Fiji Independent Commission Against Corruption v Foster [2013] FJMC 415; Criminal Case 1211.2012 (4 December 2013)

IN THE MAGISTRATES COURT OF FIJI
AT SUVA
Criminal Case : 1211/2012

FICAC

VS

SAMUELA FOSTER

For Prosecution : Ms. Drau
For Accused : Mr. Waqainabela .

SENTENCE

1. You were charged in this Court for the following offence.
   

First Count:

Statement of Offence

OBTAINING FINANCIAL ADVANTAGE: - contrary to Section 326(1)(a)(b)(c) of the Crimes Decree 2009.

Particulars of the Offence

SAMUELA FOSTER between the 12th day of January 2012 and the 29th day of June 2012 at Suva, in the Central Division, manipulated the payroll system of the Attorney General's office, causing to be paid to SHAKTI SAMANT SINGH and SEBIUTA TUKUWASA RAVOKA the total amount of $5,279.00 as meal allowance and as a result he obtained a financial advantage for himself namely, half of the said amount, knowing he was not eligible to receive that financial advantage.

2. You pleaded guilty for this charge on 21 October 2013 and also admitted the summary of facts presented by the prosecution.
   
3. The summary of facts tendered by the prosecution is as follows:
   

At the material time pertaining to this case, the accused was working as a clerical officer at the office of the Attorney General.

Briefly, between the 12th day of January 2012 and the 29th day of June 2012, whilst being employed in the office of the Attorney General, the accused manipulated the Automated Payroll system of the un-established staff of the said office by inserting additional meal allowances into the pays of the one Shakti Samat Singh and one Sebiuta Tukuwasa Ravoka, amounting to $5,279.00.

During the stipulated period, the accused approached the two mentioned recipients and informed them that he would facilitate the inclusion of additional meal allowances into their pay and in return, each of them were to give fifty percent of the additional meal allowance which had been added to their respective pays. During the stipulated period, the accused added sums of either $99.00, $100.00 or $200.00 into the pays of the aforementioned duo. (Annexed is a tabulated summary of the additional meal allowances paid out to the both Shakti Singh and Sebiuta Ravoka for the period ranging between 12/01/12 to 29/06/12).

The total additional meal allowance paid out to both Shakti Singh and Sebiuta Ravoka was $5,279.00 with separate payments of $2,889.00 and $2,390.00 paid out to each of them respectively. After having paid out these payments to the two respective payees, the accused received half of this additional sum ($5,279.00) for his own use, which he knew he was not eligible to receive.

A discrepancy was noted is one of the pay's for the relevant period causing an audit to be conducted into the payroll system whereby it was found that the accused has manipulated the payroll system by inserting additional meal allowance for the said total amount into the amounts of Shakti Singh and Sebiuta Ravoka for the stipulated period. The matter was then reported to the Fiji Independent Commission Against Corruption whereby an investigation was carried out. The accused was then interviewed under caution whereby he admitted to the allegation and subsequently charged for Obtaining Financial Advantage contrary to Section 326 of the Crimes Decree No. 44 of 2009.

4. I am satisfied of your guilty pleas being unequivocal and convict you for this charge.
   

The LAW & TARIFF

5. As per section 326 of the Crimes Decree, the maximum penalty for this offence is 10 years imprisonment.
   
6. In John Barrick (1985) 81 Cr. App. R78, (adopted by the High Court in Panniker v State Cr. App. No. 88 of 2000) the English Court of Appeal set out the applicable sentencing guidelines for cases of breach of trust at pp. 78 – 79 as follows:
   
   • (i) The quality and degree of trust reposed in the offender including his rank;
   • (ii) The period over which the fraud or the theft has been perpetrated;
   • (iii) The use to which the money or property dishonestly taken was put;
   • (iv) The effect upon the victim;
   • (v) The impact of the offences on the public and public confidence;
   • (vi) The effect on fellow-employees or partners;
   • (vii) The effect on the offender himself;
   • (viii) His own history;
   • (ix) Other mitigating factors such as delay, illness, and co-operation and investigations.
     
7. The court in Barrick [supra] at p.79 further stated:
   

"In these cases in general a term of immediate imprisonment is inevitable, save in very exceptional circumstances or where the amount of money obtained is small. The court should pass a sufficiently substantial term of imprisonment to mark publicly the gravity of the offence......Where a plea of guilty is entered the court should give an appropriate discount. It will not usually be appropriate in cases of serious breaches of trust to suspend any part of the sentence".

8. Further, in Barrick [supra], the Court of Appeal at p. 81 said:
   

"The type of cases with which we are concerned is where a person in a position of trust for example an accountant, solicitor, bank employee or postman, has used that privilege and trusted position to defraud his partners or clients or employers or the general public of sizeable sums of money. He will usually, as in this case, be a person of hitherto impeccable good character. It is practically certain again as in this case, that he will never offend again and in the nature of things he will never again in his life be able to secure similar employment with all that means in the shape of disagree for himself and also his family...In general a term of immediate imprisonment is inevitable save in very exceptional circumstances".

9. In State v Atil Sharma [2010] FJHC 6223; HAC 122.2010L (7 October 2010), His Lordship, Madigan, J set the tariff for obtaining financial advantage by deception between 2 years and 5 years imprisonment, with 2 years being reserved for minor offences with little and spontaneous deception whilst the top range was reserved for fraud of the most serious kind where a premeditated and well planned cynical operation was put in place.
   

AGGRAVATING FACTORS

10. The Learned counsel from the FICAC submitted following as aggravating factors in this case.
    
    1. The accused was employed in the office of the Attorney General and placed in a position of trust.
       
    2. Premeditation and offending transpired over a period of 05 months.
       
    100. Used junior staff for your plan and subjected them to criminal prosecution.
         

MITIGATING FACTORS

11. The learned counsel from the Legal Aid in his oral mitigation submitted the following.
    
    1. 28 years old
    2. Married with 02 children.
    100. First offender.
    4. Early guilty plea.
    5. Partial restitution of amount.
       
12. Considering the facts in this case I select 02 years as my starting point (lower end of the tariff) and add 01 year for the aggravating factors to reach 03 years. For mitigating factors deduct 10 months and for your early guilty plea deduct 08 months to reach 18 months imprisonment.
    
13. 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 an observation made by His Lordship Justice Gates (as he then was) in State v Prasad (2003) FJHC 320 .
    
14. In State v Prasad(supra) His Lordship Justice Gates 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".

15. Therefore even with the your good character and other mitigating factors I believe immediate custodial sentence is warranted in this case to denounce your action as well as to deter future offenders in the public service. The message needs to be given to the society that people who misuse public office and public funds have to expect immediate custodial sentences for their actions.
    
16. But I have taken in to consideration your personal mitigating factors also and believe a partly suspended sentence is appropriate in this case so you have a chance to reform.
    
17. Accordingly you are sentenced to 18months for the offence of Obtaining Financial Advantage contrary to section 326 of the Crimes Decree. From this you have to serve 06 months in prison and remaining 12 months will be suspended for 02 years.
    
18. If you commit any crimes during the operational period of your suspended sentence you can be charged under section 28 of the sentencing and penalties decree.
    
19. 28 days to appeal.
    

04 December 2013

H. S. P. Somaratne
Resident Magistrate, Suva