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State v Gilo [2017] PGNC 218; N6897 (9 August 2017)

N6897

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]
CR (FC) NO 204 OF 2016

THE STATE

V

DELMAY GILO

Kimbe : Miviri AJ

2017 : 9^th August

CRIMINAL LAW-PRACTISE & PROCEDURE- plea-Abuse of office S 92-district court clerk-cartons of beer court exhibit-8 cartons missing from initial 27-reflection on the third arm of Government-serious breach-recovery equal value in money paid-strong punitive sentence.

Facts

Defendant came into possession of 27 cartons of beer, as Criminal Clerk of the Kimbe District Court for a case in court. Eight (8) cartons of beer went missing outside the court process whilst in her custody she allowed others to take the beer.

Held
Serious breach of trust
Reflection on the Magistracy
Strong deterrent sentence
12 months IHL suspended on 12 months GBB

Cases cited:

Public Prosecutor v Jawodimbari [2006] PGSC 28; SC891 (18 May 2006)

State v Aiwol [2012] PGNC 68; N4681 (17 May 2012)
Counsel:

A Bray, for the State

B Popeu, for the Defendant

DECISION ON SENTENCE

11^th August, 2017

1. MIVIRI AJ: This is the sentence of a public servant employed in the Kimbe District Court as a criminal clerk in whose care were 27 cartons of beer where 8 got lost when she allowed others into the office.
   

Short Facts

2. Prisoner was employed by the Magisterial Services as land Court clerk at Kimbe District Court. She was appointed criminal clerk on 25^th to the 30^th December 2015. In her possession were 27 cartons of beer that police had confiscated off one Alice Arali Natau for noncompliance with law. Eight (8) cartons went missing.
   

Issue

3. What is an appropriate sentence for the Prisoner?
   

Law

4. Section 92 carries the maximum sentence of 2 years in jail, but if she did what she did for the purposes of gain, the maximum sentence is 3 years imprisonment. Here the facts and the law relied upon by the Prosecution was section 92 (1) hence the maximum penalty is 2 years imprisonment. The maximum penalty was not warranted considering the aggravating and the mitigating features of the case. A determinate term was warranted. For one it was a very serious abuse of office, she being the criminal clerk of the Kimbe District Court in whose possession was the 27 cartons of beer that were confiscated by police as court exhibits. And 8 out of that lot went missing when she allowed others excess into her office.
   

Allocutus

5. “I want to say sorry of what I did. It was through my boss clerk of court and officer In Charge. I am sorry for what I did and I ask court for mercy since suspended one year without pay. I have young children. My husband travels a lot I used to work for my children.”
   

Aggravation

6. The criminal clerk of the District Court be it in Kimbe or elsewhere in the country is an officer with high integrity and repute because he supports what the District Court does to dispense justice under and according to law. He is the keeper of all records and exhibits as is the case here where evidence is to be placed before court in the process of law against persons who have allegedly breached the law. What the District court does as a court is depended on this office and the occupant of the office. You were in that office acting in the month of December 2015 from your substantive position of Land Court clerk. You were not a stranger to the process and the work of that office. You were negligent and in serious breach of that duty which offended criminal law. You did not realize the far reaching implication of what you did in that office. How you manned and looked after that office had ripples into whether or not the property of a citizen individual or corporate were dispensed with according to law.
   
7. Magistrates of the District Court like the Judges of the National Court are judicial officers whose integrity and repute is of the highest. What they do as judicial officers and the quality and professionalism of that call is depended on those who support as is your case here. You were the custodian of evidence intended to be brought before the court. Evidence that would have shaped the allegation against the citizen one way or the other. Tampering with evidence dealing with evidence contrary to the process of the court is a serious abuse of office on your part. It is not a light matter and can never be a light matter if the life and liberty of a citizen is at stake as was the case here. Twenty seven (27) cartons of beer is a lot of money for the owner Alice Tarali confiscated by police on allegation that she did not have a licence to sell it during the Christmas festive period in December 2015. All these were in your custody by process of law whether or not she was guilty or not was a process of law that was to be followed depending on how well you looked after that evidence the beer confiscated. It did not look well for the prosecution when 8 cartoons went missing from your care and custody. It reflected on the magistracy when you acted as you did here. That office must be protected from abuse as is demonstrated by your conduct here. Public confidence and trust in the court and the office you hold will deteriorate if your conduct and others like you similar are not sternly warned and deterred by strong and punitive sentences.

