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State v Hetinu [2022] PGNC 142; N9590 (29 April 2022)

N9590

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]


CR(FC) 99 OF 2021


THE STATE


V


TERENCE HETINU


Waigani: Berrigan J
2022: 8th and 29th April


CRIMINAL LAW – SENTENCE – OFFICIAL CORRUPTION – Section 87(1)(a)(i)(ii) of the Criminal Code – Receipt of monies by Election Manager, NCD, on account of paying polling officials to ensure the election of one candidate – Official corruption of the worst kind – Maximum penalty of 7 years of imprisonment imposed.


Cases Cited


Allan Peter Utieng v The State (2000) SCR No 15 of 2000
Delba Biri v. Bill Ninkama [1982] PNGLR 342
Goli Golu v The State [1979] PNGLR 653
Lawrence Simbe v The State [1994] PNGLR 38
State v Yabara (1984) PNGLR 378
State v Bellamy (2021) N8821
State v Robert Konny (2012) N4691
The State v Dau (2022) N9508
The State v Doreen Tatut (2021) N9023
The State v John Akoko (2000) N2061
The State v Bonga [1988-89] PNGLR 360
The State v Naime (2005) N2873
The State v Gigina (2018) N7358
The State v Kara (2018) N7360
The State v Miguel (2002) N2338
The State v Mako (2006) SC889
The Public Prosecutor v Vangu’u Ame [1983] PNGLR 424
The State v Solomon Junt Warur (2018) N7545
The State v Doreen Tatut (2021) N9023
The State v Tardrew [1986 PNGLR 91]
Wellington Belawa v The State [1988-1989] PNGLR 496


References Cited


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


Counsel


Ms S. Mosoro, for the State
Mr D. Kippa, for Terence Hetinu


DECISION ON SENTENCE


29th April, 2022


  1. BERRIGAN J: The offender was convicted after trial of one count of official corruption contrary to s. 87(1)(a)(i)(ii) of the Criminal Code (Ch. 262) (Criminal Code).
  2. The offender whilst being employed in the Public Service as the Election Manager of the National Capital District (NCD), charged with the responsibility of organising and conducting elections in the NCD, corruptly received monies in the sum of K184,300 on account of paying polling officials to ensure the election of one Michael Kandiu to the NCD Regional Seat, in the discharge of the duties of his office. It was unclear what portion of the monies were for Mr Hetinu’s personal benefit and what portion were to be to paid to polling officials to secure Mr Kandiu’s election, but it is the corrupt receipt of the monies by the offender in the discharge of his duties of office that is at the heart of this offence.
  3. The monies were received pursuant to a memorandum of agreement between Mr Kandiu, Mr Hetinu and Willie Winstand Ipuia, a Coordinator for the Moresby North East Electorate, NCD, under which an unspecified sum of monies was made available to Mr Hetinu and Mr Ipuia for distribution amongst themselves and their families and for distribution for the purpose of ensuring the election of Mr Kandiu. In addition, upon Mr Kandiu’s election to the NCD Regional Seat, the offender was to be awarded all security contracts with the NCD Commission, for a period of at least five years, subject to renewal.

Allocutus


  1. On allocutus the offender said: I will not say much. The only thing I would like to stress here is in my line of work I have never come across what has happened. It was a first time kind of matter that caught me and I would like to take this time only to say I’m sorry for what has happened. I would like to apologize. Firstly, I am sorry to the people of NCD, the people I was entrusted to deliver and provide election services to, free and fair elections. I would like to also apologise to the Electoral Commission, my employer, for my conduct, it has brought disrepute to the Commission back then in 2017. I also would like to say I’m sorry and would like to apologise to the church I belong to, the Seventh Day Adventist Church, where I held a senior position in the Church, as an Elder. Also, I would like to apologise to the Court, for dragging the Court through such a lengthy process this far. I am sorry for breaking the law. One other group of people that I would like to say sorry to is my family. I’ve never allowed them to be in this trial or throughout this matter. It was my own doing that brought me into this but the fact is that they were also affected. A few representatives of my family are here with me and I would like to say sorry to them as well for bringing all this upon my innocent family and also breaking the law of this country. Apart from that I would like to leave it to Your Honour for your good judgement and hope for the best. Whatever the decision, I will accept it. Thank you.

