Fiji Independent Commission Against Corruption v Rokovunisei - Sentence [2012] FJHC 1046; HAC37B.10 (2 May 2012)

IN THE HIGH COURT OF FIJI
AT SUVA
CRIMINAL JURISDICTION

HIGH COURT CRIMINAL CASE NO:
HAC 37B OF 2010

BETWEEN:

FIJI INDEPENDENT COMMISSION AGAINST CORRUPTION
PROSECUTION

AND:

OLOTA ROKOVUNISEI
ACCUSED PERSON

Counsel: Ms. Sanmogam for FICAC
Ms. Vaniqi S for Accused

Date of Summing Up: 25th April 2012
Date of Judgment: 26th April 2012
Date of Sentence: 2nd May 2012

SENTENCE

1. Olota Rokovunisei, you have been convicted of one count of Extortion by Public Officers and one count of Abuse of Office.
   
2. On Count No. 1, Extortion by Public Officers, you are convicted of a misdemeanour. Maximum penalty prescribed for Extortion by Public Officers is 3 years imprisonment.
   
3. The facts are that you were employed as General Manager/Chief Executive Officer of Fiji National Provident Fund (FNPF). You accepted a sum of $22,773.18 as responsibility allowance, beyond your proper pay and emoluments for performance of your duty as CEO. In accepting the payment from FNPF, proper procedure was not followed to get the approval for the same from the FNPF board or High Salaries Commission (HSC) as required.
   
4. There are no case precedents on the tariffs for the offence of Extortion by Public Officers in Fiji. However, Courts in Fiji have taken the offences against Administration of Lawful Authority where corruption and the abuse of office are involved, very seriously. Highest standards of honesty and integrity are expected from those who hold high public office. They must set example to the subordinate officers. The sentence that ought to be imposed should necessarily reflect the denunciation of court.
   
5. Considering the above on count no. 1, I pick 18 months as my starting point.
   
6. The aggravating factors are that being the Chief Executive Officer you have grossly breached the trust vested in you by your employer FNPF and the public. The public fund is entrusted on you for proper management and you ought to utilize it for the general benefit of its members, not to unjustly benefit yourself. By your actions you have seriously breached the public trust and confidence vested in you.
   
7. In mitigation I consider all good things said about you by the three character witnesses. You are a 1st offender. I also consider that you are 66 years old, married with 4 children. The other mitigating circumstances are your qualifications, long and respectable career, your involvement in social community and religious activities. Your ill health and your age are also considered. The period of 4 years you had to wait for trial with mental strain after you were charged, too, is considered.
   
8. For the aggravating factors mentioned above, I increase your sentence by 1 year making an interim total of 2½ years imprisonment. I deduct 1½ years to reflect your mitigating factors mentioned above. Now your sentence on count no. 1 is 12 months imprisonment.
   
9. Considering the seriousness of the offence as mentioned above I find that suspension of the sentence imposed is not warranted.
   
10. On count no. 2, Abuse of Office, you are convicted of a felony. The maximum penalty prescribed for felony of abuse of office is 3 years imprisonment.
    
11. The facts are that you authorized a payment of responsibility allowance for Foana Nemani without approval of the FNPF board and HSC. You used your position as GM/CEO and abused the authority of your office when authorizing the said payment to Foana Nemani. You were holding high office as GM/CEO of FNPF. You breached the trust vested in you by your employer FNPF and the public, which aggravate the offence.
    
12. In case of Naiveli v The State Criminal Appeal No. 2 of 1992 FCA 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."

13. On sentencing the court further said:
    

"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 comment 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."

14. In case of FICAC v Farzard Ahmed Khan, HAC82/2010 when sentencing the accused who was convicted of forgery and abuse of office following guilty pleas, Goundar J said:
    

"....Despite your previous good character and other compelling mitigating factors, I give priority to the principle of deterrence. The purpose of your punishment is not only to deter you but others as well from committing this kind of offences."

The accused was sentenced to 6 months imprisonment on each count of forgery and abuse of office to be served concurrently.

15. In case of State v Kunatuba Crim. Case No. HAC 18 of 2006 the accused being Permanent Secretary for Ministry of Agriculture, implemented a scheme without approval from cabinet and finance ministry, deviating from the government accounting regulations caused abuse of office in millions of dollars. He was sentenced to a total sentence of 4 years imprisonment on 2 counts of abuse of office.
    
16. These cases show that offenders of the offence of abuse of office who held high public office were imposed with immediate custodial sentences.
    
17. On count no. 2, I pick 1½ years as my starting point. I add 1 year for the aggravating factors and deduct 1½ years for the same mitigating factors submitted on behalf of you as mentioned before. Now your sentence on count no. 2 is 12 months imprisonment.
    
18. Considering the seriousness of the offence and the reasons mentioned above, suspending the sentence is not warranted.
    
19. I order that each of the two 12 month imprisonment on counts no. 1 and 2 to run concurrently.
    
20. Acting in terms of section 24 of the Sentencing and Penalties Decree 2009, I further deduct 1 month to reflect the period you have been in custody for this case.
    
21. You shall accordingly serve a term of 11 months imprisonment with effect from today.
    
22. 28 days to appeal.
    

Priyantha Fernando
Judge
02/05/2012