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State v Gigina [2018] PGNC 268; N7358 (13 July 2018)

N7358

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR (FC) 112 of 2018

THE STATE

V

MARGRETH GIGINA

Waigani: Miviri AJ
2018 : 06th July

CRIMINAL LAW – PRACTICE AND PROCEDURE – Plea – Official Corruption- Civilian Clerk Police Traffic Directorate – receipt of K400 – corrupt discharge of duties – provision of traffic accident report – serious breach of trust – deterrent and punitive sentence.

Facts
Accused was a Civilian Clerk in the Traffic Directorate of the Police Department. Complainant came to get an accident report relating to an accident. Accused told him, "igat save face stap kisim sampela moni kam na mipela bai wokim report bilong yu," We are friends give us some money and we will do a report for you. K400 was given by Complainant but report was not made.

Held
Guilty plea.
Official corruption
Serious breach of trust
Police Civilian clerk
Deterrent and Punitive Sentence.

Cases:
The State v Avia Aihi (No 3) [1982] PNGLR 92
The State v Bonga [1988-89] PNGLR 360
The State v Jonathan Kara Cr (FC) 23 of 2018
The State v Mako [2006] PGSC 29 ; SC889 (30 June 2006)
The State v Miguel [2002] PGNC 25; N2338 (6 December 2002)

Counsel:

L Jack, for the State
I. Paileai, for the Defendant

SENTENCE

13^th July, 2018

1. MIVIRI AJ: This is the sentence of a Civilian Clerk employed in the Traffic Directorate of Police Stationed at the Police Headquarters Konedobu who corruptly received K400 from the Complainant in exchange for an accident report never made out.
   

Short facts.

2. Margreth Gigina was employed with the Traffic Directorate of the Police Department as a Civilian Clerk. She uttered, "igat save face, stap kisim sampela moni kam na mipela bai wokim report bilong yu," we are friends give us some money and we will prepare a report for you. This happened on the 20^th June 2017 when Kiwa Kem went to get an Accident Report on his son, so he gave K400 to her in anticipation of that report. She kept K200 and gave K200 to a policeman in anticipation of preparation but the matter was already attended to by another policeman and so was not prepared.
   

Charge

3. Prisoner has been charged with Section 87 (1):
   

"A person who

(a) being-

(i) employed in the public service, or the holder of any e;

and

(ii) charged with the performance of any duty by virtue of employment or office, (not being a duty touching the administration of Justice),

corruptly asks, receives or obtains, or agrees or attempts to receive or obtain, any property or benefit for himself or any other person on account of anything done or omitted to be done, or to be done or omitted to be done by him in the discharge of the duties of his office; or

(b) corruptly gives, confers or procures, or promises or offers to give or confer, or to procure or attempt to procure, to, on or for any person, any property or benefit on account of any such act or omission on the part of a person in the public service or holding a public office,

is guilty of a crime.

Penalty: Imprisonment for a term not exceeding seven years, and a fine at the discretion of the court.

(2) A person shall not be arrested without warrant for an offence against subsection (1)."

Plea

4. Prisoner pleaded guilty to the indictment. She did not raise any defence in law apparent or identifiable otherwise than the confirmation of the guilty plea. Defence made application under Section 13 and 25 of the Probation Act for Presentence Report and Means Assessment Reports in the assistance and determination of an appropriate sentence against her. Both these reports are before me now Friday 13^th July 2018 in the determination of this sentence. I give due consideration to both reports and incorporate relevant excerpts in this sentence upon the prisoner.
   

Aggravation

5. This is a calculated abuse of an office expressed in the words set out above in pidgin, yet again from another employee of the police Department this time from a civilian in the traffic directorate holding that office and performing duties called for under Section 197 of the Constitution to preserve peace and good order in the country the highest law of the land Section 10 and 11. I likened her to a policeman or woman in uniform because the duty that she carries out gives effect to the discharge of Section 197 of the Constitution. She is in that sense no different from State v Jonathan Kara Cr (FC) 23 of 2018 also sentenced in these proceedings and what is set out in that case is applicable here. The civilian component of the police Department is as much as important as the uniform component performance by both giving effective police service to the State and the nation and therefore she is no different from a uniformed personal in the determination of an appropriate sentence here.
   
