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High Court of Fiji |
IN THE HIGH COURT OF FIJI
AT SUVA
APPELLATE JURISDICTION
CRIMINAL APPEAL CASE NO.: HAA 006 OF 2010
BETWEEN:
FIJI INDEPENDENT COMMISSION AGAINST CORRUPTION (FICAC)
APPELLANT
AND:
FAGA SOLOMONE FINIASI
RESPONDENT
Counsel: Mr. Tennakoon for FICAC
Mr. Tevita Fa for Respondent
Date of Hearing: 17th August 2010
Date of Sentencing: 20th August 2010
JUDGMENT
BACKGROUND
[1] The Fiji Independent Commission Against Corruption (FICAC) preferred an appeal against the sentence of the Resident Magistrate of Suva dated 31st December 2009.
[2] The Respondent was charged in the Magistrate's Court on following Counts:
FIRST COUNT
Statement of Offence
OFFICIAL CORRUPTION: Contrary to Section 106 (a) of the Penal Code, Cap 17
Particulars of Offence
FAGA SOLOMONE FINIASI on or about 21 December 2005, at Suva in the Central Division being a person employed in the Public Service as Senior Hydrologist of the Public Works Department and being charged with the financial matters of the Hydrology Section of the Public Works Department in Suva corruptly obtained a benefit for himself namely F$30.00 in cash from SITIVENI KEDRAKAI an employee of the said Department on account of favour being shown afterwards by him in approving overtime payments to the said SITIVENI KEDRAKAI.
SECOND COUNT
Statement of Offence
OFFICIAL CORRUPTION: Contrary to Section 106 (a) of the Penal Code, Cap 17
Particulars of Offence
FAGA SOLOMONE FINIASI on or about 21 December 2005, at Suva in the Central Division being a person employed in the Public Service as Senior Hydrologist of the Public Works Department and being charged with the financial matters of the Hydrology Section of the Public Works Department in Suva corruptly obtained a benefit for himself namely F$30.00 in cash from SETAREKI DELAI an employee of the said Department on account of favour being shown afterwards by him in approving overtime payments to the said SETAREKI DELAI.
THIRD COUNT
Statement of Offence
OFFICIAL CORRUPTION: Contrary to Section 106 (a) of the Penal Code, Cap 17
Particulars of Offence
FAGA SOLOMONE FINIASI on or about 21 December 2005, at Suva in the Central Division being a person employed in the Public Service as Senior Hydrologist of the Public Works Department and being charged with the financial matters of the Hydrology Section of the Public Works Department in Suva corruptly obtained a benefit for himself namely F$30.00 in cash from JOSUA DAUSIGA an employee of the said Department on account of favour being shown afterwards by him in approving overtime payments to the said JOSUA DAUSIGA.
FORTH COUNT
Statement of Offence
OFFICIAL CORRUPTION: Contrary to Section 106 (a) of the Penal Code, Cap 17
Particulars of Offence
FAGA SOLOMONE FINIASI on or about 21 December 2005, at Suva in the Central Division being a person employed in the Public Service as Senior Hydrologist of the Public Works Department and being charged with the financial matters of the Hydrology Section of the Public Works Department in Suva corruptly obtained a benefit for himself namely F$30.00 in cash from SAKARAIA TURAGARUA an employee of the said Department on account of favour being shown afterwards by him in approving overtime payments to the said SAKARAIA TURAGARUA.
FIFTH COUNT
Statement of Offence
OFFICIAL CORRUPTION: Contrary to Section 106 (a) of the Penal Code, Cap 17
Particulars of Offence
FAGA SOLOMONE FINIASI on or about 21 December 2005, at Suva in the Central Division being a person employed in the Public Service as Senior Hydrologist of the Public Works Department and being charged with the financial matters of the Hydrology Section of the Public Works Department in Suva corruptly obtained a benefit for himself namely F$30.00 in cash from SEPESA GAUNA an employee of the said Department on account of favour being shown afterwards by him in approving overtime payments to the said SEPESA GAUNA.
SIXTH COUNT
Statement of Offence
OFFICIAL CORRUPTION: Contrary to Section 106 (a) of the Penal Code, Cap 17
Particulars of Offence
FAGA SOLOMONE FINIASI on or about 21 December 2005, at Suva in the Central Division being a person employed in the Public Service as Senior Hydrologist of the Public Works Department and being charged with the financial matters of the Hydrology Section of the Public Works Department in Suva corruptly obtained a benefit for himself namely F$30.00 in cash from RUPENI RAVONU an employee of the said Department on account of favour being shown afterwards by him in approving overtime payments to the said RUPENI RAVONU.
