Fiji Independent Commission Against Corruption v Devo [2010] FJHC 111; HAC177.2007 (9 April 2010)

IN THE HIGH COURT OF FIJI
AT SUVA
CRIMINAL JURISDICTION

Criminal Case No: HAC 177 of 2007

FIJI INDEPENDENT COMMISSION AGAINST CORRUPTION

V

INOKE DEVO

Hearing: 3rd March – 6th April 2010
Sentence: 9th April 2010

Counsel: Mr. S. Dissanayake & Ms E. Leweni for FICAC
Mr. R. Chaudhary for Accused

SENTENCE

[1] Inoke Devo, you appear for sentence having been convicted of three counts of abuse of office following a trial. The offences are misdemeanours. The maximum penalty for each offence is 2 years imprisonment.

[2] At the time of the offending you were the Commissioner Central. You joined the public service in 1974 and over the years rose to the position of the Commissioner Central in 2002. You held a very senior position in the public service.

[3] The abuse of authority of your office arose from incidents where you directed a number of your staff to collect alcohol during working hours in the government vehicle for unofficial functions.

[4] Two incidents which were subject of counts 7 and 9 relate to collection of liquor from various liquor outlets for your office Christmas parties in 2005 and 2006 respectively. The incident subject of count 3 relate to collection of alcohol from various nightclubs for an unofficial cocktail party at Tradewinds Hotel in 2006.

[5] The evidence show a pattern. The Office of the Commissioner Central processed liquor licences although the renewal of licences were approved by the Liquor Tribunal. Being the Commissioner, you were the head of the office. By virtue of your position you were a member of the Liquor Tribunal. You signed the liquor licences before they were issued.

[6] In December 2005, you authorized the unlawful expenditure of public funds by sending out your staff members in government vehicles to collect liquor and alcoholic beverages from various liquor outlets within the Central Division for your office Christmas party, which was an arbitrary act in abuse of the authority of your office and prejudicial to the rights of the State.

[7] The following year in 2006, you did the same thing.

[8] In March 2006, you authorized the unlawful expenditure of public funds by sending out your staff members in government vehicles to collect liquor and alcoholic beverages from various liquor outlets within the Central Division which was an arbitrary act in abuse of the authority of your office and prejudicial to the rights of the State.

[9] Then in December 2006, you authorized the unlawful expenditure of public funds by sending out your staff members in government vehicles to collect liquor and alcoholic beverages from various liquor outlets within the Central Division for your office Christmas party, which was an arbitrary act in abuse of the authority of your office and prejudicial to the rights of the State.

[10] The loss you have caused cannot be measured in monetary terms because there has been no evidence led of any financial loss to the State.

[11] However, the persistent use of government vehicles and official staff to collect liquor for unofficial functions, is a serious abuse of authority of your office by you. You abused the authority of your office for illegitimate reasons. You took advantage of your position and conferred benefits for yourself and others by obtaining alcohol from members of the public who you came in know when discharging your official duties.

[12] Your actions were not only harmful to the government but to the public as well. You gave a perception to the people whom you collected liquor by using your staff and official vehicle, that the Commissioner Central’s Office was rife with misuse of public resources.

[13] I now turn to consider the matters which I can properly take into account in mitigating sentence.

[14] Your previous good character and record of public service can assist you only to a limited extent. It is accepted, rightly in my view, that those who offend in their capacity as holder of public office cannot have their office weighed in their favour on sentence.

[15] Now this does not mean a man in your position is not entitled to an allowance for good character and public service. The principle is that the good character of a person holding high office who commits a crime relating to the performance of his office cannot form a basis for the same mitigation of sentence as is the case of an ordinary citizen committing a crime.

[16] However, as a matter of sentencing principle, I accept recognizing a fall from grace is punishment itself, and recognizing the greater potential for rehabilitation where community involvement and good character bear witness to a reduced probability of reoffending. In this regard, I take into account all that have been said on your behalf about your good character. I take into account that you are a married man with family responsibilities. I take into account your medical condition and the age of the offences.

[17] I have been referred to cases of abuse of office for sentencing guidelines. I bear in mind that the sentences were imposed on the particular facts of each case. The sentences can range from probation order to imprisonment sentences.

[18] As I said earlier, I find the offences in this case to be serious. In imposing an appropriate sentence, I must hold you accountable for the harm done to the public perception about your high office.

[19] Secondly, your punishment should promote in you a sense of responsibility and acknowledgement for the wrong you have done.

[20] Finally, the sentence should denounce your conduct and deter others. I accept there is no risk of your reoffending but a high priority must be placed on the need for general deterrence and for issuing a message that conduct of this kind is inexcusable in our society.

[21] For these reasons, I do not consider a fine, probation order or suspended sentence is appropriate.

[22] Taking all these matters into account, I sentence you to 9 months imprisonment on each count of abuse of office. I order that you serve your sentences concurrently.

[23] In summary the sentences are:

Count 3 - 9 months imprisonment

Count 7 - 9 months imprisonment

Count 9 - 9 months imprisonment

[24] The sentences to be served concurrently.

Daniel Goundar
JUDGE

At Suva
9th April 2010

Solicitors:
Office of the Fiji Independent Commission Against Corruption for Prosecution
Messrs. Gordon & Chaudhary for Accused