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FICAC v Waqavonovono [2016] FJMC 116; Criminal Case 1936.2015 (12 August 2016)

IN THE MAGISTRATES’ COURT OF FIJI

AT SUVA

Criminal Case No: - 1936/2015

FICAC

V

ILIESA JORDAN NAQURA WAQAVONOVONO

Counsel : Ms.SeraFatafehi for the FICAC

Ms.Mishra(LAC) for the Accused

Date of Sentence : 12th of August 2016

SENTENCE

  1. ILIESA JORDANNAQURA WAQAVONOVONO, you were charged with 2 counts of Abuse of Office contrary to section 139 of the Crimes Decree ;one count of Falsification of Documents contrary to section 160(3) of the Crimes Decree and one of Obtaining Financial advantage by Deception contrary to section 326(1) of the Crimes Decree .
  2. On 18/01/2016 you pleaded guilty to the Count 2(Abuse of Office); Count 3(Falsification of Documents) and Count 4(Obtaining Financial advantage by Deception) and on 08/02/2016 the FICAC withdrew the Count 1(Abuse of Office).
  3. You admitted to the following summary of facts presented by the FICAC on 19/07/2016:
    1. The Accused in this case is IliesaNaqura Jordan Waqavonovono, 24 years old of Milverston Road, Raiwaqa(the Accused).
    2. On 22nd December 2014 to 20th August 2015, the Accused was employed as a Temporary Clerical Officer with the Fiji Procurement Officer (F.P.O) within the Ministry of Finance (MOF).
    1. By reasons of his employment as per paragraph 2, the Accused was employed in the public service within the meaning of Section 4 of the Crimes Decree No. 44 of 2009.

Count 2

  1. On 22nd December 2014 the Accused whilst being employed as the Temporary Clerical Officer at F.P.O held in his possession a Government of Fiji Cheque No. 33641 dated 22/12/2014 amounting to $71,445.46. The said Cheque had been printed by the MOF Treasury Department for the payment of F.P.O Payment Voucher No. 76685 amounting to $12,861.25 and F.P.O Payment Voucher No. 76667 amounting to $58,584.21.
  2. On 6th January 2015 the Accused presented the said Cheque No. 33641 with a Bank of the South Pacific (BSP) Telegraphic Transfer (T/T) From Reference No. 25/15/017 for PV No. 76685 (excluding PV No. 76667) at the BSP Suva Central, Trade Centre Branch for facilitation of payment. The Bank officer upon sighting only one T/T Form Reference No. 25/15/017 produced with Cheque No. 33641 only processed the said T/T From for PV No. 76685. Then Bank officer, upon the request of the Accused provided a BSP Bank Cheque No. 389557 dated 06/01/2015 amounting to $58,574.16 as refund for the unprocessed PV. No. 76667. The Accused did not inform MOF of this transaction and held in his possession the BSP Bank Cheque No. 389557 for the unprocessed or refund sum of $58,574.16, an act prejudicial to the rights of the Ministry of Finance.
  3. On 16th March 2015, PV No. 78730 amounting to $511.00 was raised by F.P.O. On 19th March 2015 another PV No. 78883 amounting to $9,801.77 was also raised by F.P.O. Both PV No. 78730 & 78883 was produced to the MOF Treasury Department on 20th March 2015 for which a Government of Fiji Cheque No. 33949 amounting to $10,312.77 was printed on the same day. The said Cheque was collected from the Treasury Department by the Accused. Instead of producing the said cheque to BSP payment of the above mentioned PV’s, the Accused kept Cheque No. 33949 in his possession without the knowledge of the F.P.O.
  4. On 23rd March 2015 PV No. 78961 amounting to $38,811.67 was raised by F.P.O. The said PV was produced to the Treasury Department, from which Government of Fiji Cheque No. 33969 amounting to $38,811.67 was printed on 25th March 2015. This said Cheque was collected from the Treasury Department by the Accused. Much like ChequeNo. 33949 (as per paragraph 6), the Accused did not produced Cheque No. 33969 to BSP for payment with its associated PV but rather, kept the said Cheque in his possession without the knowledge of F.P.O.
  5. Between 16 March 2015 and 17 March 2015 the Accused had prepared T/T Form Reference No. 25/15/1200 for PV No. 78730 Form Reference 25/15/1199 for PV No. 78883 and T/T Form Reference No. 25/15/1198 for PV No. 78961. Sometime on 27 March 2015 at BSP Central Trade Centre Branch, the Accused entered the details “BSP Bank Cheque No. 389557” in the “Payment Mode” section all three mentioned T/T Forms and thereafter produced BSP Bank Cheque NO. 389557 amounting to $58,574.16 (as per paragraph 4 & 5) for payment for all three PV’s 78730, 78883 & 78961 totaling $49,124.44.
  6. Later on 31st March 2015 the Accused proceeded back to the BSP Suva Central Trade Centre Branch where a BSP Officer provided him with a BSP Bank Cheque No. 393938 amounting to $9,424.66. This was refund for the payment of PV’s 78730, 78883 & 78961. Again, similar to BSP Bank Cheque No. 389557 (as per paragraph 4, 5 & 9), the Accused did not inform MOF of this transaction or refund and held in his possession BSP Cheque No. 39338 for the refund sum of $9,424.66, an act prejudicial to the rights of the Ministry of Finance.

