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High Court of Fiji |
IN THE HIGH COURT OF FIJI
AT SUVA
APPELLATE JURISDICTION
CRIMINAL APPEAL NO. HAA 016 OF 2024
IN THE MATTER
of an Appeal from the Sentencing Decisions of the Resident Magistrate at the Suva Magistrate Court on 28 March 2024 against the Respondents.
BETWEEN:
THE STATE
APPELLANT
AND:
JOSAIA VOREQE BAINIMARAMA
FIRST RESPONDENT
AND:
SITIVENI TUKAITURAGA QILIHO
SECOND RESPONDENT
Counsels:Ms. L. Tabuakuro and Ms. N. Tikoisuva for State.
:Mr. D. Sharma and Ms. G. Fatima for the First and
Second Respondents.
Date of Hearing : 2 May, 2024.
Date of Judgment : 9 May, 2024.
JUDGMENT AND SENTENCE
“FIRST COUNT
Statement of Offence
ATTEMPTED TO PERVERT THE COURSE OF JUSTICE: Contrary to section 190 (e) of the Crimes Act 2009.
Particulars of Offence
JOSAIA VOREQE BAINIMARAMA sometime between July 2020 and September 2020 at Suva in the Central Division, attempted to pervert the course of justice by telling Sitiveni Tukaituraga Qiliho, the Commissioner of Police of the Republic of Fiji to stay away from the USP investigations that was reported under CID/HQ PEP 12/07/2019.
SECOND COUNT
Statement of Offence
ABUSE OF OFFICE: Contrary to section 139 of the Crimes Act 2009
Particulars of Offence
SITIVENI TUKAITURAGA QILIHO on the 15th day of July 2020 at Suva in the Central Division being employed in the civil service as the Commissioner of Police of the Republic of Fiji, directed the Director of Criminal Investigations Department Serupepeli Neiko and Inspector Reshmi Dass to stop investigations into the police complaint involving CID/HQ PEP 12/07/2019, in abuse of the authority of his office, which was an arbitrary act prejudicial to the rights of University of the South Pacific which is the Complainant in CID/HQ PEP 12/07/2019.”
“65. Pursuant to section 256 (2) (a) of the Criminal Procedure Act 2009, given the reasons explained above:
(i) This court finds that the learned Magistrate had erred in fact and in law when she found the first respondent not guilty and acquitted him of the offence of Count No. 1: Attempted to Pervert the Course of Justice, contrary to section 190 (e) of the Crimes Act 2009;
(ii) This court finds the first respondent guilty and is convicted of the offence of Count No. 1: Attempted to Pervert the Course of Justice, contrary to section 190 (e) of the Crimes Act 2009;
(iii) This court finds that the learned Magistrate had erred in fact and in law when she found the second respondent not guilty and acquitted him of the offence of Count No. 2: Abuse of Office, contrary to section 139 of the Crimes Act 2009;
(iv) This court finds the second respondent guilty and is convicted of the offence of Count No. 2: Abuse of Office, contrary to section 139 of the Crimes Act 2009.
(i) This Court orders that this matter be brought before Resident Magistrate S. Puamau on 18 March 2024 at 9.30am, at the Suva Magistrate Court, for her to abide the decision of the High Court above mentioned and pronounce the 1st and 2nd respondent guilty as charged and convict them accordingly; and
(ii) The 1st and 2nd respondent to file their plea in mitigation and sentence submissions by 20 March 2024, at the Suva Magistrate Court before 4pm.
(iii) The State to file their sentence submission at the Suva Magistrate Court by 20 March 2024 before 4pm.
(iv) Resident Magistrate S. Puamau to hear the Sentence hearing on 21 March 2024 at 9.30am.
(v) The Resident Magistrate to pass Sentence on the two respondents on 28 March 2024 at 9.30am.
(vi) Since the Suva Magistrate Court is a court of summary jurisdiction, and since this case started on 10 March 2023, and since section 15 (3) of the 2013 Constitution required cases to be decided within a reasonable time, the above timetable is to be followed strictly.
67. I order so accordingly.”
“8. THAT being dissatisfied with the Sentence delivered by the learned Magistrate, the Appellant wishes to appeal upon the following grounds:
(a) That the sentence imposed by the learned Magistrate against both Respondents are manifestly lenient and in breach of sentencing principles, case laws and tariff set in other similar matters and offences; and
(b) The learned Magistrate erred in law and fact when she made a finding that there were no aggravating factors against the Respondents; and
(c) The learned Magistrate erred in law and in fact in considering irrelevant factors in sentencing the Respondents; and
(d) The learned Magistrate erred in law and in fact when she made a finding that there was no victim and that the offending was a technical breach by both Respondents.”
