IN THE RESIDENT MAGISTRATE'S COURT OF SUVA

Criminal Case No: - 1706/10

FICAC

V

FILIMONE JALE
ESETA NAIKAUKAUCAGI

For Prosecution : - Ms. Matakitoga
1st and 2nd Accused : - In Person

SENTENCE

1.	You FILIMONE JALE,was convicted by this court, for eight counts of offences of "Embezzlement by officer of post office", which is punishable under Section 303 (a) of the Crime Decree No 44 of 2009, entailed a punishment up to ten years of imprisonment and one count of offence of "Embezzlement by officer of post office" which is punishable under section 303 (b) of the Crime Decree No 44 of 2009, entailed a punishment up to five years.

2.	You ESETA NAIKAUKAUCAGI was convicted by this court, for the offence of "Aiding and abetting Embezzlement by officer of post office", which is punishable under Section 45 and 303 (a) of the Crime Decree No 44 of 2009, entailed a punishment up to ten years of imprisonment. 

3.	The convictions was entered consequent upon both of your "pleas of guilty' to the above charge on 29th of September 2010. I am satisfied that both of you fully comprehended the legal effects and that your pleas were voluntary and free from influence.

4.	Summary of facts, as admitted by both of you before the court, revealed that the offences of "Embezzlement by officer of post office" and the offence of "aiding and abetting embezzlement by officer of post office" were committed during the period between 1st of January 2008 to the 27th of September 2010, while you, Mr. Filimone Jale were working as a Permanent Relieving Postal Assistant at the Laucala Beach Mail Center of the Post Fiji Limited. You, Eseta Naikaukaucagi is the wife of 1st Accused. 

5.	Further, the summery of facts revealed, that Mr. Filimone Jale, you, between the 1st day of January 2008 to the 27th day of September, 2010, had on separate occasions embezzled a "Samsung" mobile phone currently valued at $50, and a "Nokia 6300" mobile phone currently valued at $45 in the course of its transmission by post to its destination. The Samsung mobile phone was an unclaimed package and instead of directing it to the Post Fiji Return Letter Office you embezzled the same as you did not have a mobile phone at that time. Also for the Nokia 6300 phone you embezzled it from one of the postal packages that you came across when sorting out mails at the Centre.

Further, Mr. Filimone Jale, you, between the 1st day of January 2008 to the 27th day of September, 2010 embezzled an iPod 30GB MP3 player currently valued at $80 in the course of its transmission by post to its destination. You came across the postal package containing the same while sorting out mails at the Centre, and you then opened the package found the item, took it out and put it in your Mizuno knapsack bag which you usually carries to work and took it home.

Mr. Filimone jale, you, between the 1st day of January 2008 to the 27th of September, 2010 had embezzled an Apple brand iPod mobile phone currently valued at $200 in the course of its transmission by post to its destination. you came across the postal package containing the item while sorting out mails at the Centre, and then opened the package found the item, took it out and put it in your Mizuno knapsack bag which you usually carries to work and took it home. Your intention was to sell the iPod phone, but you later changed your mind and kept it for your personal use instead.

Also between the 1st day of January 2008 to the 27th day of September, 2010 you, on two separate occasions embezzled a Kodak Easy Share C300 Digital Camera currently valued at $40.00 and a Lenova Sony Digital Camera currently valued at $150 in the course of its transmission by post to its destination. You came across the postal packages containing the digital cameras while sorting out mails at the Centre. You then put the two packages in your Mizuno knapsack and took it home. On your way home you unpacked the Lenova Sony Digital Camera and threw its package away inside one of the big yellow rubbish bins in Suva market. When you reached home you then unpacked the Kodak Easy Share C300 Digital Camera and burnt its package. you intended to sell the items, but later on changed your mind and from then, time and again you usually pawns the items at Henry's pawn shop in Suva for a month to earn money.

