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• 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

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• 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

  3rd 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

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• 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

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• 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?

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• • 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;

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• •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;

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

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