Fiji Independent Commission Against Corruption v Sukanaivalu - Sentence [2019] FJMC 122; Criminal Case 72 of 2013 (6 June 2019)

IN THE MAGISTRATE’S COURT AT LAUTOKA, FIJI

CRIMINAL CASE NO. 72/13

FIJI INDEPENDENT COMMISSION AGAINST CORRUPTION (FICAC)

V.

SULIASI SUKANAIVALU

SENTENCE

01. You, Suliasi Sukanaivalu, are charged with one count of Soliciting An Advantage: Contrary to section 3 of the Prevention of Bribery Promulgation No 12 of 2007, one count of Obtaining A Financial Advantage: Contrary to Section 326 of Crimes Act of 2009 and one count of False Statement on Oath: Contrary to Section 177(a) of Crimes Act of 2009.

02. Read over to you the counts you pled not guilty, however after a full hearing court found you are guilty of all three counts. Accordingly you were convicted for the counts of Soliciting An Advantage, Obtaining a Financial Advantage and False Statement on Oath.

03. I would now endeavour to consider the appropriate penalty for this case with the view of considering section 04 and 15 of the Sentencing and Penalties Act regarding sentencing guidelines and the range of sentencing order.

04. Any prescribed officer “Soliciting An Advantage” is guilty of an offence punishable under section 12 (2) of the Prevention of Bribery Promulgation No 12 of 2007 which is a fine of $100000 and to imprisonment for 1 year, and shall be ordered to pay to the Government in such manner as the court directs the amount or value of the advantage received by him or such part thereof as the court may specify. There is no set tariff for this offence.

05. Prescribed penalty for “Obtaining A Financial Advantage” is 10 years of imprisonment. In Fiji Independent Commission Against Corruption [FICAC] v Mohammed [2015] FJHC 479; HAC349.2013 (24 June 2015) Justice Madigan has set the tariff between 2 – 4 years if charged alone.

06. In Fiji Independent Commission Against Corruption [FICAC] v Mohammed Justice Madigan stated as follows;

“...Absent the element of deception, the tariff should be 2 to 4 years but in cases where the obtaining is linked to a far more perfidious crime then the sentence for that crime should flow on to the sentence for the obtaining offence. This will apply particularly where a financial advantage has been obtained through corruption. Therefore if this offence is charged alone the tariff of 2 to 4 years should apply but if charged in conjunction with another "enabling "offence, it will adopt the sentencing tariff for that particular offence” (Emphasis is mine)

07. The maximum penalty for False Statement on Oath is 7 years of imprisonment as per Crimes Act 2009.

There is no set tariff for this offence under Crimes Act. However, tariff for the this offence, range from 06 months to 12 months of imprisonment as per Fiji Independent Commission Against Corruption v Jogia [2012] FJHC 874; (17 February 2012). His lordship Justice Salesi Temo further commented that” Again, the actual sentence will depend on the aggravating and mitigating factors.”

It is to be noted that in above case accused had charged under the section 177 of Penal Code where the maximum sentence is 2 years. Judge Salesi Temo has still taken the higher end of the sentence to be 12 months which is half of the maximum sentence.

08. Regarding the starting point of the imprisonment; their Lordships of the Court of Appeal in Koroivuki v State [2013] FJCA 15; AAU0018.2010 (5th March 2013), made the following remarks in paragraph 27.

"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."

09. In Maharaj v State [2011] FJHC 373; HAA014.2011(L) (7 July 2011) justice Madigan states as follows in his paragraph [15]:

“It is now accepted that a starting point is taken, adjusted for aggravating and mitigating features reaching a final sentence. This will be done on the more serious (or "base") offence and sentences for other offences will be made concurrent, consecutive or partly concurrent to this "base". It is not current practice to add the same aggravating features to every offence that he is sentencing for as the Magistrate has done in this case with the theft offence. By doing so, it means that the convict is being punished twice or more for what the sentencing tribunal regards as aggravating features.”

10. Considering the prescribed tariffs and in line with Maharaj v. State (supra) I am of the view that out of three counts “Obtaining Financial Advantage” is the more serious. Therefore, I choose it to be the “base” offence to deal with first.
    
11. Taking in to consideration the above established law and the circumstances of the case, relative seriousness of the other two offences as “enabling” offences I pick 30 months to be the starting point for your count “Obtaining Financial Advantage”.
    
12. As aggravating factors I find the followings. You are a public officer where you have been entrusted with honesty and loyalty. On one hand you are dishonest to the commission and on the other you have breached the trust of the public layman; in this case the complainant and Aseri Cama. You were a member of an independent institution which is to eradicate the corruption, thus you should be extra cautious than an ordinary government officer. In reflecting the same I increase your sentence by another 12 months. Now your interim sentence is 42 months of imprisonment.
    
13. In mitigation, it was submitted by your counsel that:
    • you are 36 years old
    • you are married with 2 adopted children
    • both of them are studying in university and you are the one financially support them
    • you are supporting your elderly mother and currently renting
    • you are a person with good character who engages in many charity works
    • you are the first offender
      
14. Considering the above mitigation, I discount 10 months from your sentence brining your sentence down to 32 months.
    

Accordingly, now your final imprisonment period is 32 months for “Obtaining Financial Advantage”

15. Now I deal with your first count “Soliciting An Advantage”. Consider the relative seriousness of your count of “Obtaining Financial Advantage” I choose the starting point to be 08 months of imprisonment. Since aggravating and mitigation factors have been already dealt with the “base” count “Obtaining Financial Advantage”, I will not apply any adjustments to your sentence for “Soliciting An Advantage”.
    

Therefore your sentence for the count of “Soliciting An Advantage” is 08 months of imprisonment.

16. For your third count “False Statement on Oath” I pick 24 months of imprisonment. Since aggravating and mitigating factors already dealt with the “base” count “Obtaining Financial Advantage”, I will not apply any adjustments to your sentence for this count as well.
    

Therefore your sentence for the count of “False Statement on Oath” is 24 months of imprisonment.

17. I find that these offences have been committed in the same transaction. However, whilst first two counts have been committed to the victims, the third count is with regard to the due process of law. I am of the view that you previously being an officer of the Small Claim Tribunal and having the special knowledge has tampered with the due process of the Tribunal. As such I am of the view that first two counts should run concurrent to each other and third count should run consecutively.
    
18. Accordingly, your final sentence on three counts shall be 56 months of imprisonment and a fine of 10 penalty units which carries 100 days of imprisonment in default.
    
19. The question of suspension of sentence does not arise as per section 26 of the Sentencing and Penalties Act 2009 as the sentence of this court is over 2 years.
    
20. As per section 18(1) of Sentencing and Penalties Act, court needs to set a non-parole period since the sentence is over 2 years. Keeping balance between the facts of this case along with the seriousness of the offences, and achieving the objectives in accordance with the principles of Sentencing & Penalties Act, I order a non-parole period to be 3 years.
    
21. 28 days to appeal
    

Bandula Gunaratne

Resident Magistrate
At Lautoka
06^th June 2019