Fiji Independent Commission Against Corruption v Aziz [2016] FJMC 21; Criminal Case 915.2011 (19 February 2016)

IN THE MAGISTRATES' COURT OF FIJI
AT SUVA

Criminal Case : 915/2011

FICAC

V

SAIYAD AZIZ

Counsel : Ms.F.Puleiwai for the Prosecution
Mr.Nandan for the Accused

Date of Sentence : 19th of February 2016

SENTENCE

1. SAIYAD AZIZ, you were charged in this Court with one count of Soliciting an advantage contrary to section 3 of the Prevention of Bribery Promulgation No 12 of 2007.
   
2. You initially pleaded not guilty for this charge wherefore this was fixed for hearing. But later you changed your mind and pleaded guilty on 12th of January 2016 and also admitted the summary of facts presented by the FICAC.
   
3. Summary of facts states that:
   

On the 2nd day of March 2010one Yenktesh Naidu (PW-2) aged 54-years, Truck Driver of Sakoca Settlement, Tacirua went to the PWD Joinery Section, Walubay to see one Kameli Yacalevu (2nd Accused), Supervisor to enquire about job vacancy for his son Nitinesh Naidu (PW-1). He was informed that the 2nd Accused was not at his office but was directed to another staff to assist him in locating the 2nd Accused. The staff introduced himself to PW-1 the reasons for his visit whereby PW-2 told him that he was checking for any vacancy and also following up on PW-1's job application. The 1st Accused informed PW-2 that the requirements are passport photo, birth certificates, education certificates and medical certificate. PW-2 then called PW-1 and informed him of the requirements.

On the same day PW-1 aged 23 years, Upholster, Tacirua Transport of Sakoca settlement, Tacirua took the rest of the day off to get his birth certificate, passport photos, trade certificates and medical certificate ready as required by the 1st Accused. PW-1 prepared the required documents and went to Bailey Clinic to get his medical certificate done. He was informed by Bailey Clinic that it would take four days to get the medical certificate done. PW-1 then decided to take his birth certificate, trade certificates and passport photos to the 1st Accused at PWD Walubay.

PW-1 met the 1st Accused inside the PWD yard and the 1st Accused informed him to do his medical certificate done as well. The 1st Accused also stated that if the medical certificate could be done that same afternoon he could start work at the Joinery Section the next day. The 1st Accused took all the documents prepared by PW-1 to go to Makoi Medical Centre to have the medical certificate done. PW-1 went to Makoi Medical Centre to have his medical certificate done, but his medical certificate was completed the next day.

On 3rd March 2010 PW-1 again went to PWD, Walubay and met the 1st Accused in the yard at the security booth and gave him the medical certificate. The 1st Accused informed PW-1 that he will call in the afternoon and inform him when to start the work and PW-1 returned home.

At about 5.00pm the same date, the 1st Accused called and informed PW-1 to arrange for $300.00 or forget about the job. PW-1 after receiving word from the 1st Accused informed his father who is PW-2. They discussed how to get the $300.00 that was demanded by the 1st Accused so they decided to seek help from relatives. A relative namely Madhwan Naidu (PW-3) aged 50-years, Bus driver, Tacirua Transport of Tacirua 6 miles decided to help with the collection of $300.00. PW-1 informed PW-3 that he has $80.00 but needs another $220.00 to make it $300.00. His uncle agreed to give him the $220.00. PW-2 called his nephew namely Rishi Dutt (PW-4) aged 37-years, Assistant Registrar of Fiji National University (FNU) of Lot 78 Kaudamu Road, Kinoya and requested him to provide transport to go to Valelevu.

PW-1 and PW-2 together with PW-4 proceeded to Valelevu to meet PW-3 at the Valelevu ANZ ATM machine. PW-3 withdrew $220.00 and gave it to PW-1 who also withdrew $80.00 that same date to make the $300.00. PW-1 called the 1st Accused on his mobile and informed him that the money has been arranged and what to do next. The 1st Accused told PW-1 to come to his residence at Makoi, 8 miles. PW-1, PW-2 and PW-4 then left for Makoi to meet the 1st Accused at his Makoi residence. However when they reached Makoi they could not find the 1st Accused residence. The 1st Accused then called PW-1 on his mobile and stated that they were very late and to forget the job and go home. PW-1 then called the 1st Accused again on his mobile and gave the phone to PW-2 to speak to the accused. The 1st accused then told PW-2 to bring the money to his place in the morning at 5.45am on 04/03/10. PW-1 then returned home with PW-2 and PW-4 but decided to go again in the morning.