Sentencing Principles and Comparative Cases

  1. The maximum penalty for the offence is 7 years of imprisonment, and a fine at the discretion of the Court.
  2. Defence counsel submitted in mitigation that the offender is usually of good character, except for his prior conviction. The offender does not dispute that he had previously been convicted of three counts of obtaining by false pretence, in 2007, in East New Britain. It is somewhat unclear, but it appears from the report from Probation Services that, and taking the interpretation most favourable to the offender, he was sentenced to two years of imprisonment, which was wholly suspended. Further details were unavailable from Probation Services. It was not contended that the offending took part in any official capacity.
  3. Counsel further submitted in mitigation that the offender and his family, especially his children, have already suffered as a result of the offending. He has been suspended and is likely to be terminated. He is the only breadwinner for his children and his extended family. The property they currently live in is rented and he has no property to send them to if he is imprisoned. According to the pre-sentence report he is a very committed and hard-working employee. He is a quiet and humble member of the community. He has expressed remorse. Counsel asked the Court to also take into account that, the offender was apprehended before he could do any act that would interfere with the electoral process and before he could use the monies found in his possession.
  4. It was conceded in aggravation that the prisoner had a prior conviction and held a position of trust. Whilst the monies were large, he did not benefit from them before he was apprehended.
  5. Counsel submitted that an appropriate sentence lay between two and four years, which should be wholly suspended. The offender is willing to pay a fine in substitution for imprisonment. The offender has demonstrated that he will faithfully comply with the conditions of probation as he did on the last occasion.
  6. In response to my question, counsel agreed that this would be an offence of the worst kind, but for the fact that the offender was caught before being able to interfere with the election process.
  7. Counsel relies on the following comparative cases:
  8. The State acknowledged in mitigation that the offender did not personally benefit from the monies before they were seized from him. He has shown genuine remorse. In aggravation, the amount of monies involved was large. The offence involved a serious breach of trust. The case had a negative effect on the State in terms of causing distrust in the Electoral Commission and the electoral system. Official corruption is prevalent. The offender is not a first time offender. In the circumstances a sentence of three to four years of imprisonment was appropriate having regard to comparative authorities. The State did not oppose partial suspension. In addition to Tatut and Konny it also referred to:
    1. The State v John Akoko (2000) N2061, Injia J: the offender was a former policeman, and member of the Police Task Force in Lae. He pleaded guilty to stealing K7000 recovered from K180,000 recovered from a robbery, in the course of performing his official duties. He was arrested with K5,528.40 in his pocket. By this time, the balance of K1,477.60 had already been used by him. He was sentenced to five years of imprisonment, less time spent in custody, of which two years was suspended.
  9. I have also had regard to the following cases:
  10. Section 19 of the Criminal Code provides the Court with broad discretion on sentence. Whilst guidelines and comparative cases are relevant considerations, every sentence should be determined according to its own facts and circumstances: Lawrence Simbe v The State [1994] PNGLR 38.