Count 3 & Count 4

Government of Fiji Cheque No. 33949

  1. Between the 20th of March 2015 and the 9th of April 2015 the Accused altered Government of Fiji Cheque no. 33949 by adding “8663517” in the “pay to the order of” section of the cheque, using a blue ball point pen.
  2. Thereafter, on 9th April 2015 the Accused presented the altered Government of Fiji Cheque No. 33949 amounting to $10,312.77 together with a BSP Deposit Slip containing the details of said Cheque Number and said amount for Account Name: Iliesa N.J. Waqavonovono and Account Number: 8663517 to the BSP Suva Central Branch to be deposited into his personal account. The said transaction was successful and the total amount of $10,312.77 as per Cheque Number 33949 was deposited into the Accused’s BSP Personal Bank Account Number 8663517 on the 9th of April 2015.

Government of Fiji Cheque No. 33969

  1. Between the 25th of March 2015 and the 24th of April 2015 the Accused altered Government of Fiji Cheque No. 33969 by adding “8663517” in the “pay to the order of” section of the cheque, using a blue ball point pen.
  1. Thereafter, on 24th April 2015 the Accused presented the altered Government of Fiji Cheque No. 33969 amounting to $38,811.67, together with a BSP deposit slip containing the details of said Cheque Number and said amount for Account Name: Iliesa N. J. Waqavonovono and Account Number: 8663517 to the BSP Suva Central Branch to be deposited into his personal account. The said transaction was successful and the total amount of $38,811.67 as per Cheque Number 33969 was deposited into the Accused’s BSP Personal Bank Account Number 8663517 on the 24th of April 2015.

Government of Fiji Cheque No. 34615

  1. Between the 20th of August 2015 and the 24th of August 2015 the Accused altered Government of Fiji Cheque No. 34615 by adding “8663517” in the “pay to the order of” section of the cheque, using a blue ball point pen.
  2. Thereafter, on 24th August 2015, the Accused presented the altered Government of Fiji Cheque No. 34615 amounting to $8,284.64, together with a BSP deposit slip containing the details of said Cheque Number and said amount for Account Name: Iliesa N. J. Waqavonovono and Account Number: 8663517, to the BSP Suva Central Branch to be deposited into his personal account. The transaction was successful and the total amount of $8,284.64 as per Cheque Number 34615 was later deposited into the Accused’s BSP Personal Bank Account Number 8663517 on 24th August 2015.
  3. As the result of the Accused’s conducts, the deposit of the three (3) altered Government of Fiji Cheques namely Cheque no. 33949, Cheque No. 33969 and Cheque No. 34615, the Accused obtained a financial advantage amounting to the total sum of $57,409.08 which the Accused knew he was not eligible to receive the financial advantage.

Caution Interview

  1. The Accused was interviewed under caution between the 22nd of September 2015 and 19th of November 2015. He was then later charged on the 20th of November 2015 for two (2) counts of Abuse of Office contrary to Section 139 of the Crimes Decree, one (1) count of Falsification of Documentscontrary to Section 160(3) of the Crimes Decree and one (1) count of Obtaining Financial Advantage contrary to 326(1) of the Crimes Decree No. 44 of 2009.

Conclusion

  1. The Accused pleaded guilty to Counts 2, 3, & 4 on 18th January 2016 and admits that he abused his office by retaining in his personal possession Cheque No. 389557 amounting to $58,574.16 and Cheque No. 393938 amounting to $9,424.66 which ought to be refunded to the Ministry of Finance, which was an act prejudicial to the Ministry of Finance.
  2. Secondly, the Accused falsified by altering Government of Fiji Cheque No. 33949 amounting to $10,312.77, Cheque No. 33969 amounting to $38,811.67 and Cheque No. 34615 amounting to $8,284.64 in entering his personal account no. “8663517” as payee.
  3. Thirdly, as a result of falsifying these 3 Government of Fiji Bank Cheques, the Accused therefore obtained an financial advantage to the total sum of $57,409.08 which was deposited to the accused’s BSP Personal Bank Account No. 8663517 on three separate occasions.
  4. Lastly, to date there was no attempt for restitution made by the accused for the sum of $57,409.08.
  1. I am satisfied that your plea was made voluntarily after understanding full legal consequences and also unequivocal. Accordingly I convict you for these 3 counts.

