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Fiji Independent Commission Against Corruption (FICAC) v Katia - Sentence [2017] FJMC 72; Criminal Case 1958.2016 (1 June 2017)

IN THE MAGISTRATES’ COURT OF FIJI

AT SUVA

Criminal Case : 1958/2016

FIJI INDEPENDENT COMMISSION AGAINST CORRUPTION
(FICAC)
V
VILIAME KATIA

Counsel: Ms.Laite Bokini for the Prosecution
Mr.Vananalagi for the Accused
Date of Sentence : 01^st of June 2017

SENTENCE

1. VILIAME KATIA, you were charged by FICAC with 01 count of Abuse of Office for Gain contrary to section 111 of the Penal Code , 02 counts of Forgery contrary to section 341(1)of the Penal Code, 01 count of Embezzlement by Servant contrary to section 274(b) (ii) of the Penal Code, 02 counts of Abuse of Office for Gain contrary to section 139 of the Crimes Act , 02 counts of Forgery contrary to section 156(1) of the Crimes Act , 01 count of False information to Public Servant contrary to section 201 of the Crimes Act , 01 count of Unauthorized Modification of Data contrary to section 341(1) of the Crimes Act and 01 count of Obtaining a Financial Advantage contrary to section 326(1) of the Crimes Act. In total you were charged with 11 counts that were committed from 01^st July 2008 to 14^th January 2016 resulting in total loss of $4,118,447.43 to the Office of the Official Receiver.
2. You elected this court and pleaded guilty to all the counts on 29^th of March 2017 .You also admitted following summary of facts presented by the prosecution :

1. The Accused in this case is Viliame Katia, aged 37 years of Lot 28 Bryce Street, Raiwaqa, Suva (hereinafter referred to as “The Accused”).

2. The Accused was employed in the Office of the Official Receiver as the Acting Deputy Official Receiver from 1 July 2008 to 14 January 2016 and was based at their Suva Office at all times material to this case.

3. The Accused, by virtue of his employment as the Acting Deputy Official Receiver, was a person employed in the public service within the meaning of section 4(1) of the Crimes Act 2009 at all times material to this case.

4. The office of the Official Receiver acts as “Receiver” through the instructions of the High Court of Fiji as a result of creditors’ petitions against debtors considered to be bankrupt individuals or liquidated firms and acts as the Trustee for funds received from such petitions. The Office of the Official Receiver has offices located in Suva, Lautoka and Labasa; however, all payments are processed by the Accounts Section based at their Suva Office.

5. The Office of the Official Receiver, in order to fulfill its duties as trustee of liquidation and bankruptcy funds, operates two(2) bank accounts, namely the Official Receiver’s Bankruptcy Account (hereinafter referred to as the “Bankruptcy Account”) and the Official Receiver’s Liquidation Account (hereinafter referred to as the “Liquidation Account”).

6. The Accused, by virtue of his employment as the Acting Deputy Official Receiver, had the fiduciary duty to ensure the proper safekeeping and management of funds held within the Bankruptcy and Liquidation Accounts, at all times material to this case.

7. The Office of the Official Receiver, in order to keep accurate debtor and creditor records for Bankruptcy and Liquidation matters, held all records within a computer system known as the FOX PRO SYSTEM which was contained within a computer located within the premises of the Office of the Official Receiver, at all times material to this case.

8. The FOX PRO SYSTEM contained individual ledger accounts for all creditors and debtors, the various amounts paid by the debtors who would be the bankrupt individuals and liquidated firms, the amounts paid to creditors and the balances available for each accounts.

9. The Accused was fully aware of the FOX PRO System’s functions, the fact that the FOX PRO SYSTEM was open to editing and also knew that the system was used by the Office of the Official Receiver to report bankruptcy information requested by financial institutions and stakeholders at all times material to this case.

Counts 1 – 4

10. Between 1st July 2008 and 31st January 2010 the Accused arbitrarily caused the Accounts Section of the Office of the Official Receiver to process 89 falsified payments amounting to $339,201.05 from the Bankruptcy Account to his own gain. (Please see breakdown in Annexure 1).

