State v Khan [2010] FJMC 29; Criminal Case 1234.2009 (11 August 2010)

IN THE RESIDENT MAGISTRATE'S COURT OF SUVA

Criminal Case No: - 1234/09

STATE

V

FARZAND AHMED KHAN

For Prosecution: - Ms. Puamau
Accused: - Ms. Lemaki.

SENTENCE

1. You, FARZAND AHMED KHAN are here today, to be sentenced on admission of guilty on your own accord for the offences of Facilitating stay of unauthorized migrants, contrary to section 25(1)(a) and 65 of the Immigration Act 2003 as 1-7 counts.
   
2. According to the summery of facts tendered by the Prosecution which you admitted in open court, that you knowingly facilitated the continued presence of unauthorized migrants namely, Sridhar Nimmagadda, Shaik Arif ismail, Julakanti Bhaskarreddy, Boddu Naresh, Kogutuem Srinivas, Harnam Singh, Gurcharan Singh by unlawful means and obtained monetary benefits.
   
3. You were approached by one Satnam Singh, who gave you five passports of five Indian nationals. He asked you to make departure and arrival entries to Tonga and back to Fiji on those passports and agreed you to pay $ 1000 for that. You entered false entry and departure information on the passports of those five Indian Nationals to indicate that those five Indian Nationals had been to Tongo and back to Fiji although those five Indian were present in Fiji during that suggested time of their absence.
   
4. In respect of count No 5-7, you were approached by one Rahul Prasad Trivedi a.k.a Rohit Prasad Trivedi and asked you to make departure and arrival entries on passports of three Indian Nationals that the holders of those passport had been to Tonga and back to Fiji for $ 300. You entered false entry and departure information on the passports of those three Indian Nationals to indicate that those three Indian Nationals had been to Tongo and back to Fiji although those five Indian were present in Fiji during that suggested time of their absence
   
5. According to the section 65 of the Immigration Act 2003, the maximum sentence could be imposed against you for the said offence of Facilitating stay of unauthorized migrants, contrary to section 25(1)(a) is for 2 years imprisonment or fine of $ 5000. I adopt the sentencing principle adopted by Gates J in State v Kumar [2005] FJHC 477; HAC0005T.2005S (7 October 2005) in sentencing in this case.
   
6. The offence of Facilitating stay of unauthorized migrants, which you have committed, is an offence relating to trafficking and smuggling of persons under part V of the said Immigration Act of 2003. Trafficking and smuggling of persons is a modern day form of slavery. It is a fast growing criminal industry not only in Fiji Islands, but also all over the world. It is a transnational organized crime. The 10th Annual "trafficking in Person' report 2010 issued by the State Department of the United State of America, which is globally renowned indicator of national and transnational trafficking of persons in the world, place the Republic of Fiji Islands as a Tier two watch list country.
   
7. 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 relating to trafficking and smuggling of persons. 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.
   
8. Accordingly, I select 10 months imprisonment as a starting point for each one of seven counts respectively.
   

Aggravating Factors.

9. According to the information revealed by the summary of facts placed before the court, you abused your public office as a Line Officer who was responsible for the processing of departure and arrival of all passengers travelling through Nausori Airport. You breached not only the trust of the State, but also the thrust of public on you as a public servant of the country. Instead of serving the state and public, you opted to serve transnational organized criminals that not only damaged the image of the country but also attenuated its position in globe. You compromised the dignity and the integrity of the public officer for just to gain monetary benefits.
   
10. Accordingly I increase 8 months from the starting point and now your sentence stands for 18 months imprisonment for each one of seven counts respectively.
    

Mitigating Factors.

11. Since you have pleaded guilty in the first available instance with the legal aid assistance 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 each one of seven counts respectively.
    
12. You are 26 years old young person. Single and was employed as a Custom Officer. Your employment is suspended. You are a sole breadwinner and support your sick and elderly mother. Though you are serving prisoner, you had no previous conviction at the time of committing the offence. You are remorseful and promise to be a good person. Rev Ilaitia Tagituimua tendered an affidavit in support of your good character. In considering these mitigating factors, I reduce 4 months and now your sentence stands for 8 months imprisonment for each one of seven counts respectively.
    
13. Even though the fact that a sentence which is below two years could be suspended, in the circumstance of your case, I do not find any compelling circumstance to do so and I am of the view that a suspended sentence would not serve the purpose set out above paragraphs.
    
14. Accordingly I sentence you 8 months imprisonment for each one of seven counts respectively and to be served concurrently and to be served consecutive to the present prison term.
    
15. 28 days to appeal.
    

On this 11th day of August 2010..

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