9023.
  8. The role of the PNG Customs Service is a vital public service. As its website proudly states it is responsible for: “Protecting our border; securing our future”. As this case demonstrates, Customs is at the front line of protecting the country and its people from harmful or dangerous goods, whilst also securing much needed revenue through the collection of taxes and duties to support the development of the country. The actions of the offender and those she conspired with struck at the heart of both those purposes. I accept that she may not have known that the cigarettes in this case were unfit for human consumption. I also accept that she may not have realised the full magnitude of the potential loss to the State, but the offender knew that the cigarettes were there, and she intended to prevent the State from collecting the tax and customs duty that might have been payable on them. It was only due to the efforts of some dedicated officers who intercepted the container after it left the wharf that the cigarettes were destroyed and the danger, and the loss of significant duties to the State avoided.
  9. As the State submits, this did not happen spur of the moment. Over a number of days, the offender willingly participated, and at times, directed, a dishonest enterprise that compromised a highly important government function for personal gain. For this the offender personally received K5000. When it was detected she tried to arrange with her co-conspirators to pay other members of Customs to cover it up.
  10. I also agree that Zhang’s conviction is of little relevance here. He was charged with a different offence for different conduct, possession only, to which he pleaded guilty. Whilst there is some material that suggests the involvement of others at the Customs Service that does not alter the facts established against the offender.
  11. The scourge of corruption has been acknowledged many times by the Courts of this country. This case demonstrates how dangerous and costly it can be.
  12. In my view the aggravating features of the offender’s conduct far outweigh the factors in mitigation. Official corruption is prevalent, as are efforts to defraud the State of its scarce resources. This case calls for both general and specific deterrence. Having regard to all of the above matters, I sentence the offender to four years in imprisonment on each offence, to be served concurrently.
  13. I have given careful thought to the issue of whether the sentence should be wholly or partly suspended: see The State v Tardrew [1986] PNGLR 91. Restitution is not relevant here. There is no evidence to suggest that the offender will suffer excessively in prison. Having regard to my comments above, I am not persuaded that suspension is warranted in the interests of rehabilitation.
  14. Furthermore, in the words of Chief Justice Injia in State v Miguel [2002] PNGLR 52:

“It is my view that neither of these two options would be adequate in responding to the seriousness and growing prevalence, yet not so readily exposed and prosecuted, nature of this kind of corrupt practice. Offences of bribery, undue influence and other corrupt practice seem to have become the norm of getting business done, in all areas of business, both in the private sector and more particularly in government. We hear of and read in the daily media and in private conversations in homes, on the streets, in cities and in villages stories of instances of bribery of public officials at all levels of government, but they rarely get exposed and reported to police, and successfully prosecuted. When they do get exposed and successfully prosecuted, and thanks to dedicated and honest officials ... the Court must treat it seriously and impose a strong punitive and deterrent sentence in the form of custodial sentence, as a warning to other potential offenders.”


  1. In the circumstances I make the following orders.

Orders


(1) The offender is sentenced to four years of imprisonment in light labour to be served at Bomana Correctional Institution on Count 1 of the indictment.
(2) The offender is sentenced to four years of imprisonment in light labour to be served at Bomana Correctional Institution on Count 2 of the indictment.
(3) The sentences are to be served concurrently.
(4) Bail monies are to be immediately refunded.

________________________________________________________________
Public Prosecutor: Lawyer for the State
Kombri & Associates: Lawyer for the Offender

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