Mr. Filinone Jale, you between the 1st day of January 2008 to the 27th day of September, 2010 had on various occasions embezzled postal packages containing assorted clothing inclusive of 2 girls pink and white heart panties, 1 plain pink panty, a pink black and white coloured girl's heart T-Shirt and two red dresses in the course of its transmission by post to its destination. you came across the postal packages containing the clothing and a birthday card while sorting out mails at the Centre. You took the package home because you felt the card inside the package and thought that there could be money in it. You later burnt the package at home.

Mr. Filimone Jale, you between the 1st day of January 2008 to the 27th day of September, 2010 had on separate occasions embezzled postal packets containing assorted imitation and second hand jewelleries all valued at $71.00 in the course of its transmission by post to its destination. You came across the postal packages while sorting out mails at the Centre. You took the packages home and after unpacking the items and burnt the packages.

Mr. Filimone jale, you on the 9th day of July, 2010 while sorting out the mails at the Centre came across the mail bag containing a RBPO, "Remittance between Post Offices" which was supposed to have been delivered at Lekeba the earlier day, but was returned from the Airport due to reasons unknown to you. The remittance contained F$30,000 cash. You whilst sorting out the mails picked up the Lekeba mail bag from the Registered Office for resending and once reaching your table, your placed the bag beside your table, took a cutter and cut the mail bag near to the bottom of it, pulled out the RBPO which was in a bag contained in the mailbag with other Lakeba mails and directly transferred it into your Mizuno knapsack. you later enclosed the cut blue mail bag into another mail bag to Lakeba that was to close the same day. The bag was later witnessed by a Postman who knew all along of your intention to embezzle the money. In the afternoon, you took the $30,000 cash home and shared it among four other staffs of Post Fiji Limited and a relative. Out of the $30,000, you received $9,000 for yourself.

Mr. Filimone Jale, you on the 27th day of September, 2010 embezzled two postal packages. One of the postal packets contained a NZ$50 note and the other contained a NZ $50 note and two NZ$10 notes in the course of its transmission by post to its destination. You came across the postal packages while sorting out mails at the Centre, and tore the envelopes, took out the money and handed over the same to your wife the 2nd Accused, Eseta Naikaukaucagi at about 11.45 am the same day for exchanging to pay for your electricity and purchase of food items for the family.

Mr. Filimone Jale on the 27th day of September 2010, embezzled 115 postal packets in the course of transmission by post to its destinations. At about 5.12pm yours Mizuno blue, white and black knapsack was searched in your compound by FICAC Officers whereby 115 postal packets were found in the knapsack out of which 30 have been torn and 85 were still closed.

Mrs. Eseta Naikaukaucagi, you on the 27th day of September 2010, aided and abetted Mr. Filimone jale by exchanging the NZ$50 notes and NZ$10 notes at Uaex Money Exchange, Waimanu Road and later on used the same to purchase food for the family.

6.	The learned counsel for the FICAC, submitted in her sentencing submission that the case involved with a serious fraud offence. The learned counsel for the FICAC further suggested in her submission the aggravating factors are that the 1st accused person was in a position of trust. He was not only entrusted by his employer, but also by the general public, the users of the postal office. He breached this position of trust by randomly picking letters and packages, taking them home, burning packages that he did not need and using items and monies in the packages that were obviously meant for someone else. Moreover, this breach of trust does not only affect the company by the loss of mail packages but mostly by the loss of trust by the public in the mailing system. In addition, the learned counsel for the FICAC submitted that it was clear that the 1st accused's conduct was premeditated and calculated in stealing the package containing F$30,000. The learned counsel for the FICAC drew my attention that the tariff for serious fraud offences is 18 months to 4 years imprisonment with reference to "Savenanca Labavuka v FICAC (2009) FJHC 119, State v Isimeli Drodroveivali (Unreported) Suva High Court Cr. Case No HAC007.2002S,

7.	Both of you made pleas in mitigation on behalf of you. Both of you submitted that you are remorseful and apologetic for your conduct and pleaded leniency. Rev. Semiti Naioba and the Sister of the 1st Accused tendered written mitigation on your good character. At this point I referred Justice Gounder's finding in FICAC v Jaswant Kumar ( Crim case HAC 001 of 2009), that ' a person's previous good character is an essential pre – requisite to hold a public service position. Usually this type of offending is committed by person of unblemished character holding post of trust and authority in the public service".

