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State v Bhika [2011] FJHC 171; HAC116.2007 (17 March 2011)

IN THE HIGH COURT OF FIJI
AT SUVA
CRIMINAL JURISDICTION

Criminal Case No : HAC 116 of 2007

BETWEEN:

THE STATE

AND:

SULIASI NAULIVOU SOROVAKATINI
DHANSUKH LAL BHIKA

Counsels: Ms. S. Puamau & Ms. J. Prasad for the State
Mr. M. Raza for 1st Accused
Mr. P. Maiden S. C & Mr. R. Newton and Mr. S Parshottam for
2nd Accused

Date of Hearing: From 10th February 2011 to 14th March 2011
Date of Sentence: 17th March 2011

SENTENCE

1. The Director of Public Prosecutions had preferred following charges against 1st & 2nd Accused persons.

"FIRST COUNT

Statement of Offence

OFFICIAL CORRUPTION: Contrary to section 106 (a) of the Penal Code Cap 17.

Particulars of the Offence

SULIASI SOROVAKATINI, on or about 21st May, 2001 at Suva in the Central Division, being employed in the public service, and being charged by virtue thereof with the performance of certain duties as prescribed pursuant to section 6 of the Public Service Act of 1999, corruptly received a benefit, namely air travel from Suva to Nadi and return valued at $190.00, on account of acts done by him in the discharge of the duties of his office.

SECOND COUNT

Statement of Offence

OFFICIAL CORRUPTION: Contrary to section 106 (b) of the Penal Code Cap 17.

Particulars of the Offence

DHANSUKH LAL BHIKHA and Others on or about 21st May, 2001 at Suva in the Central Division, corruptly gave a benefit, namely air travel from Suva to Nadi and return, valued at $190.00 to a person employed in the public service, namely SULIASI SOROVAKATINI, on account of acts done by him in the discharge of the duties of his office.

THIRD COUNT

Statement of Offence

OFFICIAL CORRUPTION: Contrary to section 106 (a) of the Penal Code Cap 17.

Particulars of Offence

SULIASI SOROVAKATINI, on or about 21st May, 2001 at Suva in the Central Division, being employed in the public service, and being charged by virtue thereof with the performance of certain duties as prescribed pursuant to section 6 of the Public Service Act of 1999, corruptly received a benefit namely air travel from Nadi to Melbourne and return valued at $1,638.00, on account of acts done by him in the discharge of the duties of his office.

FOURTH COUNT

Statement of Offence

OFFICIAL CORRUPTION: Contrary to section 106 (b) of the Penal Code Cap 17.

Particulars of the Offence

DHANSUKH LAL BHIKHA and others on or about 21st May, 2001 at Suva in the Central Division, corruptly gave a benefit, namely air travel from Nadi to Melbourne and return, valued at $1,638.00, to a person employed in the public service, namely SULIASI SOROVAKATINI, on account of acts done by him in the discharge of the duties of his office.

FIFTH COUNT

Statement of Offence

OFFICIAL CORRUPTION: Contrary to section 106 (a) of the Penal Code Cap 17.

Particulars of the Offence

SULIASI SOROVAKATINI, on or about 21st May, 2001 at Suva in the Central Division, being employed in the public service, and being charged by virtue thereof with the performance of certain duties as prescribed pursuant to section 6 of the Public Service Act of 1999, corruptly received a benefit derived from travellers cheques worth $10,000.00, on account of acts done by him in the discharge of the duties of his office.

SIXTH COUNT

Statement of Offence

OFFICIAL CORRUPTION: Contrary to section 106 (b) of the Penal Code Cap 17.

Particulars of the Offence

DHANSUKH LAL BHIKHA and others on or about 21st May, 2001 at Suva in the Central Division, corruptly gave a benefit in the form of a travellers cheques worth $10,000.00 to a person employed in the public service, namely SULIASI SOROVAKATINI, on account of acts done by him in the discharge of the duties of his office.

SEVENTH COUNT

[Representative Count]

Statement of Offence

OFFICIAL CORRUPTION: Contrary to section 106 (a) of the Penal Code Cap 17.

Particulars of Offence

SULIASI SOROVAKATINI, between 16th May 2001 and 10th August 2001 at Suva in the Central Division, being employed in the public service, and being charged by virtue thereof with the performance of certain duties as prescribed pursuant to section 6 of the Public Service Act of 1999, corruptly received a benefit, namely cash, properties and payments to his carpenter from Credit Account HS483 with Suncourt (Wholesalers) Ltd, on account of acts done by him in the discharge of the duties of his office.

