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High Court of Fiji |
IN THE HIGH COURT OF FIJI
AT SUVA
CRIMINAL JURISDICTION
Criminal Case No. HAC 349 of 2013
FIJI INDEPENDENT COMMISSION AGAINST CORRUPTION [FICAC]
V
FEROZ JAN MOHAMMED
ILIESA TURAGACATI
NAVITALAI SEREIVALU TAMANITOAKULA
AISEA LIWAIONO
Counsel: Mr. I. Lloyd, QC, SC with Dr. T. Hickey
and Ms. L. Tabuakuro for the first accused.
Ms. N. Tikoisuva for the second accused.
Mr. F. Vosarogo for the third accused.
Ms. T. Leweni for the fourth accused.
Mr. R. Aslam with Ms. T.Waqabaca and
Ms. L. Mausio for FICAC.
Dates of hearing: 4,5,6,7,8,11,12,13,14,15, 18, 19, 20,
21, 27, 28, 29 May 2015
1, 2, 3, 4, 5, 8, 9, 10, 15, 16 &17 June 2015
Date of Sentence: 24 June, 2015
SENTENCE
1. Feroz Jan Mohammed, IliesaTuragacati, NavitalaiTamanitoakula and AiseaLiwaiono,you have all been convicted by this Court after trial on the counts set out in the Appendix attached.
The Factual Matrix
2. The facts established at trial were that the first accused's company, the T F Jan Bulldozing Company Limited ("TFJan")operating from Ba in the Western Division was awarded in 2008 the contract to upgrade a network of roads in the Nausori Highlands, a remote area in the interior of VitiLevu. This contract was awarded by, and under the supervision of the then Department of National Roads ("DNR"), later to be renamed as the Fiji Roads Authority. (That entity will be referred to in this sentence as the DNR).
3. In accordance with that contract, all works effected by TFJan would be paid on production of invoices accompanied by proven documentation of delivery of materials, proof of day works done, etc. These documents were to be verified and certified as correct by a TFJan engineer on site together with a DNR engineer based in the Western Division offices of the DNR. Thissuch DNR engineer was at relevant times the fourth accused.
4. Within the Suva offices of the DNR these authorized documents of claim would be further approved for payment and processed. The second accused, although seconded to another section (the "FRUP3")of the DNR, was called upon and given authority to act as the Project Accountant for this Nausori Highlands project and as such it was his function to give the overall authority to proceed with the payment once the Director of National Roads had endorsed the claim. The third accused was the overall head of the accounts section of The Suva DNR who would, on receipt of the claims from the Project Accountant (the 2nd accused), check the claim for discrepancies, irregularities or double claims.
5. The company accounts for TFJan show that as at the end of 2011, there were only small amounts due from the DNR for work done under the contract, yet the evidence shows that in the first half of 2012, the first accused commenced making large fraudulent claims for work done in 2010 and 2011.
6. In looking at 14 separate claims made by TFJan to the DNR between the 27th of February 2012 and the 20th July 2012not one of the claims was legitimate. In varying degrees they included invoices for work that already been paid, invoices for work done which had not been in fact done, supporting documents containing forged signatures of verification, and other irregularities.
7. The total of these 14 bogus claims was for $3.132m.
8. Apart from these audacious claims being made by the first accused or on his direction, it transpired that for 12 of the 14 claims that were paid included a very large sum in addition to the amount claimed. These "windfall" overpayments were never explained.
9. Investigations by FICAC, the anti-corruption prosecuting authority, unearthed a pattern of cash payments being made by the first accusedto the second accused who was at all relevant times employed by the DNR as the Project Accountant for the Road Works. It was his role to prepare an interim payment certificate and to make final approval for progress payments after the Director of Roads and the Resident Engineer (West) had endorsed the claims. He would then pass the documents on to the Head of Accounts (the third accused) for final vetting and processing.
10. Evidence was received and believed that the cash payments being made to the second accused coincided with the fraudulent payments being made to TFJan. It started with TMOs sending smallish amounts of money in the name of two villagers from the Nausori Highlands, villagers who may or may not have been owed royalty payments by TFJan. When these TMOs were called into question, money was then sent to the second accused through an employee of a sister company of TFJan based in Suva and through an old school friend of the first accused. Phone records show mobile phone contact between the first accused, the second accused and the intermediary whenever money was due to be delivered. The intermediary would often wait and be given a DNR cheque payable to TFJan in return for the cash payment.
