Fiji Independent Commission Against Corruption v Nemani - Sentence [2013] FJHC 468; HAC37A.2010 (20 September 2013)

IN THE HIGH COURT OF FIJI
AT SUVA
CRIMINAL JURISDICTION

Criminal Case No. HAC 37(A) of 2010

FIJI INDEPENDENT COMMISSION AGAINST CORRUPTION

vs.

FOANA TUKANA NEMANI

Counsel : Mr. R. Aslam with Ms. Puleiwai for FICAC
Judgment : 17th September 2013
Sentence : 20th September 2013

SENTENCE

[1] Ms. Foana Tukana Nemani, the accused of this case was found guilty by this court concurring with the unanimous opinion of the assessors for one count of "Extortion by Public Officers" contrary to section 107 of the Penal Code and one count of "Abuse of Office" contrary to section 111 of the Penal Code.

[2] The trial with assessors proceeded 'in absentia'. The court record reflects that the accused had been produced before the Magistrate's Court at Suva and enlarged on bail with a surety. One Maritino Nemani had stood for her sureteship. Later in July 2009, the accused through her Barristers had informed court that she is undergoing medical treatments in New Zealand and won't be able to appear in court on 22nd July 2009. Thereafter she never appeared before this court and thus her absence in court process is demonstrably voluntary. It is in this background this court proceeds to sentence the accused after finding her guilty to the above mentioned charges.
[3] Section 107 of the Penal Code, "Extortion by Public Officers," attracts a maximum sentence of 3 years imprisonment. Ms. Nemani is now a convict for the misdemeanour of "Extortion by Public Officers".

[4] Section 111 of the Penal Code, "Abuse of Office", prescribes a maximum sentence of 3 years imprisonment. Ms. Nemani now stands convict for the felony of "Abuse of Office".

[5] It was revealed in the course of the trial with the testimonies of the prosecution witnesses that she had been the Deputy General Manager (DGM) of Fiji National Provident Fund (FNPF) since June 2004 and received a "Responsibility Allowance" of F$ 26,487.12 from 15th February 2005 to 25th January 2007, when such a payment was not approved by the Board of Directors of the FNPF and endorsed by the Higher Salaries Commission. It was established by the prosecution beyond any reasonable doubt that the Chief Executive Officer (CEO) and the DGM of the FNPF were been appointed by the Board of Directors and their roles were governed by the respective contracts which they had signed with the Board. Further, it was clearly established that the Higher Salaries Commission had the overall power over the salaries of the CEO and the DGM of the FNPF, according to the Higher Salaries Commission's Act.

[6] The conclusion is that Ms. Nemani, the accused, had received the alleged "Responsibility Allowance" of F$ 26,487.12 whilst attached to the public service as the DGM of FNPF when she was not granted permission to have such an allowance either by her employment contractual terms or by the Board of Directors of the FNPF with the endorsement of the Higher Salaries Commission. That is the factual background of the 1st charge of "Extortion by Public Officers".

[7] It was established beyond reasonable doubt by the prosecution, that Ms. Nemani, the accused approved the "Responsibility Allowance" of the then CEO Mr. Olota, whilst she been performing in the capacity of the Acting CEO of FNPF. The amount approved by the accused was F$ 50,000 per annum. Since the CEO had not been 'overseeing' the work of the alleged vacant position for a full year, the approved amount to be paid to him as the "Responsibility Allowance" was F$ 33,333.00 and that is the amount which reflects in the 2nd count. The same procedures described in the preceding paragraphs, more specifically, obtaining the approval of the Board of Directors of the FNPF with the endorsement of the Higher Salaries Commission as the contract of the CEO was silent in this allowance, had not been followed by the accused when approving the said allowance.

[8] There was no other option to court rather than to accept the prosecution's version when it amply demonstrated to court that the accused had acted in an arbitrary manner, according to her own whims and fancies, without adhering to the procedures of obtaining the approval of the FNPF Board and the Higher Salaries Commission when approving the "Responsibility Allowance" to then CEO, Mr. Olota as the acting CEO of FNPF. The proposition of the prosecution, that the accused did approve that payment with an improper motive to award a financial advantage to then CEO because he approved the "Responsibility Allowance" of the accused, remained indisputable. Hence, the rights of the institute, FNPF, were undoubtedly put in jeopardy by the act of the accused. It was with this background, the accused was found guilty to the 2nd count of "Abuse of Office" as well.

[9] The tariff for the offence of "Extortion by Public Officers" is not yet finalized. Justice Fernando in the case of FICAC v. Olota Rokovunisei [2012] HAC 37(B) of 2010 (2nd May 2012) picked a starting point of 18 months imprisonment for this offence and ended up with 12 months imprisonment after considering the aggravating and mitigating factors. For the offence of "Abuse of Office", the case precedents show, that the tariff ranges from 6 months to 2 years imprisonment. (FICAC v. Olota Rokovunisei – supra -; FICAC v. Farzan Ahmed [2010] FJHC, HAC82.2010; FICAC v. Jaswant Kumar (Crim. Case No: HAC 001 of 2009 – decided on 2nd March 2010]; Peniasi Kunatuba and The State (Criminal Appeal No: AAU 0067 of 2006 dated 5th May 2010 and [2007] FJHC 32; HAC018.2005 (26th September 2007)

[10] Having considered the existing factual background of this instance, I take a starting point of 18 months imprisonment for both the counts.

