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Fiji Independent Commission Against Corruption v Vocea [2010] FJHC 479; HAC129.2009 (28 October 2010)

IN THE HIGH COURT OF FIJI
AT SUVA
CRIMINAL JURISDICTION

Criminal Case No: HAC129 of 2009

FIJI INDEPENDENT COMMISSION AGAINST CORRUPTION

V

ANASA VOCEA

Hearing: 27 October 2010
Sentence: 28 October 2010

Counsel: Mr. V. Perera & Ms E. Leweni for FICAC
Mr. B. Lateef & Mr. P. Yaqona for Accused

SENTENCE

[1] Mr. Vocea, you appear for sentence after pleading guilty to 7 counts of fraudulent conversion. This offence is classified as a misdemeanor in the Penal Code. The maximum penalty for this offence is 7 years imprisonment.

[2] At the time of the offending, you were the Permanent Secretary for the Ministry of Works, Transport & Public Utilities.

[3] The charges arose from your appointment as a Director to Pacific Forum Line Limited Board, a private company in which the Government of Fiji held shares together with the governments of eleven other regional countries. Your appointment was made by a Cabinet Minister in the Government of Fiji. As a Director you were required to attend Board meetings of the Company and over a period of six years from 2000 to 2006 you did attend various Board meetings.

[4] At the end of every year, you were paid Director's Fees. The fees were paid in New Zealand dollars and in amounts contained in the charges. The total fees that were paid to you is NZ$130,266.00. Instead of returning the funds to the Government of Fiji you deposited the funds into your personal bank account in New Zealand. The payments of Director's Fees were remuneration that you received in addition to your salary from the Government of Fiji. Since you were being remunerated by the Government of Fiji when you attended the Board meetings of Pacific Forum Line Limited, you had a legal duty to return the Director's Fees that you had received to the Government of Fiji. Instead you converted the funds that were entrusted to you, for your own use.

[5] I turn now to consider the sentencing principles that are applicable to this case.

[6] In Barrick 7 Cr. App. R(s) 142, the English Court of Appeal set out guidelines for the sentencing principles applicable in cases of breach of trust. The English Court of Appeal said at p.146:

"In general a term of immediate imprisonment is inevitable, save in very exceptional circumstances or where the amount of money is very small. Despite the great punishment that offenders of this sort bring upon themselves, the Court should nevertheless pass a sufficiently substantial term of imprisonment to mark publicly the gravity of the offence. The sum involved is obviously not the only factor to be considered, but it may in many cases provide a useful guide."

[7] The principles in Barrick have been adopted and relied upon in cases in Fiji.

[8] In Vishwajeet Prasad v. The State Cr. App. 23/93, the offender stole $78,000 from his employer. He was sentenced to 4 years imprisonment on a plea of guilty. The Court of Appeal considered the sentence to be excessive and substituted a sentence of 2½ years imprisonment.

[9] In Gerald Neelamkant Panniker Crim. App. 28/2000, Pathik J sentenced an offender to 3 years imprisonment for stealing $49,348.82 from his employer. His Lordship referred, in particular to the factors which are relevant for sentencing in breach of trust cases:

(i) the quality and degree of trust reposed in the offender including his rank;

(ii) the period over which the fraud has been perpetrated;

(iii) the use to which the money or property dishonestly taken was put;

(iv) the effect upon the victim;

(v) the impact of the offences on the public and public confidence;

(vi) the effect on fellow-employees or partners;

(vii) the effect on the offender himself;

(viii) his own history;

(ix) other mitigating factors such as delay, illness, and co-operation with investigations.

[10] In Shane Raymond Heatley v. The State HAA003/05, Pain J reviewed the cases for fraudulent offending and at page 6 of the judgment said:

"These cases show that on a plea of guilty of obtaining money by fraud a sentence of 4 years imprisonment is likely for the most serious type of case (see dicta in Vishwajit Prasad v. State App. 23 of 1993). However aggravating circumstances may warrant a greater sentence (Anil Kumar v. R). If the amount involved is small a short period of imprisonment is appropriate (see Mara Kapaiwai v. R – albeit on a plea of guilty). Otherwise sentences imposed in these reported cases have ranged from 15 months to 2½ years imprisonment."

[11] In State v. Mahendra Prasad Cr. Action HAC009/02S, Gates J (as he was then) considered the sentence for an offender who stole $59,000 from his employer. The offender had fully compensated his employer, who had in turn, called for the charges to be withdrawn. A suspended term was imposed, his Lordship finding exceptional circumstances existed.

[12] In State v. Sanjay Shankar Criminal Case No. HAC003/05S, a young employee defrauded his employer of $619,908.35. The State was able to freeze the account in which the money was kept. Shameem J imposed a sentence of 2 years imprisonment suspended for 2 years after finding the offender's extreme youth and restoration of money to the owner constituted exceptional circumstances.

