State v Alifereti [2008] FJHC 231; HAC018.2005 & HAC040.2007S (17 September 2008)

IN THE HIGH COURT OF FIJI AT SUVA
CRIMINAL JURISDICTION

Criminal Case No. HAC 018/05 & 040 of 2007S

BETWEEN:

THE STATE

AND:

PITA KONI ALIFERETI
PELI KETE DOVIYAROI

Ms A Driu and Ms S. Puamau for the State
Mr. Semi Leweniqila for Pita Koni Alifereti
Mr. Henry Rabuku for Peli Kete Doviyaroi

Date of Sentence: 17 September 2008.

SENTENCE

1. Pita Koni Alifereti, following a trial that lasted 9 weeks, you were found guilty and convicted by this Court for the following counts in the Information:
   

Count 3

Statement of Offence

Official Corruption: contrary to section 106(b) of the Penal Code Cap 17

Particulars of Offence

Pita Koni Alifereti between 1 May 2000 and 31 December 2001, at Suva in the Central Division, corruptly gave Suliasi Sorovakatini, a person employed in the Civil Service as the Principal Accounts Officer at the Ministry of Agriculture, Fisheries and Forests and being charged by reason thereof with the performance of certain duties as proscribed pursuant to Section 6 of the Public Service Act Cap. 74, property by way of cash and other payments totaling $113,541.40 on account of acts done and afterwards to be done by him in the discharge of the duties of his office.

Count 5

Statement of Offence

Official Corruption: contrary to section 106(b) of the Penal Code Cap 17

Particulars of Offence

Pita Koni Alifereti between 1 Jauary 2000 and 30 April 2001, at Suva in the Central Division, corruptly gave Peli Kete Doviyaroi, a person employed in the Civil Service as the Storeman at the Ministry of Agriculture, Fisheries and Forests and being charged by reason thereof with the performance of certain duties as proscribed pursuant to Section 6 of the Public Service Act, Cap. 74, property by way of cash and other payments totaling $8,230.00 on account of acts done and afterwards to be done by him in the discharge of the duties of his office.

Count 7

Statement of Offence

Official Corruption: contrary to section 106(b) of the Penal Code Cap 17

Particulars of Offence

Pita Koni Alifereti between 1 January 2000 and 30 April 2001, at Suva in the Central Division, corruptly gave Josefa Tiko Tapele, a person employed in the Civil Service as the Senior Accounts Officer at the Ministry of Agriculture, Fisheries and Forests and being charged by reason thereof with the performance of certain duties as proscribed pursuant to Section 6 of the Public Service Act, 74 property by way of cash and other payments totaling $258.32 on accounts of acts done and afterwards to be done by him in the discharge of the duties of his office.

2. Likewise you, Peli Kete Doviyaroi, were also found guilty and convicted of the following charge:
   

Count 4

Statement of Offence

Official Corruption: contrary to section 106(a) of the Penal Code Cap 17

Particulars of Offence

Peli Kete Doviyaroi, between 1 January 2000 and 30 April 2001, at Suva in the Central Division, being employed in the Civil Service as a Storeman at the Ministry of Agriculture, Fisheries and Forests and being charged by reason thereof with the performance of certain duties as proscribed pursuant to section 6 of the Public Service Act Cap 74, corruptly received property by way of cash and other payments totaling $8230.00 on account of acts done and afterwards to be done by him in the discharge of the duties of his office.

Background Facts

3. Before I touch on the specific facts from the evidence on which sentence determination in this case will be based, it is proper that I make some general comments based on the evidence in this trial. This is so given the public interest that attended this trial.
   
4. In the course of this trial, evidence was led to show that the Farming Assistance Affirmative Action Programme for Fijian and Rotuman [Affirmative Action Programme] was not approved by government. It had no approved budget allocation. The management of the programme was riddled with abuse of office by senior and not so senior officials in the Ministry of Agriculture, Fisheries and Forests between 2000 and 2001. I agree with the conclusion of the Special Audit Report [Exhibit 1] that the mismanagement were deliberate and in this instance for the direct benefit of the officials who decided to subvert the government lawful financial procedures and processes, which were designed to stop such unlawful conduct.
   
5. The Annual Budget Allocation for certain expenditures were misappropriated for payments made under the Affirmative Action Programme. Many who benefitted from the scam where not Fijians or Rotumans, even though the programme was claimed publicly to be for their benefit. Likewise many civil servants also benefitted from the scam, when it should have been clear to them that it was meant for rural Fijians and Rotumans as it was allegedly designed to bridge the poverty gap. A few politicians also benefitted from the scheme.
   
6. It was disturbing to note that it took the Ministry of Finance and the Public Service Commission far too long to react and take appropriate action against the misuse of public funds in the Ministry of Agriculture. One can only ponder had they acted with a bit more expedition, several million dollars in taxpayers money may have been saved.
   

