State v Murti [2010] FJHC 514; HAC195.2010 (17 November 2010)

IN THE HIGH COURT OF FIJI
AT SUVA
CRIMINAL JURISDICTION

Criminal Case No: HAC195 of 2010

STATE

V

KADALI SURYANAYANARA MURTI

Hearing: 1 – 8 November 2010
Sentence: 17 November 2010

Counsel: Ms S. Tagivakatini for State
Ms N. Nawasaitoga & Mr. S. Waqainabete for Accused

SENTENCE

[1] Mr. Murti, you appear for sentence having been convicted of 1 count of trafficking in persons and 7 counts of obtaining property by deception. The maximum penalty for trafficking in persons is 12 years imprisonment, and for obtaining property by deception, the maximum penalty is 10 years imprisonment.

[2] The charges arose from the same facts. You and the seven victims are from India. You met the victims in Delhi. They contacted you after learning that you were arranging overseas work for the Indian nationals. The victims were Indian men with different backgrounds. Four of them were married and two were single men. They fluently spoke the Punjabi language. They had limited command of Hindi and English languages. They were ordinary but genuine people. They desired to work overseas to improve their economic wellbeing.

[3] In this sense the victims were vulnerable. You took advantage of their vulnerability and convinced them that you could arrange work for them in a farm in New Zealand. You asked them for payments of fees for your service but they insisted that they will only pay you upon sighting documents that they have been offered jobs in New Zealand. You then showed them documents purporting to be employment offer letters from a company in New Zealand.

[4] The documents were false. The victims were not offered any employment in New Zealand.

[5] By deception you dishonestly obtained substantial amount of money from each victim. Three of them paid you 150,000 Indian rupees each while four of them paid you NZ$4300.00 each. You convinced them that there was no need to document the payments because you were travelling with them to New Zealand.

[6] You had no intention of taking the victims to New Zealand. You made all the travel arrangements for them. You booked them to travel to Fiji, a country that they never heard of. You bought electronic tickets, which you gave them at the airport in India on the day of travel. When they enquired where Nadi was, you convinced them that Nadi was in New Zealand by saying they were taking a domestic flight from Nadi.

[7] When you arrived at Nadi International Airport you told the victims to lie to the immigration officers that they were here for holidays. You were carrying substantial amount of New Zealand and US currencies in your hand carry bag. You kept the money in six separate envelopes and you claimed that they were your money. You told an immigration officer that you were assisting the victims with the English translation. You told the immigration officer that you did not know the victims.

[8] Your intention was to leave the victims in Fiji and return to India. You were reckless as to whether the victims were going to be exploited knowing that they had limited funds with them.

[9] I turn now to consider what is the appropriate sentence for the offence of trafficking in persons and obtaining property by deception. The use of deception to obtain money from the victims was part of your arrangement to facilitate their entry into Fiji. I therefore do not draw any distinction in your culpability as far as the two offences are concerned.

[10] As you have heard, there is no direct precedent to which I can turn for guidance as you are the first person in Fiji to be convicted of trafficking in persons. There is some guidance to be obtained from overseas cases.

[11] In A-G's Reference (No. 6 of 2004) [2004] EWCA Civ 45; [2004] ALL ER (D) 312, the offender was involved in the illegal bringing of young girls into the United Kingdom and forcing them into prostitution. He was convicted of numerous offences including kidnapping, inciting to rape and assisting illegal entry and was sentenced to a total term of 10 years imprisonment. On appeal, the English Court of Appeal considered the sentence to be unduly lenient and increased it to 23 years imprisonment.

[12] In R v Maka [2005] EWCA Crim 3365, the offender was convicted of 5 counts of trafficking women for sexual exploitation and was sentenced to a total sentence of 18 years imprisonment. The English Court of Appeal confirmed the sentence on appeal.

[13] In R v Saini; R v Kalyan; R v Deo [2004] EWCA Crim 1900, the offenders pleaded guilty to conspiracy to facilitate illegal entry into the United Kingdom. The offenders made false documents to facilitate the entry and in return the illegal migrants paid a fee of £3000 and £8000 per person per passage. The offenders were sentenced for their individual roles in the conspiracy to 7½, 5 and 4 years imprisonment respectively. The maximum penalty for the offence was 10 years imprisonment.

[14] In R v Feng Lin [2001] NSWCCA 7; (2001) 119 A Crim R 194 (CA NSW), the offender received US$3,000 for three migrants to be smuggled into Australia on the container boat on which he was an officer. The sentencing judge had taken a starting point of 7 years imprisonment and reduced that to 4 years imprisonment for mitigating factors, including an early guilty plea. On appeal to the New South Wales Court of Appeal, the sentence was further reduced to three years imprisonment by majority decision.

[15] In Chechelnitski v R [2004] NZCA 208 (1 September 2004), the offender pleaded guilty to three charges of people smuggling into New Zealand. The offence carried a penalty of 20 years imprisonment. The offender was sentenced to 3½ years imprisonment, which was upheld by the New Zealand Court of Appeal.

[16] I consider these overseas authorities to be of limited assistance on the basis that the maximum penalties were different and the sentencing considerations and parole regimes were likely different too.

[17] The overseas authorities however demonstrate a common principle that a prison sentence should be imposed to deter the offender and others from committing this type of offences.

[18] The Crimes Decree 2009, which came into effect on 1 February 2010, creates a number of offences designed to fulfill Fiji's obligation under the United Nations Convention Against Transnational Organised Crime and two of its three protocols, the Protocol to Prevent, Suppress and Punish Trafficking in Persons, Especially Women and Children (the Trafficking Protocol), and the Protocol against the Smuggling of Migrants by Land, Sea and Air (the Migrant Protocol).

[19] Although Fiji has not signed these international conventions, by criminalizing human trafficking and smuggling under the domestic law, Fiji has shown commitment to effectively address this global problem.

[20] Trafficking in persons is a human right issue. Traffickers are motivated by greed to take advantage of vulnerable victims. Traffickers use coercive tactics including deception, fraud, intimidation, isolation, threat and use of physical force, and/or debt bondage to control their victims. The victims are generally subjected to degrading forms of exploitation such as forced prostitution, domestic servitude and other kinds of work.

[21] However, I do not consider this case to be the worst case of human trafficking. The victims were only exposed to exploitation. They were not physically exploited.

[22] I consider a term of 6 years imprisonment is an appropriate starting point for the offence of trafficking in persons. I use the same starting point for each count of obtaining property by deception.

[23] In mitigation your counsel said you are 62 years old and a retired seaman. You have no criminal history. Your wife is sickly and your family members are financially depended on you. You have been in custody since your arrival in Fiji on 10 September 2010.

[24] You facilitated entry of seven men into Fiji by deception. The men were not your relatives. They were strangers. You took substantial amounts of money from them. Because of you the victims were detained in Fiji upon arrival. These are the aggravating factors.

[25] I increase your sentence by 2 years to reflect the aggravating factors and I reduce your sentence by 2 years to reflect your old age, family circumstances in India, previous good character and the remand period.

[26] For the offence of trafficking in persons and for each offence of obtaining property by deception, I sentence you to 6 years imprisonment. I fix a non-parole period of 4 years imprisonment.

[27] I order you serve all your sentences concurrently.

Daniel Goundar
JUDGE

At Suva
17 November 2010

Solicitors:
Office of the Director of Public Prosecutions for State
Office of the Legal Aid Commission for Accused