11. There was no dispute at trial that these monies (a total of $110,100) passed between the first and second accused. The payments of cash became larger in correlation with larger payments being made to TFJan.
12. Despite the first and second accused attempting to mount a reasonable excuse defence of royalties payments being viredto the second accused to pay for fish, it was obviously not believed by the assessors or the Court.
13. The first accused had one of his staff members, MrAzimAli, prepare a false Statutory Declaration in attempt to divert investigation about the TMO payments away from him. He had it with him when being interviewed by FICAC officers and gave it to them at the time.
The First and Second Charges
14. The offences of Bribery of Public Officials under the Crimes Decree (s.134) and the corresponding offence of Receiving a Bribe (s.135) both have a maximum penalty of ten years imprisonment. They are serious indictable offences. The Crimes Decree being only 5 years old, there is very little useful sentencing precedent available for this Court to assess sentence.
15. There has never been a case in Fiji to match the gravity of this case with bribes of over $100,000 given in return for unjustified payments of over $3 million .
16. The cases heard in the Magistrates Court do not assist and the two cases heard in the High Court are in part contradictory. In Rizvi HAC 003.2010Ltk, Thurairaj J. passed a sentence of 22 months (partially intra mures and partially suspended) for a conviction of bribery under the Prevention of Bribery Promulgation. The maximum sentence under that Promulgation is 7 years and a fine of $500,000, a lesser penalty than that imposed under the Crimes Decree for this offence. He passed a shorter sentence of 18 months on the customs officer who had pleaded guilty. He did not purport to set any tariff. The bribe in that case was $200 and there was no financial loss to FRCA.
17. In Chen Xue Liang and De Chuan Zhao HAC 50.2010, again a case under the Prevention of Bribery Promulgation, the bribe offered (but not accepted) was a box of Chinese tea and an envelope stuffed with $6,000. Temo J. stated that the tariff was a sentence of imprisonment for between 2.5 years to 4 years
18. In Niraj Singh HAC004.2010, P.Fernando J., again for an offence under the Prevention of Bribery Promulgation passed a sentence of 8 months' imprisonment plus a $200 fine on a Court Officer who accepted a bribe of $100 in return for expediting an Appeal.
19. In Blake(Criminal Review 005 of 2013) this Court erroneously set a tariff of 9 months to 3 years for bribery of public officials. This was one of the few Crimes Decree convictions before the Court when an incoming passenger at Nadi Airport had offered us $40 to a customs Officer not to search his bags. This Court was deterred from the real gravity of the crime by previous petty cases decided under the Prevention of Bribery Promulgation. I now decide not to follow the tariff in that case in respect of the Crimes Decree 2009 and intend to set a new tariff which will then afford condign punishment for the first and second accused in this case.
20. The first principle in aid of this exercise is to note that the maximum penalty for bribery under the Prevention of Bribery is a term of imprisonment of 7 years, while under the Crimes Decree 2009 it is 10 years. That being so, any tariff set previously under the Prevention of Bribery Promulgation would have to be enhanced by an additional 40%.
21. Bribery of Public Officials is an insidious crime. It undermines the probity of government institutions. As this court said in Blake(supra) at para 10:
"In an age where commercial intercourse is paramount and where the nation's economy depends on honesty and propriety of commercial transactions, bribery is a canker that undermines economic growth and discourages investment.
Bribery of public officials is or course more serious. It attacks the integrity of Government, it injures the moral fibre of Government officials and if it succeeds, it serves to disadvantage the underprivileged and the poor. Sentences must be passed by the Courts that would do everything to discourage the practice by sending the message that it will be punished severely".
22. Obviously there is a huge difference between slipping a customs officer $200 not to inspect a container and bribery of a Government official with over $100,000 to make very large unjustified payments .
23. The U.K. Sentencing Council has set out useful considerations on bribery sentences and based on their recommendations, this Court would now set the following parameters for sentencing of bribery under the Crimes Decree, 2009.
