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State v Marai [1992] PGNC 98; [1992] PNGLR 53; N1053 (12 February 1992)

N1053

PAPUA NEW GUINEA
[NATIONAL COURT OF JUSTICE]

THE STATE

V

ALLAN EBU MARAI

Waigani
Los J

12 February 1992

CRIMINAL LAW - Particular offence - Failure to attend the Ombudsman Commission when summoned - Sentence.

CONSTITUTIONAL LAW - Failure to comply with Ombudsman Commission's directives - Sentence - Organic Law on Duties and Responsibilities of Leadership Ch 1.

Facts

The defendant was convicted of nine offences under the Organic Law on the Duties and Responsibilities of Leadership (The Leadership Code). Seven were in relation to non production of various documents when required by the Ombudsman Commission and two were in relation to failing to attend the Ombudsman Commission when summoned. At the investigation stages of the charges, the defendant's attitude ranged from reluctance to delay and evasiveness. After mention, the defendant failed to appear for hearing without good cause despite being given two and a half months notice of the hearing. Eventually, when he appeared after a bench warrant was issued, he pleaded guilty to all nine charges and was convicted accordingly.

Held

1. All leaders must observe their responsibilities and obligations. Hence, under the Leadership Code, all leaders are required to furnish certain information to the Ombudsman Commission and they must do so. When they are called upon to attend the Ombudsman Commission, they must also do so.

2. The court has a discretion to impose a lesser punishment and not to mandatorily impose the maximum penalties. Since the prisioner has been very uncooperative and he only pleaded guilty for his own convenience and not to save the court's time or the investigator's time, an appropriate punishment that would make leaders comply with the objective of the Leadership Code should be imposed.

3. Accordingly, one month imprisonment on each of the counts from counts one to seven is imposed and should be served concurrently. Three weeks of it is suspended on the condition that the prisioner attend and produce documents to the Ombudsman Commission as required. A fine of K500 imposed on counts eight and nine. Since the prisioner has spent a night in jail, the Court ordered that he should serve a six days sentence and that the fines be paid before he was released.

Cases Cited

Alar and Biu v The State [1979] PNGLR 300.
Constitutional Reference No 1 of 1978 (Re Leo Morgan) [1978] PNGLR 460.
Yabara v The State [1984] PNGLR 378.
State v Kathy Ramoi [1988-89] PNGLR 516.

Counsel

D Canning, for the State.
H Nii, for the defendant.

12 February 1992

LOS J: You have been convicted of nine (9) offences under the Organic Law on the Duties and Responsibilities of Leadership (OLDRL). Seven of the charges arose from your failure to produce various documents relating to various allegations against you. The last two charges relate to your failure to attend the Ombudsman Commission when summoned.

As you must know, all the leaders in Papua New Guinea are subject to the Leadership Code, and when they are required to furnish certain information to the Ombudsman Commission they must do so. And when they are called to attend they must attend.

You made it difficult for yourself at two stages. At the investigation stage your attitude ranged from reluctance to that of delay and evasiveness. Then when you did come to court you made it difficult by not attending the court when you had some two and half months notice that the hearing would resume on 4 February this year, at 9.30 am.

Mr Cannings spoke at some length to stress that leaders not only have high status, prestige and wealth but they also have high responsibilities. Because of that, he submitted that maximum penalties provided under OLDRL should be imposed. He said fines were not appropriate because a rich man can easily pay fines and may not feel that he has been punished at all. And for imprisonment, he argued that as a matter of law maximum imprisonment in each case should be imposed.

I agree that if anybody wants to be a leader he must observe his responsibilities and obligations. I do not agree that the court has no discretion to impose a lesser punishment. If it were so, it would produce ridiculous results because no two offences can be committed in manners and extents equal in all respects. In the State v Kathy Ramoi [1988-89] PNGLR 516 a lesser fine was imposed.

Various cases were cited to show the extent of responsibilities the leaders have (e.g. Re Leo Morgan [1978] PNGLR 460, Yabara v The State [1984] PNGLR 378, Alar and Biu v The State [1979] PNGLR 300). Many of these cases are of general assistance only: Yabara's case and Alan and Biu's cases, for instance, dealt with crimes under the Criminal Code carrying maximum penalties of 14 years imprisonment.

You raised a number of points for me to consider in your favour. In one category, you raised concern about the welfare of your family, particularly that your family may be under a risk from your political opponents if you are sent to jail. You also showed, and I accept, that you did on certain occasions cooperate with the Ombudsman Commission. Then you pleaded guilty yesterday.

But you pleaded guilty after creating so much havoc, and you did so to save your time and not the court's time nor the investigator's time. In the other category, I accept your point that you had practical difficulties. But it had taken you so much time to respond to the Ombudsman Commission.

I mention only some factors as examples of the factors compelling me to impose imprisonment upon you. But I do not have to impose maximum penalty. There is so much non cooperation going on and the Ombudsman is very concerned. But I do not think a full justice would result in this court making you a scapegoat for everybody else's trouble.

In the final analysis, I must put more emphasis on your own action and a punishment that would make you comply with the objective of the OLDRL, that is, to furnish the information required and attend the Ombudsman Commission if you are summoned.

I impose one month imprisonment on each of the counts from counts one to seven. And I impose K500 fine on counts eight and nine.

I order that the one month imprisonment imposed on each of the seven counts be served concurrently. I also order that three weeks of the concurrent sentences be suspended on the conditions that you attend and produce documents to the Ombudsman Commission as required in relation to the allegations that led to the offences for which you have been convicted. As you have already spent a night in jail, I order that you serve six days sentence before you are released.

The fines must be paid before you are released.

____________________

Lawyers for the State: Ombudsman Commission.
Lawyers for Marai: Kirkes Lawyers.