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Vunibola v Fiji Independent Commission Against Corruption [2010] FJHC 380; HAA019.2010 (3 September 2010)

IN THE HIGH COURT OF FIJI
AT LABASA
CRIMINAL JURISDICTION

CRIMINAL CASE NO. HAA 19 OF 2010

BETWEEN:

TUI TURAGA VUNIBOLA
APPELLANT

AND:

FIJI INDEPENDENT COMMISSION AGAINST CORRUPTION
RESPONDENT

Counsel: In Person - for the Accused
Mr. Marasinghe - for the FICAC

Date of Hearing: 06.08.2010, 30.08.2010
Date of Judgment: 03.09.2010

JUDGMENT

1. The appellant preferred an appeal against the sentence imposed on him by the Learned Magistrate.

2. The appellant was original charged at the Magistrates Court of Labasa on following counts.

CHARGE

(COMPLAINT BY PUBLIC OFFICER)

FIRST COUNT

Statement of Offence

CONVERSION BY TRUSTEE: Contrary to Section 305 of the Penal Code, Cap 17.

Particulars of Offence

TUI TURAGA VUNIBOLA on or about the 26th day of April 2008 at Labasa in the Northern Division being the Trustee namely President of the Kavugalei Youth Club of monies held for the benefit of the Kavugalei Youth Club to set up a piggery business fraudulently converted or appropriated the sum of $3,938.00 derived from the Australian High Commission's Direct Aid Program for the use of a purpose other than the said business.

SECOND COUNT

Statement of Offence

CONVERSION BY TRUSTEE: Contrary to Section 305 of the Penal Code, Cap 17.

Particulars of Offence

TUI TURAGA VUNIBOLA on or about the 13th day of may 2008 at Labasa in the Northern Division being the Trustee namely President of the Kavugalei Youth Club of monies held for the benefit of Kavugalei Youth Club to set up a prawn farming business fraudulently appropriated the sum of $4,050.00 being part of the sum of $6,000.00 derived from the Australian High Commission's direct Aid Program for the use of a purpose other than the said business.

3. The accused appellant was charged on the 10th November 2008 and he pleaded guilty to the charges on 06/04/2010 that is after 16 dates.

4. On perusing the appeal I find that the appellant is appealing against the sentence. When the appeal was taken up on the 6th August 2010, the appellant confirmed that he is not canvassing the conviction but the sentence.

5. After carefully considering the proceedings at the Magistrates Court and the grounds of appeal, I am convinced that the appellant had pleaded guilty after understanding the gravity of charges. Therefore I find the conviction is unequivocal and I too affirm the conviction.

6. Now I consider the grounds of appeal of the appellant.

7. The appellant submitted following grounds of appeal.

1. That I believe the trial Magistrate had failed to consider the fact that I pleaded guilty.
   
2. That the sentence ordered by the Court is very excessive given the fact that the money used was paid and the project and incomplete and the failure of the Ministry of Youth.
   
3. That the Magistrate has been conducting his Court and his selective administration of justice.
   
4. That the trial Magistrate fails to analyze the accused evidence before laying down his rulings.
   
5. That the petitioner is a first offender and the trial Magistrate had not given sufficient consideration to this end factors said in mitigation.
   
6. As a poor citizen of our country we look forward in anticipation with hope and trust that our reformed judiciary will uphold the hall marks of independence and fairness has been compromised by the trial Magistrate.
   
7. That the petitioned refrained the night to add to these grounds in court.
   

8. Subsequently the appellant had filed another set of additional ground of appeal.

1 (a) That the petitioner is the first offender and the landed Magistrate failed to take in consideration the mitigation factors;

2 (b) That the landed Magistrates erred in law and failed as his worship in considers the previous conviction that was admitted ten years ago;

3 (c) That the landed magistrates erred in law and failed in his sentencing that he says the appellant has four previous convictions;

4 (d) That the landed Magistrates failed to consider which was in my mitigation that the full amount was returned back to the complainant;

5 (e) That the landed magistrate erred in law failed to consider appellants personal circumstances and previous good character.

9. On summarizing the grounds of appeal was find following grounds of appeal to be decided in appeal.

1. Sentence is harsh and excessive.
   
2. Learned Magistrate has not considered mitigating circumstances.
   
3. The appellant claims that he is a 1st offender which is not considered by the Learned Magistrate.
   
4. Repayment of the amount involved was not considered.
   

10. Now I consider the relevant Law to the offence. Section 305 of the Penal Code states as follows.

"Any person who, being a trustee of any property for the use or benefit either wholly or partially of some other person, or for any public or charitable purpose, with intent to defraud converts or appropriates the same or any part thereof to or for his own use or benefit, or the use or benefit of any person other than such person as aforesaid, or for any purpose other than such public or charitable purpose as aforesaid, or otherwise disposes of or destroys such property or any part thereof, is guilty of a misdemeanour, and is liable to imprisonment for seven years.

11. Now I consider the tariff to this offence as per section 305 of the Penal Code the Court has the power to impose imprisonment up to 7 years.

12. In State vs Bola (2005) FJHC 470; HAC0038.2005S (4 October 2005). Her Ladyship Justice Shameem decided the tariff ranges from 18 months to 3 ½ years imprisonment. She further confirms that in State vs Raymond Roberts HAA0053 of 2003S. 2004 FFJHC 51 the starting point will be 18 months.

