The State v John Tumbling and Nixon Kavo  N7590
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PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]
CR NOS 316 & 317 OF 2018
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
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
(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
The following case is cited in the judgment:
Saperus Yalibakut v The State (2006) SC890
This was a judgment on sentence for the offence of failure to report a corrupt
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
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.
5. Neither offender has any prior convictions.
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
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
• 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.
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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
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
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
DECISION MAKING PROCESS
12. To determine the appropriate penalty I will adopt the following decision
• 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
STEP 4: WHAT IS THE HEAD SENTENCE?
16. The sentence for each offender will reflect some common mitigating
•no evidence that receipt of the cash had any bearing on counting for
•fully cooperated with police;
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•good community record.
17. As for John Tumaing: only a small amount of money (K50.00) was
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
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
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,
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.
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
Pre-sentence period in 1 day 1 day
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
Public Prosecutor: Lawyer for the State
Public Solicitor: Lawyer for the offenders