8.	This is a case involved with serious breach of public trust, and betrayal of public confident on public service. Mr. Filimone Jale, You took advantage of your position as a Permanent Relieving Postal Assistant at the Laucala Beach Mail Center of the Post Fiji Limited to commit these offences during a period of 2 years without remorse as to the effect on the proper recipients of those packages. Winter J held in The State v Suliasi Sorovakatini ( Crim Case HAC 018 0f 2005)"that public corruption betrays the public trust and erodes public confidence in our government institutions. These are serious crimes and it is important that potential offenders and the public at large understand that these crimes will be met with stiff penalties". In view of His Lordship justice Winter's finding, the purposes of sentencing both of you in pursuant to section 4 (1) of the Sentencing and Penalties Decree to punish offenders to an extent and in a manner which is just in all the circumstance, to protect the community from offenders in this nature, to deter offenders or other persons from committing offences of the same or similar nature, to establish conditions to facilitate or promote the rehabilitation of the offenders and more importantly to signify that the court and the community denounce the commission of such offences

9.	At this point I direct myself to consider appropriate sentences on you upon considering the general principle of sentencing under Section 15 (3) and section 17 of the Sentencing and Penalties Decree and objective of sentencing under section 4 (1) and 4 (2) of the Sentencing and Penalties Decree as all ten counts form a series of offences of the same nature or a similar character. 

10.	As it was submitted by the learned counsel for the FICAC the tariff for the serious fraud offences is 18 months to 4 years. ("Savenanca Labavuka v FICAC (2009) FJHC 119, State v Isimeli Drodroveivali (Unreported) Suva High Court Cr. Case No HAC007.2002S,Panniker v State (2000)FJHC 156, Sate v Roberts (2004)FJHC 51,). Pain J in Shane Raymond Heatley v. The State (HAA0003.1995) held that 

"These cases show that on a plea of guilty of obtaining money by fraud a sentence of 4 years imprisonment is likely for the most serious type of case (see dicta in Vishwajit Prasad v. State App. 23 of 1993). However aggravating circumstances may warrant a greater sentence (Anil Kumar v. R). If the amount involved is small a short period of imprisonment is appropriate (see Mara Kapaiwai v. R – albeit on a plea of guilty). Otherwise sentences imposed in these reported cases have ranged from 15 months to 2 ½ years imprisonment."

11.	The case of Barrick (1985) 91 Cr.App78) was succinctly discussed the determining factors considered as sentencing guidelines for serious breach of trust cases, where it was held that " in determining sentence in breach of trust cases, the court should have regard to the following matters,

i.	The quality and degree of trust reposed in the offender including his rank,
ii.	The period over which the fraud or the theft have been perpetrated,
iii.	The use to which the money or property dishonestly taken was put,
iv.	The effect upon the victims,
v.	The impact of the offences on the public and public confidence,
vi.	The effect upon fellow employees or partners,
vii.	The effect of the offender himself,
viii.	His own history,

12.	Justice Shameem, held in State v Raymond Roberts ( HAA0053 of 2003S), " the principles that emerge from these cases are that a custodial sentence is inevitable where the accused pleaded not guilty and makes no attempt at genuine restitution. Where there is a plea of guilty, a custodial sentence may still be inevitable where there is a bad breach of trust, the money stolen is high in value and the accused shows no remorse or attempt at reparation". 

13.	Mrs. Eseta Nakaukaucagi, I now draw your attention to the section 45 of the Crime Decree of 2009, where its stipulated that a person who aids, abets, counsels or procures the commission of an offence by another person is taken to have committed that offence and punishable accordingly. 

14.	In view of above judicial precedents and provisions of the Sentencing and Penalties Decree and Crime Decree, careful perusal of the summery of facts, sentencing submission of the prosecution and mitigation submission of accused, I now proceed to determine an appropriate starting point for both of you.  In line with above sentencing guidelines and principles, I select 24 months imprisonment period as a starting point for the 1st accused and 18 months imprisonment period as a starting point for the 2nd accused.

