N10821
PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR (FC) NO 226 OF 2023

BETWEEN
THE STATE

AND
JOHN SIRIRI
Offender

Popondetta: Makail, J
2024: 16, 21 & 24th May

SENTENCE – Plea – Perjury – Aggravating and mitigating factors considered – Guilty plea – Cooperation with police during investigations – First time offender – Outstanding reputation and standing of offender – Remorsefulness – Gravity of offence – Offence committed in election petition trial – Bribery of witness – Misleading Court on true account – Pervasion of course of justice – Threat to authority of court – Personal and public deference – Custodial sentence appropriate – No suspension of sentence ordered – Criminal Code – Sections 19 & 121(1)

Cases Cited:

Goli Golu v. The State [1979] PNGLR 659
Lawrence Simbe v. The State [1994] PNGLR 38
Delilah Pueka Gore v. Henry Jons Amuli & Electoral Commission (2023) N10114
Henry Jons Amuli v. Delilah Pueka Gore & Electoral Commission (2023) SC2496

Counsel:

Mr J Done, for State 
Mr E Yavisa, for Offender

SENTENCE 
24th May 2024

1.	MAKAIL, J: The offender pleaded guilty to, and was accordingly convicted of one count of knowingly giving false testimony in judicial proceeding concerning a material question then depending in the proceedings or commonly known as perjury contrary to Section 121(1) of the Criminal Code.  

Brief Facts 

2.	On arraignment, the offender pleaded guilty to the following facts, on 30 November 2022 between 9:00 am and10:00 am the offender was inside the Popondetta National Court Room as a witness in the election petition case no. 38 of 2022 between petitioner Delilah Pueka Gore v. Henry Jons Amuli, first respondent and Electoral Commission, second respondent.  On 17 October 2022 the offender made a sworn affidavit stating that he witnessed Henry Jons Amuli the first respondent give cash in envelopes to his coordinators and stated that they were advised to collect food stuff from Lucky Winner Shop on 20 October 2022.

3.	The offender made his sworn affidavit in support of the petitioner Delilah Pueka Gore.  After doing so, the offender signed the affidavit and was sealed on 30 October 2022 to be used as evidence.  Before the trial of the election petition commenced on 28 November 2022 the offender went into hiding until 30 November 2022 when he appeared in the election petition trial in the Popondetta National Court Room.  When the offender appeared, he gave evidence that he was forced, bribed or threatened by the petitioner Delilah Pueka Gore to give his sworn affidavit in her favour.

4.	However, the presiding judge ruled that the oral evidence by the offender amounted to perjury and ordered that the offender is an hostile witness, that he be detained until 2 December 2022 and be released if the petitioner did not lay an official complaint.  After the order, the offender was detained on 30 November 2022 at 11:10 am and recorded in the occurrence book no 755/11.  On Thursday 1 December 2022 the petitioner Delilah Pueka Gore laid an official complaint for perjury against the offender in the occurrence book no. 08/12:10 am.  The offender was taken out of the police cell, arrested, and charged for perjury and informed of his constitutional rights and returned to the police cell for detention.

Prescribed Penalty 

5.	Section 121 of the Criminal Code states:

“121.	PERJURY.
(1) A person who in any judicial proceeding, or for the purpose of instituting any judicial proceedings, knowingly gives false testimony concerning any matter that is material to any question then depending in the proceedings or intended to be raised in the proceedings, is guilty of the crime of perjury.
Penalty: Subject to Subsection (2), imprisonment for a term not exceeding 14 years.
(2) If an offence against Subsection (1) was committed in order to procure the conviction of another person for a crime punishable with death or with imprisonment for life, the offender is, subject to Section 19, liable to imprisonment for life.
(3) It is immaterial whether the testimony is given on oath or under any other sanction authorized by law.
(4) The forms and ceremonies used in administering the oath or in otherwise binding the person giving the testimony to speak the truth are immaterial, if he assents to the forms and ceremonies actually used.
(5) It is immaterial whether the false testimony is given orally or in writing.
(6) It is immaterial whether or not–
(a) the court or tribunal is properly constituted, or is held in the proper place, if it actually acts as a court or tribunal in the proceedings in which the testimony is given; or
(b) the person who gives the testimony is a competent witness; or
(c) the testimony is admissible in the proceeding.
(7) A person shall not be arrested without warrant for an offence against Subsection (1).
(8) A person cannot be convicted of committing perjury or of counselling or procuring the commission of perjury on the uncorroborated testimony of one witness.”
 (Underlining added).

6. According to Section 121(1) (supra), the offence of perjury carries a maximum penalty of fourteen years term of imprisonment. However, the maximum penalty is reserved for a worst case: Goli Golu v. The State [1979] PNGLR 659.

7.	Also, Section 19 of the Criminal Code confers discretion on the Court to impose a lesser penalty than the prescribed maximum penalty.  In deciding whether the offence falls into the worst category or one where a lesser penalty might be appropriate to impose, each case must be considered on its own peculiar facts and circumstances: Lawrence Simbe v. The State [1994] PNGLR 38.

Allocutus

8.	The offender expressed remorse for his actions to the Court and promised not to repeat it in future.  He pleaded for a non-custodial sentence because his children are in school and depend on him for their daily upkeep and education.

Antecedent Report

9.	The State tendered an antecedent report.  There are no prior convictions relating to the offender in the antecedent report.

Pre-Sentence Report

10.	On the offender’s application, the Probation Services provided a pre-sentence report.  The report speaks well of the offender.  It stated that he is a well-respected person and leader in the community because he is involved in resolving disputes.  The report favoured a non-custodial sentence.

