Fiji Independent Commission Against Corruption v Zinck [2015] FJMC 95; Criminal Case 1897.2013 (27 August 2015)

IN THE MAGISTRATE'S COURT AT SUVA

Criminal Case No. 1897/2013

FICAC

-v-

SAMUEL ZINCK

For Prosecution: Ms. Puleiwai
For the accused: appeared in person

SENTENCE

1] You, Samuel Zinck, are here, to be sentenced to the offence Falsely Pretending to Be an Officer. You pleaded guilty to the charges of your own free will. The charge read as follows;

2] FIRST COUNT

FALSELY PRETENDING TO BE AN OFFICER: Contrary to Section 13C(a) of the Fiji Independent Commission Against Corruption Promulgation No. 11 of 2007.

Samuel Zinck between the 14th of May and 24th of June 2013 at Suva in the Central Division falsely pretended to Waisake Eroni Delai, businessman that he is an officer of the Fiji Independent Commission Against Corruption.

3] You had agreed with the above mentioned Summary of facts before this court 25th June 2015. That; On the 25th day of June 2013, FICAC received a complaint from one Mosese Katonivere on behalf of his employer Waisake Eroni Delai PW1 that an unknown iTaukei male of Suvavou had been calling PW1, representing himself to be a FICAC officer. The complainant stated taht the said iTaukei male had been calling PW1 informing him to pay his debt owed to one Clara and claiming that he is a FICAC officer. However the complainant suspected him to be an imposter when he asked the caller (iTaukei man) about a FICAC officer named Mr. Fred Driver to which he replied that there was no Fred driver that works for FICAC.During the investigation it was established that between the 14th day of May 2013 and the 24th day of June 2013 at Suva in the Central Division one Samuel Lafi Zinck Accused age 38 years, businessman of Vugalei Settlement, Lami was the unknown iTaukei man who had falsely pretended to PW1 that he was a FICAC officer.

4] Briefly the accused runs a business registered as Pee Zee's Enterprise with the Registrar of Companies. The nature of his business includes hire of cars, trucks, and minivan, debt collector and export fish, dalo and cassava. On the 14th May 2013 one Clara Olga Williams PW2 engaged the services of the accused to collect debts owed to her by from her previous business dealings with PW1. The accused agreed to the services but on the condition that PW2 paid his services in advance. A total cost of $500.00 was informed by the accused to PW2 including an upfront fee of $250.00 which was agreed by PW2 and a deposit of $250 was made on the 14th May 2013 to the accused Back of South Pacific Account No. 8126254.PW2 knew the accused from one of her agent namely William McCaig PW3 who informed her that the accused is the Director of FICAC in Nadi and he will be able to assist her in collecting debts owed to her. However PW3 had engaged the accused services since 2011 and the accused had introduced himself as Samuel Zinck and that he is a FICAC officer debt collector. Thereafter according to PW3 he had been engaging the accused to deal with his transactions in Suva, Sigatoka, Nadi, Lautoka and other places which he asked him to go to PW3 stated that he believed that Samuel Zinck was a FICAC officer when he was introduced until the date FICAC informed him otherwise.Upon payment of the upfront fees by PW2, the accused called PW1 on his mobile number And identified himself as a FICAC officer by the name of Watisoni. The accused informed PW1 that he was calling on behalf of PW2 regarding his debt and if PW1 could pay $1000 or $2000 to which PW1 stated that he cannot make payments now since the liquor licence which was part of the business transaction has not been transferred yet from PW2 and until the transfer is done, he will not be making any payments yet to PW2. PW1 stated that the accused continued to call him between the months of May to June always identifying himself a FICAC officer, whilst following up on the payment.On the 24th of June 2013 at about 11.00am, PW1 made a payment of $1000.00 to PW2. At about 2.00pm on the same day the accused made another phone call to PW1 and again identified him to be same FICAC officer. He enquired for the payment to PW2 to which he was informed that PW2 has already collected the money. The incident was then informed to the complainant to whom the complainant enquired from the accused a person by the name of Fred driver who works at FICAC to which the accused replied that no such person works at FICAC.

5] Thereafter the matter was reported to FICAC by the complainant and upon investigation it was identified that the accused was the person who was falsely pretending to be a FICAC officer. He was later arrested, interviewed under caution and admitted to the offence. He admitted in his caution interview that in all his phone calls to PW1 in following up payments, he normally used the introduction "Watisoni from FICAC". He further admitted that he uses such introduction to influence the complainant to make payments. He was then formally charged under Section 13C(a) of the Fiji Independent Commission against Corruption Promulgation No. 11 of 2007 on the 30th of October 2013 and produced in court.

6] Section 13 C - FICAC Promulgation No.11 2007 has defines the offences as;

"Falsely pretending to be an Officer

Definition - Any person who falsely pretends that he is an officer or has any of the powers of an officer under this Promulgation or the Prevention of Bribery Promulgation or under any authorization or warrant under either of those Promulgation; or that he is able to procure an officer to do or refrain from doing anything in connection with the duty of such officer,

Shall be guilty of offence and shall be liable on conviction to a fine of $20,000 and imprisonment for 1 year."

7] Therefore as per statutory law the maximum penalty under Section 13C of the FICAC Promulgation of 2007, a person convicted for the offence of Falsely Pretending to be an officer shall be punishable by a fine of $20,000 and imprisonment for 1 year.