SEVENTH COUNT
Statement of Offence
OFFICIAL CORRUPTION: Contrary to Section 106 (a) of the Penal Code, Cap 17
Particulars of Offence
FAGA SOLOMONE FINIASI on or about 21 December 2005, at Suva in the Central Division being a person employed in the Public Service as Senior Hydrologist of the Public Works Department and being charged with the financial matters of the Hydrology Section of the Public Works Department in Suva corruptly obtained a benefit for himself namely F$30.00 in cash from SITIVENI KEDRAKAI an employee of the said Department on account of favour being shown afterwards by him in approving overtime payments to the said SITIVENI KEDRAKAI.
EIGHTH COUNT
Statement of Offence
OFFICIAL CORRUPTION: Contrary to Section 106 (a) of the Penal Code, Cap 17
Particulars of Offence
FAGA SOLOMONE FINIASI on or about 20 December 2005, at Suva in the Central Division being a person employed in the Public Service as Senior Hydrologist of the Public Works Department and being charged with the financial matters of the Hydrology Section of the Public Works Department in Suva corruptly obtained a benefit for himself namely F$50.00 in cash from SEPESA GAUNA an employee of the said Department on account of favour being shown afterwards by him in approving overtime payments to the said SEPESA GAUNA.
NINTH COUNT
Statement of Offence
OFFICIAL CORRUPTION: Contrary to Section 106 (a) of the Penal Code, Cap 17
Particulars of Offence
FAGA SOLOMONE FINIASI on or about 20 December 2005, at Suva in the Central Division being a person employed in the Public Service as Senior Hydrologist of the Public Works Department and being charged with the financial matters of the Hydrology Section of the Public Works Department in Suva corruptly obtained a benefit for himself namely F$50.00 in cash from VILIAME VERENAIVALU an employee of the said Department on account of favour being shown afterwards by him in approving overtime payments to the said VILIAME VERENAIVALU.
TENTH COUNT
Statement of Offence
OFFICIAL CORRUPTION: Contrary to Section 106 (a) of the Penal Code, Cap 17
Particulars of Offence
FAGA SOLOMONE FINIASI on or about 20 December 2005, at Suva in the Central Division being a person employed in the Public Service as Senior Hydrologist of the Public Works Department and being charged with the financial matters of the Hydrology Section of the Public Works Department in Suva corruptly obtained a benefit for himself namely F$50.00 in cash from SAKARAIA TURAGARUA an employee of the said Department on account of favour being shown afterwards by him in approving overtime payments to the said SAKARAIA TURAGARUA.
[3] The Prosecution was commenced on 01.09.2009 and led the evidence of ten witnesses. Some of them were cross examined by the Counsel who defended the respondent.
[4] On the 2nd of September 2009 the Prosecution closed its case and the Magistrate called for defence. It is recorded as "CASE TO ANSWER".
[5] The accused has explained of his choices of submitting his defence. The Defence Counsel after an adjournment moved for one week to submit his defence.
[6] When the case was called on 10th September 2009 the accused Respondent opted to read an unsworn statement as evidence in the Court and rested his case.
[7] Prosecution moved one day and the defence moved one week to file their written submissions.
[8] On the 8th September 2009 the learned Magistrate fixed 02.10.2009 for delivering of her judgment.
[9] On the 2nd October 2009 instead of delivering the judgment, granted a date to the Defence Counsel, to make his submission.
Proceedings states as follows:
"Counsel for Accused made application for 7 days to make his submission in writing"
"Court granted" Mention date 14.10.2009 (2pm).
[10] On the 14th October 2009 the entire scenario changed as follows:
"14th October 2009
Prosecution : Mr. Rayawa A
Accused : Present Mr. Fa T
Counsel for Accused informed court that charges be put to Accused again as there is going to be a change of plea.
Need a day to refund money of 10 charges before court before mitigating.
Counsel for Fiji Independent Commission Against Corruption would want charges read first to Accused.
Preferred Language
Charge read and explained: Count 1, Count 2, Count 3, Count 4, Count 5, Count 6, Count 7, Count 8, Count 9, Count 10.
Right to Counsel: Mr. Fa Tevita
Plea: Count 1 – Guilty, Count 2 – Guilty, Count 3 – Guilty, Count 4 – Guilty, Count 5 – Guilty, Count 5 – Guilty, Count 6 – Guilty, Count 7 – Guilty, Count 8 – Guilty, Count 9 – Guilty, Count 10 – Guilty.
Previous conviction : 1 previous conviction (1993 – conviction)
Counsel for Fiji Independent Commission Against Corruption requested court to enter facts as per trial.
Counsel for Accused admitted facts.
Court: Accused is guilty as charged for:
| Count 1: Guilty | Count 2: Guilty | Count 3: Guilty | Count 4: Guilty |
| Count 5: Guilty | Count 6: Guilty | Count 7: Guilty | Count 8: Guilty |
| Count 9: Guilty | Count 10: Guilty | | |
Counsel for Accused made 2nd request to repay or refund monies involved. Counsel for Accused suggested that court refunds monies paid back by Accused before mitigation.