24. In cases of high culpability (Category 1) sentences of between 5 and 8 years should be passed.
25. An offender considered to be highly culpable would be one who:
Lesser offending (Category 2) would apply to an offender
Sentences for Category 2 offending should be within the range of 18 months to 4 years.
So bribery offences would raise two tariffs for sentencing.
5 to 8 years for Category One and 18 months to 4 years for Category 2.
26. It would be in truly exceptional circumstances that sentences could be suspended and probably never for a Category 1 offence.
27. It is only by these harsh penalties that businessmen and Public Service Officials can be warned that the reputation of Fiji for clean business dealings must be maintained.
Obtaining a Financial Advantage
28. This offence, contrary to section 326(2) of the Crimes Decree carries a maximum penalty of ten years imprisonment.
29. There is much authority to dictate that the tariff for "Obtaining Financial Advantage by Deception" (s. 318) lies between 2 to 5 years but a tariff has never been set for the present offence. It is a summary offence and for that reason the tariff cannot be set too high. Absent the element of deception, the tariff should be 2 to 4 years but in cases where the obtaining is linked to a far more perfidious crime then the sentence for that crime should flow on to the sentence for the obtaining offence. This will apply particularly where a financial advantage has been obtained through corruption. Therefore if this offence is charged alone the tariff of 2 to 4 years should apply but if charged in conjunction with another "enabling "offence, it will adopt the sentencing tariff for that particular offence
Causing a Loss:
30. Dishonestly causing a loss contrary to s.324 of the Crimes Decree is another summary offence with a maximum penalty of 5 years imprisonment.
31. Again with this "new" offence no tariff has been set but in Maciu Jimi HAC 19 of 2011(Lbsa), Goundar J. said that as an offence of general dishonesty it should be sentenced within the range of 18 months to three years depending on the amount being lost.
32. This Court agrees in general with that proposition but a loss of this size ($3.13m) cannot have been envisaged when that decision was handed down.
33. A causing a loss is again a mirror image of obtaining a financial advantage in a case of corruption; then as with that obtaining offence the tariffs for this offence can be split between causing a loss (simpliciter) and causing a loss where there is bribery or corruption involved.
34. The tariff for general dishonesty for causing a loss could be fixed at between suspended sentence to 4 years with suspended sentences to be passed for very small losses caused unwittingly.
35. Causing a loss when proved in conjunction with a generating corruption offence will attract the higher tariff of 4 to 5 years.
36. The eventual effect will be minimal in any event because almost always they will be sentences ordered to be served concurrently.
Perverting The Course of Justice
37. This offence contrary to section 190(e) 0f the Crimes Decree sets a maximum penalty of 5 years imprisonment to one who attempts to obstruct or defeat the course of justice.
38. In the case of Abhay Singh HAA 56 of 2003S, Gates J. (as he then was) passed a sentence of 12 months on a practitioner who had attempted to induce a witness to give false evidence. On appeal the Court reduced the sentence to 6 months but in the course of doing so noted that several cases shoed sentences ranging from 6 months to 3 years. The Court of Appeal referred to the NZ Court of Appeal case of Peterson [1994] 2NZLR533 where it was said that a sentence for this offence can never be suspended in a need to deter others.
Now having dealt with the offences I turn to the individual offenders in turn.
Mohammed Feroz Jan (1st accused)
39. Mr. Jan, you have been convicted of three crimes of dishonesty, The bribery and the obtaining of $3m of unwarranted monies are crimes against the Fijian people who have for years been crying out to have their roads repaired. As soon as that wish was granted you went to great lengths by using your staff and others to syphon off the money allocated for those roads. I find it difficult to reconcile the fact that many of your children have said in their letters how kind and generous you are to your wider family and to the poor people of your District, to reconcile that with your determination to obtain for your companies the monies allocated to make the lives of all people in the interior easier. But obviously your greed blinded you to the needs of others. Not only did you use your staff to forge documents, and to make deliveries of bribery cash, you compromised the integrity of an old school friend, Vaseva, in an attempt to conceal the fact that you were delivering money to Iliesa. How can your children say you are a kind and caring man when you involve people who would call you a friend in such a cynical operation?