[13] The offences that you committed are of a similar character. Concurrent sentences are generally appropriate if the offences are of a similar character and are based on the same facts.

[14] I refer to the purposes of sentence which apply to you. The most important factor is to denounce your conduct. You were holding a very high public position at the time of the offending. The Government was your employer. Not only the Government, the public should be able to have complete trust and confidence in people who hold senior public service positions. Any conduct that tends to compromise the integrity and the honesty expected of public servants deserve condemnation.

[15] For much of the same reasons, deterrence is a highly relevant objective in sentencing on breach of trust cases by public servants. I accept there is no risk of your reoffending but a high priority must be placed on the need for general deterrence and issuing a message that conduct of this kind is unacceptable in our society.

[16] I turn now to consider those matters which I can properly take into account in mitigation. You are 60 years old. You are a widower and you have two children who are financially depended on you. In 2007 you were terminated from your position as Permanent Secretary by a promulgation of the current government. Since then you have been unemployed. You live on your pension of $2,000.00 a month.

[17] Your counsel spoke about your employment in government from 1972 to 2007 when you were terminated from your position. You are a qualified civil engineer. You have served on various statutory bodies while you were a public servant. You have also been a member of various school boards. You are involved in community work.

[18] In 2008, you donated about $17,000 to Fiji Red Cross Society. You have tendered official receipts of Fiji Red Cross Society to show the donations you have made. You are involved in community work through your church to help the street kids.

[19] I do not doubt your kindness, encouragement, support, service, the inspiration and the motivation you have provided and your dedication to the community.

[20] In the end, however, it is not possible for me to give undiminished weight to your previous good character and record of public service. You are a man who knew much about the ideals of public service. You were given power and authority. With power and authority comes an obligation of trust. You betrayed that trust and in course of doing that, you undiminished the very values that were your duty to uphold.

[21] For this reason a discharge or a bound over order is inappropriate.

[22] The offences justify that you be convicted and punished for the offences you committed. I now formally discharge you on the charges that were withdrawn against you by the prosecution and accordingly convict you of the remaining charges.

[23] I sentence you on the 7 counts of fraudulent conversion to concurrent sentences of two years imprisonment. I now consider whether your sentence should be suspended.

[24] As stated earlier, suspended sentences are only imposed in breach of trust cases if the amount involved is relatively small or the offender has expressed genuine remorse by entering early guilty plea and making full reparation. The total amount that you dishonestly converted is substantial. This factor does not favour suspending your sentence.

[25] However, there is evidence that as soon as you learnt that the Fiji Independent Commission Against Corruption was investigating you, you returned the Director's Fees to the paying entity, Pacific Forum Line Limited. The first payment was made on 21 October 2008, before you were caution interviewed, in an amount of $100,000.00. The second payment was made on 4 November 2009 in an amount of $56,815.00. You now consent to the return of the funds to the Government of Fiji.

[26] You pleaded guilty after a no case to answer application was refused by me at the close of the case for the prosecution. I do not hold against you your decision to proceed to trial. Initially, you were charged with extortion based on the same facts upon which the current charges are founded. The charges were then amended by the prosecution in 2009. The prosecution then charged you with fraudulent conversion on 8 counts and with false declaration of income on 8 counts. I have held in my no case to answer ruling that the two offences are in alternative although the prosecution has not charged as such.

[27] The reason is that either you were entrusted with the Director's Fees to be paid to the Fiji Government or they were income for you to disclose in your tax returns. You could not have been guilty of both. When this was pointed out in my ruling of no case to answer, the prosecution elected to withdraw the false declaration charges if you offered to plead guilty to fraudulent conversion. You took on the offer and pleaded guilty immediately after the prosecution withdrew the false declaration charges and the last count of fraudulent conversion on the ground that you were no longer employed in the public service during the period alleged in that charge. I therefore think that if you were presented with the correct charges when you were arraigned before the commencement of the trial you would have pleaded guilty to the charges.

[28] I accept your plea of guilty as evidence of genuine remorse. I observed your demeanour during the proceedings. You had your head down most of the times as you set in the dock. For you, a fall from grace is punishment in itself.

[29] In the circumstances, I decide to partially suspend your sentence. The Sentencing and Penalties Decree provides for a range of sentencing orders.

[30] I order that you serve the first 6 months, partly in custody and partly in the community. Effective from 1 November 2010 you will remain in prison from 8am to 4pm during the weekdays under the supervision of a prison officer. After 4 pm on the weekdays and on weekends and public holidays, you will remain in the community without any supervision. After you have served this term of 6 months, the remaining term of 18 months is suspended for 2 years. Suspended sentence explained.

[31] In addition, I order that you pay court costs in a sum of $1,000.00 within 30 days. I am satisfied that you have means to pay this amount of costs.

Daniel Goundar
JUDGE

At Suva
28 October 2010

Solicitors:
Office of the Fiji Independent Commission Against Corruption for Prosecution
Office of Messrs. Lateef & Lateef for Accused