State v Caginidoi [2017] FJMC 120; Criminal Case 323 of 2017 (4 October 2017)

IN THE MAGISTRATES’ COURT OF FIJI
AT NAUSORI

Criminal Case No: -323 /2017

STATE

V

NECANI CAGINIDOI

Counsel: Ms.Serukai(ODPP) for the Prosecution

Mr.Qetaki (LAC) for the Accused

Date of Sentence : 04^th of October 2017

SENTENCE

1. NECANI CAGINIDOI , you were charged with one count of False Representation in Order to Obtain a Benefit contrary to section 4(1) of the False Information Act 2016 (“False Information Act”) .
2. You pleaded guilty for this charge and also admitted the following summary of facts presented by the prosecution:

Through an audit report dated 07/03/17, the Permanent Secretary for Economy reported against recipients of the “Help for Homes” (HfH) assistance of Nabaitavo Village in Naitasiri for falsifying their information in order to obtain assistance during the second phase distribution program.

A Special Investigation by the Ministry of Economy verification team revealed that based on their assessment on the criteria of assistance awarded to Fijians affected by cyclone Winston, the identified recipients who claimed for the $7,000 were never entitled for any assistance as they did not own any house prior to TC Winston.

The assessment criteria of assistance awarded are as follows;

1. Households has an annual income of $50,000 or less

2. Home was located in the declared path of Cyclone Winston

3. Homes that have sustained damage that are on squatter land or under a vakavanua arrangement will receive $1,500

4. Homes with partial roofing damage will receive $1,500

5. Homes with complete roofing damage will receive $3,000

6. Homes that rebuilt by donors of NGOs are not eligible for assistance and ensure that take necessary spot checks

During the course of investigation, it was revealed that on 5th January, 2017 at Vunidawa Government Station, Necani Caginidoi, (B-1), 45 years, Farmer of Nabaitavo village while filing his HELP FOR HOMES REGISTRATION FORM – ELECTRONIC CARD knowingly provided false information to Amelia Rokotuivunai, (A-3), 24 years, Social Welfare Officer of Lot 42, Nasilivata Road, Nadera, declaring that the destruction of roof and supporting walls to his house. In this regard, he requested for $7,000 to purchase hardware items to repair the damage to his home, when in actual fact, he knew very well that he did not have/ own a house.

(B-1)’s request was approved and he was issued with an M-PAISA Card Number 6792000005680169 which he have it swiped at Kasabias for the purchase of hardware items.

A statement was also recorded from Penaia Seru, (A-5), 58 years, the former village headman of Nabaitavo Village confirms that (B-1) did not have a house and was living with family members. (A-5) further stated that at the time, he was the Village Headman, (Turaga ni Koro) and he assisted the assessment team in providing the names of all the cyclone victims and he did not give (B-1)’s name.

In his caution interview, (B-1) admitted that he lied about having a Lean TO House in Section C of the Form (please refer to answer Q.54), he knew that he could be prosecuted if he provides a false information (please refer to answer to Q.55) and that he also knew that only those whose house were damaged during the cyclone were supposed to fill out the forms

(please refer to answer to Q.57).

(B-1) was later charged for the offence of False Representation in order to obtain a benefit contrary to Section 4(1) of the False information Act 2016 and is appearing in custody.

3. I am satisfied with your plea and convict you for this charge.
4. The maximum penalty for this offence under the False Information Act is fine not exceeding $20,000 or 10 years imprisonment or both.
5. This is a new offence and the State submitted that there is no tariff set so far. But there are similar offences in Crimes Act which can be used as guidelines in considering the proper sentencing range for this offence.
6. In Hu Jun Yun v The State [2005] FJHC 93; HAA0024J.2005S (26 April 2005) it was held that :

“tariff for fraud cases ranged from eighteen months to four years imprisonment, with four years’ imprisonment reserved for the worst type of offending”.