Personal details

11.	In addition, his counsel outlined his personal details as follows, he is 56 years old and comes from Sasembata village in Northern Province.  He is married with six children, four of them are attending primary school and two attending secondary school at Martyrs Memorial Secondary School.  He is the only child of his parents.  His mother is deceased, and father is old.  He completed Grade 7 at Martyrs and has two cocoa blocks, two oil palm blocks and one vanilla block.  He is a member of the Church of England (Anglican Church).

Mitigating Factors

12.	The offender pleaded guilty, cooperated with the police during investigations, is a first-time offender, and expressed remorse. He is a non-violent person and is a well-respected leader in the community.  

Aggravating Factors

13.	While the Court accepts the offender’s early guilty plea, cooperation with police during investigations, being a first-time offender and his expression of remorse including his outstanding reputation and standing in the village community, they are outweighed by the fact that the offence is election related.  The offender was one of the persons who was found by the National Court to have received cash money as a bribe to vote for the successful candidate in the 2022 National General elections.  As both counsel were unable to refer to any past reported cases on sentencing trend for this offence, it appears that this is a first of its kind case arising from an election petition.  

14.	The finding by the National Court that the offender accepted a bribe to vote for the successful candidate is a strong aggravating factor because the offender allowed himself to be influenced by the successful candidate to vote for the successful candidate rather than of his own free will: see Delilah Pueka Gore v. Henry Jons Amuli & Electoral Commission (2023) N10114 at [57] and affirmed by the Supreme Court in Henry Jons Amuli v. Delilah Pueka Gore & Electoral Commission (2023) SC2496.

15.	A further strong aggravating factor is that the offender was prepared to come to the National Court at the trial of the election petition and lie.  He filed an affidavit giving an account which favoured the petitioner, but at trial, completely denied receiving cash from the successful candidate.  He had the audacity to tell a lie in front of the Court after making an oath before God and men that the evidence he would give will be nothing but the truth.  Furthermore, his Christian faith as a member of the Anglican church would have reminded him to proclaim the truth and not lies, but he did not.  Where a witness gives a false account to the Court of an allegation in controversy between the parties, not only does the witness mislead the Court in search of the truth but also a pervasion of the course of justice. Furthermore, it is an upfront to the Court.  It undermines and threatens the authority of the Court to dispense justice according to law.  Such conduct must be condemned in the strongest terms as possible and must not be tolerated by the Court.  This factor negates the offender’s plea for leniency on the grounds that he is a first-time offender and has good standing in the community.

16.	Next, because of the offender’s acceptance of a bribe and giving of a false testimony in Court, his actions led to a finding by the National Court that the successful candidate was guilty of bribery and his election was declared void.  A by-election was necessary.  Because of this, it is fair to say that conducting a by-election is costly and time-consuming not to mention the distance to cover to reach the polling locations in the remoteness parts of the electorate where accessibility by road is zero and air transportation is no longer an option.  Also, in the meantime time, it is detrimental to the people of the electorate who will be without a member to represent them in the National Parliament. As can be seen, the impact of the actions of one man on the entire electoral process is catastrophic.   

17.	It is for these reasons that the State’s submissions for a custodial sentence is upheld.  As to the term of imprisonment, the State submitted that given the gravity of the offence, a term of imprisonment of five to seven years will fit the crime while the offender’s counsel asked for a sentence of two to three years term of imprisonment. 

 Sentencing Trend

18.	While there are no reported cases cited by counsel to determine the sentencing trend for this offence, it does not preclude the Court to exercise its discretion under Section 19 (supra) to decide an appropriate sentence which fits the crime.

Deterrence 

19.	Given the gravity of the offence, a sentence of five years term of imprisonment fits the crime and will also serve as a personal deterrent to the offender in future so that he would restrain from telling lies should he be called as a witness in not only an election petition case but other cases as well. It will also act as a general deterrence because an offence of perjury in an election petition case compromises the integrity of the entire electoral process in Papua New Guinea.  Offenders and people who think they can cheat the electoral process, and the Court process and get away with them must think again because if they are caught, they can expect to spend a long time behind bars.

Pre-Trial Custody Period

20.	Further, the offender’s counsel submitted that the offender spent one month in pre-trial custody before being granted bail.  This period should be deducted from sentence fixed by the Court.  The Court upholds the offender’s counsel’s submissions and order that the period of pre-trial custody of one month shall be deducted from the term of sentence fixed by the Court.

Suspension of sentence 

21.	The offender’s counsel submitted that the sentence fixed by the Court be wholly suspended and the offender be placed on good behaviour bond or probation.  However, given the gravity of the offence, its impact on the administration of justice and the need to deter the commission of the offence, suspension of the sentence either wholly or partly will not be ordered.     

Conclusion

22.	It is the judgment of the Court that the offender having been convicted of one count of perjury is hereby sentenced to a term of imprisonment of five years in hard labour.  From this, one month is deducted for time spent in pre-trial custody leaving a balance of four years and eleven months to serve. There will be no suspension of whole or part of the sentence.  
   
Order

23.	The final terms of the order of the Court are:

1.	The offender is sentenced to a term of imprisonment of five years in hard labour less one month for time spent in pre-trial custody.

2.	The offender shall serve the balance of four years and eleven months in hard labour at Biru Corrective Institution forthwith.

3.	The offender’s bail money shall be refunded forthwith.
________________________________________________________________
Acting Public Prosecutor: Lawyers for the State 
Public Solicitor:		Lawyers for the Offender