The Law and Tariff

Abuse of Office

  1. According to section 139 of the Crimes Decree the penalty for Abuse of office is 10 years’ imprisonment and if the act is done for gain a 17 years’ imprisonment applies. Since the accused has been charged with using his office to obtain some financial benefit he falls to the second category.
  2. In her sentencing submission the learned counsel from FICAC submitted number of case authorities for this court to refer and I am grateful for that.
  3. In FICAC v TevitaPeni Mau &MahendraMotibhai Pate [2011] FJHC 222;HAC 089 .2010 (14 April 2011) his Lordship Justice Goundar after reviewing the sentences for Abuse of Office said at para 15:

“The case show that the sentences for abuse of office range from probation order to imprisonment sentences, depending on the nature or the arbitrary act committed by the public servant, the seniority of the public servant in the institution, the motive and the intention of the public servant, the nature of the harm done to be the complainant and the nature of gain, if any, by the public servant”.

  1. In that case the court imposed 9 months and 12 months custodial sentence for Tevita Peni Mau and Mahendar Motibhai Patel respectively for abuse of office. In that case, the accused Tevita Peni Mau was convicted for a misdemeanor and the accused Mahendra Patel was convicted for a felony, as the offence was committed for the purpose of gain.
  2. In FICAC v OlotaRokovunisei [2010] FJHC 1046;HAC 37B.2010(2 May 2012) where the Accused was convicted for committing the offence of abuse of office for the purpose of gain, his Lordship Justice Fernando selected a starting point of 1 ½ years and sentenced Olota to 12 months imprisonment.
  3. In FICAC v Farzand Ahmed Khan [2010] FJHC 145;HAC 082.2010(28 April 2010) in relation to the charge of abuse of office, the accused had pleaded guilty and considering all other mitigatory factors, the court selected a starting point of 12 months and thereafter sentenced the accused to 6 months imprisonment.
  4. In FICAC v JaswantKumar[2010]FJHC 65;HAC 001.2009(2 March 2010) the accused Jaswant Kumar was sentenced 12 month’s imprisonment on the charge of abuse of office.
  5. In the case of State v Kunatuba[2006] FJHC ;HAC 18.2006(15 November 2006) her Ladyship Justice Shameem commenced with a starting point of 2 ½ years for the offence of abuse of office. In the same case the accused was sentenced to a total of 4 years imprisonment on 2 counts of abuse of office to be served consecutively. Furthermore, the Court of Appeal whilst the case was appealed affirmed that the accused was properly sentenced for abuse of office.
  6. Furthermore in the case of State v Sorovakatini [2007] FJHC 32;HAC 018.2005(26 September 2007) his Lordship Justice Gerard Winter in relation to the charges of abuse of office and official corruption commenced with the starting point of 2 years, only because he found that the accused was less culpable than that of the head of department.
  7. However he concurred with Justice Shameem’s starting point being 2 ½ years for the charge of abuse of office as stated in the case of Kunatuba. He stated that 2 ½ years is an appropriate way to begin the penalty calculation in Fiji for a senior civil servant to be sentenced for abuse of office. The accused in the case of Sorovakatini was sentenced to 16 months imprisonment for the count of abuse of office.
  8. Therefore perusing the above decisions would show that the sentence for abuse of office for a gain would be between 12 months to 2 years imprisonment (FICAC v TevitaPeni Mau &MahendraMotibhai Pate(supra), FICAC v OlotaRokovunisei(supar), FICAC v JaswantKumar(supra) ,State v Kunatuba(supra) andState v Sorovakatini(supra)
  9. But it is important to remember that all the above sentences were given under the Penal Code where the maximum penalty for this offence was only 03 years imprisonment. Under the Crimes Decree this has been increased to 10 years and further increase to 17 years when the act was done for a gain.
  10. Clearly the intention of the legislature was to consider this as serious offence by enhancing the sentence up to 17 years and the duty of the court is to implement that. Therefore in my view adopting the old precedents under the Penal Code for this offence would be wrong in principle and disregarding the intention of the legislature. Hence I am not going to adopt the old tariff for this offence.
  11. Further the maximum sentence for Abuse of Office for a gain under the Crimes Decree is 17 years’ imprisonment which is increase of 06 fold than the identical provision under the Penal Code for felony (3 years imprisonment).
  12. Enhancing the tariff in the same range would in my view give 06 -12 years’ imprisonment for this offence under the Crimes Decree subject to the guideline judgment from the High Court.