EIGHTH COUNT

[Representative Count]

Statement of Offence

OFFICIAL CORRUPTION: Contrary to section 106 (b) of the Penal Code Cap 17.

Particulars of the Offence

DHANSUKH LAL BHIKHA and others between 16th May 2001 and 10th August 2001 at Suva in the Central Division, corruptly gave a benefit, namely cash, properties and payment to a carpenter from Credit Account HS483 at Suncourt (Wholesalers) Ltd, to a person employed in the public service, namely SULIASI SOROVAKATINI, on account of acts done by him in the discharge of the duties of his office."

2. The trial was taken up before the Judge and 5 Assessors.

3. The trial commenced on 10th February 2011 and concluded on 14th March 2011.

4. The assessors unanimously found the 1st Accused Suliasi Sorovakatini guilty to 1st, 3rd and 7th Count in the information.

5. Similarly the assessors unanimously found the 2nd Accused Dhansukh Lal Bhikha guilty to 2nd, 4th and 8th Count.

6. Both the 1st Accused and 2nd Accused were found not guilty to the 5th and 6th Counts respectively.

7. Considering the nature of the evidence and the considered unanimous decision of all 5 assessors, the Court found the 1st Accused Suliasi Sorovakatini guilty to 1st, 3rd and 7th Count and convicted him accordingly. The Court found not guilty to the 5th Count and acquitted him from that Count. Further the Court found the 2nd Accused Dhansukh Lal Bhikha guilty to the 2nd, 4th and 8th Count and convicted him accordingly. The Court found not guilty to the 6th Count and acquitted him from that Count.

8. Now I proceed to pronounce sentence on the 1st and 2nd Accused persons.

9. Penal Code Section 106 provides a maximum sentence of 7 years imprisonment.

10. Now I consider the nature of the offence. In this case of 1st Accused Suliasi Sorovakatini was attached to the Ministry of Agriculture, Fisheries and Forestry (MAFF) as a Principal Accounts Officer.

11. The 2nd Accused Dhansukh Lal Bhikha was the Managing Director of Suncourt (wholesalers) Ltd.

12. I wish to make some general observation in this trial. It appears from the evidence that there was a programme implemented by the MAFF in the name of FARMING ASSISTANCE AFFIRMATIVE ACTION PROGRAMME FOR FIJIAN AND ROTUMAN (Commonly known as Affirmative Action Programme). It was revealed this was not approved by the Government and it was not provided with approved budget allocation. The officials attached to the MAFF had implemented the programme and accounted under different accounts.

13. Counsels and 1st Accused submitted that this was a vote buying scam done by the political authorities of the day. Further the 1st Accused said the Minister Mr. Apisai Tora and Assistant Minister Ms. Marieta Rigamoto were unduly benefitted out of the programme. Since there is evidence before the Court now the DPP and/or relevant authorities may look into this allegation. But it should be mentioned here that the 1st Accused had not revealed these facts to the Police at the investigation.

14. Within a short period approximately 27th March 2001 to 30th April 2001 there were more than 153 purchases were done at Suncourt and none of these purchases were followed the government standard procurement procedures. Further the Court observed that the dates in many invoices (at least 23 invoices) submitted by Suncourt were altered.

15. 1st Accused says that he was directed by the political authorities of government of the day and forced him to do this. Even though there was an interim government after a coup d'état, existing laws prevailed. Except certain constitutional matters all other activities were governed by the law that was existed. The 1st Accused said he was made as a "fall-guy" in other words he was made the scapegoat. Considering this case and other judgments submitted to me by both Counsels I do not find that to be correct.

16. The Defence Counsels submitted to Court that this is a political motivated inquiry. I find from the agreed facts that the inquiry was commenced by the same government. Therefore I do not find this is a politically motivated trial.

17. Within a very short period beginning from 27th March 2001 to 30th April 2001 these purchases were done. On the 11/05/2001, the vouchers were raised; cheque for the value of $225092.04 was drawn up and paid to Suncourt on the same day. This cheque was signed by a junior officer and the 1st Accused. Court couldn't find proper approval from relevant authority set out by the Finance rules & regulations.

18. On the 16/05/2001 the 1st Accused had opened a credit account bearing number HS483 at the Suncourt hardware and received goods and CASH ADVANCE from that account. As per the record the 1st Accused owed $51,921.12. 1st Accused disputes the amount and states it may be between $18,000 to $20,000. It is interesting to note that the 1st Accused had not repaid even a cent. Further there is no interest levied by the Suncourt and no recovery processes were taken till 2008. In 2008 the Suncourt had obtained a caveat against the property of the 1st Accused. In 2011 Suncourt made a complaint with the credit reference bureau regarding the credit. It should be noted that this criminal a proceeding commenced in August 2007 the case number is 116/2007.