Consideration


  1. The offender is 51 years of age. He is from Biteve Village, Kainantu, Eastern Highlands Province.
  2. The offender completed Grade 10 at Mt Diamond Adventist High School in 1986 and was selected to Sonoma Adventist College Rabaul from which he graduated with a Diploma in Theology in 1991.
  3. In mitigation the offender expressed remorse on allocutus. It is of limited weight, however, given his statements to Probation Services maintaining his innocence.
  4. In this regard may I again emphasise that it is neither necessary nor appropriate for Probation Services to ask the offender to set out the circumstances of the offence for the purpose of the pre-sentence report. Whether on a guilty plea, or following trial, the facts establishing the offence have been determined by the Court: State v Bellamy (2021) N8821 at [69]. Nor should Probation Services have conducted its own enquiries with Michael Kandiu, Patilias Gamato, or officers at the Electoral Commission about what happened. That is wholly inappropriate.
  5. I do, however, accept that the offender has at all times demonstrated that he respects the criminal process and the Court’s decision. He is, of course, entitled to maintain his innocence, but that does reduce the weight of his remorse in mitigation.
  6. I also take into account that, at the time of the offending the offender had a long and impressive employment record with the Electoral Commission until his suspension in September last year. In 2007 he was employed as a casual driver with the Electoral Commission before rising to the position of Election Manager for Port Moresby in 2009. Whilst at the Commission, the offender served as returning officer, and election manager, in numerous locations across the country, including East New Britain, Simbu Province, Madang Province, Western Highlands and NCD, in addition to conducting numerous industrial and association elections across the country. Whilst this must be taken into account, the offender would not have been the Electoral Manager of NCD otherwise, and it is his action of abusing that position of trust which has resulted in the charge against him. For this reason, his previous good service as a mitigating factor is of little weight: Wellington Belawa v The State [1988-1989] PNGLR 496.
  7. Whilst his prior conviction is relevant for the reasons discussed below, I do accept that he was of good standing at the time of the offence. As above, he held a position of trust at the Electoral Commission. He was a long serving member and elder of the Seventh Day Adventist Church. By all accounts he was regarded as a hard-working and humble man by members of the Electoral Commission, and a respected member of the community. He is also a committed family man.
  8. In 2005 he and his wife were seriously injured in a house fire, soon after which his wife died. He became a single father to five children, aged then between 11 months and ten years of age, for whom he remains financially responsible. He remarried and, whilst he and his wife have since separated, he is financially responsible for their ten year old daughter. In addition, he is financially responsible for nine people who live with him in Port Moresby, including his 80 year old mother, his 14 year old son, and three grandchildren aged between 3 months and three years.
  9. It is also relevant that the impact of the offence on the offender has been and will continue to be grave. He held a senior position at the Electoral Commission, and after twelve years of dedicated service, has lost not only his career but his reputation. It will be difficult for him to obtain formal employment again, particularly in the Public Service, given his age, education and the nature of the offence.
  10. I acknowledge that imprisonment will have a very significant impact on the offender’s family, in particular his children, who are still young and financially and emotionally dependent on him. It is well established that except in very extreme circumstances, however, the impact on family is not ordinarily a relevant consideration on sentence: Allan Peter Utieng v The State (2000) SCR No 15 of 2000; The Public Prosecutor v Vangu’u Ame [1983] PNGLR 424.
  11. There are no extenuating circumstances and no matters of special mitigation. I do take into consideration, however, that the offender continues to suffer from pain and reduced mobility as a result of the burns sustained in 2005. A medical report is provided by Dr Agebigo of the Port Moresby General Hospital Dermatology Clinic who saw the offender on 5 April 2022. He confirms that the offender is generally in good health. Local skin examination revealed multpile atrophic scars to his right forearm, wrist, back of his hand, lower left leg and foot, and right foot sustained during the fire over 17 years ago. A rugged chronic marjolin ulcer was observed on his right foot. The scars are permanent and the contractures with ulcers will continue to affect him into the future. Majolin ulcers have been known to evolve into malignant ulcers if not treated well. He was recommended ulcer care and advised to take regular physiotherapy and analgesics when required. He will require regular visits to the clinic for ongoing care, especially for the marjolin ulcer.
  12. The offender exercised his right to trial. I make it clear that, that is not a matter of aggravation. It simply means that he is not entitled to any discount that might have been available to him had he pleaded guilty: The State v Solomon Junt Warur (2018) N7545.
  13. Against the above, the following matters in aggravation must be considered.
  14. The offence of official corruption recognises that all those entrusted with the power and authority of public office, at any level of the Public Service, must be accountable to the people: The State v Doreen Tatut (2021) N9023.
  15. In my view, this was official corruption of the worst kind, warranting the maximum penalty: Goli Golu v The State [1979] PNGLR 653.
  16. The offending in this case involved a gross breach of trust.
  17. It should never be forgotten that free and fair elections are the foundation upon which every thriving democracy rests, ensuring that government authority derives from the will of the people. The right to vote is enshrined in the Constitution, and that right is sacred. The future of the country depends on it.
  18. It is “fundamental that elections are decided by voters who have a free and fair opportunity of electing the candidate that the majority prefer. That is a sacred right...”: Delba Biri v. Bill Ninkama [1982] PNGLR 342, per Kapi DCJ, Los J, Hinchliffe J.