Falsification of Document

  1. According to section 160(3) of the Crimes Decree the penalty for Falsification of Documents under this section is 7 years of imprisonment.
  2. In State v Bole Judge Shameem noted that the tariff for the mirror provision of this same offence under the Penal Code for breach of trust sentences ranges from 18 months to 3 ½ years’ imprisonment. She further noted that higher terms are imposed where there is a serious breach of trust, committed over a long period of time and where there has been no attempt at restitution and no remorse expressed or a guilty plea.

Obtaining Financial Advantage

  1. According to section 326(2) of the Crimes Decree the penalty for Obtaining Financial Advantage under this section is 10 years imprisonment.
  2. Previously there is no set tariff for this offence however in FICAC v Feroz Jan Mohammed and Others [supra) Judge Madigan at paragraph 29 of the Sentence stated that:

“There is much authority to dictate the tariff for “Obtaining Financial Advantage by Deception” (s. 318) lies between 2 to 5 years but a tariff have never been set for the present offence. It is a summary offence and for that reason the tariff cannot be set too high. Absent the element of deception, the tariff should be 2 – 4 years but in cases where the obtaining is linked to a far more perfidious crimes then the sentence for that crime should flow on the sentence for the obtaining offence. This will apply particularly where a financial advantage has been obtained through corruption. Therefore if this offence is charged alone the tariff of 2 – 4 years should apply but if charged in conjunction with another “enabling” offence, it will adopt the sentencing tariff for that particular offence.”

  1. Selecting the starting point I have been also guided by LaisiasaKoroivuki v the State ( Criminal Appeal AAU 0018 of 2010) where the Fiji Court of Appeal discussed the guiding principles for determining the starting point in sentencing and observed :

"In selecting a starting point, the court must have regard to an objective seriousness of the offence. No reference should be made to the mitigating and aggravating factors at this time. As a matter of good practice, the starting point should be picked from the lower or middle range of the tariff. After adjusting for the mitigating and aggravating factors, the final term should fall within the tariff. If the final term falls either below or higher than the tariff, then the sentencing court should provide reasons why the sentence is outside the range".

  1. In this case I am going to select Abuse of Office as my base sentence. This offence is clearly a serious offence in the society betraying the public trust and eroding the public confidence of the government institutions. Considering the objective seriousness of the offence without aggravating factors, I select 04 years as my starting point for the Abuse of Offence which is also the lower end of the maximum sentence for this offence under the Crimes Decree even though as mentioned above in my view the tariff would be 6-12 years imprisonment.

Aggravating factors

  1. The accused was employed as clerical officer in Fiji Procurement Office of Ministry of Finance and according to his caution statement was dealing with overseas companies. He was entrusted with making payments for the goods supplied by these companies to various Ministries. But by retaining the cheques without refunding to the Ministry of Finance to obtain gain the accused breached the trust of his employer as well as the public in this country.
  2. These offending were committed in a period of 09 months from December 2014 to August 2015 .This clearly shows that he systematically and carefully committed the offending and further confirmed by the manner he committed them. According to the prosecution from the 5 cheques involved in this case he used 2 ( chq no 389557 and 393398) to pay to the various suppliers whilst retaining 3 ( chq no 33949,33969 & 34615) which were later cashed and deposited to his personal account to ensure no suspicious would be falling on him.
  3. According to the prosecution these payments were for purchases of various items for Ministry of Health and Ministry of Energy for the services to the public in this country. Thus depriving the payments for the suppliers the accused prejudiced the people of Fiji of their right to essential services.
  4. Further depriving the payments for the oversea suppliers would erode the confidence by the International business community on the Government as well as on the country.
  5. The amounts obtained was substantial ($57,409.08.) which further aggravates by the fact that these were public funds. The accused managed to obtain these public funds because he failed to turn over the refunded cheques to the ministry.
  6. For these aggravating factors I add 04 years to reach 08 years imprisonment for the Abuse of Offence.