Mitigation

8. Prisoner is 34 years old from Vese Kandrian West New Britain Province married with four children. She is educated to grade 10 at Kimbe Secondary School in 1999 and also completed Tertiary education at Sonoma Adventist College, Rabaul East New Britain Province. She has no prior breaches with the law. Since formal charges laid, she has been suspended without pay. From the pre-sentence report ordered by the court she is considered favourably and also the victim in the matter Paul Natau has confirmed receipt of K 1030 from the prisoner accompanied by her husband on the 30^th June 2017. The report assessed the prisoner as suitable for probation supervision.
   
9. It would not be the first time that this court has had to consider pre-sentence and means assessment reports to arrive at a sentence proportional to the crime. In State v Jopping [2004] N2678, Justice Kandakasi sentenced the offender to 6 year IHL but suspended for grievous bodily harm and in passing sentence his Honour had this to say which I consider are applicable here and which I apply in your case, “ Persuaded by these considerations, I imposed wholly suspended sentences in The State v. Micky John Lausi (27/03/01) N2073; The State v. Dobi Ao (N0.2) (01/05/02) N2247 and many others. I have done that only in cases where there were well-balanced pre-sentence reports representative and reflective of the community’s view on the kind of penalty that an offender should receive and where the victims were receptive to restitution or compensation and a non-custodial sentence. These factors exist in your case, making it an appropriate case to suspend either the whole or part of your sentence. Having regard to all of the foregoing considerations, I consider a suspension of a substantial part of the remaining part of your sentence appropriate.”
   

Similar cases

10. In State v Aiwol [2012] N4681, this court suspended 2 years IHL against an internal revenue officer who got K900 for a certificate of compliance that was supposed to be free. He personally gained.
    
11. In Public Prosecutor v Jawodimbari [2006] SC891, the provincial secretary and the assistant secretary Finance of the Department of Oro decided to buy a house each from Westpac Bank who were selling in Popodetta. Both used their positions, raised the money and paid Westpac from the department of Oro account on the understanding that they would eventually pay back the money. They failed and audit uncovered and both were criminally charged amongst other charges also of abuse of office section 92 of the Code. Public Prosecutor was not content with the sentence at first instance and the Supreme Court obliged with the Public Prosecutors upholding the appeal and imposing 2 years and suspending it all.
    
12. Given all that I have set out, above I consider and determine that a fair just and proportionate sentence in your case would be 12 months IHL. I impose that upon you but in the exercise of my discretion under section 19 of the Code, considering the favourable probation report including the fact that the mitigation outweighs the aggravation, and that there are no other extenuating circumstances I suspend wholly the 12 months IHL on you entering into a recognizance to be of good behaviour for 12 months. I do not consider a lengthy probation period as you have demonstrated maturity and reform after the offence. You took full responsibility for it and have made amends including repayment of what was taken. That is not to say that you can pay your way out of crime, but that you have taken responsibility without court order for your actions as a sign of maturity and amends. I do not order any further payment of compensation appropriate given that you have been also suspended without pay for the crime since the matter came into the hands of the law, but order that you pay a fine of K500 forthwith. And in this regard I order the conversion of your bail to the fine.
    
    • (a) 12 months IHL suspended on 12 months GBB on condition pay K500 fine forthwith.
      
    • (b) Order that the bail money of K500 be converted to the fine.
      

Orders Accordingly

__________________________________________________________________

Public Prosecutor: Lawyer for the State

Lawyer for the Defendant: Public Solicitor