State v Rokotavaga [2010] FJMC 26; Criminal Case 571.2010 (5 July 2010)

IN THE RESIDENT MAGISTRATE’S COURT OF SUVA

Criminal Case No: - 571/10

STATE

V

MARICA ROKOTAVAGA

For Prosecution: - Mr. Siriwansa R.
Accused: - Mr. Sharma (Duty Solicitor of Legal Aid)

SENTENCE

1. You, MARICA ROKOTAVAGA are here today, to be sentenced on admission of guilty on your own accord for the offence of Theft contrary to section 291 of the Crime Decree No 44 of 2009 as first count, Falsification of document contrary to section 160(3) of the Crime Decree 2009, as second count, abuse of office contrary to section 139 of the crime decree 2009, as third count.
   
2. According to the summery of facts tendered by the Prosecution which you admitted in open court, that you being an account clerk for the Fiji Independent Commission against Corruption (FICAC) did dishonestly appropriate Colonial National Bank cheque bearing number 003577 with intent to permanently deprive FICAC of the above cheque. In respect of the second count, you with intend to obtain a gain from FICAC did dishonestly; falsify the signatures of Volisa Elaisa and Sanaila Seru, on said Colonial National Bank cheque. In respect of the third count, you in the abuse of the authority of your office, did arbitrarily draw the said Colonial National Bank cheque for an amount of FJ$ 250, for gain and thereby caused a prejudice to the rights of FICAC.
   
3. According to the section 291 of the Crime Decree No 44 of 2009, the maximum sentence could be imposed against you for the said offence of Theft is for ten years imprisonment. Tariff for simple larceny is 6 months to 12 months imprisonment. ( Kaloumaira v State ( 2008) FJHC 63), Manasa Lesuma v State 2004, FJHC 490. It was held in Tikoitoga v State (2008, FJHC 44, HAM088.2007, 18th March 2008), that the tariff for larceny is 18 months to 3 years. Shameem J held in Vaniqi v State (2008, FJHC 348,HAA080.2008) that tariff for simple larceny with previous conviction of a felony to be over 9 months.
   
4. According to the section 160 (3) of the Crime Decree 2009, the maximum sentence could be imposed against you for the said offence of falsification of Document is for seven years imprisonment. The tariff for breach of trust sentences ranges from 18 months to 3 ½ years imprisonment. ( State v Bole, High Court of Fiji Criminal Case No. HAC 38 of 2005S (4 October 2005).
   
5. In respect of the third count of Abuse of office contrary to section 139 of the Crimes Decree 2009, the maximum sentence could be imposed against you is 10 years imprisonment, but if the act is done or directed to be done for gain, penalty is 17 years imprisonment period. The tariff for abuse of office range from community work orders to terms of imprisonment, depending on whether the offender is convicted of misdemeanor or felony abuse of office. ( State v Eminoni Bola, Crim Case HAC039 of 2005S), (FICAC v Jaswant Kumar, Crim Case HAC 001 0f 2009).
   
6. The offences which you have committed are serious crimes in the society. You committed these offences being a public servant in a government institution. 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". Wherefore, I am of the view that principles of deterrence and prevention should be given a prominence as of the principle of rehabilitation in sentencing for the offences involving with breach of public trust. In the circumstance of this case I am of the view the sentence must serve the purpose of deterring the offenders from breaking the law again and act as a warning to others not to do the same.
   
7. Accordingly, I select 8 months imprisonment as a starting point in respect of first count, 2 years imprisonment as a starting point in respect of second count, and 8 month imprisonment in respect of third count.
   

Aggravating Factors.

8. According to the information revealed by the summary of facts placed before court, you were on maternity leave and came to FICAC office on a Saturday on the pretext that you wanted some of your certificates for an interview. You abused your office as an account clerk in FICAC to enter into the office on Saturday and your official knowledge on the functions of the account branch in order to commit your said mendacious act. You breach the trust of your employer and your colleagues as well as the public on you as a public servant in FICAC.
   
9. The fact, that you came to office on a Saturday which was not a normal working day while you were on maternity leave pretending to collect some of your certificates, demonstrated that your calculated plan to commit these offences. This is not an act of opportunity.
   
10. You are well aware that the very purpose of FICAC is to curb and eradicate corruption in the society. Being an account clerk of FICAC, you dishonestly attempted to gain from public funds of FICAC. Your said act not only attenuate the task and image of the FICAC but the public trust and confident on FICAC.
    
11. Accordingly I increase 10 months from the starting point in respect of 1st count, 10 months in respect of the second count and 10 months in respect of third count. Accordingly, now your sentence stands for 18 months imprisonment for the 1st count, 34 months imprisonment for the 2nd count, and 18 months imprisonment for the 3rd count.
    

Mitigating Factors.

12. Since you have pleaded guilty in the first available instance you are entitle for a reduction of 1/3 of the total period of imprisonment. ( Akili Vilimone v State (Cr. App. HAA 131/2007). Thereby your sentence now stands for 12 months imprisonment for the 1st count, 23 months imprisonment for the second count and 12 month imprisonment for the 3rd count.
    
13. You are 24 years old young woman. You are a single parent with two months old son. Mr. Sharma, the Legal Aid Counsel for the accused, stated in his written mitigation for the accused, that she is financially supporting her in-laws and her family is dependent on her. You are a student at the University of South Pacific and reads for a degree in Economics and Accounting. You are expecting to graduate next year.
    
14. In your mitigation, you explained the circumstance surrounding committing of the said offences. You seek mercy and forgiveness of the court and second chance to reform your life.
    
15. You are already suspended from your employment at FICAC and prospective for you to obtain an employment is very low. The tag of conviction for the offence of breach of trust will hunt you in rest of your life. It is itself a punishment that you have to live in rest of your life.
    
16. Though, you are a first offender, your previous good character however not a special factor. Goundar J, held 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".
    
17. In considering your young age, your single motherhood with two months old son and other mitigating factors, I reduce further 6 months in respect of 1st count, 13 months for the second count and further six months for the third count. Wherefore, your sentence now stands for 6 months imprisonment for the 1st count, 10 months imprisonment for the 2nd count, and 6 months imprisonment for the 3rd count. At this point I am mindful with the fact that a sentence which is below two years could be suspended.
    
18. 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".
    
19. You are a single mother of just two months old son and expecting to be graduated in Economics and Accounting in next year from the University of South Pacific.
    
20. Your two months old son needs mother’s warmness and love in his growing age. Even though the fact that prison authority grant permission you to keep your child in prison, court must bear in mind that exposing a two months old child to the prison environment undoubtedly affected negatively in his future. Wherefore, I find an exceptional circumstance in your case to suspend your sentence, 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.
    
21. Accordingly, I sentence you for 6 months imprisonment for the of offence of Theft contrary to section 291 of the Crime Decree No 44 of 2009, 10 months imprisonment period for the offence of Falsification of document contrary to section 160(3) of the Crime Decree 2009, and 6 months imprisonment period for the offence of abuse of office contrary to section 139 of the crime decree 2009, and suspended them for a period of 3 years.
    
22. 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.
    
23. 28 days to appeal.
    

On this 5th day of July 2010.

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