7. The prescribed penalty for Giving False Information to the Public Servant under the Crimes Act is 05 years imprisonment. This is identical to offence of False representation under the False Information Act which also carries 05 years imprisonment and a fine not exceeding $10,000.
8. In Muskan Balagan v The State Criminal Appeal NO 31 of 2011 the Magistrate court adopted 02 years as the starting point for Giving False Information to the Public Servant under the Crimes Act 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.
9. In Fiji Independent Commission Against Corruption v Padarath [2016] FJMC 31; Criminal Case 594.2011 (9 March 2016) I also adopted the same starting point and after considering the aggravating and mitigating factors sentenced the accused to 25 months imprisonment .
10. The penalty for Obtaining money by deception under the Crimes Act is 10 years imprisonment.
11. In State v Sharma [2010] FJHC 623; HAC 122.2010L (7 October 2010) his Lordship Justice Madigan held that:

“The tariff under the Penal Code offence for obtaining money by deception was 18 months to three years (Arun v State [2009] HAA 55 of 2008, Ateca v State HAA 71 of 2002, Rukhmani v State HAA 056 0f 2008). Now that the penalty under the new Crimes Decree has doubled, then obviously this tariff needs to be revisited. The tariff for obtaining a pecuniary advantage by deception should now be between 2 years and 5 years with 2 years being reserved for minor offences with little and spontaneous deception. The top end of the range will obviously be reserved for fraud of -the most serious kind where a premeditated and well planned cynical operation is put in place."

12. Considering that the penalty is similar, in my view the tariff for Obtaining money by Deception under the Crimes Act can be adopted to offence of False Representation in Order to Obtain a Benefit under The False Information Act.
13. In Laisiasa Koroivuki v the State [2013] FJCA 15; AAU0018.2010 (5 March 2013) the Court of Appeal discussed the guiding principles for determining the starting point in sentencing and observed :

"In selecting a starting point, the court must have regard to an objective seriousness of the offence. No reference should be made to the mitigating and aggravating factors at this stage. As a matter of good practice, the starting point should be picked from the lower or middle range of the tariff. After adjusting for the mitigating and aggravating factors, the final term should fall within the tariff. If the final term falls either below or higher than the tariff, then the sentencing court should provide reasons why the sentence is outside the range."

14. Considering the above judicial precedents and based on an objective seriousness of offending, I select 02 years as the starting point in this case.
15. I consider the following as aggravating factors in this case:
    1. Substantial value of properties ($7000.00) were obtained by the accused;
    2. The funds that were used to obtain the hardware were public funds and the accused failed to restitute them even up to now.
    100. The behavior of the accused shows this was premeditated.
16. For these aggravating factors I add 02 years to reach 04 years imprisonment.
17. In written mitigation your counsel submitted the following :
    1. You are 46 years old ;
    2. Married with 5 children ;
    100. Sole bread winner of the family ;
18. For the above mitigating factors, I deduct 01 year to reach 03 years imprisonment.
19. You pleaded guilty at the earliest opportunity and for that I deduct 1/3 to 02 years imprisonment.
20. Even though the State submitted that you were in remand for nearly 01 month ,perusing the court record shows that you were granted bail on the first day. Hence I do not find section 24 of the Sentencing and Penalties Act would apply in this case.
21. Now I have to consider whether to suspend this sentence pursuant to section 26(2) (b) of the Sentencing and Penalties Act.
22. On February 20, 2016, Cyclone Winston which was a category 5 cut a path of destruction across Fiji leaving 44 people dead and thousands of people homeless. The government initiated the “Help for Homes” program with the aim of providing hardware materials to the people to rebuild their homes. Through this program, Homes that have lost roofs and supporting walls were provided with $7,000 value of hardware. Whilst the people were struggling to rebuild their lives after this disaster, you used that opportunity to commit this fraud. You gave false information to public official and obtained assistance to the value of $7000.00 when you did not have a house that was damaged from the cyclone. You closed your eyes to the fact that by obtaining this hardware dishonestly you deprived someone who was genuinely in need of that assistance. Hence a custodial sentence is warranted to denounce your behavior. Also this sentence would be a strong warning to other people also who are prepared to commit this kind of benefit frauds in Fiji.
23. NECANI CAGINIDOI , you are sentenced to 02 years imprisonment for this charge with a non-parole period of 01 year.
24. 28 days to appeal.

Shageeth Somaratne

Resident Magistrate