Fiji Independent Commission Against Corruption v Padarath [2016] FJMC 31; Criminal Case 594.2011 (9 March 2016)

IN THE MAGISTRATES' COURT OF FIJI
AT SUVA

Criminal Case : 594/2011

FICAC

V

BENJAMIN PADARATH

Counsel : Mr. R. Aslam for the Prosecution
Mr. F. Vosarogo for the Accused
Date of Sentence : 09th of March 2016

SENTENCE

1. BENJAMIN PADARATH, you were charged with one count of Giving False Information to the Public Servant contrary to section 201(a) of the Crimes Decree No 44 of 2009.
   
2. You pleaded guilty to this charge on 02nd February 2016 and also admitted following summary of facts:
   

That on or about the 23rd day of January 2011 at Suva in the Central Division the accused namely Benjamin Wainiqolo Adishwar Padarath gave information, which information he knew to be false, via text messages to a person employed in the public service namely to Nemani Valu Mavi Vuniwaqa, the Director of Immigration Fiji; intending to cause the Director of Immigration Fiji to include the name of one Paul Freeman of the Fiji Immigration watch-list, which director of Immigration ought not to do, if the true state of facts respecting which the information was given were known to him.

On the 23rd of January 2011 at about 2.35pm the accused texted the Director of Immigration Mr. Nemani Mavi Vuniwaqa (PW1) with the mobile number 9409181 with the information which read as;

"Ni sa bula sir, I just wanted to alert you about an African National name Paul Freeman who is due to arrive in Nadi from Los Angeles tomorrow. This man is married in his own country but has married a local Fijian woman in order to gain citizenship. He suffers from numerous sexually transmitted diseases including Aids which he purposely spreads to our young women. Paul Kofi Freeman is also deeply involved with money laudering and few weeks ago was summoned to the Prime Minister's Office by Brigadier Aziz for using the Prime Ministers name to falsely attract investment to Fiji".

Mr. Nemani Valu Mavi Vuniwaqa (PW1) the director Immigration of Fiji stated that he received the text messages from the accused.

At 4.28pm on the same day the accused sent a second message to PW1 from the same mobile number 9409181 in which PW1 acknowledged receiving which read as;

"Sorry again Sir, for your formation, Paul Kofi Freeman is violating his Foreign Investment Certificate with FTIB, because it is for oil exploration and not for resort sales as he is planning on doing tomorrow with Taunovo Bay Resort than doing final settlement in Vanuatu in order to avoid paying the actual amount of taxes in Fiji".

And the wife of Mr. Freeman) and her mother informed PW1 that she had never spoken to the accused nro informed him that Mr. Freeman suffers from HIV/AIDS at any time to the accused and they don't even have domestic disputes. Hence it was confirmed that the accused gave false information to the director Immigration (PW1) who is a public officer, knowing that the information is false.

The case was reported to FICAC and was then cautioned interviewed on the 15th of March 2011 and charged with one count of Giving False Information to Public Servant contrary to Section 201(a) of the Crimes Decree 2009 on the 5th of April 2011. The accused in his caution interview admitted in providing such document to PW1.

3. I am satisfied that your plea was made on your own free will and convict you for this offence.
   

The Law and Tariff

4. The maximum penalty for Giving False Information to Public Servant under the Crimes Decree is 05 years imprisonment.
   
5. The learned defence counsel submitted that tariff for this offence would be from suspended sentence to 01 year imprisonment and cited Mohomad Fazir v The State Labasa High Court Crminal Appeal HAA 025 of 2008;Dinesh Chand v The State Labasa High Court Criminal Appeal HAA 002 of 2013.
   
6. Further the counsel submitted in a Magistrates Court the normal sentence would be 05 months imprisonment reduced to 03 months for guilty plea and suspended for 03 years ( State v Aviuta Nala Criminal Case No 328 of 2013 ).
   
7. In Mohomad Fazir v The State (supra) the High Court in appeal held that 03 months suspended sentence is suitable for this offence. But this was under the Old Penal Code.
   
8. In the Penal Code identical offence under the section 143 carried the maximum penalty of 01 year imprisonment and presently this has been increased by fivefold in Crimes Decree. Therefore adopting old tariff under the Penal Code for this offence would be wrong in principle as well as would be contrary to the intention of the legislature which considered this as a serious offence by enhancing the maximum penalty.
   