Sentence Determination

7. The liable penalty for the offence of Official Corruption under section 106 of the Penal Code Cap 17 is seven (7) years imprisonment. The offence is a felony.
   
8. In Kim Nam Bae[1], the Court of Appeal said:
   

‘An appropriate sentence in any case is fixed by having regard to a variety of competing considerations. In order to arrive at the appropriate penalty for any case, the courts must have regard to sentences imposed by the High Court and the Court of Appeal for offences of the type in question to determine the appropriate range of sentence.’

9. I have undertaken a review of case law on sentence precedents for Official Corruption in the High Court and the Court of Appeal. In particular I have reviewed the following cases:
   
   1. State v Carlos Taylor[2] - the accused pleaded guilty to 4 counts of Official Corruption, sentence of 3 years imprisonment reduced to 2 years on account of the guilty plea;
      
   2. Prem Chand v The State[3] the appellant had pleaded guilty to one count of official corruption and sentenced to 4 years imprisonment on that count;
      
   3. State v Sorovakatini[4] the accused pleaded guilty to one count of official corruption and was sentenced to 2½ years imprisonment after discounting the guilty plea;
      
   4. In Isikeli Kini v The State[5] the Court of Appeal upheld a sentence of 12 months imprisonment for one count of Official Corruption.
      
10. I have also considered useful precedents in New Zealand and the United Kingdom case law, which I have reviewed and considered in reaching my determination of what may be the proper sentence in this case.
    
11. In New Zealand, Court of Appeal in R. v. Nua[6] was asked on appeal, to review a 4 year imprisonment of a senior customs officer who pleaded guilty to one charge of corruption and 30 charges of fraudulent use of documents. The Court upheld the sentence of 4 years. In that case the aggravating features were the lengthy period of offending; its complex nature; the magnitude of the bribes; the gross breach of trusts; the damage to the reputation of the customs service and the lack of prospect of any reparation.
    
12. The New Zealand Court of Appeal also review sentence case law in New Zealand on corruption in the High Court cases of R. v Clark[7]; R v Dyer[8] and the Court of Appeal cases of R v. Vergis[9] and R v. Malyon[10]. After reviewing these case authorities, the court concluded that a deterrent sentence in excess of 5 years could have been justified as the starting point. The New Zealand position after Nua has changed towards more harsher penalty for these offences.
    
13. In the United Kingdom heavy sentences have been passed in corruption cases with aggravating features. Examples of such cases reviewed in this instance are:
    
    1. In R v. Donald[11], 11 years imprisonment where appellant detective police constable agreed to accept £50,000 and had actually received about £18,500, in return for disclosing information about an inquiry and destroying surveillance logs;
       
    2. In R v Brown[12] six years for plea of guilty to conspiracy to bribe detective chief inspector, co-offenders receiving sentences of 3 to 5 years;
       
    3. In R v Foley[13] from a starting point of six years reduced to four for mitigating factors, where over eight years, Ministry of Defence employee accepted over £2million in benefits, of which £1.5 million was recovered.
       

Starting Point

14. In the light of the above case law and taking into consideration the evidence in this case. I have also been guided by the decision of Court of Appeal in Naikelekelevesi[14] wherein it was stated:
    

‘22. In Fiji sentencing now involves a more structured approach incorporating a two tier process. The first involves the articulation of a starting point based on guideline appellate judgments, the aggravating features of the offence [not the offender]; the seriousness of the penalty as set out in the act of parliament and relevant community considerations.....

23. In determining the starting point for a sentence the sentencing court must consider the nature and characteristic of the criminal enterprise that has been proven before it following a trial..’

15. I take particular note of the evidence in this trial relating to the systematic and blatant disregard of the Fiji Government Financial Regulations; the fact that the corrupt payments were given by Pita Koni Alifereti to Suliasi Sorovakatini, Peli Kete Doviyaroi and Josefa Tapele not once but many times and over a period of 16 months; the magnitude of the payments in the case of Suliasi Sorovakatini and Peli Kete Doviyaroi in particular; the misappropriation of taxpayers funds under the guise of an assistance scheme for personal benefit and the greed that was evident in all the corrupt transaction.
    
16. Public interest demands that the sentence must address the need for deterrence and to warn others similarly inclined that severe sentence will be passed by the courts on anyone found guilty of the offence of Official Corruption. Those involved in this type of offending betray public trust and their acts erode public confidence in our government institutions. These are serious crimes. It is needful that potential offenders and the public at large understand that these crimes will be met with stiff penalties.
    
17. With all these consideration in mind, I have determined that the proper starting point for the sentence in this case is 5 years imprisonment. This starting point applies equally to Pita Koni Alifereti and to Peli Kete Doviyaroi. The law must treat both parties equally in terms of starting point of their sentence. I now turn to consider the sentence for each accused persons.
    