On 4th day of March 2010 at about 5.30am, PW-1 was about to leave for Makoi when the 1st Accused rang his mobile and stated not to come to Makoi but to bring the money to the workshop. The same morning PW-1 went to PWD Walubay at about 6.30am to wait for the 1st Accused. Whilst waiting at the Upholstery room PW-1 met the Upholstery Foreman namely Rajesh Kumar Singh (PW-6) who informed him to have his time card punched in. PW-1 then went and had his time card punched and continued to wait for the 1st Accused. At about 6.45am the 1st Accused came and called PW-1 to his office where he asked PW-1 for the money. PW-1 then gave the 1st Accused the requested $300.00 which was in the $50.00, $20.00 and $10.00 denominations. The 1st Accused informed PW-1 not to tell anyone or he will lose his job. PW-1 started work in the Joinery section that same morning.

On the 21st day of March 2010 the FICAC Awareness team conducted a presentation on Corruption and Bribery at the PWD Joiner section workshop. After listening to the said presentation on Bribery and Corruption, PW-1 then realised what he has done was wrong. However a few days after the said presentation, PW-1 was confronted by one Iva Matanakece (Joiner) (PW-5) who heard rumours that PW-1 paid some money to get a job at the Joinery section. PW-5 asked him whether it was true to which PW-1 informed him the whole story and that he gave the 1st Accused $300.00. PW-5 informed PW-1 that he would report the matter to FICAC.

On the 22nd of April 2010 at about 10am PW-1 met the 1st accused in the yard and recorded their conversation on the same issue on his personal mobile phone whereby he told PW-1 not to tell anyone about him fixing the job and the $300.00 he gave. However 1st Accused further stated that if there was anyone to be blamed, blamed the Big Boss Kameli.

On 28th of April 2010 at about 12.30pm PW-5 reported the matter to FICAC, upon which investigation was then conducted.

The 1st Accused was interviewed under caution, arrested and charged for the offnce of Soliciting an Advantage contrary to section 3 of the Prevention of Bribery Promulgation No. 12 of 2007. However when cautioned, the 1st Accused admitted to asking for the $300 but stated that it was behalf of the 2nd Accused.

4. I am satisfied that your plea was made on free will after understanding the consequences and therefore convict you for this offence.
   
5. According to section 12(2) of the Prevention of Bribery Promulgation a person guilty for this offence is liable for fine of $100000 and imprisonment of 01 year and order to pay to the Government in such manner as the court directs the amount or value of the advantage received him or such part court may specify.
   
6. There is no tariff for this offence as admitted by the FICAC counsel in her submission as this is relatively new offence. But in FICAC v Jone Senibci [2013] FJMC this Court selected 04 months as the starting point whilst in FICAC v Filimone Cakaobau [2013] the court selected the starting point of 06 months . Also when sentencing the co-accused in this case I selected 05 months.
   
7. Both counsels have filed comprehensive written submissions and I have considered them also for this sentence.
   
8. You were a civil servant for 11 years and worked with the Public Works Department throughout your career. With your considerable experience you were supposed to be a role model for your junior staff. Also the public expect high standard of integrity from the civil servants. By your action you breached the trust of the public as well as your employer and this will be considered as an aggravating factor in this case.
   
9. The learned defence counsel submitted following as mitigating factors:
   
   1. 63years old;
   2. Sole bread winner of the family;
   100. First offender;
   4. Co-operated with the police;
   5. Remorseful.
      
10. After considering the gravity of offending I select 05 months imprisonment as my starting point and for aggravating factor add 03 months to reach 08 months imprisonment. Even though you are a first offender I do not think that would be relevant in a breach of trust offence. But for other mitigating factors I deduct 02 months to reach 06 months imprisonment.
    
11. Even though your counsel asked for 1/3 deduction for early guilty plea this would be reserved only for people who plead on the first available opportunity. You pleaded at the late stage only after this has been fixed for hearing and therefore I deduct one month to reach 05 months imprisonment.
    
12. You are asking for a non-custodial sentence and produced character references from number of people which I have carefully perused. But the court has to mindful of the purpose of enacting this special law in this country which is stated in the preamble in the following manner:
    

"To make further and better provisions for the prevention of Bribery, Corruption,Electoral Fraud and misconduct in Public Office and for Purpose necessary thereto or connected therein".

13. Therefore it is apparent that this law was enacted to combat the bribery, corruption and other malpractices in public office and the court has to give suitable sentences to fulfill this objective.
    
14. Further if the bribery is left unchecked in the public service it would not only erode the confidence of the general public in their duty of service, but also reflects poorly on those public servants who work according to the law. Therefore the primary sentencing consideration in bribery offences should be general deterrence. The message needs to be given to the public officials that if they engage in these offences a custodial sentence would be inevitable.
    
15. SAIYAD ALI, accordingly you are sentenced to 05 months imprisonment for the offence of Soliciting an advantage contrary to section 3 of the Prevention of Bribery Promulgation No 12 of 2007.
    
16. 28 days to appeal.
    

Shageeth Somaratne
Resident Magistrate