15.	You committed this offence as a public servant working at the Laucala Beach Mail Center of the Post Fiji Limited. You abused your position as a Permanent Relieving Postal Assistant. You breach and betray the trust and confident of your employer, your fellow colleagues as well as the public of the country. You dishonestly attempted to gain from the public office you held. Instead of exercising your official duties and responsibilities for the betterment of the country, you choose otherwise to meet your narrow personnel interest. 

16.	The impact of these offences is multi dimensional. Not only the state and public but also the individuals who sent and were expecting receiving those stolen items were affected. Your act not only attenuates the image of the public service but also the public trust and confident on public service in the country. The main purpose of the state to provide postal mailing service is not only limited for commercial profits, but also to provide competitive postal service with other private currier services for the benefit of masses which was negated by your act of crime. You not only stole the properties in those postal packages but also stole the love, affections, appreciations, care, and also the tears and labor of senders and receivers of those items. 

17.	 You planned and carried out this disgraceful act of dishonest over a period of two years without remorse. This is a premeditated and calculated white collar crime by the public officer with multi dimensional impact to the entire society.

18.	I now draw my attention to address the mitigatory factors in your favors. 

i.	 Filimone Jale, you are 38 years of age, married with four children,
ii.	 Eseta Nakaukaucagi, you are 29 years of age, married to 1st accused with four children,
iii.	Remorseful and realized the seriousness of the offence.
iv.	You pleaded guilty in first available instance.
v.	Filimone jale, you are a Sole breadwinner of the family,
vi.	You seek for forgiveness and promise not to reoffend. 

19.	 Filimore Jale, in view of aforementioned aggravating factors I increase 20 months, to reach the period of 44 months. In considering your early guilty plea at the first available instance I reduce 14 month and for other mitigatory factors, I reduce 6 months to reach the period of 2 years. Now your sentence reaches to two years imprisonment period. According to section 26 (2) (b) of the Sentencing and Penalties Decree sentence which is below two years could be suspended by this court. 

Eseta Nakaukaucagi, in view of aforementioned aggravating factors I increase 6months, to reach the period of 24 months. In considering your early guilty plea at the first available instance I reduce 8 month and for other mitigatory factors, I reduce 6 months to reach the period of 10 months. Now your sentence reaches to 10 months imprisonment period. According to section 26 (2) (b) of the Sentencing and Penalties Decree sentence which is below two years could be suspended by this court.

20.	It was held in Naiveli v State ( Crim App 4/92(FCA), " 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 court are not prepared to regard such offence lightly and that they will not suspend sentences just because the consequences for such a person are severe". In view of this judicial precedent I am of the view that it is important and in the public interest that the courts through sentencing make it clear that those who imperil the integrity and the proper function of the public service of the government will receive condign jail sentence. Wherefore, I do not find any compelling reasons to suspend the two years imprisonment period in respect of 1st accused. 

21.	However, in pursuant to section 15 (3) of the Sentencing and Penalties Decree, I find that Eseta Nakaukaucagi, your early guilty plea at the first available instance and the fact that you are married with 4 children whom need your love and guidance are compelling factors for me to consider for suspended term for you though it is important and in the public interest that the courts through sentencing make it clear that those who imperil the integrity and the proper function of the public service of the government will receive condign jail sentence. 

22.	Accordingly, I sentence 

Mr. Filomone Jale, 2 years imprisonment period for the nine counts of offences of Embezzlement by officer of post office contrary to section 303 (b) of the Crime Decree of No 44 of 2009,

Mrs. Eseta Nakaukaucagi, 10 months imprisonment period for the offence of aiding and abetting Embezzlement by office of post office contrary to section 45 and section 303(a) of the Crime Decree of No 44 of 2009 and suspended it for three years.

23.	 Mrs. Eseta Nakaukaucagi,if you commit any crime during the period of 3 years and found guilty by the court you are liable to be sent to prison to serve the above mentioned imprisonment period which is suspended by this court. 

24.	28 days to appeal.

On this 07th day of December 2010.

R.D.R.Thushara Rajasinghe
Resident Magistrate, Suva.