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Fiji Independent Commission Against Corruption v Vakacegu [2012] FJMC 299; Criminal Case 1453.2012 (16 November 2012)

IN THE MAGISTRATES COURT
AT SUVA

Criminal Case No. 1453/2012

THE FICAC

–v-

VAKACEGU GAUNAVINAKA KALOU

For Prosecution: Mr. Perera for FICAC
For Accused: Mr. Vosarogo

SENTENCE

1. Vakacegu Gaunavinaka Kalou, the accused is being charged before this court for committing an offence of Bribery: c/s 9(1) (a) of the Prevention of Bribery Promulgation No. 12 of 2007. The particulars of offence states as follows:
   

"On or about 26th day of October 2012 at Suva in the Central Division, being an agent as the Human Resources Manager at Basic Industry Limited which is a subsidiary of Fijian Holdings Limited and the Chairman of the Awards Committee, without lawful authority or reasonable excuse accepted an advantage of FJD 700 from Vusoni Sarakibau, which consisted of FJD 200 from Paula Basoga of Profile Production Company and FJD 500 from said Vusoni Sarakibau of Petro Sound Engineering Ltd, on account of his having given the contract for the provision of lighting service and sound system by the aforementioned companies respectively, which was an act in relation to his principals' affairs namely, for the Sports and Awards night of FHL that is to be held on 3rd November 2012"

2. Though the above particulars of offence refer to the accused "Being an Agent as the Human Resources Manager at Basic Industry Limited which is a subsidiary of Fijian Holdings Ltd and the Chairman of the Awards Committee", it was submitted in the Submission of Sentencing of FICAC that the portion "Chairman of the Awards Committee should be corrected as a member of the Awards Committee". As no prejudice has caused to the accused in putting forward his Mitigation, over this change of facts, I proceed to finalize the sentence on the footing that the accused was a member of the said Awards Committee.
   
3. The accused was produced before this court on 29th October 2012 and pleaded guilty to the above charge on his own free will after the charge was read and explained to him in English. The admitted Summary of Facts revealed that the FICAC has received a complaint from Mr. Vusoni Sarakibau, saying that the accused had demanded a payment of $500 from him and another $200 from one Mr. Paula Bosoga as the commission for the separate jobs given to both of them by the entity of the accused. Mr. Vusoni is said to be the Director and the owner of Petro Sound Engineering Ltd and was awarded the job of fixing the sound system for the Fijian Holdings Ltd Sports and Awards night which was to be held on 3rd November 2012. Mr. Paula, the owner of Profile Production was given the job of installation of lights at the same function.
   
4. It was admitted by the accused that Mr. Vusoni contributed in $500 and Mr. Paula contributed in $200 (as he could not afford the requested amount/demand by the accused as he has just started his business) to a total sum of $700 to be given to him at the JJ's car park at YWCA building. Then the FICAC investigators had proceeded to arrest the accused through the information provided by Mr. Vusoni as soon as the alleged transaction was completed. The accused had admitted receiving an amount of $700 from both Mr. Vusoni and Mr. Paula during his Caution Interview as well.
   
5. Accused proceeded to have an oral mitigation on 29th October 2012 itself after he was convicted to the charge of Bribery. He expressed his remorse by apologizing and seeking forgiveness from the court, everybody who got involved to this, from his senior work mates and the complainants as well. He said that all the money involved was recovered and sought a second chance to be a good citizen of Fiji. It was told that he is a father of 2 daughters who are 2 years and 1 year respectively. It was further said that he is already terminated from work and got the punishment.
   
6. In their Sentencing Submission Prosecution has moved for an immediate custodial sentence. The learned Prosecutor has cited several decided case authorities of higher courts and highlighted the position of the accused in the corporate sector and the attempt of the accused to disturb the "level playing ground for the businessmen in Fiji" and claimed those facts do aggravate the offence with which the accused is been charged with.
   