19. The 1st Accused while giving evidence more than 3 occasions said that the 2nd Accused Dhansukh Lal Bhikha didn't know anything about the travelling and credit facilities. Perusing the evidence before the Court we could clearly see the 2nd Accused was there in most of the transaction if not all.

20. The 2nd Accused had signed the payment cheques for the purchase of air tickets of 1st Accused and Manoj Kumar Bhikha who was the nephew (as submitted by the Counsel at the Mitigating submissions) of the 2nd Accused and the Executive General Manager of Suncourt.

21. On many occasions the 2nd Accused had authorized cash advances and signed cheques to be paid in 1st Accused's credit account, which were adequately dealt in the summing up and in my judgment.

22. Now I consider the tariff for the offence of Official Corruption. In State v Alifereti [2008] FJHC 231; HAC018.2005 & HAC040.2007s (17 September 2008) – 4 years and 3 years imprisonment respectively.

23. In State v Carlos Taylor High Court, Crim Case No: 001 of 1999, - the accused pleaded guilty to 4 counts of Official Corruption, sentence of 3 years imprisonment reduced to 2 years on account of the guilty plea.
24. In Prem Chand v The State [2001] FJHC 130; HAM 0017/2000, 8 November 2008, the appellant had pleaded guilty to one count of official corruption and sentenced to 4 years imprisonment on that count.

25. In State v Sorovakatini High Court, Crim Case No: 018/07, 26 September 2007, the accused pleaded to one count of official corruption and was sentenced to 2 ½ years imprisonment after discounting the guilty plea.

26. In Isireli Kini v The State [2004] FJCA 55, AAU 0041/02, 26 November 2004, the Court of Appeal upheld a sentence of 12 months imprisonment for one count of Official Corruption.

27. In State v Sorovakatini (2007 FJHC 32 Justice Gerard Winter quoted the words of Pratt J in Robert Yabara v The State (1984) PNG LR 378:

"The offence official corruption is a serious one. It is difficult to prove as it relies on the honesty of the person who is offered the bribe or encouraged to engage in corrupt practices. There are rarely independent witnesses to the event. For these reasons when a case has been successfully proved this Court has a duty to treat the matter seriously. Once detected, tried and proved the need to impose a punitive and deterrent sentence to deter others, becomes crucial."

28. In State v Pita Alifereti (2008 FJHC Justice Isikeli Mataitoga made a conclusion observation as follows:

"Public interest demands that the sentence must address the need for deterrence and to warn others similarly inclined that severe sentence will be passed by the courts on anyone found guilty of the offence of Official Corruption. Those involved in this type of offending betray public trust and their acts erode public confidence in our government institutions. These are serious crimes. It is needful that potential offenders and the public at large understand that these crimes will be met with stiff penalties."

29. In Pita Alifereti it was "determined that the proper starting point for the sentence in this case is 5 years imprisonment." After considering the aggravating and mitigating factors the court sentenced Pita Alifereti to 4 years and the second accused, Peli Kete Doviyaroi to 3 years imprisonment. In addition the court also held in respect of Peli Kete Doviyaroi that "[the law must treat both parties equally in terms of starting point of their sentence."

30. Considering all above authorities the tariff is between 12 months to 5 years.

31. Considering all I commence my sentence as following:

1st Count - 3 years imprisonment

2nd Count - 3 years imprisonment

3rd Count - 3 years imprisonment

4th Count - 3 years imprisonment

7th Count - 4 years imprisonment

8th Count - 4 years imprisonment

32. Now I considered the aggravating factors of the 1st Accused.

(i) You were employed as Principal Accounts Officer of MAFF and you were in gross breach of trust of your office.

(ii) Your period of offence was several months at least from may 2001 to August 2001

(iii) Because of your action a serious disrepute brought on MAFF and all Government Servants especially who are working in the Finance sectors

(iv) Because of the payment, you received kick backs from the Suncourt, at the bottom of this the tax payers money were improperly used and wasted

(v) You brought disrepute to the entire public servants.

Considering all I increase 3 years. Now your sentence reads as follows:

1st Count - 6 years imprisonment

3rd Count - 6 years imprisonment

7th Count - 7 years imprisonment

33. Now I consider your mitigating circumstances.
    

(a) You are married with 5 children. Two of your children are presently

schooling.

(b) Recommendations submitted by two Pastors.

(c) Your Counsel claims that you are remorseful

(d) Presently you are serving as a Pastor and assisting training programmes for

the prisoners.