11. As per paragraph 10, the Accused made false documents, namely typed false internal memorandums purported to have been made by one Ms. Laise Dawai, an employee of the Official Receiver’s Office in Lautoka, before printing out the same and forging the signature of the said Ms. Dawai onto the falsified internal memorandums.

12. Furthermore, as paragraph 10, the Accused would then proceed to type false emails from Ms. Dawai before printing the same and attaching the abovementioned false internal memorandums.

13. As per paragraphs 10 – 12, the Accused would state in the falsified emails and internal memorandums, that certain creditors had agreed to take part or reduced payments from debtors who owed them money and thus needed their payments processed.

14. The Accused would then place his own minute onto the falsified emails and produce them before the Accounts Section of the Official Receiver’s Office in order to have them process payments to purported creditors.

15. The Accused would thereafter pick up the cheques, made out the purported creditors, and encash the same for his own personal use.

16. As a result of the Accused’s actions, bona fide creditors lost their rights to claim a part or the whole of the $339,201.05 and the Government of Fiji, through the Office of the Official Receiver, was unable to keep a proper accounting of the funds entrusted to it.

Counts 5 – 8

17. Between 1st February 2010 and 31st July 2014 the Accused arbitrarily caused the Accounts Section of the Office of the Official Receiver to process 906 falsified payments amounting to $2,472.161.18 from the Bankruptcy Account for his own gain. (Please see breakdown in Annexure 2).

18. Further, between 1st July 2014 and 31 December 2015 the Accused arbitrarily caused the Accounts Section of the Office of the Official Receiver to process 420 falsified payments amounting to $1,307,085.20 from the Liquidation Account for his own gain. (Please see breakdown in Annexure 3).

19. As per paragraphs 17 and 18, the Accused would use a computer that held the FOX PRO SYSTEM records of the Government of Fiji by adding false debtor and creditor information.

20. Subsequently, the Accused then made false documents, namely emails that were purported to have been made by and sent from one Mr. Sanaila Nukutaumaki, an employee of the Official Receiver’s Office in Lautoka stating that certain creditors, which he had created in the FOX PRO SYSTEM, had agreed to take part of reduced payments from debtors who owed them money and thus needed their payments processed.

21. The Accused would then print out the falsified emails and write his own minutes onto them as purported endorsements of the falsified claims.

22. Thereafter, the Accused would then produce the falsified emails and claims with his accompanying minutes before one Mr. Abhi Ram, who was employed in the public service as the Acting Official Receiver, in order to induce the said Mr. Abhi Ram into believing the falsified claims were genuine and approving the same for payment.

23. The Accused would then produce the falsified emails along with the approvals from Mr. Abhi Ram before the Accounts Section of the Official Receiver’s Office in order to have them process payments to purported creditors.

24. The Accused would thereafter pick up the cheques, made out to the purported creditors, and encash the same for his own personal use.

25. As a result of the Accused’s actions, bona fide creditors lost their rights to claim a part or the whole of the $2,472,161.18 from the Bankruptcy Account and $1,307,085.20 from the Liquidation Account and the Government of Fiji, through the Office of the Official Receiver, was unable to keep a proper accounting of the funds entrusted to it.

Count 9

26. Between 1 February 2010 and 31 December 2015, the Accused, without authorization, modified the computer data containing the official liquidation and bankruptcy records contained within the FOX PRO SYSTEM and held by the Office of the Official Receiver for the Government of Fiji.

27. As per paragraph 26, the Accused would add falsified debtor and creditor information into the records held by the FOX PRO SYSTEM and, at the time, was reckless as to whether the modifications he made, by way of the false information that he had added, would impair the reliability and security of such important data that was relied upon by the Office of the Official Receiver as well as financial institutions and stakeholders who required accurate bankruptcy and liquidation records for their use.

Count 10

28. As a result of his actions, as set out in paragraphs 17 – 27, the Accused obtained a total financial advantage of $3,799,246.38 from the Bankruptcy and Liquidation Accounts, between 1st February 2010 and 31 December 2015, all while knowing that he was not eligible to receive the said advantage.

Count 11

29. On 14 January 2016, the Accused made a false document, namely a Court Order on Winding Up dated 28 May 1992 purported to have been made by the High Court in Lautoka as well as Proof of Debt General Forms.