Appeal Ground No. 8 (c): The learned Magistrate erred in law and in fact in considering irrelevant factors in sentencing the Respondents;
“...The manner in which an appeal against an exercise of discretion should be determined is governed by established principles. It is not enough that the judges composing the appellate court consider that, if they had been in the position of the primary judge, they would have taken a different course. It must appear that some error has been made in exercising the discretion. If the judge acts upon a wrong principle, if he allows extraneous or irrelevant matters to guide or affect him, if he mistakes the facts, if he does not take into account some material consideration, then his determination should be reviewed and the appellate court may exercise its own discretion in substitution for his if it has the materials for doing so. It may not appear how the primary judge has reached the result embodied in his order, but, if upon the facts it is unreasonable or plainly unjust, the appellate court may infer that in some way there has been a failure properly to exercise the discretion which the law reposes in the court of first instance. In such a case, although the nature of the error may not be discoverable, the exercise of the discretion is reviewed on the ground that a substantial wrong has in fact occurred.”
Appeal Grounds No. 8 (a), (b) and (d):
Sentence
“...A person commits a summary offence if he or she...
(e) In any way obstructs, prevents, perverts or defeat, or attempts to obstruct, prevent, pervert or defeat the cause of justice.
Penalty – Imprisonment for 5 years...”
“...There is very little precedent to guide a sentencing court for this offence, but the relatively low maximum would suggest a term in the range of 12 to 36 months. Attempts to prevent a witness from giving true evidence would attract terms at the low end of that band but more sophisticated attempts to subvert the judicial process would attract sentences at the higher end of the band.”
Case | Details of Offence | Sentence |
Accused, a lawyer, attempted to influence a witness at trial. | 6 months imprisonment | |
Baleinamoto v. State [2022] FJHC 448; HAA014.2021 (28 July 2022) | Accused, a police officer, attempted to interfere with a police investigation against her former boyfriend. | 6 months imprisonment |
FICAC v. Mohammed & Others [2015] FJHC 479; HAC349.2013 (24 June 2015) | Accused, a businessman, used a staff member to make a false declaration in relation to a fraud investigation. | 12 months imprisonment |
State v Waqanivatu-Sentence [2018] FJHC 101; Criminal Case no. 220 of 2013 (23 February 2018) | Accused, a police officer, attempted to get a rape victim to recant. | 18 months imprisonment |
“...I, Josaia Voreqe Bainimarama, being appointed as Prime Minister, swear that I will be faithful and bear true allegiance to the Republic of Fiji and that I will obey, observe, uphold and maintain the Constitution of the Republic of Fiji and all other laws of Fiji; and I solemnly and sincerely promise to hold my office with honour, dignity and integrity, to be a true and faithful counsellor, not to divulge any secret matter entrusted to me, and to perform the functions of my office conscientiously and to the best of my ability.
So help me, God!”
In his oath of Allegiance, before His Excellency the President on the same date, he said the following:
“...I, Josaia Voreqe Bainimarama, swear that I will be faithful and bear true allegiance to the Republic of Fiji, according to law, and I will obey, observe, uphold and maintain the Constitution of the Republic of Fiji.
So help me, God!”
The above oath of office and allegiance speak for themselves. The oaths required
the first respondent to “obey, observe, uphold and maintain the Constitution...and
all other laws of Fiji,” 24 hours 7 days a week. The oaths were a promise by the first
respondent to protect the people and the nation of Fiji 24 hours 7 days a week, however, within the four corners of the law. By telling the second respondent, the Commissioner of Police, between July and September 2020, at Suva in the Central Division, to stay away from the USP investigation that was reported under CID/HQ PEP 12/07/2019, was certainly a breach of the above oaths and the public trust.
I disagree with the learned Magistrate’s sentencing comments that your offending was technical in nature and trivial. Your words, actions, comments, orders and directions, as the Prime Minister of the Republic of Fiji, at the material time, carried great weight with the leaders of the various government departments and government statutory bodies. It carried great weight with the members of Cabinet. Without violating the principle underpinning the concept of the separation of powers between the Legislature, the Executive and the Judiciary, the Judiciary is constitutionally bound to speak on the violation of the law, and air its views publicly, for the sake of transparency and accountability.
It was not right for you to tell the second respondent to stay away from investigating the alleged mismanagement of taxpayer’s fund at the University of the South Pacific by top senior officials, who appear to be citizens of Fiji. The second respondent was the Commissioner of Police. The second respondent’s brief as Police Commissioner was guided by section 5 of the Police Act 1965. It was mandatory for the second respondent to prevent and detect crimes and enforce the criminal law of the Republic of Fiji. The police were investigating the USP mismanagement of funds at the time.