13. The sentencing tariff has been set by His Lordship Justice Gates in the case of State v Kumar [2005] FJHC 477. The tariff set in the case is 2 to 3 years imprisonment for medium scale dishonesty offences. It can go up to 6 years imprisonment for the worst case scenarios.

14. In a more recent case of Savenava Labavuku v FICAC HAA004 of 2000 His Lordship Justice Goundar upheld the decision of the Magistrate court in sentencing the Appellant in that case to 18 month it imprisonment for the offence of Larceny by Servant.

15. Considering above case Laws, I do not find any irregularities by the Learned Magistrate starting the sentence at 18 months, it is reasonable and acceptable.

16. Now I consider the first ground of appeal in the light of above cases. The ground of appeal is, the sentence was harsh and excessive.

17. Thus it is appropriate in this regard to mention the findings of House of Lords in the case of John Barrick, [1985] 81 Cr. App. R, p.78 – 81 where the issue of guilty plea has been adequately dealt with. It was held in this case that:

"Where a plea of guilty is entered the court should give an appropriate discount. It will not usually be appropriate in cases of serious breach of trust to suspend any part of the sentence." In per curiam it was further held in this case that "In breach of trust cases there was no proper basis of for distinguishing between them upon the offender's occupation. Professional men should expect to be punished as the others; in some cases more severely."

18. Considering the seriousness of offence, the appellant was an employee of Fiji Independent Commission Against Corruption (FICAC) the prime unit of the Government to curtail abuse of power and corruption in the country. Being employed in such an elegant and prestigious institution, the appellant should be ashamed of himself of involving in an offence comes within the mandate of the said Commission. That itself a major aggravating factor. In my view the Learned Magistrate was very lenient in commencing and imposing the sentence against the appellant.

19. The appellant while employed as an Administration Assistant Officer at the FICAC had engaged in a Youth Club named Kavugalei Youth Club as its President. There he misappropriated $7988.00 of the grant given to the said Youth Club by the High Commission of Australia. The appellant had admitted this fact before the Magistrate.

20. Considering all above circumstances I conclude that the appellant's sentence is not harsh and excessive in fact it is very moderate. Therefore the first ground off appeal fails.

21. The next ground of appeal is that the Learned Magistrate has not considered the mitigating circumstances.

22. On perusing the Learned Magistrate's reason for sentencing, I find the following:

1. Learned Magistrate has considered the appellant's plea of guilty and granted the appellant 6 months reduction.
   
2. The appellant age, good character, antecedent were considered.
   

Considering above factors, I find the appellant's this ground of appeal also cannot be sustained.

23. The appellant next ground of appeal is that he is a first offender, and he was not given that recognition and discount.

24. On perusing the Magistrates Court record, I find that on 06/04/2010 after the appellant pleaded guilty to the charge the Magistrate had inquired about previous conviction. There the appellant had admitted he has 4 previous convictions.

25. Magistrates Court records contains the record of previous convictions of the appellant. There it states under the reference number CRO No. F/18929, FICAC CR 48 – 49/08. The Appellant has 4 previous convictions dated 25/11/1999. It should be noted that the date of offence in this case is 26th April 2008 and 13th May 2008 both dates are within the operational period of previous convictions. Under these circumstances, the appellant cannot claim that he is a first offender. The appellant is not a first offender, therefore this ground of appeal fails on its own merits.

26. The appellant submitted that he had repaid the money and it was not considered by the Magistrate.

27. Now I peruse the Magistrates Court record, I find the submission in mitigation of the appellant says that he had repaid $4300 out of $7988. Apart from this, I do not find any evidence in the brief that the appellant have repaid the money that he had have misappropriated.

28. Considering above factors, and I find that the appellant's claim of fully repaid is incorrect, the Learned Magistrate has considered the appellant's submission and came to a just conclusion.

29. Considering above factors, this ground of appeal also fails.

30. It is submitted that the public interest lies in the deterrence of dishonest practices by employees. Usually in such cases the gravity of the breach of trust needs to be marked by an immediate term of imprisonment no matter how sad the Accused's story, or how compelling the mitigation in his favour. This is well articulated in the case of State v Prasad [2003] FJHC 320; HAC0009T.2002S (30 October 2003) by His Lordship Justice Gates.

31. The accused appellant committed the offences alleged while he was employed by the government in the FICAC is very significant to consider in the course of sentencing. As pointed out by His Lordship Justice Gerald Winter in the case of State v Sorovakatini [2007] FJHC 32; HAC018.2005 (26 September 2007) the responsibility of public servants are of great significance and they are required to maintain the public confidence. It is stated in this case that;

"The offence of official corruption is a recognition that persons employed by the government and other forms of public service are to be held responsible for a higher level of integrity that persons in the private sector. The reason is quite simple, namely to preserve confidence in the administration of public affairs."

32. Considering all factors, I find that the Learned Magistrate was very reasonable in sentencing the appellant. Therefore I find no reason to interfere with the sentence of the Learned Magistrate.

33. Appeal dismissed accordingly.

S. Thurairaja
JUDGE

At Labasa
3 September 2010