Fiji Independent Commission Against Corruption v Maharaj - Sentence [2016] FJHC 114; HAC334.2013 (18 February 2016)

IN THE HIGH COURT OF FIJI
AT SUVA
CRIMINAL JURISDICTION
Crim. Case No: HAC 334 of 2013

BETWEEN:

FIJI INDEPENDENT COMMISSION
AGAINST CORRUPTION
PROSECUTION

AND:

RUDRA MAHARAJ
ACCUSED PERSON

Counsel : Mr. Aslam with Ms. F. Puleiwai and Ms. L.
Bokini for FICAC
Mr. Iqbal Khan for Accused

Date of Hearing : 1st, 2nd, 3rd, 4th, 5th February 2016
Date of Summing Up : 11th February 2016

Date of Judgment : 12th February 2016
Date of Sentence : 18th February 2016

SENTENCE

1. Rudra Maharaj, you have been convicted of Bribery, in terms of section 5 (2)(a) of the Prevention of Bribery Promulgation 2007, punishable under section 12 (1) (a) (ii).
   
2. The brief facts are that the complainant Avin Prakash applied for a tender with the Department of Energy to build Bio Fuel Sheds in 6 islands.
   
3. You being a public servant namely an information officer – public relations at strategic framework for change coordination office at the office of the Prime Minister, solicited 10% commission of the total tender on the account of using influence in processing the contract. The complainant later had further discussions with you and you agreed for a lessor amount of the commission. The complainant also audio recorded the conversation between you and the complainant. Complainant then informed the FICAC about you asking for the bribe and FICAC investigated into the matter.
   
4. During the course of the investigation a raid was organized by FICAC and you were arrested immediately after you accepted the bribe of $12000 ($2000 cash and two cash cheques amounting to $5000 each).
   
5. The creations of public offices are meant to serve and assist the public of the country in various areas of work and not to act to the detriment of the public. You are expected to serve the public with utmost confidence and trust; instead you acted contrary and breached the trust reposed on you. Higher the public office, higher the trust you breach. It is the bounden duty of the court to impose appropriate punishment to such offenders who hold high public office to deter other public officers from committing such offences.
   
6. The maximum punishment for the offence of bribery of this nature which is contrary to section 5 (2) (a) of the Prevention of Bribery Promulgation 2007 (POBP) is provided in section 12 (1) (a) (ii) of the POBP if it is upon conviction on indictment. It is a fine of $500000 and to imprisonment for 10 years. In addition the court shall order the accused to pay the amount or value of any advantage received by him, or part thereof as the court may specify. Same punishment is prescribed for offence under section 6 as well.
   
7. The POBP also prescribes a lessor punishment of a fine of $100000 and imprisonment for 3 years for the same offence in terms of section 12 (1) (b) (ii), if it is upon summary conviction. I find that the FICAC opted to indict the accused in High Court considering the serious nature of the offence which I find to be correct.
   
8. Both counsel for Prosecution and Defence made useful submissions on sentencing. There are no case precedents in Fiji where an accused was charged under section 5 (2) (a) of the POBP. In this matter, it is a specific offence created under the POBP. There are case authorities where the accused persons were charged under section 4 of the POBP. However, the punishment prescribed for the offence under section 4 is 7 years of imprisonment.
   
9. There is a similar offence of Bribery defined in section 135 of the Crimes Decree 2009 for which the maximum penalty prescribed is also 10 years of imprisonment. In case of FICAC v. Feroz Jan Mohammed and others [2015] FJHC 479; HAC 349.2013(24 June 2015) the accused were also charged under section 135 of the Crimes Decree 2009 among other offences. In that case His Lordship Justice Madigan relying on the UK Sentencing Council guidelines set the tariff for the offence of Bribery defined in section 135 of the Crimes Decree.
   
10. I am inclined to follow the same guidelines, as the punishment prescribed for the offence at hand, offence in terms of section 135 of the Crimes Decree and for the similar offence in Bribery Act 2010 in UK are the same which is 10 years of imprisonment.
    
11. In UK Sentencing Guidelines the offence of Bribery is categorized considering the level of culpability and harm. I am of the view that the level of harm can be considered in dealing with aggravating and, if relevant mitigating circumstances. Therefore I opt to leave out the level of harm in categorizing the offence.
    
12. Following the UK Guidelines as mentioned above in the context of Fiji, I confine myself only to level of culpability in order to determine the categories of the offence.
    
13. As per the UK Guidelines the culpability is demonstrated by one or more of the following:
    

Category A. High Culpability

- A leading role where offending is part of a group activity
- Involvement of others through pressure, influence
- Abuse of position of significant power or trust or responsibility
- Intended corruption (directly or indirectly) of a senior official performing a public function
- Intended corruption (directly or indirectly) of a law enforcement officer
- Sophisticated nature of offence/significant planning
- Offending conducted over sustained period of time
- Motivated by expectation of substantial financial, commercial or political gain.

