State v Koroi [2018] FJMC 33; Criminal Case 136.2018 (4 April 2018)

IN THE MAGISTRATES’ COURT OF FIJI
AT NAUSORI

Criminal Case No: -136/2018

STATE

V

SIGA KOROI

For the Prosecution: WPC Titila

For the Accused: Ms.S.Prakash (LAC)

Date of Sentence : 04^th of April 2018

SENTENCE

1. SIGA KOROI, 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 13/04/17, the Permanent Secretary for Economy reported against recipient of the “Help for Homes” (HfH) assistance of Navurevure village in Naitasiri for falsifying their information in order to obtain assistance during the second phase distribution program.

A Special Investigation conducted 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:

i. Household has an annual income of $50,000 or less

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

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

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

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

vi. Homes that have lost roofs and supporting walls will receive $7,000 and

vii. Homes that have been 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 20th May, 2016 at Vetalacagi House, Vunidawa Government Station, Siga Koroi, (B-1), 74 years, Unemployed of Navurevure village while filling his HELP FOR HOMES REGISTRATION FORM – ELECTRONIC CARD knowingly provided false information to Luisa Bainikoro, (A-3), 36 years, Social Welfare Officer of Naitonitoni, Navua 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, his house was not damaged during the cyclone.

(B-1)’s request was approved and he was issued with an M-PAISA card number 6792000005886790 which he later have it swiped at Vinod Patel, Suva for the purchase of hardware items.

A statement was also recorded from the following villagers Waisea Kedraika, (A-6), 58 years, the village headman of Navurevure village, Joseva Raikoma (A-7), 62years Farmer of Navurevure Village, Emosi Nakonokovou(A-8)63 years Farmer of Navurevure village, Filimoni Ligaimatau(A-9)39 years, School Teacher of Kilikali Settlement, Nadawa and Joeli Koroi(A-10) 54 years, Farmer of Navurevure village Naitaisri all confirming that (B-1)’s house was in the same state after the cyclone.

In his caution interview, (B-1) admitted that his house was not completely fully destroyed during the cyclone and that all the information he provided was false (please refer to answer to Q78-82).

(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 that your plea was voluntarily and unequivocal. Accordingly I 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 has previously submitted to this court 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) after adopting the same starting point and after considering the aggravating and mitigating factors the accused was sentenced 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 offence, 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 oral mitigation your counsel submitted the following :
    1. You are 74 years old ;
    2. Married with one child ;
    100. Farmer with an income of $7800 per annum ;
    4. Pensioner with a pension of $100.00 monthly;
    5. Sickly patient ;
    6. First offender.
    7. Willing to restitute the amount in 3 years.
18. In Jocelyn Deo, HAA 0008 of 2005) Madam Shameem said:

“The issue is not just restitution , the issue is true and sincere remorse, an early guilty plea ad confession, and restitution to the victim as evidence of such remorse and apology”.

19. In Sauleirogo v State [2018] FJHC 91; HAA122.2017 (21 February 2018) his Lordship Justice Sharma said :

“Restitution before a case comes to Court may well be of some benefit to an accused in mitigation but restitution during the Court process sends a message of solicitation to a lenient sentence.”

20. . In my view the accused had more than sufficient time to restitute this amount or make some arrangement to pay it back. His undertaking at this stage is trying to escape his punishment than moved from genuine remorse. Hence I disregard this as a valid mitigating factor.
21. For the other mitigating factors I deduct 16 months to reach 32 months imprisonment.
22. In Naikelekevesi v The State Criminal Appeal No AAU 0061 of 2007 it was observed :
23. “...where there is a guilty plea , this should be discounted for separately from the mitigating factors in a case”.
24. The Court of Appeal said in Poate Rainima CA AAU0022 of 2012)

“It has always been accepted (though not by authoriaive 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 first valid and to be applied in all future proceedings at first instance”.

25. You pleaded guilty at the earliest opportunity and for that I deduct 1/3 to 22 months imprisonment.
26. Now I have to consider whether to suspend this sentence pursuant to section 26(2) (b) of the Sentencing and Penalties Act.
27. 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 your house was not 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.
28. Hence your sentence needs to reflect the denunciation of your behavior and deter others from committing similar offences in times of natural disasters in this country. Based on all these I find a custodial sentence is warranted in this case.
29. But I am also mindful that you are 74 years old and suffering from hypertension, diabetes and other ailments. Hence I find full custodial sentence is also not suitable in this case.
30. To balance the public interest and the interest of the accused in my view a partly suspended sentence is justifiable in this case.
31. SAIASI NAIWAQA, accordingly you are sentenced to 22 months imprisonment for this charge. From that you have to serve 06 months in correction center and the balance 16 months will be suspended for 03 years.
32. 28 days to appeal.

Shageeth Somaratne

Resident Magistrate