Mention date - 20.10.2009 at 2.30pm.
Fiji Independent Commission Against Corruption did object to refund by Accused on the ground that it is not the proper way to do things.
Counsel for Accused to mitigate on 20.10.2009 first.
Bail extended for Accused.
(sgd) Resident Magistrate
14.10.2009".
[11] On the 20th October 2009 Counsel for the accused Respondent submitted mitigation in writing and called two witnesses to give evidence. The case was fixed for sentence to be delivered on 17.11.2009.
[12] On the 17th November 2009 the delivery of sentence was postponed to 04.12.2009, on the 04.12.2009 it is once again postponed to 17.12.2009.
[13] On the 17.12.2009 the proceedings read as follows:
"17 December 2009
Prosecution: Ms. Leweni
Accused: Present Mr. Fa T
Mention to confirm what Accused who is retired is currently doing and if on pension how much he earns by weekly or monthly.
Adjourn to 31.12.2009 for sentence.
Resident Magistrate
17/12/2009"
[14] On the 31st December 2009 the Magistrate delivered the sentence which is in appeal.
FACTS OF THE CASE
[15] The Accused respondent was employed as a Senior Hydrologist at the Suva Water Supply. Among other duties he approves the overtime claim of his subordinate officers. Where he had solicited and obtained money for approving the overtime claims. The amount involved was $380.00.
[16] The modus operandi of the accused respondent was demanding money from the employees to sign their overtime card. Without the signature of the accused respondent the overtime payment will not be paid. Those officers also paid a share of their overtime payment to the accused respondent.
[17] As per the charge sheet and the evidence, the accused respondent had obtained money on 10 occasions.
[18] Now I consider the conviction. The accused respondent was represented by a Senior Counsel and contested the case. When the matter was passing of judgment the accused respondent pleaded guilty to all counts in the charge sheet and the Learned Magistrate had convicted the accused respondent. Considering all I am convinced that the plea of guilt is unequivocal and the convictions can be accepted in law. Further the accused respondent and both Counsels are not making any complaints against the conviction.
[19] Now I peruse the sentence and the reasons for the sentence delivered by the Learned Magistrate.
[20] The Learned Magistrate had analysed the facts of the case and at one point she had come to the following conclusion.
"40" I have chosen to consolidate the counts rather than enumerate these individually. My starting point of sentence for each of the 10 counts is 6 months (60 months) from which I deduct 3 (30 months) months for your mitigation. It is worthy to mention that I see no compelling reason to give you credit for entering a guilty plea as you did not do so at the earliest opportunity available to you. Considerable time of court has been wasted and the fact that the trial had concluded when you chose to change your plea and, enter on of guilty had cost the court significant amount of money. There is a consolidated total of 30 months after the deduction.
"41" The aggravating factors of the offending are abuse of office; breach of trust; and eroding public confidence. Mr. Finasi, in December 2005 and December 2006 when you occupied a senior position as Senior Hydrologist for Suva Water Supply, it was your responsibility to approve any overtime work done on any project under your supervision but, you "abuse that public office" when you used it to gain benefit for yourself. With abusing your office came the breach of trust – your subordinates who trusted you as their superior to sign their overtime cards had paid before you did what was one of your job descriptions – approve and sign overtime cards if upon inspection such work had been completed and the workers entitled to overtime for a job well done and completed. The sadder end of the pole is that since this incident and given that news has the tendency to travel fast, the public who respected you because they had had confidence in you would by now have such confidence eroded.
"42" Mr. Finiasi after deducting 3 months from each of the 10 counts for mitigation with a starting point of 6 months, there were 30 months. To these I added 1 month for aggravating factors having, added 1 month to each 10 counts arriving at a total of 10 months thereby making a total of 40 months."
[21] I do not find any irregularities up to this point but I refer to the following paragraphs.
"43" I cannot suspend a custodial sentence that is more that 24 months so I have decided to suspend up to 24 months of the 40 months thus, I sentence you to 24 months imprisonment. However, I have suspended the jail term for 24 months. Be warned that if between today December 31, 2009 and December 30 2012, you are charged for any other offence your suspended sentence may be activated. In other words, you may serve the full 24 months here suspended in addition to whatever sentence you may get for the subsequent offence if you are found guilty and the penalty is a custodial one. This being, the first part of the sentence.