Category B. Medium Culpability

- All other cases where characteristics for categories A

or C are not present

- A significant role where offending is part of a group

activity

Category C. Lesser Culpability

- Involved through coercion, intimidation or

exploitation

- Not motivated by personal gain
- Peripheral role in organized activity
- Opportunistic 'one off' offence; very little or no

planning

- Limited awareness or understanding of extent of

corrupt activity

Where there are characteristics present which fall under different levels of culpability, the court should balance these characteristics to reach a fair assessment of the offender's culpability.

14. As there is no set tariff here in Fiji for the offence of Bribery under sections 5, and 6 of the POBP, considering the offence and the same maximum punishment prescribed, I find it appropriate to follow the UK guidelines when deciding on the tariff for the offence.
    
15. Following the above UK guidelines and the case of FICACv. Mohammed (supra), I set the following tariff for the Bribery offences under sections 5 and 6 of the POBP on conviction on indictment.
    

5-8 years imprisonment for category A

3-6 years imprisonment for category B and

18 months – 4 years imprisonment for category C.

16. In the instant case you played the leading role in committing the offence. After planning to solicit the bribe, you telephoned the complainant's father and got the complainants to your office to initiate the discussion to ask for the commission. You held high public office and by abusing powers of such office in order to get the bribe, you seriously breached the trust reposed on you. Therefore it is clear that your actions fall under 'category A' above which shows high culpability. Therefore I determine the applicable tariff for the offence to be 5 – 8 years of imprisonment.
    
17. In determining the starting point, in case of Koroivuki v. State [2013] FJCA 15; AAU 0018.2010 (5 March 2013) His Lordship Suresh Chandra JA said:
    

"In selecting a starting point, the court must have regard to an objective seriousness of the offence. No reference should be made to the mitigating and aggravating factors at this stage. As a matter of good practice, the starting point should be picked from the lower or middle range of the tariff. After adjusting for the mitigating and aggravating factors, the final term should fall within the tariff. If the final term falls either below or higher than the tariff, then the sentencing court should provide reasons why the sentence is outside the range."

18. Considering the nature of offending and without taking into consideration the aggravating and mitigating factors, I take 6 years as the starting point.
    

Aggravating factors

19. You held high public office namely Information officer – Public relation at Strategic framework for change coordination office at the Office of the Prime Minister. It was a very serious breach of trust which I consider a serious aggravating factor. However, I have taken this aggravating factor into account whilst deciding on the category on culpability. I therefore will not take this factor into account again to avoid double jeopardy.
    
20. The amount involved is considerably high. You initially asked for 10% commission of the total value of the full contract which came to about $130,000 and later you agreed to reduce it to $30,000 for part of the contract. You then accepted $12,000 as part of that $30,000.
    

Mitigating factors

21. I consider all what was submitted on behalf of you in mitigation. You are 55 years old, married with 4 children. However, the children are adults and the court was informed during the means test that your wife is now being looked after by your children. All what you have achieved and the awards received as submitted are taken into consideration. The services you have rendered to the community, your family and friends are considered. You are a first offender and have been of previous good behavior. All what is said by your 18 character referees are also considered. You have also cooperated with the FICAC investigations.
    
22. I reduce 1 year for the mitigating factors. Now your sentence is 5 years imprisonment.
    
23. You are also liable to be fined up to $500000. You submitted that you have no means except your car and the house which is under mortgage. You have been earning a salary of $20,845 per annum. However according to your character references you had been assisting most of them even financially. Considering the above I order you to pay a fine of $2000. I find that you have means to pay that amount
    
24. In terms of section 12 (1) of POBP the Court shall also order the accused to pay to such person the amount or value of any advantage received by him. Although you accepted the $2000 cash and two cash cheques from the complainant, immediately after it was recovered by FICAC. Therefore court will not order you to pay the said amount or part thereof.
    
25. You have been in remand custody from 24/09/2012 to 12/10/2012 in the Magistrate's Court and another 6 days in this court after conviction. Therefore I further deduct 1 month considering your period in remand.
    
26. I take into consideration that you are a first offender. However, due to the seriousness of the offence I find that not only you should be punished for the offence but also your punishment should deter similar offenders. Therefore I do not find it appropriate to suspend the term of imprisonment.
    
27. Now your final sentence is 4 years and 11 months imprisonment and $2000 fine.
    
28. Your non-parole period will be 3½ years.
    
29. You have 30 days to appeal to the Fiji Court of Appeal.
    

Priyantha Fernando
Judge

At Suva
18th February 2016

Solicitors
Office of the Fiji Independent Commission Against Corruption
Office of Iqbal Khan & Associates for the Accused.