Considering all your mitigating circumstances I reduce 2 years from each Count. Now your sentence reads as follows:

1st Count - 4 years imprisonment
3rd Count - 4 years imprisonment
7th Count - 5 years imprisonment

34. State Counsel and the Defence Counsel made submissions on your previous conviction under 'one transaction rule' and 'totality principle'. I considered Justice D. Pathik Dictum in TUKOLI VISAWAQA (2003) FJHC 138 and WONG KAM HONG (2003) FJSC 13. I conclude this as a separate case. Further I wish to place it on record that the previous conviction of the 1st Accused was not considered as an aggravating factor.

35. But considering all above submissions I order all three sentences to run concurrently.

36. Now I consider the aggravating factors for the 2nd Accused Dhansukh Lal Bhikha.

(a) The period of offence was lengthy, at least from March to August 2001.
(b) Your position in the Government statutory bodies including PACFO etc.
(c) The loss of money and reputation to the Government of Fiji
d) Your Counsel submitted that you are a leader of Gujarati community (known
as Darji Community), you were the Lord Mayor for 8 years. Further it was submitted to Court through the witness Aqela Cakobau that you took leadership of the youngsters in Fiji under Hibiscus Festival. These factors can be aggravating factors because your community people and youth of Fiji may set a bad example of what you did therefore I consider this as an aggravating factor as well.

Considering all aggravating factors I increase 3 years on each Count. Now your sentence reads as follows:

(a) 2nd Count - 6 years imprisonment

(b) 4th Count - 6 years imprisonment

(c) 8th Count - 7 years imprisonment

37. Now I consider your mitigating circumstances.

(a) Your are 1st offender

(b) Your are married with two grown up children

(c) You have submitted two medical records dated 13th November 2008 and

21st November 2008. Those are more than 2 years old.

(d) You submit that the staffs of Suncourt are depending on you. (this contradict

with the stance that you have taken in the trial, you said that the company was managed by others and you were involved in other public service)

(e) Your service to the public

(f) Your Counsel claims that you are remorseful

Considering all mitigating circumstances I reduce 2 ½ years on each Count. Now your sentence reads as follows:

(a) 2nd Count - 3 ½ years imprisonment

(b) 4th Count - 3 ½ years imprisonment

(c) 8th Count - 4 ½ years imprisonment

38. In Khan v State [ 2008] FJHC 121; HAA0008, Justice Mataitoga quoted Justice Pathik's observations in Tukoli Visawaqa v The State [2003] FJHC 138 which was restated by the Supreme Court in Joji Waqasaqa v The State [2006] FJSC 6, Justice Pathik said:

"The power to order sentences to run consecutively is subject to two major limiting principles, which may be called the 'One Transaction Rule' and The Totality Principle'. It does not mean that consecutive sentence cannot be imposed, so long as the overall sentence is not unduly harsh and by the same token the outcomes of the concurrent sentences are not rendered unduly lenient in view of the aggravating factors."

39. After considering evidence and all factors I order all these sentence of the 2nd Accused to run concurrently.

40. Now I consider section 18 (1) of the Sentencing & Penalties Decree.

"Subject to sub-section (2), when a court sentences an offender to be imprisoned for life or for a term of 2 years or more the court must fix a period during which the offender is not eligible to be released on parole."

41. Considering the nature of the offence and the strength of evidence before the Court I fix 4 years as non parole period for the 1st Accused Suliasi Sorovakatini and 3 ½ years as non parole period for the 2nd Accused Dhansukh Lal Bhikha.

42. I strongly endorse the view expressed by Sir Moti Tikaram President Fiji Court of Appeal, Justice Sir Peter Quilliam and Mr. Justice Peter Hillyer in Naiveli v State [1994] FJCA 29.

"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."

43. 1st Accused Suliasi Sorovakatini you are sentence as follows:

For the 1st Count - 4 years imprisonment

For the 3rd Count - 4 years imprisonment

For the 7th Count - 5 years imprisonment

All these sentence will run concurrently with 4 years non parole period.

44. 2nd Accused Dhansukh Lal Bhikha you are sentence as follows:

For the 2nd Count - 3 ½ years imprisonment

For the 4th Count - 3 ½ years imprisonment

For the 8th Count - 4 ½ years imprisonment

All these sentence will run concurrently with a non parole period of 3 ½ years.

45. You have 30 days to appeal to the Court of Appeal.

S Thurairaja
Puisne Judge

At Suva
Solicitors
Office of the Director of Public Prosecution for State
Mehboob Raza & Associates for 1st Accused
Parshotam & Co. for 2nd Accused