State v Sorovakatini [2007] FJHC 32; HAC018.2005 (26 September 2007)

IN THE HIGH COURT OF FIJI
AT SUVA
CRIMINAL JURISDICTION

CRIMINAL CASE NO.: HAC 018 OF 2005

BETWEEN:

THE STATE
Applicant

AND:

SULIASI SOROVAKATINI
Accused

Counsel: Ms. A. Driu – for the State
Mr. M. Raza – for the Accused

Date of Hearing: Tuesday 25th September, 2007
Date of Sentence: Wednesday 26th September, 2007

SENTENCE

[1]. Suliasi Sorovakatini you have been convicted of one count of abuse of office for gain, contrary to Section 111 of the Penal Code and one count of official corruption, contrary to Section 106(b) of the Penal Code.

Background

[2] In Fiji the Ministry of Agriculture, Fisheries and Forests ("MAFF") has issued many subsidies to registered farmers for the purchase of chemicals, fertilizers and farming equipment.

[3] After the political crisis of May 2000 the then Interim Civilian Government adopted a programme known as the Affirmative Action Plan ("AAP") to assist rural indigenous farmers. Under this scheme farmers who applied to MAFF Headquarters could be given up to 100% of the cost of these items.

[4] Applications had to be made formally in writing. Where the farming products requested were stocked by Government Supplies the application was generally approved and the supply made through the Government Department. Where the goods were not stocked they then had to be purchased from outside sources. In those circumstances the Finance Instructions, Orders and Regulations made under the Finance Act, Cap.62 prevailed.

[5] At the relevant time Suliasi you were the Principal Accounts Officer for MAFF. You were responsible for the supervision of all accounting processes in that Department for the collection receipt and disbursement of public funds. In addition it was you who was ultimately responsible for all accounting processes relating to the purchase and delivery of goods and services.

Count 1

[6] From the 23rd of June 2000 to the 18th of October 2001 Suliasi you countersigned 51 Westpac Bank Cheques in your capacity as Principal Accounts Officer for MAFF. The recipient of each of these cheques was Repina Wholesalers. The total cost to the Government of those cheques was $990,554.71.

[7] You have been convicted of abuse of office as each and every one of those MAFF payments to Repina Wholesalers was made in breach of the Finance Act. You knew Suliasi that those payments were made in breach of the Act. You knew that each of these cheques represented an irregular and improper expenditure of Government monies.

[8] Suliasi you personally gained from this abuse of office. The incurred expenditure was prejudicial to the Government of the Republic of the Fiji Islands. These public funds were not used in accordance with the Law.

Count 4

[9] You first met Pita Koney Alifereti when he was a special agent for Morris Hedstrom Limited organising the supply of farming implements, chemicals and fertilizers. You knew he had a separate business known as Repina Wholesalers. The two of you became friends.

[10] From the 22nd of May 2000 to the 14th of June 2001 you received property, cash and other payments from Pita Koney Alifereti of some $113,541.00 as a favour for ensuring that during the relevant period Repina Wholesalers was awarded contracts for the supply of farming implements, chemicals and fertilizers under the Affirmative Action Plan.

Personal Circumstances

[11] I note from your counsel’s submissions and the antecedent report that you are 52 years old, married with five (5) children. You hold a Diploma and Bachelor Degree in Business Studies. You joined the Civil Service in 1974 and were promoted to the position of Principal Accountant in 1998. You have no previous convictions.

[12] Except for this offending you are a man of exemplary character. Evidence and testimonials given in mitigation describe you as a good family man, loyal, faithful, kind, trustworthy, cheerful, diligent and reliable. You are a fulltime pastor. I accept that you contribute greatly to the life of your church and are properly described as a blessing to its congregation.

[13] I take into account in relation to the agreed summary of facts that your Pajero motor vehicle was seized by the police and will be forfeited to the State as the proceeds of crime thereby reducing the total amount of your unlawful gain from Repina Wholesalers.

