Fiji Independent Commission Against Corruption v Matalau [2011] FJHC 304; HAC019.2010 (27 May 2011)

IN THE HIGH COURT OF FIJI
AT LABASA
CRIMINAL JURISDICTION

HIGH COURT CRIMINAL CASE NO: HAC 019 OF 2010

BETWEEN:

FIJI INDEPENDENT COMMISSION
AGAINST CORRUPTION
PROSECUTION

AND:

1. SEMI MATALAU
2. JAI SURENDRA PRAKASH SHARMA

ACCUSED PERSONS

Counsel: Mr. Sanjeewa Dissanayake and Ms. Pulewai for FICAC
Mr. A. Kohli for both Accused Persons

Date of Hearing: 2nd – 6th, 9th – 13th, 16th – 20th and 23rd May 2011

Date of Summing Up: 25th May 2011
Date of Sentence: 27th May 2011

SENTENCE

[1] Semi Matalau and Jai Surendra Prakash Sharma you both stand convicted of 1 count each of Official Corruption following trial.

COUNT 1

Statement of Offence [a]

OFFICIAL CORRUPTION: Contrary to Section 106(a) of the Penal Code Cap 17.

Particulars of Offence [b]

Semi Matalau between the 06th day of October 2004 and the 30th day of November 2006 at Labasa in the Northern Division being employed in the public service as a Divisional Planning Officer in the Commissioner Northern Office and being charged with the allocation of contracts by virtue of such employment corruptly received a benefit namely the repayment of Merchant Finance and Investment Company Limited loan "MC 15816115 Motor" for himself from Jai Surendra Prakash Sharma of Babasiga Hire Services and Babasiga Spares and Hardware Services on account of having awarded Road upgrading Contracts to said Jai Surendra Prakash Sharma by him in the discharge of the duties of his office.

COUNT 2

Statement of Offence [a]

OFFICIAL CORRUPTION: Contrary to Section 106(a) of the Penal Code Cap 17.

Particulars of Offence [b]

Jai Surendra Prakash Sharma between the 06th day of October 2004 and the 30th day of November 2006 at Labasa in the Northern Division, corruptly gave a benefit namely the repayment of Merchant Finance and Investment Company Limited loan "MC15816115 Motor" for Semi Matalau, a person employed in the public service as a Divisional Planning Officer Northern on account of having being awarded Road upgrading Contracts by the said Semi Matalau.

[2] The brief facts of the case were, that the 1st Accused was the Divisional Planning Officer in the Commissioner Northern Office. You officiating as the Chairman Tender Board of the Commissioner Northern's Office, corruptly awarded tenders to the 2nd Accused Jai Surendra Prakash

Sharma's Company and in return, the 2nd Accused paid your personal Merchant Finance Company Ltd loan installments.

[3] You certified the payments to the 2nd Accused who was the contractor, who was awarded with the tenders for road upgrading, stating that work was completed by 2nd Accused, when in fact the work was not completed according to the contract.

[4] The second Accused Jai Surendra Prakash Sharma, you paid the said installments of the 1st Accused personal loan corruptly, having being awarded the said contracts. You did not complete your work according to the contract and however, the 1st Accused certified payment to you. Therefore you both acted corruptly for personal benefit.

[5] For official corruption maximum punishment prescribed in Law in terms of section 106 of the Penal Code Cap 17 is 7 years imprisonment.

[6] In State v Pita Koni Alifereti Criminal Case Nos. HAC018/05 and 040 of 2007S the Court said:

"Public interest demands that the sentence must address the need for deterrence and to warn others similarly inclined that severe sentence will be passed by the courts on anyone found guilty of the offence of Official Corruption. Those involved in this type of offending betray public trust and their acts erode public confidence in our government institutions. These are serious crimes. It is needful that potential offenders and the public at large understand that these crimes will be met with stiff penalties."

[7] On Official Corruption, in case of Robert Kaki Yabara v The State, Supreme Court of Justice Papua New Guinea [1984] PNGLR 378 SC 285 referring to Clifford Reports at 69 of Vol. 1 (Law and Order in Papua New Guinea (1984) Clifford, Morauta and Stuart) the Court said.

