Vereivalu v The State [2004] FJHC 154; HAA0069J.2004S (1 October 2004)

IN THE HIGH COURT OF FIJI
AT SUVA
APPELLATE JURISDICTION

CRIMINAL APPEAL NO: HAA0069 OF 2004S

Between:

TUIPOLOTU HALAFIAFI VEREIVALU
Appellant

And:

THE STATE
Respondent

Hearing: 16th September 2004
Judgment: 1st October 2004

Counsel: Mr. S. Valenitabua for Appellant
Mr. N. Lajendra for State

JUDGMENT

The Appellant was sentenced to a total of 4 years imprisonment for the following offences:

FIRST COUNT

Statement of Offence

LARCENY BY SERVANT: Contrary to Section 274(a)(i) of the Penal Code Act 17.

Particulars of Offence

TUIPOLOTU HALAFIAFI VEREIVALU, during the month of November 2003 at Suva in the Central Division, being employed as a casual Clerical Assistant with the Ministry of Education (Exams), stole a 2003 Fiji School Leaving Certificate Examination English Paper valued at $8.00 and a Maths Paper valued at $8.00 to the total value of $16.00 the property of the Ministry of Education.

SECOND COUNT

Statement of Offence

DISCLOSURE BY PERSONS ENGAGED IN EXAMINATIONS: Contrary to Sections 5(a) and 8 of the Examinations Act 262A.

Particulars of Offence

TUIPOLOTU HALAFIAFI VEREIVALU, during the month of November 2003 at Suva in the Central Division, whilst being engaged in collating Fiji School Leaving Certificate Mathematics paper, knowingly disclosed the contents of the said paper to INOSI VUNITABUA.

THIRD COUNT

Statement of Offence

DISCLOSURE BY PERSONS ENGAGED IN EXAMINATIONS: Contrary to Sections 5(a) and 8 of the Examinations Act 262A.

Particulars of Offence

TUIPOLOTU HALAFIAFI VEREIVALU and another, during the month of November 2003 at Suva in the Central Division, whilst being engaged in collating Fiji School Leaving Certificate English paper, knowingly disclosed the contents of the said paper to INOSI VUNITABUA.

On the 18th of March 2004, the Appellant pleaded guilty on all counts. The facts were that on the 24th of November 2003, the Chief Education Officer at the Ministry of Education reported that the Fiji School Leaving Certificate examination papers had been “leaked” before the students were required to sit for the examinations. The Officer said that she received a number of complaints on the 24th of November 2003, that similar questions from the Maths paper were found in a revision paper at the Suva Grammar School two days earlier, that a student from Nakasi High School had similar questions written in an exercise book before the examinations, and Principals of various schools said that students had discussed the same questions with their Mathematics teachers before the exam. The Appellant was questioned by the police as a result of their investigations. Under caution, he admitted stealing the papers from the Ministry, while employed there as a casual clerical assistant, and selling them to a person for $6.00 each.

These facts were admitted by the Appellant. He also admitted one previous conviction for drunk and disorderly conduct. In mitigation, counsel said that the Appellant was a single 26 year old man who lived with his brother’s family in Nabua. He lost his job with the Ministry as a result of the offences, but wished to attend the Fiji Institute of Technology. The Appellant co-operated with the police during investigations and was candid about the commission of the offences. He represented Fiji in the South Pacific Games and expressed remorse.

The learned Magistrate said that the maximum sentence on Counts 2 and 3, was $2000 fine or 2 years imprisonment, and that the maximum sentence on Count 1 was 14 years imprisonment. The Magistrates’ Court had a jurisdictional limit of 10 years imprisonment. He then said:

“4) It is sad to say that Fiji’s Examination System is continually undermined by reckless people like the accused.

5) For personal greed, they are prepared to sacrifice the hard work put in by so many students throughout the country.

6) In my view, the time has come for offenders to face the full brunt of the law and that is, a prison sentence, even for first offenders, is necessary to restore the credibility of the education system in Fiji.

7) I have noted the accused’s plea in mitigation.

8) The only mitigating circumstance in this case, is his guilty plea.

9) As a casual labourer of the Education Ministry at the material time, he saw fit, through his greed, to compromise the examination system for Form 6 students.

10) He is therefore asking for a prison sentence.

11) In my view, the accused deserves a 6 year prison sentence.

12) However, for pleading guilty and the other mitigating factors, I will give him a discount of 2 years. Balance is 4 years prison.

13) Count No. 1 – imprisoned for 4 years.

Count No. 2 – imprisoned for 18 months.

Count No. 3 – imprisoned for 18 months.

14) All the above sentences are concurrent to each other i.e. total sentence is 4 years imprisonment.”

The original Petition of Appeal was in the form of a letter and said that the sentences were unduly harsh and excessive. The Appellant later filed a further Petition of Appeal with the following grounds:

“(a) the sentence was unduly harsh and excessive given the background of the Appellant and the circumstances of the offence.

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(b) the learned Magistrate did not correctly apply the principle relative to the need to balance condemnation of society and the protection of the examination system in Fiji with a just punishment for the Appellant.

(c) the learned Magistrate failed to refer to authority or precedent to justify the tariff for sentence.”

In his submissions, counsel for the Appellant referred to R v. Puru (1985) LRC (Crim.) 817, on the need for courts to balance deterrence, just punishment and sufficient flexibility to ensure that the punishment fits the particular crime. He said that there were no aggravating factors in the Appellant’s case, that he had not sold the papers for large sums of money nor had he copied large numbers of them, and that the Appellant was of good character with only one minor and dissimilar offence. He submitted that either a short custodial or a suspended term would have satisfied sentencing principles.