The Law

Starting Points

[14] In Robert Yabara v. The State [1984] PNGLR 378 the PNG court commented on official corruption when speaking of the offence of bribery. Pratt J said:
"If such occurrences (bribery) became anything more than an extreme rarity they would destroy utterly the very structure of Government and the Rule of Law. As the Clifford Report says at 69 of Vol. 1 (Law and Order in Papua New Guinea (1983) Clifford, Morauta and Stuart):‘Once started, corruption is hard to stop. Honest businessmen cannot remain competitive if other businessmen acquire competitive advantages through corruption. The easy money floating about in a corrupt society intoxicates many honest men tempted by the easy access to wealth. Imperceptibly corruption spreads through society like a cancer. By the time the State mobilizes to deal with it, the action is often too little and comes too late."

[15] We all know that public corruption betrays the public trust and erodes public confidence in our government institutions. These are serious crimes, and it is important that potential offenders and the public at large understand that these crimes will be met with stiff penalties.

[16] The offence of official corruption is a serious one. It is difficult to prove as it relies on the honesty of the person who is offered the bribe or encouraged to engage in corrupt practices. There are rarely independent witnesses to the event. For these reasons when a case has been successfully proved this Court has a duty to treat the matter seriously. Once detected, tried and proved the need to impose a punitive and deterrent sentence to deter others, becomes crucial. [See Yabara supra]

[17] The principle that the statutory maximum sentence should be reserved for the worst possible case of its kind is an established but over simplified articulation of parity in sentencing. It was an appropriate statement of sentencing policy for its time (first cited in R v Harrison [1909] 2 Cr. App. R.94). It is however flawed as it too readily invites a judge to conjure up likely cases worse than the subject one.

[18] A more useful analysis relates to starting points for sentence calculation and the maximum available penalty. Sentencing powers are discretionary. Parliament may mark the seriousness of an offence by the setting of a maximum penalty but that political process does not constrain a judge in selecting an appropriate penalty.

[19] Where the maximum penalty is far too low the band for the starting point widens. The range of available penalty after consideration of aggravating and mitigating features thereby increases. In my view the available maximum penalty for abuse of office and official corruption is far too low and should be increased to reflect the seriousness of these crimes.

Count 1

[20] In Kunatuba, Shameem J, bearing in mind the statutory maximum of 3 years, set a starting point for the departmental secretary of 2:1/2 years. I agree with her honour. This is an appropriate way to begin the penalty calculation in Fiji for a senior civil servant to be sentenced for abuse of office.

[21] Parity in sentencing will require me to adjust this starting point for you as I find your culpability was less than that of the head of your department. I start at 2 yrs. The aggravating features of your offending including the extent of loss to the Government of Fiji, the High Level of your Office, the gross breach of trust and the amount of your personal gain must mean an increase to that starting point of one year. Leaving an aggravated total of three years imprisonment.

[22] Against that total I take into account the mitigating features which are impressive and only tempered by the fact that for a man of such outstanding qualities your abuse of the trust placed in your high office makes your offending that much more culpable. I deduct one year. That leaves two years imprisonment.

[23] In addition your full co-operation with authorities and early guilty pleas demonstrate genuine remorse.

[24] A further reduction in sentence is appropriate because a guilty plea avoids the need for a trial (thus enabling other cases to be disposed of more expeditiously), shortens the gap between charge and sentence, saves considerable cost especially in a complex fraud trial, and saves victims and witnesses from the concern about having to give evidence. It is a separate issue from aggravation and mitigation generally.

[25] The State concedes you are entitled to the full benefit of an early plea discount as you entered your plea at the first reasonable opportunity. I agree. I take one third off your available sentence leaving a term of 16 months in prison.

Count 2

[26] In R v Nua [2003] 3 NZLR the New Zealand Court of Appeal was considering a state’s appeal against a sentence of 18 months imprisonment for a senior customs officer charged with corrupt use of official information. The maximum available sentence in Nua was 7 years jail. In granting the appeal the Court observed that a starting point of 3-4 years was appropriate for an Official who gained some $150,000.00 from his scam.