30. As per paragraph 29, the Accused intended to use the false documents to induce public officials within the Office of the Official Receiver’s Accounts Section to accept them as genuine and process payments that had been falsified by the Accused for his own gain.

Conclusion

31. The Accused was produced in the Suva Magistrates Court and charged with eleven (11) counts of Abuse of Office for Gain, Forgery, Embezzlement by Servant, Giving False Information to Public Servant, Unauthorized Modification of Data and Obtaining Financial Advantage on 18th November 2016.

32. The Accused pleaded Guilty to all 11 Counts on 29 March 2017.

33. Finally to date, the Accused has not made any attempt at restitution for the total sum of $4,118,447.43 that he embezzled and falsely obtained from the Official of the Official Receiver’s Bankruptcy and Liquidation Accounts from 2008 to 2015.

3. Being satisfied that your plea was made voluntarily after fully understanding the legal consequences this court convicted you for all the counts.
4. Both parties have filed their respective submissions on 18^th May 2017 and I have carefully considered them also for this sentence. I would also want to commend the prosecution for their comprehensive and well researched sentencing submission.
5. The learned counsel for the accused in his mitigation submission argued that the final sentence for the Abuse of Office for Gain under the Crimes Act should be 07 years considering his guilty plea at the earliest available opportunity. This is compared to Fiji Independent Commission Against Corruption (FICAC) v Laqere - Sentence [2017] FJHC 337; HAC56.2014 (10 May 2017) where the accused wasted the time of the High Court and went for full hearing that lasted for nearly 31 days which resulted in 10 years imprisonment for this offence.
6. The learned counsel for the FICAC argued that considering the guidelines laid in Fiji Independent Commission Against Corruption (FICAC) v Laqere(supra) the final sentence for the Abuse of Office for Gain may fall beyond the jurisdiction of this court and it would be prudent to transfer this matter to the High Court for sentencing . If this court elected to sentence the accused he must be sentenced to immediate custodial sentence.

The Law and Tariff
Abuse of Office for Gain under the Penal Code

7. The maximum penalty for Abuse of Office under the Penal Code is 02 years imprisonment when convicted for misdemeanor and when this was committed for the purpose of gain the penalty is 03 years imprisonment.
8. In this case the accused has been convicted for one count of Abuse of office for Gain under the Penal Code.
9. 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”.

10. 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. 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.
11. In FICAC v Olota Rokovunisei [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, the court selected a starting point of 1 ½ years and sentenced Olota to 12 months imprisonment.
12. 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 migratory factors, the court selected a starting point of 12 months and thereafter sentenced the accused to 6 months imprisonment.
13. 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.
14. 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 in the appeal held that the accused was properly sentenced for abuse of office.
15. 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.
16. 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.
17. Therefore perusing the above decisions would show that the sentence for abuse of office for a gain under the Penal Code 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) and State v Sorovakatini(supra).

Abuse of Office under the Crimes Act

18. The maximum penalty for Abuse of Office under the Crimes Act is 10 years imprisonment and when this was carried out for a purpose of gain the penalty is 17 years imprisonment. The accused committed these offences for the purpose of gain and hence 17 years imprisonment would apply for him in this case for the 5^th and 6^th count.
19. In Fiji Independent Commission Against Corruption (FICAC) v Laqere – his Lordship Justice Rajasinghe discussed about the tariff for this offence under the Crimes Act in the following manner :

“25. I would like to adopt the same approach in setting an appropriate tariff, allowing the sentencing court to determine the appropriate starting point based on the level of culpability and the prejudice/ harm caused. Accordingly, I find a tariff limit of one (1) year to twelve (12) years would adequately serve the above purpose. The sentencing court could consider the following ranges of starting point based on the level of culpability and the harm caused;

26. In order to determine the level of culpability, the court could consider the following factors; however, this is not an exhaustive list. They are:

i The level of contribution or the influence made by the accused in the commission of the offence,

ii The level of authority, trust and the responsibility reposed in the position held by the accused,

iii Has the accused influenced or pressured others to involve in the offence,

iv Nature and the manner in which the offence was committed or planned,
v. Number of victims,

vi Whether the accused involved in the offence through force, coercion, exploitation or intimidation,
vii Not motivated by personal gain,
viii Opportunistic “one-off” offence with little or no planning,