State counsel opposed the appeal, saying that offences of larceny by servant led to sentences of between 15 months to 2½ years imprisonment, with 4 year terms reserved for the more serious types of offending. He said that because the Appellant had compromised the nation’s examination system, a longer custodial term was justified. He referred me to several cases of larceny by servant in support of his submissions. In particular he relied on the English case of Barrick 7 Cr. App. R(s) 142, which set out guidelines for the sentencing principles applicable in cases of breach of trust. In that case of Court of Criminal Appeal said at p.146:

“In general a term of immediate imprisonment is inevitable, save in very exceptional circumstances or where the amount of money is very small. Despite the great punishment that offenders of this sort bring upon themselves, the Court should nevertheless pass a sufficiently substantial term of imprisonment to mark publicly the gravity of the offence. The sum involved is obviously not the only factor to be considered, but it may in many cases provide a useful guide.”

These principles were referred to, and relied upon in Vishwajeet Prasad v. The State Cr. Appeal 23/93, a case of the stealing of $78,000, from the offender’s employers. The Court of Appeal considered the 4 year term to be excessive and substituted a 2½ year term.

In Shane Raymond Heatley v. The State HAA0003.1995, Pain J reviewed sentences for fraudulent offending. In Anil Kumar v. R (Cr. App. 69/85) a 5 year term was upheld for the stealing of $14,000 from the Village Co-operative by the treasurer. A 9 month term was eventually imposed, on appeal in Mara Kapaiwai v. R (Crim. App. 22/85) for the fraudulent conversion of $26.10. A 15 month term was upheld on appeal in Harbans Singh v. State Cr. App. 3 of 1991, for the larceny of $18,868.72 by the accountant of the Sports Council.

Pain J in Heatley said at page 6:

“These cases show that on a plea of guilty of obtaining money by fraud a sentence of 4 years imprisonment is likely for the most serious type of case (see dicta in Vishwajit Prasad v. State App. 23 of 1993). However aggravating circumstances may warrant a greater sentence (Anil Kumar v. R). If the amount involved is small a short period of imprisonment is appropriate (see Mara Kapaiwai v. R – albeit on a plea of guilty). Otherwise sentences imposed in these reported cases have ranged from 15 months to 2 ½ years imprisonment.”

In the more recent case of State v. Mahendra Prasad Cr. Action HAC 009.02S, Gates J considered the larceny of $59,000 by an employee of Datec Fiji Ltd. The employee had fully compensated his employers, who had in turn, asked (unsuccessfully) for the charges to be withdrawn. A suspended term was imposed, his Lordship finding exceptional circumstances to apply.

In Gerald Neelamkant Panniker Crim. App. 28/2000, Pathik J adopted the Barrick guidelines in a case of larceny by servant of $49,348.82, and reduced a 3 ½ year term to 3 years. He referred, in particular to the following factors which are relevant for sentencing in breach of trust cases:

(i) the quality and degree of trust reposed in the offender including his rank;

(ii) the period over which the fraud has been perpetrated;

(iii) the use to which the money or property dishonestly taken was put;

(iv) the effect upon the victim;

(v) the impact of the offences on the public and public confidence;

(vi) the effect on fellow-employees or partners;

(vii) the effect on the offender himself;

(viii) his own history;

(ix) other mitigating factors such as delay, illness, and co-operation with investigations.

A case of the theft of examination papers does not fall into the usual category of theft by servant, because although the value of the money received was small, the loss to the Ministry, to students and the Fiji public was immense. The theft of examination papers leads to the loss of the integrity of Fiji education system. It leads to the creation of unfair advantages for those students who are able to buy and see the papers in advance. It leads to doubt as to the accuracy of examination results for the entire country for that year. And finally, the leakage of examination papers leads some students to cheat at a time of great stress and tension for them. These factors justify a starting point at the highest end of the tariff. The highest end of the tariff is not 6 years as the learned Magistrate decided, but is 4 years imprisonment. The aggravating factors are the gross breach of trust, and the widespread nature of the “leak.” Although counsel submitted that the Appellant stole only two papers, it is clear that his actions then led to other leakages for which the appellant must be held responsible. The fact of the matter is that no one would have been able to see or copy the papers, had the Appellant not stolen them. I increase the sentence by one year to reflect the aggravating factors.

In mitigation is his guilty plea, the fact that he did not gain monetarily by the theft (except to the tune of $6.00) and his good character. I disregard his previous conviction. For these factors I reduce his sentence by 3 years, to 2 years imprisonment.

Because of the serious nature of the offending, I consider it inappropriate to suspend his sentence. The sentence of 4 years imprisonment on Count 1 is quashed, and is substituted with a 2 year term.

In respect of Counts 2 and 3, the maximum term of imprisonment is 2 years imprisonment. The seriousness fo disclosing examination papers to other persons, is already an aggravating factor on Count 1, so a concurrent sentence is appropriate. I consider an 18 month term on each count to be appropriate. The sentences on Counts 2 and 3 remain.

Conclusion

For the reasons I gave in this judgment, this appeal succeeds. The sentence on Count 1 is quashed and substituted with a 2 year term. It is to be served concurrently with the 18 month term imposed on Counts 2 and 3.

Nazhat Shameem
JUDGE

At Suva
1st October 2004