[11] The accused been the DGM, the second in line in the hierarchy of FNPF administration, had a fiduciary duty towards her employer. That means she owed a duty of care and duty of loyalty to FNPF, as an institute and its members. She was expected to perform her duties in good faith and within the ambit of a DGM for the best interest of the institute refraining from any conflicts. The accused was expected to be a trustworthy agent to her principal. Irrespective of the considerable amount of monitary loss, though it could have been used for a productive investment by the FNPF, the most alarming aspect is the corrosive effect of her actions which led to undermine the public trust and confidence on FNPF. This grave breach of trust attached to the offending by the accused will undoubtedly be an aggravating factor. On the other hand these types of conducts by the senior officers of financial institutes hurt its investment climate as the good governance, accountability and transparency of the place will be in disrepute. The systematic manipulation of the entire institute for almost an extended period of 2 years, also aggravates the offending background.

[12] There is nothing to be considered in Mitigation, apart from the fact that the accused is a 1st offender with a clear criminal history, as any such other factors are not privy to this court. It was the accused who voluntarily opted to refrain from court proceedings and she cannot expect the court to presume her own mitigatory grounds to grant her more concessions.

[13] According to the above analysis, I add 12 months to the starting point for all the aggravating factors stated in paragraph 11 and reduce 4 months for the only available mitigatory ground mentioned in paragraph 12. The final sentence for each count now remains as 26 months imprisonment.

[14] In terms of section 26 (2) (a) of the Sentencing and Penalties Decree 2009, a sentence below 3 years ordered by the High Court can be suspended.

[15] When pursuing the issue, whether the above sentence should be suspended or not, it is worthy to see several precedents in somewhat similar circumstances. In the case of State v. Prasad [2003] FJHC 320; HAC009T, 2002S (30th Oct, 2003) Justice Gates, as His Lordship was then, made following observations after citing the judgment of Barrick, (1985) 7 Cr. App. R (S) 142, by Lord Chief Justice Lane;

"The Public Interest lies in the deterrence of dishonest practices by employees. Usually in such cases the gravity of the breach of trust needs to be marked by an immediate term of imprisonment no matter how sad the Accused's story, or how compelling the mitigation in favour."

Later, Lord Justice Rose in the case of Clark [1998] 2 Cr. App. R (S) 95 revisited the guidelines in Barrick (supra) by reference not only to the effect of inflation but also to other considerations such as the increase in the scale of white collar crimes.

In the New South Wales case of McKechnie (unreported, Court of Criminal Appeal, NSW, 1st October 1987) [cited in the case of Nichalos Pantano [1990] 49A Crim R, page 337] Justice Woods observed that,

"Executives who hold high office or positions of trust in the commercial world are expected to conform to exacting standards of honesty. The public is entitled to a full measure of confidence in those who control their investments and they are entitled to expect protection from law enforcement agencies and the criminal courts".

Presenting his dissenting judgment, Justice Smart in the case of Pantano [supra, page 338] said that;

"In white collar or corporate crime cases reference is often made to the steps available to those in executive positions to cover their tracks and render detection more difficult. The control they have over the company's operations enables them to so act and makes the breach of trust all the more gross."

Their Lordships of the Fiji Court of Appeal in the case of Beniamino Naiveli and The State, (Criminal Appeal No: 02 and 04 of 1992 dated 12th of August 1994) said that,

"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."

[16] If a person who is holding an office with public trust and funds, obtains that money under the pretense of performing an official duty in a fraudulent manner, such a conduct can never be tolerated under any circumstances. The holders of such high offices handling public money must always bear in mind that they are only temporary occupants of those offices and not the owners of the painfully invested public funds. Hence, when it is proved before a court of law that somebody has demeaned such a public trust, an immediate custodial sentence is warranted.

[17] It is in this context this court views the conduct of the accused in the two transactions, as a clear exhibition of unbridled greed for money and nothing else. A glance at her salary slips produced in court as Prosecution Exhibit No. 18, demonstrate that any amount of sanitization will not be able to mask her conduct as the DGM of FNPF. The accused cannot be considered as a minnow in this whole process. Thus, the court is compelled to follow the prime principle of deterrence, not only to punish the accused; but to send a strong message to the public at large as well.

[18] In the light of the above background, the final sentence of 26 months imprisonment for each count will not be suspended. Instead, honouring the totality principle, both the sentences are ordered to run concurrently. The final sentence of the accused is 26 months imprisonment. The sentence will commence on the day the accused is apprehended by the law enforcement authorities. A fresh Bench Warrant is issued against the accused. Registry of the High Court Criminal Division is hereby ordered to notify the Immigration Department about today's order with immediate effect.

Janaka Bandara
Judge
20.09.2013

At Suva
Office of the Fiji Independent Commission Against Corruption for State