The level of harm/prejudice can be determined by considering the level of gain and the impact on the victim.”
Forgery under the Penal Code

20. Under section 341 of the Penal Code the Forgery is a misdemeanor with a penalty of 02 years imprisonment.
21. In Fiji Independent Commission Against Corruption v Jogia [2012] FJHC 874; HAC098.2009S (17 February 2011) his Lordship Justice Temo said that the tariff would be 06 months to 12 months imprisonment.

Forgery under the Crimes Act

22. The maximum penalty under the Crimes Act is 10 years imprisonment.
23. In State v Prasad [2011] FJHC 218; CRC024.2010 (19 April 2011) the High court observed:

“The tariff for forgery has always been seen as between eighteen months to three years imprisonment depending on the circumstances of the case. It is the Court's view that this tariff having been in place for many years seriously needs to be revisited. In these lean economic times forgery, especially by those in positions of trust, is becoming far too prevalent and the forgery is usually the conduit to obtaining money or property by means of the uttering of the forged document.

[31] There is no reason now why the range for forgery should not be between 3 years and 6 years, with factors to be considered to be –

high gain – actual or intended.

Whether the accused a professional or non professional.

Sophisticated offending with high degree of planning.

Target individuals rather than institutions.

Vulnerable victim”

Embezzlement by Servant

24. Under section 247 of the Penal Code the maximum penalty for this offence is 14 years imprisonment.
25. In State v Vatunalaba [ 2010 ] FJHC 99; HAC 134.2008S ( 31 March 2010 ) and FICAC v Lata [ 2013] FJHC 128; HAC 65.2011 ( 21 March 2013) it was held that the tariff is from 18 months to 03 years for this offence.

Giving False information to Public Servant

26. The maximum penalty for giving false Information to Public Official is 05 years imprisonment under the Crimes Act.
27. In Balaggan v State [ 2012] FJHC 1032; HAA 031.2011 924 April 2012) his Lordship Justice Goundar affirmed the 2 years starting point selected by the Magistrate court in sentencing a accused for this offence. The same starting point was adopted by this court also in Fiji Independent Commission Against Corruption v Padarath [2016] FJMC 31; Criminal Case 594.2011 (9 March 2016) .

Unauthorized modification of Data

28. Section 341(1) of the Crimes Act prescribed the maximum penalty of 10 years imprisonment for any person who is found guilty of knowingly causing the unauthorized modification of data held in computer.
29. In FICAC v Dalituimua [2017] FJMC 42; Criminal Case 1755.2016 (13 March 2017) this court discussed the suitable sentencing range for this offence in the following manner:

“ In the case of R v Stevens [1999] NSWCCA 69 the New South Wales Criminal Court of Appeal upheld the District Court decision of 03 years imprisonment with 18 months imprisonment to be spent in custody to be proper for an accused who committed a computer crime of insertion of data intentionally without lawful authority. The maximum penalty for that offence was 10 years imprisonment.

The court in the above case also referred to a case of R v Caldwell (Unreported, 3 March 1993 where the accused pleaded guilty of erasing data stored in computer intentionally without authority or lawful excuse. In making comparison the court stated :

“The sentence imposed in that case was a minimum term of 9 months penal servitude and an additional term of 3 months. It is to be observed that the maximum penalty under the State Act in respect of the category of offence for which Caldwell was convicted was ten years imprisonment, that is to say the same term as is provided for an offence in the nature of that charges in the present indictment”.

In the case of Soyke v R [2016] NSWCCA 112 the New South Wales Criminal Appeal reviewed the sentence of related computer offence where an unauthorized modification charge and upheld a 12 months’ imprisonment term.

Hence it appears that in Australia the sentencing range for computer related offenses are from suspended sentence to 03 years imprisonment. Considering the maximum penalty for this offence is similar to above precedents, I find this sentencing range can be taken as guideline in sentencing the accused in this case.”
Obtaining Financial Advantage

30. The penalty for Obtaining Financial Advantage under the Crimes Act is 10 years imprisonment.
31. In FICAC v Feroz Jan Mohammed and Others Criminal Case No. HAC 349 of 2013 Justice 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.”

