FICAC v Bolea [2013] FJMC 378; Criminal Case 111.2009 (18 October 2013)

IN THE MAGISTRATES COURT OF FIJI
AT SUVA
Criminal Case : 111/2009

FICAC

VS

TANIELA BOLEA

For Prosecution : Ms. Waqabaca
For Accused : Not present .

SENTENCE

[1] The accused has been convicted after a trial for 04 counts of Abuse of Office contrary to section 111 of the Penal Code Cap 17. The trial proceeded without the accused as he absconded from the case and the judgment was delivered on 18th September 2013.

[2] In the trial it was revealed that the accused was appointed as the Chief Executive Officer (hereinafter referred to as 'CEO') of the Fiji Audio Visual Commission (FVAC). On 11th February 2002 the FAVC Board approved a credit card facility for the CEO with a maximum limit of $10,000. The Board also approved for the credit card to be solely used for official business in particular official expenses which incurred during overseas trips. In accordance with the FAVC Travel Policy and Procedures the CEO was required to submit all details of expenses incurred along with evidential receipts to the Chairman for approval before payment is made.
[3] On 12th January 2001 and 8th April 2004 the accused approved the payment of his business visa card totaling $7,248.48 and $4,286.13. On 18th August 2005 the accused again approved the payment of his business visa card totaling $2,930.94 and on 31st July 2007 the accused approved the payment of his business visa card totaling $823.59. In all these occasions the accused did not follow the procedure and approved the payments himself.

LAW AND TARIFF

[4] The four counts of Abuse of Office with which the accused is convicted of is a misdemeanor and the maximum punishment is two (2) years imprisonment.

[5] In FICAC v Farzand Ahmad Khan Criminal Case No. HAC 082 of 2010 – The accused a customs officer upon pleading guilty was convicted of forgery and abuse of office offences, the court selected a starting point of 12 months and after considering mitigating and aggravating factors sentenced the accused to 6 months imprisonment.

[6] In FICAC v Olota Rokovunisei HAC 37B of 2010 – The accused employed as a General Manager/Chief Executive Officer of the Fiji National Provident Fund was convicted for one count of Extortion and Abuse of Office. After selecting 1 ½ years as starting point the accused was sentenced to 12 months imprisonment on the count of Abuse of Office.

[7] In FICAC v Tevita Peni Mau and Mahendra Motibhai Patel HAC 89 of 2012 – Both accused held executive positions in Post Fiji Limited and were charged with abuse of office, the first accused was sentenced to nine (9) months imprisonment while the second accused was sentenced to 12 months imprisonment.

AGGRAVATING FACTORS
[8] The accused being the CEO was expected to act in the best interest of FVAC and by acting in this manner breached the trust placed by the employer as well as public. This will be considered as an aggravating factor in this case.

MITIGATING FACTORS
[9] The accused absconded from the case and therefore I am not in a position to consider his personal mitigating factors. But the prosecution has informed this Court that the accused has no previous convictions and this will be the only available mitigating factor to be considered in this case.

[10] I select 12 months as my starting point for each offence of Abuse of Offence. Add 06 months for aggravating factor to reach 18 months. Deduct 08 months for only mitigating factor to come to 10 months.

[11] Considering the Totality Principle I order this 10months to be concurrent to each other.

[12] In pursuant to section 26(2) (b) of the Sentencing and Penalties Decree this Court has the power to suspend a sentence below 02 years. In deciding whether to suspend this sentence I would consider the following authorities.

[13] In State v Prasad (2003) FJHC 320 His Lordship Justice Gates (as he then was) said :

"The public interest lies in the deterrence of dishonest practice by employees. Usually in such cases the gravity of the breach of trust needs to be marked by an immediate term of imprisonment no matter how sad the accused's story or how compelling the mitigation in favor"

[14] In case of Naiveli v The State Criminal Appeal No. 2 of 1992 (CA) the Fiji Court of Appeal held that ;

"We note that such offences strike at the very roots of the administration of law and order and justice in this country. Such an offence can be committed only by a person who is in a position of authority and trust. If it became a pattern that because of their high position they would not serve a term of imprisonment it could only be to the detriment of the whole country".

[15] On sentencing the court further said:

"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 courts are not prepared to regard such offences lightly and that they will not suspend sentences just because the consequences for such a person are severe".

[16] In case of FICAC v Farzard Ahmed Khan HAC 82/2010, His Lordship Justice Goundar observed:

".......Despite your previous good character and other compelling mitigating factors, I give priority to the principle of deterrence. The purpose of your punishment is not only to deter you but others as well from committing this kind of offences".

[17] Only ground for suspending the sentence is the accused's previous good record. But by acting in this manner the accused has breached the trust placed by his employer as well as public. Also by absconding from the trial and not attempting to make full reparation the accused showed clearly that he has no remorse for his actions.

[18] Therefore even with the accused's previous good record I believe immediate custodial sentence is warranted in this case to denounce his action as well as to deter future offenders. Also the people who misuse the public office need suitable punishment to show the disapproval of this kind of conduct by the Court.

[19] Accordingly the accused is sentenced to 10months imprisonment for 04 counts of Abuse of Offence. As the accused is absconding this sentence will be activated from the date of his apprehension.

[20] 28 days to appeal.

18th October 2013

H. S. P. Somaratne
Resident Magistrate