7. Apart from the oral mitigation of the accused, Mr. Vosarogo also submitted a comprehensive written mitigation on 9th November 2012. While admitting that the accused was the Human Resources Manager of Basic Industries Limited, a subsidiary of Fijian Holdings Ltd, it says that the accused has shown his genuine remorse by pleading guilty at the first opportunity and has lost his job with Basic Industries Ltd and he might not find any blue or white collar job again in the HR sector of formal employment. Paragraph 4(1) of the submission highlights the following grounds to be considered for a lenient sentence;
   
   1. The Defendant's early guilty plea which was taken at the first opportunity; and
      
   2. He had cooperated with police from the beginning of the interview on the 26th of October 2012; and
      
   100. He is diagnosed with an 'enlarged heart' and his continued incarceration will greatly impact his health.
        
   4. His loss of job and the likelihood that he will not find any more HR job in the forma sector; and
      
   5. The shame on his life and this stigma that will be with him and his family; and
      
   6. The suffering of his family due to his jobless situation; and
      
   7. He has spent the last 2 days in remand which we hope that the court will find is sufficient punishment for him in the circumstances of the case.
      

The conclusion of the learned counsel that the accused be given a suspended term or to "partly serve his prison sentence" as done in FICAC v- Anasa Vocea Cr. No. HAC 129/09.

8. Now I turn to see the legal background and the way the higher courts have treated the offence of bribery and to determine what the appropriate sentence to be awarded to the accused. In terms of Section 12(1)(b) of the Prevention of Bribery Promulgation, upon a summary conviction for an offence contrary to Section 9 of the said Promulgation, the accused is liable for a maximum fine of $100,000 and to imprisonment up to 3 years. It is said by the prosecution that this is the first instance where a Magistrates Court is going to sentence an accused who is convicted under Section 9(1)(a) of the said Promulgation and therefore a set precedent is not laid down on sentencing as yet. The case authorities cited by the learned Prosecutor mostly refer to High Court decisions based on Section 4 of the Promulgation. The maximum penalty for an offence contrary to Section 4 is a fine of $500,000 and an imprisonment term of 7 years. It seems the higher courts have taken up a starting point of 2 – 3 years in determining the sentence under Section 4. Before determining the starting point in this instance, I would prefer to see the judicial approach towards the offence of bribery.
   
9. In Robert Yabara v- The State (1984) PNGLR 378, Justice Pratt said
   

"if such occurrence (bribery) became anything more than an extreme rarity they would destroy utterly the very structure of Government and the Rule of Law".

As the Clifford Report says at 69 of Vol. 1 (Law and Order in Papua New Guinea (1983) Clifford, Morauta and Stuart);

"Once started, corruption is hard to stop. Honest businessmen cannot remain competitive if other businessmen acquire competitive advantages through corruption. The easy money floating about in a corrupt society intoxicates many honest men tempted by the easy access to wealth. Imperceptibly corruption spreads through society like a cancer. By the time the State mobilizes to deal with it, the action is often too little and comes too late".

10. Justice T. Monapathi in the case of Rex v- Marius Mahase (RI/T/95/2004 – in the High Court of Lesotho) cited following portion referred to in the case of SV Kelly 1980(3) SA313 by Justice Deitmont,
    

"Bribery has been described by this court as a corrupt and ugly offence. See Narker and Another 1975(1)SA 583(A). In the business would it undermine integrity for the temptation offered is great. It is an insidious crime difficult to detect and more difficult to eradicate. It can, if unchecked or inadequately punished by the court have a demoralizing effect on business standard and fair trading"

Justice Monapathi went on to say

"This in my view, the whole moral fiber not only of the business section collapses. Disorder and chaos gain the upper hand. It is this situation that the court are enjoined to check effectively by being ruthless".

11. The cited authorities are sufficed to say that the firm view that the courts had taken towards the offence of bribery. It was emphasized that this serious criminal offence should be approached with a zero tolerance as the deleterious effect of the crime on economy sabotages the whole social mechanism in various ways. The court has gone to the extent to say that bribery is a cancer on the economy of countries. Keeping in mind the above approach of higher courts towards the crime of bribery, I decide to take a starting point of 12 months imprisonment.
    