  19. In this case the Election Manager for NCD corruptly received monies for the purpose of “rigging” the election in the course of his duties.
  20. It was a shocking crime. It should shock the voters of NCD, and indeed the nation, that the person charged with the responsibility of ensuring a free and fair election in the NCD would interfere with the rights of voters at the behest of a candidate for his own personal gain. Let’s not mince words here. This was about buying the election, or more particularly, from Mr Hetinu’s perspective, about selling it.
  21. The offender’s conduct makes a mockery of the Constitution, strikes at the heart of democracy, and offends against the will of the people. Politicians must be chosen by the people, on the basis of their policies and performance. They must be not be permitted to interfere with that process because of the size of their wallet, and they must not be appointed at the whim of a public official for his own personal gain.
  22. I have considered defence counsel’s submission that this was not an offence of the worst kind because the offender’s attempts to influence the election outcome were thwarted and because he was apprehended in possession of the cash. Despite those factors I remain of the view that this is an offence of the worst kind having regard to the nature and extent of the abuse of trust involved and in view of the following further aggravating factors, which far outweigh any matters in mitigation.
  23. Whilst the offence recognises that official corruption may occur at any level, in general terms the more senior the official, the more serious the offence. The offender was a senior official. I reject the submission that the offence is less serious because the offender was not a polling official himself. The offender was the Election Manager for NCD. It was he who had overall responsibility to organise and conduct free and fair elections in the NCD, and it was he who supervised the polling officials he intended to influence.
  24. Furthermore, it is clear that the offence is one that must have had a serious effect on public confidence. The purpose of the Electoral Commission is to ensure that free, safe and fair elections are conducted in accordance with the Constitution. Public confidence in the electoral process, and indeed those elected to office, depends upon the integrity of the Electoral Commission.
  25. National elections are fiercely contested by candidates from all walks of life who hope to serve the people of their constituency. Great cost and effort is expended across the country to educate voters as to their rights. Significant public resources are devoted to promoting free, safe and fair elections. Dedicated electoral officials, and thousands of temporary polling officials, work long and hard to prepare for and conduct the elections. Large numbers of police and other members of the disciplinary forces are redirected from their normal duties to maintain safety and security. Voters queue for hours to cast their vote, sometimes having to travel great distances to do so. Yet, too often elections are marred by reports of fraud, intimidation and interference. Election petitions challenging both the election process and its results across the nation are filed with the Courts. I have no doubt that such a serious offence by such a senior electoral official must have tarnished the reputation of the Electoral Commission, and all those who serve with honour and distinction in very challenging circumstances, and seriously undermined public confidence in the election process and its results, not just in NCD but across the country.
  26. In addition, this was not some spur of the moment offending. As reflected in the detailed and formalised memorandum of agreement, it involved significant planning.
  27. Whilst he did not ultimately benefit from them, the amount of monies received were large. The potential reward under the memorandum of agreement was even greater.
  28. Whilst it is also an aggravating factor that the offender was previously convicted of a dishonesty offence, I take account of the fact that the offence took place over ten years ago and was not related to his employment duties.
  29. Finally, official corruption is prevalent, as are efforts to interfere with the electoral process. This case calls for both specific and strong general deterrence.
  30. In summary, having regard to the degree of trust involved, the seniority of the offender, the effect on public confidence, the level of planning involved, the amount of monies received, the prevalence of the offence, and the prior conviction of the offender, it is my view that this is official corruption of the worst kind. I sentence the offender to seven years of imprisonment. I do not intend to impose any fine. I am not satisfied that the offender has the financial means to make payment.
  31. It is my view that neither partial or whole suspension is appropriate in this case. See The State v Tardrew [1986 ] PNGLR 19, Restitution is not relevant here. Whilst the offender’s medical condition will require ongoing review and treatment from time to time, there is no evidence to suggest that he will suffer excessively in prison. It does not appear that medical treatment for his scars has been required until recently, and there is no reason why Correctional Services cannot in accordance with its obligations ensure his regular review and treatment at Port Moresby General Hospital.
  32. Moreover, public interest in this case is paramount. Few allegations of electoral interference are prosecuted through the criminal process, and when they are they must be met with a stern and deterrent penalty.
  33. As the country stands on the eve of elections, a severe penalty must be imposed as a clear warning to potential offenders, and to maintain public confidence in the electoral process.
  34. In view of the offender’s age and medical history the sentence will be served in light labour. To date no time has been spent in custody.
  35. I make the following orders.

Orders


(1) The offender is sentenced to seven years of imprisonment in light labour to be served at Bomana Correctional Institution.
(2) Bail monies are to be immediately refunded.

Sentence accordingly.
___________________________________________________________
Public Prosecutor: Lawyers for the State
Wang Dee Lawyers: Lawyers for the Accused


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