Fiji Indepdent Commission Against Corruption v Naeqe [2011] FJHC 205; HAC (FICAC) 1.2010 (11 April 2011)

IN THE HIGH COURT OF FIJI
AT LAUTOKA
CRIMINAL JURISDICTION

CRIMINAL CASE NO. HAC (FICAC) 1 OF 2010

FIJI INDEPDENT COMMISSION AGAINST CORRUPTION

V

1. SETAREKI NAEQE

1st Accused

2. WAISEA NAMARALEVU

2nd Accused

Mr. R. Siriwansa for FICAC
Mr. K. Vuetaki for both Accused

Date of Hearing: 7 and 11 April 2011
Date of Sentence: 11 April 2011

SENTENCE

[1] On the 7th April 2011, in this Court, each of these accused entered a plea of guilty to the two charges he faced:

The first accused was charged as follows:

FIRST COUNT

Statement of Offence

FORGERY: contrary to section 341(1) of the Penal Code, Cap. 17.

Particulars of Offence

SETAREKI NAEQE on the 19th day of January 2009 at Lautoka in the Western Division with intent to defraud, forged a document namely a letter of authority from the members of the Mataqali Tavasi for the advance payment of lease money from the Native Lands Trust Board by placing a signature purporting to be the signature that of Waisea Namaralevu.

THIRD COUNT

Statement of Offence

FORGERY: Contrary to section 341(1) of the Penal Code, Cap. 17.

Particulars of Offence

SETAREKI NAEQE on the 12th day of February 2009 at Lautoka in the Western Division with intent to defraud forged, a document namely a letter of authority from the members of the Mataqali Tavasi for the advance payment of lease money from the Native Land Trust Board by placing a signature purporting to be the signature that of Waisea Namaralevu.

The second accused was charged as follows:

SECOND COUNT

Statement of Offence

AIDING AND ABETTING: Contrary to section 21(c) and section 341(1) of the Penal Code, Cap. 17.

Particulars of Offence

WAISEA NAMARALEVU on the 19th day of January 2009 at Lautoka in the Western Division aided and abetted Setareki Naeqe with intent to defraud to forge his signature purporting to be that of Waisea Namaralevu on a document namely a letter of authority from the members of the Mataqali Tavisi for the advance payment of lease money from the Native Lands Trust Board.

FOURTH COUNT

Statement of Offence

AIDING AND ABETTING: Contrary to section 21(c) and 341(1) of the Penal Code, Cap. 17.

Particulars of Offence

WAISEA NAMARALEVU on the 12th day of February 2009 at Lautoka in the Western Division aided and abetted Setareki Naeqe with intent to defraud to forge his signature purporting to be that of Waisea Namaralevu on a document namely a letter of authority from the members of the Mataqali Tavasi for the advance payment of lease money from the Native Lands Trust Board.

Each of the accused heard facts read to them, facts appropriate to the charges and each accused admitted those facts.

FACTS

[2] The first accused is a trustee for Mataqali Tavasi in Tavua. The second accused is the Turaga ni Mataqali Tavasi. In January 2009 the late Tui Tavua was ill and being treated in Suva Private Hospital. He needed money for his medical expenses. A common source of funds is for the Mataqali to request an advance of lease monies from the Native Land Trust Board (NLTB) (as it was then called) by having members of the Mataqali sign a letter of authority to make the application. On the 19th January 2009 the first accused was wanting to make the application but the signature of the second accused as Turaga was required. Unfortunately he was in Suva on business and could not be physically present to sign. The first accused called him in Suva. The second accused was not surprised by the call because he had already been advised by others of the need for funds for the Tui Tavua's medical bills. T he second accused told the first accused to sign the application form on his behalf which he did. As a result of this forged signature funds of $4,379 were released by NLTB and given to the family of the Tui Tavua.

A similar event occurred on the 12th February 2009. The second accused was again in Suva and told the first accused in a telephone call to forge his signature on another application to NLTB. The Tui Tavua had died and funds were needed for his funeral expenses. As a result of the signature $1,400 was released to the first accused which he gave to the family.

THE LAW

[3] It is now well settled that the range of sentences for forgery under the old Penal Code was between 18 months to three years imprisonment (Saukilagi – HAC 21 of 2004). That being so, the Barrick guidelines are used to determine the proper level of sentence. The guidelines are:

1. The quality and degree of trust reposed in the offender including his rank.
   
2. The period over which the fraud or the thefts have been perpetrated.
   
3. The use to which the money dishonestly obtained was put.
   
4. The effect on the victim.
   
5. The impact of the offences on public confidence.
   
6. The effect on the offender himself.
   
7. His own history.
   

[4] Whilst forgery (and its aiding and abetting) are serious crimes of dishonesty, I regard the level of offending in this case as comparatively low. A balance must be struck between the gravity of the crime of forgery and the harm done to the "victim" in this case.

[5] Neither of these two accused gained by their actions. They were acting as representatives of their Mataqali in support of their paramount chief. The money was needed for medical and funeral expenses and indeed did reach the family for such expenses, without diversion of "commission". Neither accused had any intention really to defraud the State institution.

Those monies would have come to them in any event at a later stage. As such, the NLTB is not a real victim, nor would the public confidence in that institution be vitiated.

[6] I fix a starting point at the lower end of the scale of eighteen months, both for the forgery and for the aiding and abetting. The mitigatory features referred to in paragraph 5 are powerful. There are no aggravating features. Each of the accused will serve eighteen months for each of the two offences he is convicted of. These terms will be served concurrently.

[7] Each accused has pleaded guilty to these offences at a very early opportunity and each has a clear record with nothing known.

[8] The eighteen months sentence will be suspended for a period of two years.

[9] Effect of suspended sentence is explained.

Paul K. Madigan
JUDGE

At Lautoka
11 April 2011