N9023

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CR (FC) NO. 74 OF 2021

THE STATE

V

DOREEN TATUT

Waigani: Berrigan J
2021: 6th July, 2nd and 16th August

CRIMINAL LAW–SENTENCE – OFFICIAL CORRUPTION - S 87(1)(a)(i)(ii) of the Criminal Code – Guilty plea – K450 paid to the offender in the discharge of her duties as a lodgement officer within the Titles Section of the Department of Lands.

Cases Cited:

Goli Golu v The State [1979] PNGLR 653 
The State v Tardrew [1986] PNGLR 91
The State v Frank Kagai [1987] PNGLR 320
The State v Bonga [1988-89] PNGLR 360
Lawrence Simbe v The State [1994] PNGLR 38
The State v Miguel (2002) N2338 
State v Naime (2005) N2873 
The State v Gigina (2018) N7358
The State v Kara (2018) N7360 
The State v Konny (2019) N4691

Legislation and other materials cited:

Sections 19, 87(1)(a)(i)(ii) of the Criminal Code.  

Counsel

Ms Ilave, for the State
Mr Pilaei, for the Accused

DECISION ON SENTENCE

16th August, 2021

1.	BERRIGAN J: The offender, Doreen Tatut, pleaded guilty to one count of official corruption, contrary to s. 87(1)(a)(i) and (ii) of the Criminal Code, on the basis of the following agreed facts, which were confirmed by the depositions.

2.	The offender was employed as a Lodgement Officer within the Titles section of the Department of Lands and Physical Planning.  Between 21 January 2019 and the 23 February 2019, the complainant, Tonessi Jiji Ewebi went to the Department to apply for the replacement of the title for his property located at section 108, Allotment 10, Hornbill Crescent, Lae, Morobe Province.  He was served by the offender as Lodgement Officer.  The complainant paid the requisite K500 application fee and was issued an official receipt.  The offender then asked the complainant to give her some money so she could do the job of replacing the title for him.  The complainant gave the offender K450 in cash.  The offender was unable to issue the title document because of a caveat, or mortgage, over it, and the complainant reported the matter to police.

Allocutus 

3.	On allocutus the offender said:  I apologise for what I did. This is my first time and I say sorry to the court for what I did. 
Sentencing Principles and Comparative Cases
4.	The offender has been convicted of one count of official corruption, contrary to s. 87(1)(a)(i) and (ii) of the Criminal Code for which the maximum penalty is 7 years of imprisonment.  I am grateful to both counsel for their helpful submissions.

5.	Defence counsel submitted that a sentence of one to three years, wholly suspended would be appropriate.  He referred to the following cases:

a)	The State v Konny (2019) N4691, Makail, J: the offender pleaded guilty to official corruption and permitting an escape from lawful custody.  He released a prisoner after receiving K700 from the prisoner’s relative.  Later, however, he went and rearrested him and surrendered the monies to his Police Station Commander.  He was sentenced to 3 years and 1 year, respectively, to be served concurrently, and wholly suspended; 

b)	The State v Miguel (2002) N2338, Injia, J (as he then was):  the offender was found guilty following trial of paying a Tax Assessment Officer K500 to induce him to make favourable Company Tax returns in order to expedite the liquidation process of his company.   He was sentenced to four years of imprisonment; 

c)	The State v Bonga [1988-89] PNGLR 360, the prisoner was sentenced to 4 months IHL after a trial, for offering K5 to a police officer to drop traffic offences charges against him.  

6.	The State submitted in mitigation that the offender had pleaded guilty, expressed remorse and was a first time offender, willing to repay the monies. In aggravation it was submitted that there was a breach of trust, the offence was prevalent and the complainant still had not received his replacement title.  It submitted that having regard to Konny and the following cases, a sentence of three to four years was appropriate, although it correctly acknowledged that the cases concerned police officers, who owe a greater duty.

a)	State v Naime (2005) N2873, Mogish J: a policeman holding the rank of First Constable pleaded guilty to one count of official corruption, for taking two horse race machines and delivering them to a third person in return for K200.  The maximum for that offence is seven years, compared to the maximum here of ten years.  The offender was sentenced to four years imprisonment in hard labour.  One week spent in custody was deducted and eighteen months suspended on condition of good behaviour, with the balance of two years, five months and one week to be served in custody.  In addition, the prisoner was fined K300;  

b)	The State v Gigina (2018) N7358:  The prisoner, a civilian clerk in the Traffic Directorate of Police, at the Police Headquarters in Konedobu, pleaded guilty to one charge of official corruption.  She asked and received K400 from the complainant in order to prepare an accident report for him, keeping K200 for herself and giving K200 to another policeman.  She was sentenced to 3 years imprisonment in hard labour, wholly suspended on condition of a good-behaviour bond and payment of a fine of K1000 within 7 days;

c)	The State v Kara (2018) N7360:  The prisoner was a police officer who pleaded guilty to official corruption and aiding a prisoner to escape from lawful custody.  He was given two-hundred kina (K200) to release a detainee from the Gordons Police Station.  He was sentenced to 3 years and 5 years, respectively, to be served cumulatively, but reduced to four years on the basis of totality. 

Consideration  

7.	It is well established that the maximum penalty is reserved for the most serious instances of the offence:  Goli Golu v The State [1979] PNGLR 653.  This is not such a case.