[27] The offence of official corruption is a recognition that persons employed by the Government and other forms of public service are to be held responsible for a higher level of integrity than persons in the private sector. The reason is quite simple, namely to preserve confidence in the administration of public affairs. [See Nua supra].

[28] This was offending that you well knew was wrong. I start at four (4) years imprisonment.

[29] Aggravating that starting point is your prolonged corrupt behaviour, the illegal amount of money you received and your flagrant breach of the Public Service Code of Conduct and Finance Act. I add one (1) year taking the aggravated total to five (5) years imprisonment.

[30] I reconsider all those earlier matters of mitigation I have already discussed and in addition the fact that some money will be recovered from the sale of your Pajero. I deduct 1 year for those matters. That leaves a sentence of four (4) years in jail.

[31] Again I find you entered a guilty plea at the first reasonable opportunity. I deduct one third from your sentence leaving a total of 32 months in jail. I round that down to two and a half (2 ½) years in jail.

[32] The State accepts that these offences arise form the same facts. The offending described in the two counts are really different aspects of the same crime and you are therefore entitled to a concurrent sentence. The abuse of office sentence will run concurrent with your sentence for official corruption. The condign punishment must be reserved for the more serious crime of official corruption and accordingly you will be sentenced to two and a half (2½) years in jail. Your counsel asks for that sentence to be suspended.

Suspension of Sentence

[33] It is only in rare cases that the Court will suspend a prison term for fraud related cases. The features to be considered when a judicial officer is deciding upon a suspended sentence were described in The State v Chand, FCA 0027 of 2000S. The Court adopting The Queen and Petersen [1994] 2 NZLR 533 noted some of the considerations are:

- Previous good record notwithstanding the existence of prior offending (even if of substance) so long as there has been a long period free of criminal activity.

- The offender’s likely response to a sentence.

- The impact of a suspended sentence is a strong deterrent to the offender. This is often underscored by genuine remorse and appropriate acts of contrition. In fraud or official corruption cases this may include reparation for stolen money or the charitable application of bribes

- Diminished culpability arising through lack of pre-meditation, the presence of provocation.

- Suspending a sentence is also indicated where there has been complete co-operation with the authorities and an early guilty plea.

- Time spent on remand.

[34] The New Zealand Court of Appeal has observed that at the end of the day what is required is the application of common sense judgment in which the sentencer must stand off and decide whether the imposition of a suspended sentence would respect the objectives of the legislation.

[35] In that regard the Court of Appeal when dismissing this State Sentencing appeal for reasons of delay was nonetheless prompted to say:

"We wish to make it clear however that people in high office who abuse their power may well in the future be required to serve an immediate prison sentence. This comment should serve as notice to any such people that the courts are not prepared to regard such offences lightly and that they will not suspend sentences just because the consequences for such a person are severe."

[36] The preservation of the integrity of the Government Finance system in Fiji is basic to our society. It is important and in the public interest that the courts through sentencing make it clear that those who imperil its proper functioning will receive condign jail sentences.

[37] As Lord Lane said in R v Bibi [1980] 1 WLR 1193 what the court can and should do is to ask itself whether there is any compelling reason why a short sentence cannot be passed. That is not to aim at uniformity of sentence which would be impossible; rather it is to aim at uniformity of approach.

[38] I cannot suspend your term of imprisonment. I am unable to find any compelling reason why a short sentence of imprisonment cannot be passed. I can find no exceptional circumstances that might allow a community based sentence. Suliasi, you subverted the checks and balances of the Government Finance system to satisfy your own greed. The courts answer to those corrupt practises must be to impose an immediate prison sentence.

[39] I sentence you to sixteen (16) months in prison for Count One to be served concurrently with two and a half (2 ½) years in prison in Count Two.

Gerard Winter
JUDGE

At Suva
Wednesday 26th September, 2007

Solicitors:
Office of the Director of Public Prosecutions, Suva – for the State
Mehboob Raza & Associates, Suva – for the Accused