Fiji Independent Commission Against Corruption v Mau [2011] FJHC 222; HAC089.2010 (14 April 2011)

IN THE HIGH COURT OF FIJI
AT SUVA
CRIMINAL JURISDICTION

Criminal Case No: HAC089 of 2010

FIJI INDEPENDENT COMMISSION AGAINST CORRUPTION

v.

1. TEVITA PENI MAU
2. MAHENDRA MOTIBHAI PATEL
   

Hearing Dates: 14 March – 6 April 2011
Summing Up: 11 April 2011
Judgment: 12 April 2011
Sentence: 14 April 2011

Counsel: Mr. N. Marasinghe & Ms S. Sanmorgam for FICAC
Mr. D. Sharma for 1st Accused
Mr. H. Nagin for 2nd Accused

SENTENCE

[1] Mr. Mau and Mr. Patel have been found guilty, after a trial, of the offence of abuse of office.

[2] There are two limbs to the offence of abuse of office. Under the first limb the offence is classified as a misdemeanour punishable by two years imprisonment. Under the second limb the offence is classified as a felony punishable by three years imprisonment. In the latter, the arbitrary act is done for the purpose of a gain.

[3] Mr. Mau has been found guilty of misdemeanour abuse of office. Mr. Patel has been found guilty of felony abuse of office.

[4] I turn now to consider the sentencing principles.

[5] The starting point is the observations made by the Court of Appeal in Naiveli v. The State Criminal Appeal No. 2 of 1992 (per, Tikaram P, Quilliam JA, Hillyer JA) at p.7:

"We note that such offences strike at the very roots of the administration of law and order and justice in this country. Such an offence can be committed only by a person who is in a position of authority and trust. If it became a pattern that because of their high position they would not serve a term of imprisonment it could only be to the detriment of the whole country."

[6] The Court of Appeal made the observation after the State appealed against a suspended sentence imposed on a senior police officer who directed a junior police officer to effect the eviction of a person from a property in which the senior police officer had a personal interest. The offender was convicted after a trial and was sentenced to 9 months imprisonment suspended for 1 year and a fine of $1,000.00 in default 6 months imprisonment.

[7] The Court of Appeal reluctantly decided not to impose a custodial sentence because by the time the appeal was heard, the offender had served his entire suspended sentence. But, the Court said at p.8:

"We wish to make it clear however that people in high office who abuse their power may well in the future be required to serve an immediate prison sentence. This course should serve as notice to any such people that the courts are not prepared to regard such offences lightly and that they will not suspend sentences just because the consequences for such a person are severe."

[8] The Court of Appeal made the comments after noting that in earlier abuse of office cases suspended terms were imposed on the offenders.

[9] In State v. Chang Criminal Case No. 8 of 1991, the offender approved the tender for his friend to supply spare motor vehicle parts by deviating from a policy decision of the government to purchase spare parts from franchise dealers. The motive of the offender was to supply the spare parts from his own company using his friend's tender. He received $85,213.26 whereas in fact he had paid out about $86,000 of his own money when he opened letters of credit in favour of his friend who later double-crossed him. The offender was convicted of misdemeanor abuse of office by the High Court and was sentenced to 12 months imprisonment suspended for 2 years.

[10] In Kubunavanua v. State Cr. Case No. 4 of 1992, the offender was a police officer, who wrongfully used a television screen and radio seized as exhibits, for his personal use. He was convicted and sentenced to 9 months imprisonment suspended for 18 months.

[11] In State v. Bola Cr. Case No. 29 of 2005S, the offender was employed as the Manager, Compliance and Investigations at the Immigration Department. While on duty, he personally went to the Nausori Airport to ensure a passenger sponsored by a local couple personally known to him, was not refused entry into Fiji. He was convicted after a trial and was sentenced to 200 hours of community work and a fine of $2,000.00.

[12] In State v. Kunatuba Cr. Case No. HAC18 of 2006, the offender was employed as the Permanent Secretary for Ministry of Agriculture. He implemented a scheme without the government's approval and deviated from the government accounting regulations, causing abuse of public funds in millions. He was convicted after a trial and was sentenced to a total sentence of 4 years imprisonment on two counts of abuse of office.

[13] In FICAC v. Kumar Cr. Case No. 001 of 2009, the offender was sentenced to 12 months imprisonment for deviating from the accounting procedures of the town council in which he was the acting town clerk, to raise a cheque for his own personal benefit.

[14] In FICAC v. Devo Cr. Case No. HAC177 of 2007, the offender was convicted for abusing his position as the Commissioner Central to authorize the use of the government vehicle to collect liquor for unofficial functions. The offender was sentenced to a total sentence of 9 months imprisonment on three counts of abuse of office.

[15] These cases show that the sentences for abuse of office range from probation order to imprisonment sentences, depending on the nature of the arbitrary act committed by the public servant, the seniority of the public servant in the institution, the motive and the intention of the public servant, the nature of the harm done to the complainant and the nature of gain, if any, by the public servant.

[16] Mr. Sharma made detailed submissions on the provisions of the Sentencing and Penalties Decree and the range of options that are now available under the Decree. I accept that the courts now have wider sentencing options than before, but in my view, those options cannot be applied in vacuum.

[17] Sentencing is a judicial function. This means that the sentence is determined by the judge. In determining the appropriate sentence, regard must not only be made to the statutory sentencing framework but also to the sentencing guidelines established by case law. In my opinion the purpose of the Sentencing and Penalties Decree is to make the sentencing hearing more transparent and fair so that the offender knows why he or she has received a particular punishment.