6. The enforcement of law to instil its rule in the community cannot be a light matter against any policemen or public official as here holding a public Office let alone the prisoner. Whether it is the enforcement of law leading to the detention or otherwise of a citizen paralysing freedom as it is known in law without any basis in law or as here supplying a report necessary for the enforcement of law but with corruption in profiting from such dents and tarnishes the good name of Police. Here it was K400 in cash and the report never made out. It is not a light matter in view of the prevalence of this offence especially against Police. This is third such incident before me this circuit. It is an offence that has in many instances not only led to criminal action but civil suit that have drawn into the treasury of the State. In passing sentence the court is mindful of these including that in many instances the quality or quantity of government service has always been questioned because of this offence. It leads to those who have will receive those who do not will not receive; here an accident report that was needed was already the subject of investigation by another. What the prisoner did only profited her and not the complainant who was still yet to be provided with it.
   

Mitigation

7. On the other hand the prisoner is still employed and has repaid back the K400 taken which is genuine. She was an employee of that department since 1975 which makes her 42 years in service in that office without any blemish. The conviction now imbedded to her record in life effectively stops any future prospects of employment and sends her to life after public Service with a very bad record and ending. She pleaded guilty saving court time and administration in the prosecution of the matter. And is a first time offender aged 58 years old born 1959 educated to high School in Kwikila High School, of the united Church originally from Ginigolo village, Rigo, Central Province.
   
8. Mako v The State [2006] PGSC 29 ; SC889 (30 June 2006) reflects similar facts as her case, where the appellant also a policeman charged a suspect for attempted murder, locked him in the cells at Wabag, then produced a blank bank withdrawal slip to the suspect who signed. The appellant took it to the bank withdrew K150 and sometimes later that day released the suspect from the Wabag Police cells. He appealed against his conviction on the basis that it was not established that indeed there was exchange of K150 and that the sentence of 7 years IHL was manifestly excessive. The Supreme Court upheld the appeal against sentence and reduced it to 4 years IHL balance served in custody was deducted and the remainder was suspended on conditions viewing that his 17 years career in the police Force now terminated was itself a punishment hence the 7 years was excessive in view. Conviction was confirmed.
   
9. Here is a 42 year career which has serious questions on continuity in the light of this conviction. It is likened to Mako's case which is adopted in this regard. Including that the facts are likened to each other. The money involved here is K400. But prisoner has pleaded guilty and expressed remorse. The presentence report together with the means assessment reports are in her favour detailing her background and the circumstances of the offence. These are considered in her favour in the determination of sentence. Importantly disclosing that there was no reason disclosed as to why the prisoner committed the offence. She was earning well per fortnight as a civilian clerk. There was no reason to commit the offence.
   
10. In the State v Bonga [1988-89] PNGLR 360 prisoner was arrested and charged by traffic police for illegal parking and was waiting to be taken to Boroko Police Station to be locked up. Prisoner gave K5.00 to the Police informant to forget the matter. He was convicted and sentenced to 4 four months IHL. The Constable who reported was a new recruit to the police. His actions were commended by the court. In the State v Miguel [2002] PGNC 25; N2338 (6 December 2002) the prisoner gave K500 to the tax assessment officer to induce favourable company returns for his company. He was convicted after trial and a sentence of 4 years IHL was imposed. The court viewed it serious when money was offered so that the public official exercise duties inclined to the defendant, not by dictate of office but by enticement and illegality.
    
11. These cases are relevant to the facts and circumstances of the present offence and I apply them here in the determination of an appropriate sentence against the prisoner. The maximum penalty for official corruption is under section 87 (1) is imprisonment of 7 years or a fine at the discretion of the court. Here the facts and circumstances set out do not invoke that the maximum penalty be imposed: Avia Aihi v The State (No 3) [1982] PNGLR 92. But it is a serious and prevalent offence and must be deterred.
    
12. On the other hand the prisoner has pleaded guilty, is a first time offender aged 58 years old. There are no extenuating circumstances apparent or identifiable to sway other than the sentence proportionate as appropriate of 3 years IHL. This I do so given her guilty plea and her unblemished record and her demise as a public servant out from the Police Department which she has loyally served for 42 years since first employed there. She no doubt in that way has contributed to nation building which is not taken away in this offence but credited to her in the determination of an appropriate sentence.
    
13. The sentence of the court upon the prisoner for the crime of official corruption pursuant to Section 87 of the Criminal Code is 3 years IHL.
    
14. The 3 years is wholly suspended on a 3 years Good Behaviour Bond on a fine of K1000 to be paid within 7 days as of today's date 13^th July 2018.
    
15. Prisoner will file official receipt of payment with the Registrar of the National Court by or before the 24^th July 2018, before entering into the 3 years Good Behaviour Bond.
    

Ordered Accordingly

__________________________________________________________________Public Prosecutor: Lawyer for the State

Public Solicitors: Lawyer for the Defendant