9. The learned defence counsel specifically asked this Court not to consider the Muskan Balagan v The State Criminal Appeal NO 31 of 2011 stating the facts in that case is different from this case. But careful perusal of that case shows that facts are similar. In that case the accused was also charged under the Crimes Decree for giving false information to the police. The accused alleged that her counsel raped her. In this case the according to summary of facts the accused send a test message to Director of Immigration about a foreign national alleging that he was suffering from sexual transmitted diseases as well as AIDS and he was also involved in Money Laundering.
   
10. Further in Muskan Balagan (supra) the Magistrate court deviated from tariff and adopted 02 years as the starting point and in appeal his Lordship Justice Goundar affirming the sentence held that 02 years would be falling in lower end of the maximum sentence of 05 years.
    
11. Considering the gravity of offending I would start with the same starting point (2 years imprisonment) in this case.
    

Aggravating Factors

12. The accused made allegation against a foreign national that he was a national risk and spreading AIDS and sexual transmitted diseases to young women in Fiji which prompted him to be detained and medically examined. The Ministry of Health as well as the Department of Immigration had to waste their time and resources due to the unwanted acts of the accused.
    
13. The accused followed this up with another text message on the same date about violation of his foreign investment certificate and avoiding taxes in Fiji. This behavior of the accused shows a well-conceived plan to harass the victim using the state institutions.
    
14. Because of this false information the victim was detained for further investigations depriving his liberty which has further aggravated this offence.
    
15. For all these aggravating factors I add 01 year to reach 03 years imprisonment.
    

Personal Mitigating Factors

16. The learned defence counsel in his comprehensive mitigation submitted following as personal mitigating factors:
    
    1. Divorced and got 2 small children;
       
    2. Looking after his elderly mother who is 70 years old;
       
    100. Remorseful and attending Christian fellowship which has changed his life.
         
17. For these mitigating factors I deduct 06 months to reach 30 months imprisonment.
    

The character of the accused

18. The accused is not a first offender and has 03 previous convictions from 2006 which is still valid at the moment. But the defence has submitted that he has been a law abiding citizen from that time up to this sentence which this Court has to consider and cited R v Tutty (1998)3 NZLR at 168 where the court observed:
    

"whilst ,therefore a delay between the offending and sentencing is not itself significant,matters which have transpired during that time maybe pertinent. If the offender has not offended since the offending he will have a longer unblemished record to put before the court. Similarly his conduct over the years may count in his favor. He may have made amends in many ways and be able to show that he has led an exemplary life since his early offending. In all such cases it is these factors rather than the lapse of time in itself which will be taken into consideration on sentencing".

19. There is no doubt that even if an accused is not a first offender if he has not reoffended for a long period after that it can be considered by a court and deserves some recognition. But in this case after the accused was charged with this offence he tried to violate his bail conditions by trying to stowaway on 24th July 2012. The prosecution amended the Stowaway charge to Criminal Trespass in CF350/2012 and the Lautoka magistrate court sentenced him to 05 months imprisonment suspended for 03 years on 20th January 2014. Therefore it appears that his submission about law abiding citizen is misconceived. Accordingly I am not inclined to give discount for his character.
    

Alleged physical abuse

20. The defence counsel further submitted that the accused has suffered physical torture and beatings at the hands of the security personal on two different occasions on 27th January 2011 and 09th February 2011 and the Court has to consider these in sentencing the accused. But the defence failed to indicate whether these allegations should be considered as a mitigating factor or to suspend this sentence.
    
21. Further the FICAC has denied involving in these alleged abuses and also there is no evidence before me to show they were part of that. Therefore I find these allegations are not relevant for this sentence.
    

Delay in Prosecution

22. The defence has argued about this heading also and submitted that the Court can consider this also as a mitigating factor.
    
23. In R v Blanco (1999) the court has held that it is in the public interest that those who are suspected of serious crime be brought to justice quickly.
    
24. Further in Attorney General v Ling Kar –fai (1997) 2HKC 651 at 651 it has been held that a when there is a delay the court has to be consider whether it has resulted in unfairness for the accused.
    
25. The period of delay had to be considered from the start of the investigation to the commencement of the trial and the when considering as a mitigating factor the delay must be unreasonable and not caused by the actions of the defendant ( Secretary of Justice v Charles Lee Schmitt( 2008) HKCU 979 at para 35) .
    
26. Article 14 (2) (g) of the 2013 Constitution of Fiji also states that every person charged with an offence has the right to have the trial begin and conclude without unreasonable delay.
    
27. Therefore the Court can consider if there is deliberate delay by the prosecution and consider this as a factor in favoring the accused in sentencing.
    
28. In this case the FICAC is rejecting this allegation and in their sentencing submission has annexed a document setting down the chronology of events that transpired in this case.
    