"Once started, corruption is hard to stop. Honest businessmen cannot remain competitive if other businessmen acquire competitive advantages through corruption. The easy money floating about in a corrupt society intoxicates many honest men tempted by the easy access to wealth. Imperceptibly corruption spreads through society like a cancer. By the time the State mobilizes to deal with it, the action is often too little and comes too late."

[8] Commenting of the seriousness of this type of offences by public servants in case of Naiveli v State (1994) FJCA 29; AAU0004u.92s (12 August 1994) the Court said:

"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."

[9] In case of State v Alifereti (supra) Justice Mataitoga commenced the starting point with 5 years in the offence of official corruption and imposed a custodial sentences of 4 years and 3 years.

[10] When consider the series of case Law in Fiji on Official Corruption, Courts have taken this as a very serious offence, which warrants a deterrent and immediate custodial sentence.

[11] Considering the above, I take 4 years as the starting point on both 1st and 2nd Accused.

[12] Now I consider the aggravating factors for the 1st Accused. Being a public officer holding a senior position he breached the trust reposed on him by the state. The loss you have caused to the government and the public cannot be measured in monetary terms because there was no evidence led of any financial loss to state.

[13] Even though the loss caused by your actions had not been assessed, according to the evidence in the case, no doubt that your action has lead to a considerable loss to the government.

[14] Further you have prevented honest competitive contractors, from tenders being awarded to them, by acting corruptly with the 2nd Accused.

[15] For the aggravating factors, I add 2 years making a total of 6 years imprisonment.

[16] Now I consider the mitigating factors mention on behalf of the 1st Accused. It is submitted that you are 53 years of age, married with 4 children, has 28 years service in public service, that you are the Chairman of Rewa Rugby Union, Chairman of Tikina Council, Turaga-ni-Vanua, Chairman of Nausori Crime Prevention Committee.

[17] Further I consider all what was said in evidence about you, by Reverend Savirio Vuata the Methodist Church Minister of your good character including the above.

[18] For the above mitigating factors I reduce 2 years making a total of 4 years imprisonment.

[19] Counsel for FICAC informed Court that you have two previous convictions for drunk and disorderly behaviour committed in 16/2/1982 and 15/1/1985. I disregard those as they are more than 25 years old.

[20] Therefore I further give you a discount of 1 year for your previous good character and that you are a 1st offender.

[21] Now your final sentence is 3 years imprisonment.

[22] As mentioned above I see no special reason to suspend the said sentence.

[23] Considering the circumstances of the case, I fix a non parole period of 2 years in which period you are not entitle to parole.

[24] For the 2nd Accused Jai Surendra Prakash Sharma, I take 4 years imprisonment as the starting point.

[25] The aggravating factors are, that you breached the trust expected of you by the community, by not performing the contract for the expected standards, and in terms of your contract.

[26] Further you have prevented honest competitive contractors from tenders being awarded to them by your conduct with the connivance of with the 1st Accused.

[27] I add 2 years for the above aggravating factors.

[28] The mitigating factors mentioned on behalf of you are:

that you are 42 years of age, married with 3 children aged 14, 12 and 5, that you have made considerable contributions to the charitable organizations, that you are the sole breadwinner of the family.

[29] For the above mitigating factors I reduce 2 years making a total of 4 years imprisonment. You have a previous conviction for which you are now serving a custodial sentence and therefore you are not entitle to a discount for previous good character.

[30] Therefore your final sentence is 4 years imprisonment.

[31] Considering the circumstances of the case I fix a non parole period of 3 years, during which period you are not entitle to parole.

[32] Further I consider this as a serious offence as mentioned before. 2nd Accused is already serving a jail term, which is for a totally separate offence. He has not shown any remorse. Considering the above I order that this sentence of 4 years imprisonment to run consecutively with any other uncompleted sentences of imprisonment.

[33] Final sentences are:

1st Accused - 3 years imprisonment with a non parole period of 2
years on Count 1.

2nd Accused - 4 years imprisonment with a non parole period of 3
years on Count 2.

Sentence of 2nd Accused to run consecutively with his uncompleted sentences of imprisonment.

Priyantha Fernando
Judge