40. Through your counsel you have provided the Court with details of your finances for the years 2013 and 2014and you have handed up twelve letters of reference. It will come as no surprise to you I am sure that I find that all of that material is dishonest.
41. It is absurd for you to claim that your assessable income for the years you have shown me is $9065 for year ending 2012,and $9517 for year ending 2013. You say that your only assets are worth $200,000 being an unfinished home on the hillside in Ba and a sugar cane farm worth $100,000. You claimed income from the farm in 2012 but fail to mention farm income in 2013. For both years you have declared receiving large interest payments from deposits with the Westpac Bank, but you fail to include those deposits as assets to the Court. Evidence in the trial showed that you had interest in other companies but none of that was declared by you when advising the Court of your assets. Nearly all your referees tell of your great generosity towards the poor of Ba and to impoverished Members of your family. In addition your Counsel submits that you are supporting your wife and 7 children. None of this would be possible on an income of less than $10,000. You have been seen during the course of this trial driving about in a very expensive car. This was not declared as an asset.
42. None of the financial material you have instructed your Counsel to provide to the Court is credible, and I reject it.
43. You submitted 12 letters of reference from your family Members and from prominent Members of your Community. I have read all of these of course, and in the normal course of events they may have persuaded me to extend some leniency towards you. But sadly these are again dishonest.
44. Your daughter who is said to live in Tasmania has written a reference on the 19th June and signed it. It was presented to me on the morning of the 22nd June leaving only two working days for it to arrive from Tasmania without a fold or a fax mark. It is impossible that this could be done.
45. The letter of Haji Mohammed Harun dated 21st June says this in his penultimate paragraph:
The letter of Rajesh Patel written on the 21st June says in his penultimate paragraph:
The letter of Naziah Ali, written on 22 June 2015 says in her penultimate paragraph:
46. Such similarities in these letters belies the independence of the character witnesses. They have either been written by or dictated by somebody else. To that extent I find that I can only rely on the letters of your family and of course they lack independence. I reject all of the character mitigation as a result.
47. Mr. Jan, you have been found guilty of three counts of dishonesty after trial. To present dishonest material in mitigation of sentence is an insult to this Court. I am left with no inference other than that you are an utterly dishonest man.
48. For the first count of Bribery of Public Officials I take a starting point of 7 years imprisonment. That is within the range of 5 to 8 years I have set as the tariff for this offence. The aggravation of the seduction of a senior civil servant is a feature subsumed in the charge but an aggravating feature not so subsumed is your use of others to have these bribes transferred to the official. For that I add one year making an interim total of 8 years imprisonment. In light of your dishonest mitigation I make no allowance for whatever good works you may have attended to in your Community but it is your right to have credit for a clear criminal record. I deduct one year for that advantage.
The sentence you will serve for the first count is one of 7 years imprisonment and you will serve a minimum of 5 years before you are eligible for parole.
49. The second count you face is one of obtaining a financial advantage of $3.13 million. You used all the human resources of your company and those of vulnerable staff of DNR to create fictitious claims in an utterly cynical pursuit to claim these monies that you were not entitled to.
You pressured your staff to create these invoices, they saying they not knowing really why. The payments you claimed became larger and larger and you must have known that you were being overpaid over and above the bogus claims you were submitting. There appeared to be no end to your greed until it was discovered and you had to cease.
50. For the second count I take the same starting point of 7 years as explained in paragraph 29 above. To that I add a further term of 2 years for the aggravation of using others and for a planned secretive delivery process and for the abuse of Government funds. You will have credit for your clear record and for this third count you will therefore serve a total term of 8 years imprisonment with a minimum term before parole of 5 years. This term will be served concurrently to the term for Count 1.
51. The third count (Count 8) for which you have been convicted is perverting the course of Justice. This was a very cynical attempt to use your staff member Azim Ali to create a false declaration in an attempt to "cover your tracks" should you be investigated for suspicious TMOs sent from Ba Post Office.
52. I sentence you to 12 months imprisonment for this offence and it is to be served concurrently with the terms for the other two offences.
