Home | Databases | WorldLII | Search | Feedback Magistrates Court of Fiji

State v Buli [2016] FJMC 85; Criminal Case 51.2016 (13 July 2016)

IN THE MAGISTRATES’ COURT OF FIJI

AT TAVEUNI

Criminal Case : 51/2016

STATE
V
TITOKO BULI

For the Prosecution : Sgt Naidu
For the Accused : Mr.A. Paka (LAC) as Duty Solicitor
Date of Sentence : 13^th of July 2016
SENTENCE

1. TITOKO BULI, you were charged in this Court with one count Bribery of a Public Official contrary to section 134 of the Crimes Decree No 44 of 2009.
2. You pleaded guilty with the assistance of Legal Aid who is appearing as duty solicitor and also informed me that you got the proper legal advice for your plea.
3. The admitted summary of facts shows the following :

On the 04^th day of June at about 9:30am at the Police Quarters at Waiyevo,(Pw1) was at his house having his breakfast. Whilst (Pw1) was having his breakfast the accused approached him at his house. The accused wanted o make a request to (Pw1) but he was informed o go down o the police station, to wait there. After (Pw1) had his breakfast the accused was still there and the accused told (Pw1) that his vehicle will expire on that same day and that one Pinky(namely Aneshwar Prasad) who was locked in the cell or a case of drunk driving was to do the painting of his vehicle before it was taken to the Land Transport Authority. The accused was informed by (Pw1) that he had to wait until the said Pinky was released from the cell. As (Pw1) was making his way to the police station, the accused followed him and offered a $50 note to (Pw1). (Pw1) asked what the money was for and the accused replied that it was for release of the said Pinky. (Pw2) who is (Pw1)’s father was also at home. (Pw2) clearly saw the accused holding a $50 note and offering it to (Pw1).

The $50 note was seized by (Pw1) and the accused was arrested and taken to the police station. At the police station the accused was interviewed under caution and during the interview the accused admitted that he had offered a $0 note o (Pw1) for the release of the said Pinky who was locked in the cell. The accused was formally charged for the above offence and produced in custody at Savusavu magistrate’s court.

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 under the Crimes Decree is 10 years imprisonment.
6. In the United Kingdom for the offence of Bribing a person contrary to section 1 of the Bribery Act 2010 same penalty applies.
7. In UK sentencing guidelines based on level of culpability this offence has been categorized as in the following manner :

Category A. High Culpability

- A leading role where offending is part of a group activity

- Involvement of others through pressure, influence

- Abuse of position of significant power or trust or responsibility

- Intended corruption (directly or indirectly) of a senior official performing a public function

- Intended corruption (directly or indirectly) of a law enforcement officer

- Sophisticated nature of offence/significant planning

- Offending conducted over sustained period of time

- Motivated by expectation of substantial financial, commercial or political gain.

Category B. Medium Culpability

- All other cases where characteristics for categories A or C are not present

- A significant role where offending is part of a group activity

Category C. Lesser Culpability

- Involved through coercion, intimidation or exploitation

- Not motivated by personal gain

- Peripheral role in organized activity

- Opportunistic 'one off' offence; very little or no planning

- Limited awareness or understanding of extent of corrupt activity

Where there are characteristics present which fall under different levels of culpability, the court should balance these characteristics to reach a fair assessment of the offender's culpability.

8. The UK guidelines set the tariff for category A as 5-8 years imprisonment and category 2 as 3-6 years imprisonment. For the lesser culpability the sentence range is 18 months to 04 years.
   9. These guidelines have been applied by his Lordship Justice Madigan in FICAC v. Feroz Jan Mohammed and others [2015] FJHC 479; HAC 349.2013(24 June 2015) for this offence.
   10. In this case you were trying to bribe a police officer and based on UK guidelines I find you are falling in to category A offence with the tariff of 5-8 years imprisonment.
       11. In Laisiasa Koroivuki v the State ( Criminal Appeal AAU 0018 of 2010)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".

12. Considering the gravity of offending and your culpability, I select 06 years as the starting point for this sentence.
13. The aggravating factor is you were trying to bribe a police officer, but as this been considered in selecting the starting point I am not going to enhance your sentence.
14. In his mitigation the learned duty solicitor submitted that you are 35 years old, single, remorseful of your action, looking after your elderly mother.
15. Further you called a character witness for your mitigation. Mr.Serusi from Niusawu Methodist Church said you are his cousin brother and sole bread winner of the family. He has counseled you before your father passed away but seems like it has not worked.
16. But for the above mitigating factors I deduct 01 year to reach 05 years imprisonment.
17. You have valid previous convictions and therefore not entitled for discounts for your character even though I am not going to consider them as an aggravating factor.
18. 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”.

19. 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.
20. In this case you pleaded guilty at the earliest available opportunity and for that I deduct 1/3 to 40 months imprisonment which this Court has no power to suspend.
21. The public need to be reminded that offering bribes to public officials including police officers is not acceptable and will be dealt with long custodial sentences. Further in my view the main purpose of sentencing in Bribery offences is general and special deterrence. Accordingly I sentence you to 40 months imprisonment for this offence with a non-parole period of 30 months.
22. 28 days to appeal.
    

Shageeth Somaratne

Resident Magistrate