8] There is no clear tariff for the this offence, but in a similar case of FICAC v Matea [2011] FJMC Criminal Case No:2 of 2011 (9March 2011) the court has taken starting point of six (6) months imprisonment before deducting three (3) months for early guilty plea and mitigation and then sentenced the accused to three (3) months imprisonment suspended for three (3) years. The accused was charged under Section 13C(a) of the FICAC Promulgation .The accused pleaded guilty in the first instance, convicted and sentenced to three (3) months imprisonment suspended for 3 years.

9] When considering other case authorities regarding the tariffs FICAC Promulgation had adapted the same wording from the Hong Kong legistlation. The district courts in Hong Kong, when sentence for similar offences took a starting point of 6 months imprisonment before considering other factors.In the case of HKSAR v Lui Wing Shing [2012]HKDC 839;DCCC226/2012(4th July 2012) the defendant had falsely pretended that he was number of the anti-triad team and demanded to see the mobile phones of witnesses. Upon refusal the accused snatched the phone and ran away. The accused was charged with two counts of falsely pretending to be a public officer and theft and the court took a starting point of 6 months imprisonment for falsely pretending to be public officer, reduced it by 2 months due to the accused early guilty plea and his mitigation factors before sentencing the accused to 4 months imprisonment.

10] Falsely pretending to be a FICAC officer is a very serious criminal offence which not only affects the integrity of the FICAC officer but also undermines the authority of public officials who are held in high regard. By such pretends, the accused painted a bad image to the public that FICAC officer instead of upholding the values of FICAC which is to protect public interest, prevent breach of public trust and guide the conduct of public officials acted falsely and dishonestly for a motive to personally gain from that act. This court considers this as aggravating factors in this case. Thus the principle of deterrence has to be applied in this matter and the punishment imposed should reflect the gravity of the offence so that the integrity of the FICAC officers is maintained.

11] You have no previous convictions within past 10 years. You asked non-custodial sentence. Even you have pleaded guilty it took almost 2 years. But this court will consider it. You are 47 years old. Married with I daughter. You are the sole bread winner of his family. You currently runs own bailiff company which you have done so for 15-20 years.

12] In your mitigation you said that; you did this in pursuance of your job as a debt collector. For this you did not benefit from the offence any more than what you would have if the debts had been collected without the deception you engaged in. To represent you was as a FICAC officer was a very bad judgment call and one you now regret though at the time committed the offence it probably seemed harmless to you. But this court cannot accept this as if accepted it will be a bad example to others. You have co-operated fully with the Police. In your caution interview, you actually admitted to count. But you did not waste the court's time of hearing and have saved the State the time and expense of a trial.

13] Section 4(2) provides; "In sentencing offenders a court must have regard to:—

(a) the maximum penalty prescribed for the offence;

(b) current sentencing practice and the terms of any applicable guideline judgment;

(c) the nature and gravity of the particular offence;

(d) the offender's culpability and degree of responsibility for the offence;

(e) the impact of the offence on any victim of the offence and the injury, loss or damage resulting from the offence;

(f) whether the offender pleaded guilty to the offence, and if so, the stage in the proceedings at which the offender did so or indicated an intention to do so;

(g) the conduct of the offender during the trial as an indication of remorse or the lack of remorse;

(h) any action taken by the offender to make restitution for the injury, loss or damage arising from the offence, including his or her willingness to comply with any order for restitution that a court may consider under this Decree;

(i) the offender's previous character;

(j) the presence of any aggravating or mitigating factor concerning the offender or any other circumstance relevant to the commission of the offence; and

(k) any matter stated in this Decree as being grounds for applying a particular sentencing option."

14] Justice Shameem stated in the case of State v Roberts [2004] FJHC51;HAA0053J2013A (30 January 2004)

"In examining the principles flowing from State v Mahendra Praaad and State v Isimeli Drodroveivali which was determined by Gates J stated:

"The principles that emerge from this case are that a custodial sentence is inevitable where the accused pleads 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. However where the accused is a first offender, pleads guilty and has made full reparation in advance of the sentencing hearing (this showing genuine remorse rather than a calculated attempt to escape a custodial sentence) a suspended sentence may not be wrong in principle. Much depends on the personal circumstances of the offender and the attitude of the victim".

15] I now draw my attention to Section 15(3) of Sentencing and Penalties Decree 2009 No: 42 of 2009, the main object of the Sentencing.

"As a general principle of sentencing, a court may not impose a more serious sentence unless it is satisfied that a lesser or alternative sentence will not meet the objectives of sentencing stated in section 4, and sentences of imprisonment should be regarded as the sanction of last resort taking into account all matters stated in this Part."

16] In Prasad v The State [1994] FJHC 132; Haa0032j.94s (30 September19994) S W Kepa J enunciated that the fact that Appellants are first offenders oughbeto very strong mitigaitigating factor in their favour. A prison sentence ought to be the last resort after the court has explond exed all other alternative sentences.

17] In Prasad v State [1994] FJCA 19; Aau0023u.93s (24 May 1994), Fiji Court of Appeal held that

".... Courts ought to bend backwards to avoid immediate custodial sentence for first offender."

18] This court formally convicts you as charged.

19] This court picks 9 months imprisonment as starting point. This court reduces 1 moth for early plea. There is no other compelling reason to reduce this sentence. Now it is 8 months. Further this court imposed fine of $ 2000 and in default 200 days imprisonment. The fine must be paid within 30 days from today.

20] This court act under section 15(1) of the Sentencing and Penalty Decree. After considering the fact that you are a first offender, and other mitigation and case law you deserve non-custodial sentence. Therefore suspend the 8 months imprisonment for 3 years' time.

21] 28 days to appeal.

On this 27th August 2015, at Suva, Fiji Islands

Neil Rupasinghe
Resident Magistrate