Starting Point for this sentence

32. As you have been convicted for 11 counts under the Penal Code and Crimes Act, I select the two counts of Abuse of Office (5^th and 6^th count) under the Crimes Act as the base sentence.
33. Both parties agreed that based on nature of offending and your culpability, the tariff for this offence would be from 08 -12 years’ imprisonment as shown through Fiji Independent Commission Against Corruption (FICAC) v Laqere(supra) .
34. The counsel for the accused submitted that the starting point should be 08 years whilst the prosecution argued that it has to be 10 years.
35. Selecting the starting point I have been guided by Laisiasa Koroivuki 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".

36. Considering the nature of offending and your culpability in my opinion the starting point need to be selected from the middle end of the tariff.
37. Accordingly I select 10 years as the starting point for each count of Abuse of Office for Gain under the Crimes Act.

Aggravating factors

38. The prosecution in their sentencing submission submitted the following as aggravating factors in this case :
    1. The gross breach of trust;
    2. The Repetitive and Systematic Breaches of Procedure;
    100. The amount of money involved;
    4. No restitution or Attempt at restitution ; and
    5. The motivating factor of Greed.
39. I would also agree that above are common aggravating factors in this case. Now I would consider if these are aggravating the Abuse of Office and based on that how much your sentence need to be enhanced.

Gross breach of Trust

40. You were working in Office of the Official Receiver as the Acting Deputy Receiver from 2008 to 2016 and had the fiduciary duty to ensure proper safekeeping and managements of funds. There were two accounts under your management namely the Bankruptcy Account and Liquidation Account. Using your high position and authority you managed to siphon out a total of $4,118,447.43 from these 2 accounts for your personal gain. Undoubtedly this is a gross and prolonged breach of trust from your part.
41. The NSWCCA in R v Stanbouli [2003] NSWCCA 355 (4 December 2003) found that a breach of trust must be in direct contravention of what the offender was engaged to do and stated, at paragraph 34, that:

“The cases where, traditionally, breach of trust has been regarded as exacerbating criminality are where it is the victim of the offence who has imposed that trust – an employer defrauded by his employee, a solicitor who appropriates trust funds to his own use – or where the criminality involves a breach of that which the offender was engaged or undertook to do, e.g. a teacher or baby-sister who indecently deals with the subject of his or her charge. Another example is afforded by the case of R v Mclean (unreported, CCA, 31 March 1989) where a customs officers employed in the investigations section of the department conspired to import heroin and cannabis. The offence there was in direct contravention of what the offender had been employed to do.”

42. Furthermore, in the case of R v Martin [2005] NSWCCA 190 (20 May 2005) the Court stated at paragraph 40 that:

“With respect to general fraud or dishonesty offences, where breach of trust is not an essential element of the offence, common law sentencing principles have recognized that abuse of a position of trust, where it exists on the facts of a particular case, is an aggravating factor on sentence...”.

43. Moreover, in State v Bole [2005] FJHC 450, HAC 0038S.20005S (4 October 2005) in which a public servant, defrauded the Government of $35,882.74 for the benefit of a company known as Repina Wholesalers and himself through the Farming Assistance Affirmative Action Programme, the Court in sentencing the Accused to 3 years imprisonment, held:

“The aggravating factors were the facts that you continued to sign invoices to the benefit of a person from whom were borrowing or taking money, and the fact that you deliberately took advantage of a loose accounting system. You cannot blame the system or politicians for your own dishonesty. No matter how dishonest, or negligent your colleagues or superiors may have been, you yourself had a moral and legal duty to follow procedure and act honestly at all times. You failed in that duty...”

