Fiji Independent Commission Against Corruption v Jogia [2012] FJHC 874; HAC098.2009S (17 February 2012)

IN THE HIGH COURT OF FIJI
AT SUVA
CRIMINAL JURISDICTION

CRIMINAL CASE NO. HAC 098 OF 2009S

THE FIJI INDEPENDENT COMMISSION AGAINST CORRUPTION
[FICAC]

vs

ASHWIN KUMAR JOGIA
PENISENIASI TAGIKIMATUKU

Counsels: Ms. F. Pulewai and Ms. S. Sanmogam for Fiji Independent Commission against Corruption [FICAC]
Mr. H. Nagin for Accused No.1
Mr. A. Naco for Accused No. 2
Hearings: 16th to 27th January, 2012
Summing Up: 1st February, 2012
Judgment: 2nd February, 2012
Sentence: 17th February, 2012

SENTENCE

1. In a judgment delivered on 2nd February, 2012, the court found Mr. Ashwin Jogia, guilty as charged on count No. 2, ie. "uttering forged document", contrary to section 343 of the Penal Code, Chapter 17; and on count No. 3, ie. "making a false statement not on oath", contrary to sections 121(b) and 47 of the Penal Code. The court convicted him on those counts.
   
2. As for Mr. Peniseniasi Tagikimatuku, the court found him guilty as charged on count No. 1, ie. "forgery", contrary to section 341(1) of the Penal Code. He was also found guilty on count No. 3, ie. another forgery charge. The court convicted him on those counts.
   
3. The facts were simple. Mr. Ashwin Jogia constructed a new dwelling house at Dilo Place, Pacific Harbour from 15th November 2006 to 15th July 2008. He wanted to claim a VAT refund from the Fiji Island Revenue and Customs Authority (FIRCA) on 29th July 2008. New dwelling house completed after 31st December 2007 were not entitled to a VAT refund. The Navua Rural Local Authority was the authority entrusted to decide when a house was completed by issuing a "completion certificate". Mr. Peniseniasi Tagikimatuku was working for Navua Rural Local Authority, at the time. They were supposed to issue a 15th July 2008 "completion certificate" to Mr. Jogia. However, Mr. Jogia somehow influenced Mr. Tagikimatuku to alter the dates on the certificate and its butt to 15.12.07, and thereby committed forgeries. Mr. Jogia knowingly and fraudulently uttered such forged certificate to FIRCA to claim a VAT refund, and made a false statement in his application that his house was completed on 15.12.07, instead of 15.7.08.
   
4. "Forgery", pursuant to section 341(1) of the Penal Code is a misdemeanor, and it carries a maximum sentence of 2 years imprisonment. No appropriate authorities were submitted to the court by the parties as the tariff on this count. However, given that the maximum sentence is 2 years imprisonment, I will fix the tariff as between 6 months to 12 months. The actual sentence will depend on the aggravating and mitigating factors.
   
5. "Uttering a forged document", contrary to section 343 of the Penal Code, appeared to be a misdemeanor, and it carries a maximum sentence of 2 years imprisonment. Likewise, "making a false statement without oath", contrary to sections 121(b) and 47 of the Penal Code, is a misdemeanor. No appropriate tariffs were submitted to the court by the parties. However, the maximum sentence is 2 year imprisonment, for the above offences, and I will fix 6 months to 12 months as the tariff for the above offences. Again, the actual sentence will depend on the aggravating and mitigating factors.
   
6. The mitigating factors for the two accuseds are as follows:
   
   • (i) Mr. Ashwin Jogia
   • - 37 years old, married with a 5 year old daughter
   • - first offender
   • - Financial Controller for "Engineered Designs "
   • - sole breadwinner
   • - looks after his sickly parents
   • - in building his villa at Pacific Harbour, he had been let down by his building contractors, and the house is still vacant, and attracting a $1,235 liability a month (ie. loan repayments)
   • - he had not profited from this offending
   • - this case has been hanging over his head since 2009, and has caused him embarrassment etc., and those are punishment, in themselves
   • - FIRCA has benefitted from the case in recouping $13,000 plus from the Housing Authority, because Mr. Jogia's contractor was not VAT registered.
     
   • (ii) Mr. Peniseniasi Tagikimatuku
   • - married with 4 children, who are all at school
   • - sole breadwinner
   • - first offender
   • - being a civil servant for 15 years
   • - wife does not work, but does domestic duties
   • - case hanging over his head since 2009, and has caused him a lot of embarrassment.
     
7. The aggravating factors for the two accuseds are as follows:
   
   • (i) Mr. Ashwin Jogia
   • - the offending by Mr. Jogia was a deliberate attempt to circumvent the rules, and defraud the Fiji Island Revenue and Customs Authority, by offering a forged "completion certificate", and making a false statement in his VAT refund application.
   • - by doing the above, Mr. Jogia was plainly dishonest.
     
   • (ii) Mr. Peniseniasi Tagikimatuku
   • - Mr. Peniseniasi allowed himself to be improperly influenced by Mr. Jogia in altering the dates on the completion certificate and its butt.
   • - he was plainly dishonest as a public servant.
     
8. For Mr. Peniseniasi, on count No. 1, I start with a sentence of 8 months prison. For the aggravating factors, I increase the 8 months by 4 months to 12 months imprisonment. For the mitigating factors, I reduce the 12 months by 6 months to 6 months imprisonment.
   
9. I repeat the above process for count No. 3. On count No. 3, Mr. Peniseniasi is sentenced to 6 months imprisonment. This sentence is concurrent to the 6 months prison sentence in count No. 1. Total sentence for Mr. Peniseniasi is 6 months imprisonment.
   
10. As for Mr. Ashwin Jogia, on count No. 2, I start with 8 months prison. I add 4 months for the aggravating factors, making a total of 12 months imprisonment. For the mitigating factors. I reduce the 12 months by 6 months to 6 months imprisonment.
    
11. I repeat the above for count No. 4, for which I sentence Mr. Jogia to 6 months imprisonment. This sentence is concurrent to the 6 months imprisonment in count No. 2. Total sentence for Mr. Jogia is 6 months imprisonment.
    
12. In summary, both accuseds are each sentenced to a total prison sentence of 6 months imprisonment each.
    
13. Should the court suspend the above prison sentence? The answer to this question would be yes, had they pleaded guilty to the offence. But since they went to trial, which was of course their right, they must take the consequences of what comes with a trial, that is, a custodial sentence.
    
14. Furthermore, the custodial sentence on the two accuseds is a warning to those who intend to defraud the Fiji Island Revenue and Customs Authority. If you are found guilty after a trial, you will get a custodial sentence.
    
15. In summary, I sentence each accused as follows:
    

Count No. 1 - Peniseniasi - 6 months imprisonment

Count No. 2 - Ashwin - 6 months imprisonment

Count No. 3 - Peniseniasni - 6 months imprisonment

Count No. 4 - Ashwin - 6 months imprisonment

The sentences are concurrent to each other. Each accused is sentenced to a total of 6 months imprisonment each, effective forthwith.

Salesi Temo
JUDGE

Solicitor for the State: Office of Fiji Independent Commission Against Corruption, Suva
Solicitor for First Accused: Sherani & Co., Barristers & Solicitors, Suva
Solicitor for Second Accused: A. Naco, Barrister & Solicitor, Suva