29. From this document I find that there is no delaying by the prosecution as alleged by the defence .In fact the accused has contributed substantially for this case to drag so far. Therefore I am not in a position to grant discount for this heading also.
    

Guilty Plea

30. The defence submitted that by his early guilty plea the accused has saved the Court time and resources.
    
31. It has been a practice by a sentencing court to consider guilty plea separately and give appropriate discount.
    
32. In Naikelekevesi v The State Criminal Appeal No AAU 0061 of 2007 it was observed:
    

"...where there is a guilty plea,this should be discounted for separately from the mitigating factors in a case".

33. In UK sentencing guidelines of 2007 it has been held that when an accused pleaded guilty at the first available opportunity the reduction is 1/3 and after a trial date is set 1/4 recommended. But when an accused pleaded guilty at the door of the court or after the trial has started he maybe entitle for only 1/10 discount.
    
34. In Fiji this has been discussed comprehensively by his Lordship Justice Madigan in Posate Rainima v The State, Criminal Appeal No AAU 0022 of 2012 where the Lordship said:
    

"[45] Although the judge passing sentence below took all matters complained of into consideration when assessing an appropriate "global" sentence, it is better sentencing practice to specify terms of discount when allowing for such matters as pleas of guilty, time on remand and clear record for example. The convict and the reader can then see easily the various components of a sentence and sentence appeals could be prevented.

[46] Discount for a plea of guilty should be the last component of a sentence after additions and deductions are made for aggravating and mitigating circumstances respectively. It has always been accepted (though not by authorative judgment) that the "high water mark" of discount is one third for a plea willingly made at the earliest opportunity. This Court now adopts that principle to be valid and to be applied in all future proceedings at first instance.

[47] Pleas of guilty made at later stages than earliest opportunity cause more difficulties in the assessment of how much discount should be afforded to them. It is not for this Court to suggest an appropriate sliding scale because it must remain a matter of judicial discretion. We would however make three points very clear in this regard:

(i) A plea of guilty before trial must be afforded some discount given that the cost of trial (including time and cost of assessors) is saved.

(ii) A plea of guilty at a later stage before a trial involving a vulnerable witness must be given a meaningful discount (say 20-25%) to recognize the fact that the vulnerable witness is not put through the ordeal of giving evidence.

(iii) A plea during trial after an accused has heard unshakeable evidence of a victim/complainant or after an inculpatory caution interview has been admitted into evidence is not deserving of any discount whatsoever."

35. In this case even though the defence submitted that the accused has saved the time and resources of the Court by his guilty plea this was made only on the hearing date when the trial was about to start . The Prosecution was ready for the hearing with their witnesses summoned and only at that time the accused changed his mind. Further his caution statement was already admitted before the hearing which contained some admissions.
    
36. The main purpose of giving discount for a guilty plea is to acknowledge the saving a court time and resources. But in this case the accused waited for 05 years to admit his guilt and this was also made only on the last minute when the hearing was about to commence. Therefore I do not think the accused deserves any credit for that.
    

Time in Remand

37. When sentencing the final adjustment need to made for the time an accused was in remand for a case and pursuant to section 24 of the Sentencing and Penalties Decree this period is to be considered as period already served and deducted from the sentence.
    
38. According to mitigation submission the accused was in remand for nearly 07 months which they are asking to consider. In chronology of event submitted by the Prosecution it is shown that his bail was revoked by this Court only on 11th September 2012 after being informed about his attempted stowaway and his Lordship Chief Justice Gates in FICAC v Benjamin Padarath Criminal Revisions 019/2012 and 002/2013(applicable to this case) granted bail to the accused on 07th February 2013.
    
39. Having perused the court record I also find the accused was in remand for this case for nearly 05 months and this I deduct from his sentence to reach 25 months imprisonment.
    
40. By giving false information you wasted the time and resources of public institutions (Department of Immigration and Ministry of Health) and also deprived the liberty of an innocent person. Therefore your behavior needs to be strongly denounced and this would be the main purpose of your sentence. Further message needs to be given to the society that people who would engage public officials for their personal agendas in an unlawful manner would be dealt severely by the Court.
    
41. BENJAMIN PADARATH, I sentenced you to 25 months imprisonment for the offence of Giving False Information to the Public Servant contrary to section 201(a) of the Crimes Decree No 44 of 2009.
    
42. Pursuant to section 18(1) of the Sentencing and Penalties Decree I also fix 16 months as the non-parole period in this case.
    
43. 28 days to appeal.
    

Shageeth Somaratne
Resident Magistrate