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FICAC v Yacalevu [2015] FJMC 139; Criminal Case 915.2011 (31 December 2015)

IN THE MAGISTRATES' COURT OF FIJI
AT SUVA

Criminal Case : 915/2011

FICAC

V

KAMELI YACALEVU

Counsel : Ms.F.Puleiwai for the Prosecution
Ms.M.Tarei(LAC) for the Accused

Date of Sentence : 31st of December 2015

SENTENCE

1. KAMELI YACALEVU, you were charged in this Court with one count Accepting an advantage contrary to section 3 of the Prevention of Bribery Promulgation No 12 of 2007.
   
2. You initially pleaded not guilty for this charge wherefore this was fixed for hearing. But later you changed your mind and pleaded guilty on 20th November 2015 and also admitted the summary of facts presented by the FICAC.
   
3. Summary of facts states that:
   

"On the 2nd day of March 2010, Yentesh Naidu (PW-1) aged 54 years, Truck Driver of Sakoca Settlement, Tacirua went to the PWD Joinery Section, Walubay to see Kameli Yacalevu (hereinafter referred to as 2nd Accused), Supervisor High Grade at the Joinery section to enquire about job vacancy for his son Nitinesh Naidu (PW-2). He was informed that 2nd Accused was not at his office. PW-1 was leaving the Joinery Sectin when he was approached by another staff Saiyad Aziz (hereinafter referred to as 1st Accused) who asked him the reasons for his visit. PW-2 was then informed that the requirements for any recruitment are as follows namely the passport photo, birth certificates, education certificates and medical certificate. PW-2 the called PW-1 and informed him o the requirements.

On the 3rd day of March 2010, PW-2 aged 23 years, Upholster at Tacirua Transport of Sakoca settlement, took the rest of the day off to get his birth certificate, passport photos, trade certificates and medical certificate ready as required. PW-2 prepared the required documents and went to the Bailey Clinic to get his medical certificate done. He informed at the Bailey Clinic that it would take four days to get the medical certificate done. PW-2 then decided to take the birth certificate, trade certificates and passport photos to PWD Walubay.

On the 4th day of March 2010 whilst waiting at the Upholstery room, PW-2 met the Upholstery Foreman namely Rajesh Kumar Singh (PW-3) who informed him to have his time card punched before he commence work. At about 6.45am the 1st Accused came in, received the $300.00 from PW-2 before PW-2 started work in the Joinery section that same morning.

On the 8th March 2010, PW-2 was confronted by one Jiten Singh who is a Leading Hand at the Polishing section (PW-4) who heard that PW-2 paid some money to get a job at the Joinery section. PW-4 asked PW-2 whether it was true to which PW-2 relayed the whole story to PW-4. However when 1st Accused was confronted by PW-4 he stated that the 2nd Accused had received the lump sum of $300. That on the same date, PW-2 went to the 2nd Accused office to enquire whether the 1st Accused had given him the $300, to which the 2nd Accused admitted to receiving only $150.00. Furthermore when the 2nd Accused was cautioned, he admitted to receiving only $150.00 from the 1st Accused. (Refer to 'Annexure A Q. & A. 44).

On the 21st day of March 2010 the FICAC Awareness team conducted a presentation on Corruption and Bribery at PWD Joinery section workshop at Walubay. However after listening to the presentation on Bribery and Corruption, PW-2 then realized what he had done was wrong. A few days after the said presentation, complaint was lodged with FICAC to which an investigation was conducted, 2nd Accused was then cautioned on the 25th February 2011 and admitted that on the 4th day of March 2010 him (2nd Accused) being a prescribed officer as the Supervisor High Grade at PWD Walubay at Suva in the Central Division, accepted an advantage namely $150.00 without the general or special permission of the President".

4. I am satisfied that your plea was made on free will after understanding the consequences and therefore convict you for this offence.
   
5. The maximum penalty for this offence is fine of $100000 and imprisonment of 01 year and order to pay to the Government in such manner as the court direct the amount or value of the advantage received him or such part court may specify.
   
6. There is no tariff for this offence but in FICAC v Jone Senibci [2013] FJMC this Court selected 04 months as the starting point whilst in FICAC v Filimone Cakaobau [2013] the court selected the starting point of 06 months.
   
7. Both counsels have filed comprehensive written submissions and I have considered them also for this sentence.
   
8. You were a civil servant for past 35 years and worked with the Public Works Department throughout your career. You were a supervisor and with your experience supposed to be a role model for other employees in your Department. But by engaging in this behavior you breached the trust placed by your superior officers as well as the public who expect high standard from a public official. This betrayal of trust is considered as an aggravating this offence.
   
9. The counsel from the legal aid submitted following as mitigating factors:
   
   1. 62 years old;
   2. Married with 05 children;
   100. First offender;
   4. Co-operated with the police;
   5. Early guilty plea;
   6. Remorseful.
      
10. After considering the gravity of offending I select 05 months imprisonment as my starting point add 03 months for aggravating factor to reach 08 months imprisonment. Past good behavior of the accused is not being considered as a mitigating factor in a breach of trust offences. But your age and cooperation with the police are valid mitigating factors in your favor and for that I deduct 02 months to reach 06 months imprisonment. You pleaded guilty just before the hearing and therefore I deduct only one month to reach 05 months imprisonment.
    
11. Through your counsel you have asked for a non-custodial sentence citing your past good behavior, dependents as well as your ill health. But there is no evidence before me to show about your ill health and past good behavior and hardship faced by family members are not a good reason to suspend a sentence for Bribery offences.
    
12. In R v Chan Koon – kwok Arthur (1990) 2HKCA 161 the Hong Kong Court of Appeal stated:
    

"Attempts to inhibit the spread of corruption necessarily involve an element of general deterrence, even in the case of a first offender, so that the gravity of offences in breach of Prevention of Bribery Ordinance may properly be marked "

13. In State v Prasad (2003) FJHC 320 his Lordship Justice Gates (as he then was) said :

"The public interest lies in the deterrence of dishonest practice 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 favor"

14. Bribery and Corruption are like a cancer to a society and need to be dealt with harshly. Public officials engaging in these practices should not be tolerated and need to be given immediate custodial sentence to denounce their behavior and to deter other civil servants from engaging in such practices. Also a clear message needs to be given that Bribery and Corruption in whatever manner in public sector is not accepted and Public officials have to expect custodial sentence if they engage in them.
    
15. Therefore you are sentenced to 05 months imprisonment for the offence of Accepting an advantage contrary to section 3 of the Prevention of Bribery Promulgation No 12 of 2007.
    
16. 28 days to appeal.
    

Shageeth Somaratne
Resident Magistrate