"44" The second part of the sentence is that I have decided to convert the remaining 16 months into fine. You are to pay fine in the sum of $500. My reasons are that this will act as a deterrent to others still in service that penalties would be as serious as the offence for which someone has been charged. Finally, is the fact that since you have retired from service and the amount of the offending is under $500 – a fine could still be imposed on you regardless, for an offence committed whilst in office. The fine is to be paid within 3 months in default you will go to prison for 6 months – however, should you require more time, to enable you pay off this fine you may go through your counsel of record, make a formal application to court to extend time for payment of fine imposed.".
[22] Now I consider the grounds of appeal.
Appeal against sentence
"There are briefly 2 grounds of appeal, one, that the sentence is manifestly lenient and secondly, that the sentence did not take into consideration the gravity of the offence. These are supported as follows:
Sentence is manifestly lenient:
The seriousness with which 'official corruption' is viewed in Fiji is marked by the penalty capable of being imposed under section 106 of the Penal Code, Cap 17, together with the case law on sentence precedents for 'official corruption' in the High Court and the Court of Appeal.
Under section 106 of the Penal Code, Cap 17, together with the case law on sentence precedents for 'official corruption' in the High Court and the Court of Appeal".
[23] Considering the legal provisions I am unable to agree with the procedures followed by the Learned Magistrate. Therefore I set aside the sentence imposed by the Magistrate.
[24] Considering the period conceived in taking up the appeal I do not intent to refer this case back to Magistrate to follow proper procedure and pass appropriate sentence. Powers vested with the High Court under High Court Rules 1988, Rules 55 (7) (5).
I proceed to pass the sentence. Rules 55 (7) (5) states as follows:
"The Court may give any judgment or decision or make any order which ought to have been given or made by the court, tribunal or person and make such further or other order as the case may require or person and make such further or other order as the case may require or may remit the matter with the opinion of the Court for rehearsing and determination by it or him".
[25] Now I consider the offence, Section 106(a) of the Penal Code states as follows:
"Any person who being employed in the public service, and being charged with the performance of any duty by virtue of such employment, corruptly asks for, solicits, receives or obtains, or agrees or attempts to receive or obtain, any property or benefit of any kind for himself of any other person on account of anything already done or omitted to be done or to be afterwards done or omitted to be done, by him in the discharge of the duties of his office".
[26] Considering the tariff of this offence. In the case of State v Sorovakatini [2005] FJHC 32: HAC018.2005 (26 September 2007) Winter J consider the offence of official corruption as a serious one. He stated that:
"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".
Still in the State v Sorovakatini (Supra) Winter J regards public corruption as a betrayal of public trust and erodes public confidence in the government institutions. He further stated that:
"These are serious crimes, and it is importance that potential offenders and the public at large understand that these crimes will be met with still penalties"
[27] In BEMBRIDGE [(1783)] 3 Doug KB 32]
"those who hold public office carry out their duties for the benefit of the public as a whole and, if they abuse their office, there is a breach of the public trust (para 57)"
[28] In Kim Nam Bae v State [1999] FJCA 21; AAU 0015 of 1998, the Court of Appeal stated that:
"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"
[29] In State v Alifereti [2008] FJHC 231; HAC018.2005 & HAC040.2007s (17 September 2008) – 4 yrs and 3 yrs imprisonment respectively.
[30] In State v Carlos Taylor High Court, Crim Case No: 001 of 1999, - 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.
[31] In Prem Chand v The State [2001] FJHC 130; HAM 0017/2000, 8 November 2008, the appellant had pleaded guilty to one count of official corruption and sentenced to 4 years imprisonment on that count.
[32] In State v Sorovakatini High Court, Crim Case No: 018/07, 26 September 2007, the accused pleaded to one count of official corruption and was sentenced to 2 ½ years imprisonment after discounting the guilty plea.
[33] In Isikeli Kini v The State [2004] FJCA 55, AAU 0041/02, 26 November 2004, the Court of Appeal upheld a sentence of 12 months imprisonment for one count of Official Corruption.
[34] I am advised of the tariff as cases discussed above and I commence the sentencing on you. Since the Official Corruption is a cancer of our society I commence the starting point as two years on each count.
[35] I consider the aggravating factors as follows:
(a) You have abused your position
(b) You have breached the public trust
(c) You have obtained money from your subordinate officers who have earned through their hard labour
(d) You have set a bad example to your subordinate officers.
Considering above facts I add three months to each count.
[36] Now I consider your mitigating circumstances.
Considering the mitigating factors I reduce three months on each count.
[37] Since the Official Corruption is described as a cancer to the society and this should be a lesson to the Public Servants that the Court will have zero tolerance in this kind of offence. Even though I am not suspending your sentence but considering all circumstances I order to implement sentence concurrently.
[38] Your sentence is 2 years imprisonment.
[39] You have 30 days to appeal.
S Thurairaja
JUDGE
At Suva
Solicitors
Mr. M Tennakoon for FICAC
Mr. Tevita Fa for Respondent
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