12. Upon perusing the admitted Summary of Fact's it is apparent that the accused has used his office as the Manager of Human Resources of Basic Industries (subsidiary company of Fiji Holding Ltd) and as a member of the Awards Committee which was entrusted on Sports and Awards Night for the Fijian Holdings Ltd scheduled to be staged on 3rd November 2012, to get the alleged bribe from Mr. Vusoni and Mr. Paula. It was further admitted that the accused demanded $500 each from Mr. Vusoni and Mr. Paula out of $1,700 and $1,600 that they were to get for their full jobs. It is almost one third of the value of the job/contract they were given. It was further revealed that Mr. Paula had given only $200 because he was not in a position to afford $500.
    
13. This backdrop clearly demonstrates the way the accused has manipulated and misused his office to obtain a financial gain by the way of a bribe. This will no doubt erode the confidence of the public towards the availability of a "level playing" condition in the field of business. I do agree with the prosecutor that those types of occurrences would discourage the honest and ethical business fraternity in Fiji and some may be compelled to succumb to corrupt practices for their survival in the business field. In the light of the facts discussed in paragraph 12 & 13 it is obvious that the offence that the accused is being charged with cannot be viewed on a personal perspective. It is something that affects the entire society over the trust and faith of the holders of high offices and the purity of the system as well. Those factors stated above will definitely aggravate the background of the charge.
    
14. As the accused had pleaded guilty to the charge at the very first outset, the accused is entitled to a 1/3 reduction of the sentence. Therefore, the starting point will come down to 8 months imprisonment. For all the above stated aggravated factors, I add 6 months imprisonment where it reaches to 14 months. Having considered the mitigatory factors submitted to court, both by the accused and his counsel, I reduce 4 months, out of that 14 months imprisonment. As the accused is a first offender with a clean record I deduct further 4 months from the said sentence and the final sentence will then come down to 6 months imprisonment.
    
15. Since the final sentence had come to 6 months imprisonment, I have to decide whether it should be suspended or not. As Justice Priyantha Fernando stated in FICAC v- NIRAJ SINGH – HAC 004 of 2010 (Criminal Case No. 1653 of 2009) "bribery is a crime which should not be treated leniently". Sentencing of this type of instances should be a warning to others and should severely punished as Justice T. Monapathi notes in Marius Mahase's case. Even in R v- Petersen's case (1994) 2 NZLR 533, the New Zealand Court of Appeal commented on "suspended sentence" saying the at the option of suspended sentence should not consider where the need is to deter others was permanent. Justice Gerard Winter in the The State v- Suliasi Sorovakatini (Criminal Case No. HACC 018 of 2005) in paragraph 35 says that;
    

"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 an offence lightly and that they will not suspend sentences just because the consequences for such a person are severe".

16. In this context, I do not see the personal background of the accused and his family ties and obligations can undermine the negative social impact which created out of the conduct of the accused. Though it was stated in the written mitigation that the accused has a health problem/'enlarged heart' issue, it was not supported with any documentary proof and remains a "mere statement". Thus, I do not find any compelling reason or exceptional circumstances to suspend the sentence of the accused. The facts that the involved amount is less or its recovery does not play a major role when the gravity of the offence itself warrants a custodial punishment. Most important thing in sentencing through courts is to safeguard the public interest and to make it clear that whoever imperils the proper and smooth functioning of the social mechanism is severely dealt with. Hence, I do not suspend the already decide 6 months imprisonment. But it was noted that the accused is in remand custody since 29th of October 2012 and it is almost 3 weeks till today.
    

Therefore, it is ordered to deduct that 3 weeks period from the final sentence of 6 months imprisonment and then the final sentence will be 5 months and 1 week imprisonment.

28 days to Appeal.

. . . . . . . . . . . . . . . . . .
Mr. Janaka P. Bandara
Resident Magistrate, Suva

Dated: 16th day of November 2012