Mitigating factors

  1. The learned defence counsel in her comprehensive mitigation submitted following mitigating factors :
    1. You are a young offender (24 years old);
    2. First offender;
    1. Presently working as a stock controller at Damodar Event Cinema with a income of $100.00 weekly ;
    1. Cooperated with the police;
    2. Full restitution ;
    3. Currently pursuing a Diploma in Media Journalism in FNU as a full time student;
    4. Assisted Tropical Cyclone Winston victims in Ba and Rakiraki in counseling ;
    5. Remorseful and seeking forgiveness.
  2. Generally a person with unblemished character would be given position of trust and responsibility and the courts have held that therefore great weight should not be given to that in a breach of trust offence .State v Bole (supra) and FICAC v TevitaPeni Mau &MahendraMotibhaiPate(supra) .
  3. In this case I believe your good character would have helped you to secure your employment in the public office as well as responsibility to handle the public funds. Hence I do not give much weight to your unblemished character as a mitigating factor.
  4. Further even though there was full restitution to the Ministry of Finance you were not involved in that and should not be given credit also.
  5. Even though it was submitted that you have cooperated with the police, in fact this was handled by the FICAC and in your caution statement you have not admitted to any of the offending.
  6. But there need to be some credit for your young age and other personal mitigating factors and I deduct 02 year to reach 06 years imprisonment.

Early Guilty Plea

  1. It has been a practice by a sentencing court to consider guilty plea separately and give an appropriate discount.
  2. In Naikelekevesi v The State Criminal Appeal No AAU 0061 of 2007 it was observed :

“...where there is a guilty plea ,this should be discounted for separately from the mitigating factors in a case”.

  1. In UK Guilty Plea guidelines of 2007 it has been held that when an accused pleaded guilty at the first available opportunity the reduction is 1/3 and after a trial date is set 1/4 recommended. But when an accused pleaded guilty at the door of the court or after the trial has started he maybe entitle for only 1/10 discount.
  2. In Fiji this has been discussed comprehensively by his Lordship Justice Madigan in PosateRainima v The State , Criminal Appeal No AAU 0022 of 2012 where the Lordship said :

“[45] Although the judge passing sentence below took all matters complained of into consideration when assessing an appropriate "global" sentence, it is better sentencing practice to specify terms of discount when allowing for such matters as pleas of guilty, time on remand and clear record for example. The convict and the reader can then see easily the various components of a sentence and sentence appeals could be prevented.

[46] Discount for a plea of guilty should be the last component of a sentence after additions and deductions are made for aggravating and mitigating circumstances respectively. It has always been accepted (though not by authorative judgment) that the "high water mark" of discount is one third for a plea willingly made at the earliest opportunity. This Court now adopts that principle to be valid and to be applied in all future proceedings at first instance.

[47] Pleas of guilty made at later stages than earliest opportunity cause more difficulties in the assessment of how much discount should be afforded to them. It is not for this Court to suggest an appropriate sliding scale because it must remain a matter of judicial discretion. We would however make three points very clear in this regard:

(i) A plea of guilty before trial must be afforded some discount given that the cost of trial (including time and cost of assessors) is saved.

(ii) A plea of guilty at a later stage before a trial involving a vulnerable witness must be given a meaningful discount (say 20-25%) to recognize the fact that the vulnerable witness is not put through the ordeal of giving evidence.

(iii) A plea during trial after an accused has heard unshakeable evidence of a victim/complainant or after an inculpatorycaution interview has been admitted into evidence is not deserving of any discount whatsoever.”

  1. You pleaded guilty early and this case was dragging on for some time due to disputes about the summary of facts. Hence in my view you deserve full credit and accordingly I deduct 1/3 from your sentence to reach 04 years for the Abuse of Office.
  2. For the offence of Falsification of Documents and Obtaining Financial Advantage by Deception the aggravating factors are breach of trust and premeditation and mitigating factors are same as considered by me above .Accordingly I sentence you to 2 years imprisonment for the Falsification of Documents and 3 years imprisonment for the Obtaining Financial Advantage by Deception respectively.
  3. Considering the totality principle I order these to be concurrent.
  4. The message must be clearly sent to public service officials that that when they abuse their positions for own selfish interests, they have to face severe sentences to preserve the public’s faith in the integrity of public institutions.
  5. ILIESA JORDANNAQURA WAQAVONOVONO, I sentence you to 04 years imprisonment for the offence of Abusing Office, 2 years imprisonment for the Falsification of Documents and 3 years imprisonment for the Obtaining Financial Advantage by Deception to be served concurrently. Pursuant to section 18 of the Sentencing and Penalties Decree I also fix 3 years as the non-parole period in this case.
  6. 28 days to appeal.

Shageeth Somaratne

Resident Magistrate

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