8.	Section 19 of the Criminal Code provides the Court with broad discretion on sentence. Whilst guidelines and comparative cases are very relevant considerations, every sentence should be determined according to its own circumstances: Lawrence Simbe v The State [1994] PNGLR 38.  

9.	Having regard to the principles outlined in Wellington Belawa, the following matters have been taken into account.

10.	The offender is 38 years of age.  She is from Talvat Village, Kokopo, East New Britain and currently lives in Taurama/Vadavada, Port Moresby, with her husband and two of her three children, all of whom are school aged.  Her third is doing grade 9 at Warongoi Secondary School in East New Britain Province. 

11.	The offender’s highest level of education was year 10 at Tabubil High School, Western Province in 1997.  She joined the Department of Lands & Physical Planning not long after and has worked her way up over the past 21 years to the position of Lodgement Officer attached to the Titles Division.

12.	In mitigation this is the offender’s first offence.  I accept that she is of prior good character.    

13.	Very significantly, the offender cooperated from an early stage with authorities and pleaded guilty at the first opportunity before this Court. I am satisfied of her genuine remorse.  Her guilty plea has also saved this Court, and the State, the time, cost and inconvenience of a trial.     

14.	I accept that the offending has impacted on her standing in the community.  It does not appear that she has lost her position at the Department of Lands.  There can be no doubt that any time spent in custody will have a significant impact upon her family and children.  

15.	The mitigating factors in this case are significant but they must be weighed against those in aggravation. This was a very serious case.  The offending was conducted by a long-serving officer of the Department of Lands.  The offence involved a serious breach of public trust.  Those who are entrusted to exercise the power and authority of public office, at any level of the public service, must be accountable to the people.  

16.	Evidence of title is important for so many things, proving ownership, obtaining loans whether personal or business, selling or purchasing property.  Ownership of land is often a contentious issue.  There must be confidence in the public agency responsible for maintaining those records. Whilst I accept that the offender did not alter any records, and that the monies involved were not very large, it does not alter the fact that they were required from the complainant, for the offender’s own benefit, for simply doing the job that she was employed and paid a salary to perform.  The offender has been the beneficiary of being paid out of the public purse for the last 21 years.  Her family, her children have all benefited as a result.  There would be many people who would dearly love to have such an opportunity, over such an extended period of time. 
  
17.	Official corruption is a very serious offence. As Makail J said in Konny:

“It is deadly because it can kill a nation if it is not dealt with swiftly and sternly. It is like a cancer that grows in the human body and if not treated quickly, can grow big and cause death. Its impact on the society must never be under estimated. It has far reaching consequences. A nation's progress and development is dependent on its work force and if public officials who make up the bulk of the work force in this country indulge in corrupt activities, their actions can bring down the entire nation.”
18.	The corruption in this case is particularly insidious and difficult to detect.  Officials demand monies for simply doing their job. This case is the perfect example of the type of cancer that grows until, like the situation in some countries, it becomes so entrenched that it simply becomes accepted as a necessary part of dealing with the public service.  

19.	This case was only detected because the title could not be issued until the complainant produced a discharge of mortgage over the property. The complainant has said that he does not want reimbursement but his title.  Well he is not entitled to it just because he has paid extra money to an officer.  He is only entitled to what he is rightfully entitled to according to the Department’s records.  He should go and speak to a proper officer at the Lands Department.  I accept that he was not trying to have any records altered, but he too was contributing to the culture of corruption by paying the monies instead of reporting the offender to her superiors.  

20.	In my view the aggravating features of the offender’s conduct far outweigh the factors in mitigation.  Official corruption is prevalent and this case calls for both general and specific deterrence. Having regard to all of the above matters I sentence the offender to three years in imprisonment.  

21.	The question remains whether any of the sentence should be suspended. 

22.	In The State v Tardrew [1986] PNGLR 91 the Supreme Court set out three broad, but not exhaustive, categories in which it may be appropriate to suspend a sentence, namely: where it will promote the general deterrence or rehabilitation of the offender; where it will promote the repayment or restitution of stolen money or goods; or where imprisonment would cause an excessive degree of suffering to the particular offender, for example because of bad physical or mental health. 

23.	Restitution is not the issue here. This case is not about the amount of money paid.  It is the principle here that is important.  There is nothing to suggest that the offender will suffer excessively in prison.  Probation Services regards the offender as suitable for probation. I am satisfied that the offender has good prospects of rehabilitation.  This is demonstrated by her early and full cooperation with authorities and his early plea before this Court.  This is not an exercise in leniency but an order made in the community interest: The State v Tardrew [1986] PNGLR 91; The State v Frank Kagai [1987] PNGLR 320.  The offender will, however, need to pay a fine to the State.  She will also need to perform community service so that she does not easily forget the serious nature of her conduct.   

24.	In the circumstances I make the following orders.

Orders

(1)	The offender is sentenced to three years of imprisonment in light labour to be served at Bomana Correctional Institution.

(2)	The sentence is wholly suspended on the following conditions:

a.	The offender entering into her own recognisance to keep the peace and be of good behaviour for the period of her suspension;
b.	The offender shall perform appropriately designed community work under the supervision of the Probation Service one day every weekend for a period of one year during the period of her suspension; and
c.	The offender shall pay a fine of K2000 within one month.

(3)	The offender’s bail monies are to be converted towards meeting the fine.

(4)	Any bail monies lodged by guarantors are to be immediately refunded.

________________________________________________________________
Public Prosecutor:   Lawyer for the State		
Public Solicitor:      Lawyer for the Offender