The police had sought the Director of Public Prosecution’s assistance. He had recommended the caution interview of the suspects. By telling the second respondent to stay away from the USP investigation, you have in a sense effectively sabotaged the police investigation. To this day, the investigation had not been completed. Your action was inconsistent with the oath of your office.
23. The mitigating factors were as follows:
(i) At the age of 70 years old, this was your first offence.
(ii) I have taken on board the character references provided on your behalf, to the Magistrate Court, by two former President of the Republic of Fiji, Ratu Epeli Nailatikau and Major General (Retired) Mr. J. K. Konrote, and the former Commander of the Republic of Fiji Military Force and present Member of Parliament, Hon Mr. Viliame Naupoto. They certainly spoke highly of you and I have read their references carefully.
(iii) I had also taken note of your doctor’s medical report, that is, the report prepared by Doctor Joji Malani.
“139 A person commits an indictable offence which is triable summarily if, being employed in the civil service, the person does or directs to be done, in abuse of the authority of his or her office, any arbitrary act prejudicial to the rights of another.
Penalty – 10 years imprisonment
If the act is done or directed to be done for gain –
Penalty – 17 years imprisonment.”
28. In FICAC v Ana Laqere & Others, Criminal Case No. HAC 056 of 2014, High Court,
Suva, on 10 May 2017, His Lordship Mr. Justice Rajasinghe reviewed previous cases on “abuse of office”, that is, Naiveli v The State, Criminal Appeal No. 2 of 1992, Court of Appeal; State v Kunatuba, Criminal Case No. HAC 018 of 2006, High Court, Suva; State v Sorovakatini, Criminal Case No. HAC 018 of 2005, High Court, Suva; State v Bola, Criminal Case No. HAC 029 of 2005, High Court, Suva and FICAC v Mau, Criminal Case No. HAC 089 of 2010, High Court Suva.
“24 In view of the above sentencing precedents, it appears that the courts of Fiji have considered the level of authority and trust reposed in the position held by the accused, and the level of prejudice caused to the victim in sentencing. If the level of authority and trust, and the prejudice caused are high, the court could go to the higher starting point and vice versa.
25. I would like to adopt the same approach in setting an appropriate tariff, allowing the sentencing court to determine the appropriate starting point based on the level of culpability and the prejudice/harm caused. Accordingly, I find a tariff limit of one (1) year to twelve (12) years would adequately serve the above purpose. The sentencing court could consider the following ranges of starting point based on the level of culpability and the harm caused;
| High Level of Culpability | Medium Level of Culpability | Lesser Level of Culpability |
High Level of Harm/Prejudice with gain | 8-12 | 6-10 | 4-8 |
Medium Level of Harm/Prejudice either with medium level gain or without gain | 6-10 | 4-8 | 2-6 |
Lesser Level of harm/Prejudice either with less gain or without gain | 4-8 | 2-6 | 1-4 |
26. In order to determine the level of culpability, the court could consider the following factors; however, this is not an exhaustive list. They are:
(i) Breach of the Public’s Trust. At the material time, the second respondent was the Commissioner of Police of the Republic of Fiji. By virtue of section 129 (3) of the Constitution, he commands the Fiji Police Force and is responsible for its administration, organization, deployment and its control, and in those matters, he is not subject to anyone’s control. He is the top police officer and it is his task to lead the police maintain law and order. By virtue of section 5 of the Police Act 1965, he leads the police in preserving the peace, protecting life and property, prevent and detect crime and to enforce the criminal law of this country. However, when he, on 15 July 2020, at Suva in the Central Division, directed the Director of the Criminal Investigations Department Serupepeli Neiko and Inspector Reshmi Dass to stop investigations into the police complaint involving CID/HQ PEP 12/07/2019, he was certainly abusing his office, which was an arbitrary act, prejudicial to the rights of USP. What he did was a direct violation of section 5 of the Police Act 1965 and as such, was a breach of the public trust in him.
(ii) By acceding to the first respondent’s request to stay away from the USP investigations reported in CID/HQ PEP 12/07/2019, the second respondent violated his constitutional independence as guaranteed by section 129 (5) of the 2013 Constitution.
32. The mitigating factors were as follows:
(i) At the age of 55 years old, this was his first offence;
(ii) I have taken on board your character reference provided by the Hon Leader
of the Opposition Mr. Inia Seruiratu and the former Commander of the RFMF and current Member of Parliament Hon Mr. Viliame Naupoto. They attested to the fact that you have served your country well in the Republic of Fiji Military Force, when you joined in 1988. They said you also worked hard in the police, but for this offence. It was recognized that you were a hard working family man.
Salesi Temo
Acting Chief Justice
Solicitor for the Appellant: Office of the Director of Public Prosecution, Suva
Solicitor for the Respondents: R. Patel Lawyers, Suva
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