The Repetitive and Systematic Breaches of Procedure

44. You were committing these offences for a long period of time. For these 2 counts alone, from 01^st February 2010 to 31^st December 2015 you systematically breached the lawful procedures by forging emails and also giving false information to obtain these funds from the accounts.
45. The NSWCCA in the case of R v Pont [2000] NSWCCA 419 (23 October 2000) held that the fact that an offence involved systematic dishonestly accompanied by planning, sophistication and repetition will aggravate the offence. The Court, at paragraphs 43- 44, stated:

“... But was conceded, on the authorities in this Court, that where there are breaches of Trust by employees, particularly involving large or substantial sum Involving systematic dishonesty attended by planning and some sophistication, general deterrence requires at least usually or in the absence of special features, that there are substantial sentences of imprisonment. It was put that breach of trust, planning and repetition are key features of aggravation. In that regard, Regina v Phelan (1993) 66 A. Crim. R. 446 was cited as was O’Keefe (supra) where the Court of Criminal Appeal referred to the Court’s duty to seek , by the penalties it imposes, the deterrence of others who might be tempted to commit such offences. There, the Court held that in cases of dishonesty over a period of time involving substantial sums of money and multiple offences, the consideration of the general deterrence looms large. It referred to Regina V Glenister (1980) 2 NSWLR 597; Regina v Falzon (CCA unreported 20 February 1992); Regina v Debroun (CCA, unreported 12 December 1991) as illustrating a long line of decisions given in the Courtconcerning the appropriate level of penalty for white collar crime. In the judgment of Lee, AJ in O’Keefe (supra) appears the following:

“It is the utmost importance that employers carrying on business and entrusting members of their staff which control of monies as must be done, should be entitled to maximum honesty in that activity and the Courts play an important role and must play an important role in imposing sentences in cases of this nature which are often called white collar crimes – which will operate effectively as a deterrent to other like-minded, particularly when the monies are taken, as here, for the purpose of maintaining a lifestyle which the offender considers should be maintained. One recognizes that in many cases where that occurs, the offender is concerned not so much in respect of her own lifestyle, but in the lifestyle of her children or often her husband but where it is done for that purpose, that cannot be put forward as any matter entitling significant leniency”” (Emphasis added)
The amount of money involved

46. From 2010 to 2015 which is relevant for these 2 counts, you managed to dishonestly obtain a total financial advantage of $3,799,246.38 from the Bankruptcy and Liquidation Accounts which is quite substantial amount in Fiji.
47. In the case of R v Woodman [2001] NSWCCA 310 (15 August 2001), the NSWCCA, at paragraph 28, held that:

“Also of relevance in the present case is the decision of this Court in Hawkins (1989) 45 A Crim R 430 where the Court said: “In considering the gravity of the offences objectively as is required... the amounts of money involved are a significant matter for consideration. The amount of money involved in cases of premeditated planned deception and fraud are of necessity an important factor in the question of determining the degree of criminality for they are an indication of the extent to which a prisoner is prepared to be dishonest and to flout the law and to advance whatever are his own purposes.”

48. Further, in R v Mungomery [2004] NSWCCA 450 (14 December 2004), the Court, at paragraph 40, held that:

“In this regard authority makes it clear that the amount of money involved in premeditated deception is an important, and the period of time over which offences are committed a relevant, factor in determining the extent of criminality – see Hawkins (1989) 45 A Crim R 430, R v Mears (unreported, NSWCCA, 14 March 1991), referred to by Wood CJ at CL and Sperling J in R v Woodman [2001] NSWCCA 310.” (Emphasis added)
No Restitution or attempt at Restitution

49. You appeared first time in this court on 18^th November 2016 and even after nearly 08 months failed to make any restitution to the complainant. There was no attempt from your part even in mitigation submission to show how you going to pay these amounts back.

The Greed

50. There is no evidence before me to show that these were committed for the benefit of others. Hence in my view your actions were clearly motivated by your personal greed.
51. Further in 2008 when you started committing these offences there were 41 transactions and as the time passed these were increasing to reach 298 transactions in 2015. This clearly shows not only you were getting bold with your offending but your greed was increasing also.
52. In the case of R v Glynatsis [2013] NSWCCA 131 (7 June 2013) the Court held at paragraph 48 that:

“... The distinction between an offence committed for motives of personal greed and committedfor the benefit of some other person is real. This is not to say that such a circumstance is exculpatory, rather, it can indicate a less serious level of criminality as it did in this case...”