[18] Mr. Sharma points out that section 15 (1) of the Decree provides for not recording a conviction with or without imposing a punishment as an option. Mr. Sharma submits that section 15 makes it mandatory for the court to consider whether a conviction ought to be recorded following a finding of guilt. Mr. Sharma puts his submission in the following manner:

"In light of the statutory provisions the first issue that the court must consider after a guilty verdict has been rendered, is whether a conviction ought to be recorded against the accused person." (underlining mine)

[19] Mr. Sharma then refers to section 16 of the Decree, which sets out the factors that the court must take into account when considering not recording a conviction.

[20] Section 15(1) provides that if a court finds a person guilty, it may consider the sentencing options that are provided. Clearly, the use of the word 'may' means that the court has a discretion to consider the option of whether to record a conviction, and that, it is not mandatory that the court has to consider the option following a guilty verdict. If the court exercises its discretion to consider not recording a conviction, then the court must consider all the factors in section 16 of the Decree in the exercise of its discretion. To substitute the word 'must' for the word 'may' in section 15 to argue that it is mandatory for the court to consider the option of not recording a conviction after a guilty verdict, is misleading.

[21] The Decree, of course, provides that sentences of imprisonment should be regarded as the sanction of last resort taking into account all relevant matters.

[22] I refer to the purposes of sentence which apply in this case. Mr. Mau and Mr. Patel were the two most senior executives of Post Fiji Limited when they abused the authority of their office. The seniority of their positions is an aggravating factor. Post Fiji Limited is an entity that is fully owned by the government. Any conduct that tends to compromise the integrity of the office of senior executives of government owned entities deserve condemnation.

[23] For much of the same reason, deterrence is a highly relevant objective in sentencing for misuse of power by those who hold high public office. I accept that there is no risk of re-offending in this case. The need for special deterrence has been minimized by the termination of Mr. Mau and Mr. Patel from their office. But a high priority must be placed on the need for general deterrence for those who hold high public office. Those who hold high public office must realize that the institutional procedures exist for good reasons. They exist to promote good governance and to make the office transparent and accountable in the eyes of the public. For these reasons, those who blatantly disregard institutional procedures at their whims must be deterred.

[24] The breach of the public's trust aggravates the offence.

[25] I turn now to consider those matters which I can properly take into account in mitigation. Mr. Mau is 63 years old. He is a widower. He has children and grandchildren who are dependent on him. He has no previous conviction.

[26] Mr. Patel is 71 years old. He is diabetic and requires regular medical attention. He is married with grown up children and grandchildren residing overseas. He has no previous conviction. In the past, he has served on a number of government boards and charitable organizations for a long period of time.

[27] The offences were committed in 2003. The charges were filed on 27 October 2008. The pre-charge delay is five years. The post-charge delay is two and half years. Mr. Mau and Mr. Patel are not responsible for the delay. I take into account the total delay as a mitigating factor.

[28] I have had regard to the circumstances of the offending. Mr. Mau ignored his responsibility to apply the procedures of Post Fiji Limited, to allow Mr. Patel an advantage. Mr. Patel was simply motivated by greed to increase his corporate wealth. Both acted despotically and caused prejudice to Post Fiji Limited.

[29] In these circumstances, the option of not recording a conviction is inappropriate. Public servants are morally responsible to the public. The public expects them to be transparent and accountable in all their dealings. Those who misuse their public office must receive punishment to reflect the society's disapproval of the conduct.

[30] The offences justify imprisonment sentences. I consider Mr. Patel to be more culpable than Mr. Mau. Mr. Patel financially gained, although the amount of profit is relatively small.

[31] I sentence Mr. Mau to a term of 9 months imprisonment.

[32] I sentence Mr. Patel to a term of 12 months imprisonment.

[33] I now consider whether the sentences should be suspended.

[34] The consequences that the convictions will have on Mr. Mau and Mr. Patel do not justify suspending the sentences.

[35] Mr. Patel's age and his health condition do not constitute exceptional circumstances to justify suspending the sentences.

[36] I do not think that the post-charge delay in this case is so unreasonable to justify suspending the sentences.

[37] Both Mr. Mau and Mr. Patel express no remorse. Mr. Mau's written mitigation makes a reference that he apologizes if his actions have caused loss or prejudice to Post Fiji Limited. However, it is evident from the other parts of his written mitigation that he is not accepting the findings made against him that he acted despotically with improper motive, causing prejudice to Post Fiji Limited. A total absence of remorse even after finding of guilt is another factor that operates against suspending the sentences.

[38] I have had regard to the previous good character of Mr. Mau and Mr. Patel and the services that they have provided to the public using their office, to consider whether these factors justify suspending the sentences. However, it is not possible for me to give undiminished weight to their previous good character and record of service to the public. They were given power and responsibility of a public office because of their corporate expertise and good character. Instead, they breached the public's trust by misusing their office.

[39] After having regard to all these factors, I decided not to suspend the sentences.

[40] The sentence of Mr. Mau is 9 months imprisonment. The sentence of Mr. Patel is 12 months imprisonment.

Daniel Goundar
JUDGE

At Suva
14 April 2011

Solicitors:
FICAC for Prosecution
R. Patel Lawyers for first Accused
Sherani & Co. for second Accused