Sentence for Pita Koni Alifereti

18. From the starting point of 5 years imprisonment, I must now consider the mitigating factors ably submitted on your behalf by Mr. Leweniqila. I take the following into consideration:
    
    • His full cooperation with the police in the investigation of the offence in this instance;
    • A first offender in 58 years and a successful businessmen in his own right;
    • The high commendation with regard to Pita Alifereti’s involvement in with Rotuman community and others and also with the Church;
    • A good father, grandfather and family man;
    • A compassionate and caring man
      
19. For the mitigation I would discount the sentence by 2 years, leaving a sentence of 3 years.
    
20. I consider the following as aggravating factors which the court must take into consideration:
    
    • The corrupt giving of money to gain favors from government officials is heinous and must be stopped;
    • The deliberate and systematic schemes developed to carry out the criminal acts in this case and in one instance to try to cover double payments;
    • The loss of public funds as result of the criminal acts;
    • There were no reparation.
      
21. I would add one year to the sentence for the aggravating factors.
    
22. Pita Koni Alifereti your sentence are as follows:
    
    1. Count 3 – 4 years imprisonment;
    2. Count 5 – 3 years imprisonment;
    3. Count 7 – 2 years imprisonment
       
23. I have considered whether the above sentences should be concurrent or consecutive. A consecutive sentence would mean a term of imprisonment of 9 years. If it were not for the eloquent and high testimonies given under oath in this court which I accept and this accused person’s medical condition, I would have had no difficulty in ordering that these sentences be consecutive, because I do consider it appropriate in the circumstances of this case
    
24. Applying the totality principle in sentencing and the need to give short sharp sentences for first offenders, I am satisfied that the interest of justice on the facts of this case is met, if the court orders that all these sentences be concurrent. I would hold that all the above sentences be served concurrently.
    
25. Pita Koni Alifereti your sentence is 4 years imprisonment effective from today.
    

Sentence for Peli Kete Doviyaroi

26. The starting point of your sentence is also 5 years.
    
27. Your counsel has submitted mitigation on your behalf. I accept the following as relevant:
    
    • You cooperated with the police in their investigation;
    • You are a first offender, married with a young family;
    • You are now heavily involved with the work of the church at Nakasi Methodist Church;
    • You will probably loose your employment with the Fiji Government as result of this case
      
28. For the above mitigation I will discount your sentence by 2½ years.
    
29. The court must consider the following aggravating factors in your case:
    
    • You deliberately violated Government Stores Regulations to ensure that certain quotation for goods to be supplied would go to Repina Wholesalers;
    • You personally benefitted from your criminal activity;
    • Loss to government as a result of your acts
      
30. For the above aggravating factors, I would increase your sentence by 1 year to 3 years imprisonment.
    
31. Peli Kete Doviyaroi you are sentenced to 3 years imprisonment effective from today.
    
32. It should be made clear that non custodial sentences of the kind prayed for in this case were most unlikely to be considered by the court, following a trial. As I observed in court in the exceptional cases where a court has seen fit suspend a sentence of imprisonment, it is usually because the accused had pleaded guilty.
    
33. On the issue of parity with sentence that was given in Sororvakatini (supra), the sentence passed in this court compares favorably because in this case there were no guilty pleas.
    

ORDERS

34. In conclusion I make the following ORDERS:
    
    1. Pita Koni Alifereti you are hereby sentenced to 4 years imprisonment effective from today;
       
    2. Peli Kete Doviyaroi, you are hereby sentenced to 3 years imprisonment effective from today.
       

Concluding Observation

35. I wish to make the following observation. The liable penalty of 7 years imprisonment for Official Corruption under section 106 of the Penal Code Cap 17, in my considered view, is far too low. Serious and urgent consideration should be given to increasing the liable sentence to 14 years imprisonment. This case has shown the pervasive and extensive nature of official corruption in the Ministry of Agriculture, Fisheries and Forests in 2000 and 2001. If the court is to be expected to play an effective role in the fight against corruption, it must be given the discretion to impose higher sentences than is currently permissible in law.
    

Isikeli Mataitoga
JUDGE

At Suva
17 September 2008.

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^[1] [1999]FJCA21;AAU 0015 of 1998.

^[2] High Court, Crim Case No: 001 of 1999.

^[3] [2001] FJHC 130; HAM 0017/2000, 8 November 2008.

^[4] High Court, Crim Case No: 018/07, 26 September 2007.

^[5] [2004] FJCA 55, AAU 0041/02, 26 November 2004.

^[6][2001] NZCA 190; [2001] 3 NZLR 483

^[7] (High Court, Auckland, T 168/89 Tompkins J.)

^[8] (High Court, Palmerston North, S 3/91, Neazor J.)

^[9] (Court of Appeal, CA 165/92)

^[10] (Court of Appeal, CA 435/97)

^[11] [1977] 2 Cr App R (S) 272

^[12] [1999] Cr App R (S) 284

^[13] [1995] Cr App R (S) 879

^[14] [2008]FJCA; AAU 0061/07, 27 June 2008