53. Further, in the case of Khoo v Regina [2013] NSWCCA 323 (20 December 2013) the Court, in discussing the R v Glynatsis case, held at paragraph 78 that:

“However, that is not to say that the commission of offences for the benefit of others is mitigatory factor. The statement is equally consistent with greed as a motivating factor being aggravating.”

54. In addition in my view the high degree of planning and the number of victims involved in this case need to be considered also as aggravating factors.

High Degree of Planning

55. These 2 offences were committed for long period of time. You used a computer in the office of the Official Receiver to edit the records by adding false information and prepared false emails showing some creditors had agreed to take part in payments. You submit these falsified emails with your own minutes to Mr. Abihi Ram , who was employed in the public service as Acting official receiver for his approval and with that picked the cheques and enchased them for your personal use. All these methods clearly show high degree of planning and execution from your part.

Number of victims

56. These funds were held in Bankruptcy Account and Liquidation Account as trust for the creditors who have instituted action in the court against the debtors considered to be bankrupt individuals and liquidated firms. According to the admitted summary of facts during the 01^st February 2010 to 31^st December 2015 nearly 1300 payments were obtained from these accounts to the total value of $3,799,246.38 that were supposed to go to the creditors. Even though the total number is not available to me, there is no doubt that your behavior has clearly deprived number of victims their genuine claims and also brought disrepute to your office.
57. For all these numerous aggravating factors, I add 07 years to your interim sentence to reach 17 years imprisonment for each count of Abuse of Office.

Mitigating Factors

58. The learned defence counsel in his mitigation submitted following as your mitigating factors:
    1. You are 38 years old ;
    2. Married with 3 children with age of 11, 9 and 7 years respectively;
    100. First offender;
    4. Learned your lesson and seeking for another chance;
    5. Responsible person with friends and families rely on;
    6. Remorseful.
59. Further the prosecution submitted that you fully cooperated with the investigation and charging which deserves some credit also.
60. In my opinion your age is not a valid mitigating factor. A sentencing court may consider young age of an offender as a mitigating factor and in some situations even the old age, but you do not fall in to any of that. Even though your counsel submitted that you are remorseful of your offending, failure to make any restitution even up to now cast doubt about that claim also in my view. Further there is no evidence to show under what circumstances your friends and family rely on you.
61. Hence I find there are only limited mitigating factors in your favor and for those deduct only 02 years to reach 15 years imprisonment.

The character of the accused

62. In mitigation your counsel submitted that you are a first offender and this has been confirmed by the Prosecution also.
63. Section 4(2) (i) of the Sentencing and Penalties Act states that sentencing the court must have regard to the previous character of the offender.
64. Based on that normally in a criminal case a substantial deduction would be given for the good character of an accused. But this position is different in breach of trust offences where unblemished character of an accused would be given less weight or no weight at all.
65. In R v Gentz [1999] NSWCCA 285 (9 September 1999), a case in which the Accused defrauded the Government by raising false invoices in order to make gains of about $196,000 for herself, the NSW Court of Criminal Appeal held at 12, that:

“ It is, I should add, not an unusual situation in the experience of the Courts that when a person does find themselves both charged and ultimately convicted of an offence of this nature, they are persons of impeccable prior good character. For that very reason, namely their impeccable past good character, people are in fact appointed to positions of trust. It is when they Abuse those positions of trust that the question of general deterrence comes most powerfully into play...”

66. Moreover, in FICAC v Mau and Patel Justice Goundar stated at paragraph 38 that:

“I have had regard to the previous good character of Mr. Mau and Mr. Patel and the services that they have provided to the public using their office, to consider whether these factors justify suspending the sentences. However, it is not possible for me to give undiminished weight to their previous good character and record of service to the public. They were given power and responsibility of a public office because of their corporate expertise and goodcharacter. Instead, they breached the public’s trust by misusing their office.”

67. In State v Bole her Ladyship Justice Shameem said :

“ In breach of trust cases, comparably less weight is put on good character, because only people of good character are given positions of trust and responsibility. It is the breach of trust which is the harm done in these offences. “

68. Hence your past good behavior should be disregarded as a valid mitigating factor in this case. In my view one of the main grounds that would have been considered by your department in appointing for this high position was your character and you betrayed that trust by committing these offences. Accordingly you can’t take credit for your character.