53. The total term you will serve for all of these offences is one of 8 years imprisonment and you will not be eligible to be considered for parole until you have served 5 years.
Iliesa Turagacati (2nd accused)
54. Iliesa, you have brought shame on the Department of Roads by your corrupt actions. Your personal shame has been evident to me throughout the trial and I give you credit for your remorse. Although it is an unforgiveable act for you to have accepted bribes as a civil servant in order to overpay a contractor, I do think that to some extent you were used by the first accused and that you were even used by him in this trial to mount the reasonable excuse defence which was not eventually made out. At the time of these nefarious activities taking place you were dealing with the emotions of caring for your terminally ill son . You are 49 years old with three remaining children.
55. The painful truth however is that without your dishonest greed the first accused would not have been able to obtain the $3 million dollars that he did. For that you must bear as much responsibility as he does, for the receipt of bribes and the cause of loss to the DNR. The integrity of Government Agencies must be protected by the Courts with heavy penalties against those who would seek to vitiate that integrity.
56. For the second count of receiving a bribe I take the same starting point as I did for the first accused. That is 7 years. For the aggravation of involving your other staff in this illegal enterprise I add one year to that. I deduct one year for your clear record and one year for your tragic personal circumstances for the Bribery Count, Count 2, you will serve a total sentence of 6 years imprisonment. You will not be eligible for parole until you have served a term of 4 years. That is as lenient as the Court can be. The community would expect no less for a disgraced civil servant.
57. The fourth count of causing a loss is the mirror charge that you face for enabling the first accused to obtain $3.13m.He is serving 8 years for that crime but the law says that you can only serve a maximum of 5 years for causing a loss.
58. I so sentence you to the maximum penalty of 5 years for causing the loss of $3.13million to the Fiji Government. You will serve a minimum term of 4 years before being eligible for parole. This term will be served concurrently with your term for Count 2 which means you will serve a term of 6 years imprisonment.
Navitalai Sereivalu Tamanitoakula (Third Accused)
59. Navi, you were the head of the accounts department and you authorized the payment of $2.46 million to the first accused's company. You persevered in that even when your staff alerted you to discrepancies in the claims. There is no evidence that you received any reward for your actions, but there must have been some incentive for you to do this. I cannot sentence you on the basis that there was, there being no evidence of it.
60. For causing such a large loss of public money I have no option but to take a starting point for your sentence of 5 years, the maximum. I deduct from that one year to represent your good record hitherto which means you will serve a sentence of 4 years imprisonment. You will serve a minimum term of 2.5 years before you are eligible for parole.
Aisea Liwaiono (4th accused)
61. You were the DNR engineer whose job it was to inspect work "on site " and certify them complete before a claim could be made to the DNR by the contractor.
62. You were asked by the first accused to attend at his office one Sunday to certify some claims without inspecting the works on the ground. Under some pressure you did in fact sign and you must have been aware that in doing so you were causing a risk of loss to your government Department.
63. You are 58 years old and you have 9 children. Until 2012 you had been at the DNR for 35 years. You are now retired. You are suffering from high blood pressure and the after effects of a stroke.
64. I do not regard you as a principle player in this pursuit. Although you should have never signed those documents without seeing the works, you were under some pressure and you compromised your dignity in doing so.
65. I take a starting point of three years for each of the charges you are convicted of. I deduct 12 months from each for your clear record. You are in very poor health and in recognition of that and of your minimal role I suspend your sentence of 2 years for a period of two years.
66. I ask your counsel to explain to you the meaning and implications of a suspended sentence.
Conclusion
67. First Accused:
Count 1: 7 years (minimum 5).
Count 3: 8 years (minimum 5), concurrent to Count 1.
Count 8: 12 months concurrent to 1 and 3.
A total sentence of 8 years imprisonment with a minimum of 5 years.
68. Second Accused
Count 2: 6 years (minimum 4)
Count 4: 5 years (minimum 4)
Served concurrently making a total of 6
69. Third Accused
Count 5: 4 years (minimum 2.5 years)
70. Fourth Accused
2 years, suspended for 2 years
P.K. Madigan
Judge
At Suva
24 June, 2015
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