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Fiji Independent Commission Against Corruption v Kumar [2010] FJHC 65; HAC001.2009 (2 March 2010)

IN THE HIGH COURT OF FIJI
AT SUVA
CRIMINAL JURISDICTION

Criminal Case No: HAC 001 of 2009

FIJI INDEPENDENT COMMISSION AGAINST CORRUPTION

V

JASWANT KUMAR

Hearing: 1st February – 16th February 2010
Sentence: 2nd March 2010

Counsel: Ms L. Lagilevu & Ms E. Leweni for FICAC
Mr. R. Chaudhary for Accused

SENTENCE

[1] Jaswant Kumar, you have been found guilty, after a trial, of abuse of office for gain. You are convicted of a felony. The maximum penalty prescribed for a felony abuse of office is three years imprisonment.

[2] The facts are that in May 2006, you were appointed the acting Town Clerk of the Nasinu Town Council. At the time, you were also the Manager Finance of the Council. You were overall in charge of the finances of the Council. You had the authority to prepare payments, write cheques and operate the Council’s bank account.

[3] On 26 May 2006, you prepared a payment voucher in a sum of $2,344.42 purported to be a payment to the Post Fiji Limited. You raised a cash cheque and got the Mayor to endorse it. The Mayor endorsed the cheque, trusting it was a genuine payment. The payment voucher was not certified. Nor the identity of the recipient of the cheque was recorded in the payment voucher. The cheque was cashed on the same day at a bank. The Council lost that amount of money because the Post Fiji Limited did not receive the payment. Three subsequent payments were made to the Post Fiji Limited to make up for the missing payment.

[4] Mr. Chaudhary is to be commended on the plea in mitigation on your behalf. The plea was very persuasive, and nothing more could possibly have been done or said.

[5] You are 43 years old and married. You have two children. You are the sole breadwinner for your family. You support your elderly mother who is a widow. You are supporting the education of two of your nieces, whose father had passed away.

[6] You have a Diploma in Business Studies. Currently, you are enrolled in a degree programme at the Fiji National University. Your home is under mortgage, which you are paying.

[7] You are involved in religious, social and charitable activities in your community. Your referees have spoken highly about your character.

[8] You do not have any criminal record. Your previous good character, however, is not a special factor.

[9] A person’s previous good character is an essential pre-requisite to hold a public service position. Usually, this type of offending is committed by a person of unblemished character holding a post of trust and authority in the public service. The public expects the officials and employees of city or town councils to conduct themselves in an accountable and transparent manner when it comes to the finances of the councils. This is because the councils’ funds are public funds.

[10] When you raised the payment of $2,344.42 on 26 May 2006, your intentions were dishonest. You made the documents look like that it was a payment to the Post Fiji Limited, when in fact, your motive was to take the money. You managed to bypass the accounting procedures in raising the payment because you were the head of the finances at the Nasinu Town Council.

[11] You said that the Council at the time was running a weak accounting system. That may be so, but, a weak accounting system does not justify your conduct in deviating from the principles of transparency, accountability and honesty expected of every person employed in the public service.

[12] Not only that you gained from your conduct, you exposed others to the risk of prosecution. You blamed others for your own dishonesty.

[13] You have shown little remorse for your conduct. You only made two reimbursements to the Nasinu Town Council in a total sum of $700.00 after being surcharged. The reimbursements were not made of your own free will.

[14] The sentences for abuse of office range from community work orders to terms of imprisonment, depending on whether the offender is convicted of misdemeanor or felony abuse of office (State v. Eminoni Bola Crim. Case HAC039 of 2005S; Beniamino Naiveli v. State Crim. App. 4/92 (FCA); and State v. Peniasi Kunatuba HAC018 of 2006).

[15] In the case of Naiveli v. State, the Court of Appeal made the following observations in relation to an appeal against a suspended sentence imposed for a misdemeanor abuse of office:

"We wish to make it clear however that people in high office who abuse their power may well in the future be required to serve an immediate prison sentence. This comment should serve as notice to any such people that the courts are not prepared to regard such offences lightly and that they will not suspend sentences just because the consequences for such a person are severe."

[16] The offence in this case is serious. You held a position of authority and trust. You were entrusted with the funds of the Council that employed you.

[17] Accordingly, I am of the view that only a custodial sentence is warranted to denounce the society’s disapproval of dishonest conduct by persons employed in the positions of authority and trust and to deter others from committing this type of offence.

[18] Jaswant Kumar, I take into account your particular family circumstances, and previous good character. I take into account the social and religious contributions you have made to the community, albeit, they are not so special as to justify a suspended sentence. I take into account the reimbursements you have made to the Nasinu Town Council to make up for the loss arising from your conduct and the age of the offence.

[19] I sentence you to 12 months imprisonment effective from today.

Daniel Goundar
JUDGE

At Suva
2nd March 2010

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