Guilty Plea

69. It has been a practice by a sentencing court to consider guilty plea separately and give appropriate discount.
70. Section 4(2) (f) of the Sentencing and Penalties Act states the court has to consider whether the offender pleaded guilty to the offence, and if so, the stage in the proceedings at which the offender did so or indicated an intention to do so.
71. 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”.

72. In UK sentencing 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.
73. In Fiji this has been discussed comprehensively by his Lordship Justice Madigan in Posate Rainima 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.”

74. In this case you pleaded guilty at the first available opportunity and entitle for full credit for that. Accordingly I deduct 1/3 from your sentence to reach 10 years imprisonment for each count of Abuse of Office for Gain.
75. For all the other counts, the above discussed aggravating factors and mitigating factors would be applying and accordingly I sentence you in the following manner.

1^st count (Abuse of office) – 2 years imprisonment

2^nd count (Forgery) – 08 months imprisonment

3^rd count (Forgery) – 08 months imprisonment

4^th count (Embezzlement by Servant) - 2 years imprisonment

7^th count (Forgery) -4 years imprisonment

8^th count- (False information to Public Servant) – 4 years imprisonment

9^th count-(Unauthorized modification of data) - 3 years imprisonment

10^th count (Obtaining a financial advantage) – 6 years imprisonment

11^th count- (Forgery) -4 years imprisonment

Consecutive /Concurrent sentence

76. The counsel for the accused asked this court to have concurrent sentences for these 11 counts whilst the prosecution submits that a consecutive sentence is warranted to reflect the seriousness of the offences committed by the accused.
77. Both parties also agreed that this court has to consider the Totality Principle in arriving at the suitable final sentence.
78. In Visawaqa v. The State [2003] FJHC 138, 23rd September 2003; Pathik J said that:

"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" (Thomas: Principles of Sentencing 2nd ED.p.53). It does not mean that consecutive sentences cannot be imposed, so long as the overall sentence is not unduly harsh and by the same token the outcome of the concurrent sentences are not rendered unduly lenient in view of aggravating features (Regina v. Johnson (Thomas), The Times 22.5.95).The totality principle has been expressed by Thomas in his Principles of Sentencing 2nd Ed at p. as follows:

"The effect of the totality principle is to require a sentencer who has passed a series of sentences, each properly calculated in relation to the offence for which it is imposed and each properly made consecutive in accordance with the principles governing consecutive sentence, to review the aggregate sentence and consider whether the aggregate is just and appropriate."

79. DA Thomas described ‘one transaction rule’ in his text, Principles of Sentencing (2nd ed, 1979 as follows:

“The one-transaction rule can be stated simply: where two or more offences are committed in the course of a single transaction, all sentences in respect of these offences should be concurrent rather than consecutive.”

80. In Royer v Western Australia [2009] WASCA 139, Owen JA stated about this rule in the following manner :

“ First, the ‘rule’ is not a rule at all. It is one of many sentencing principles the object of which is to guide a judicial officer in the proper exercise of the sentencing discretion.”

81. It has been also held that even where offences may be characterized as arising from one transaction, a judge is not obliged to apply concurrent sentences if he/she finds that to do so would result in an inadequate overall sentence (Royer v Western Australia [2009] WASCA 139, [21] (Owen JA), [237] (Miller JA); The State of Western Australia v Amoore [2008] WASCA 65, [14]; R v Weldon [2002] NSWCCA 475, [48], R v XX [2009] NSWCCA 115, [52] (Hall J, Tobias JA and Kirby J agreeing.
82. In Mohamed Shouffee bin Adam v Public Prosecuto [2014] SGHC 34 Chief Justice Sundaresh Menon of Singapore said :

“Aside from this, there are other instances when it would be appropriate for the sentencing judge to impose consecutive sentences notwithstanding that to do so would entail deviating from the one-transaction rule. This would be so, for instance, where:

(a) it is necessary to do so in order to give sufficient weight to the interest of deterrence so as to discourage behaviour of the sort in question: see for instance ADF v Public Prosecutor and another appeal [2009] SGCA 57; [2010] 1 SLR 874 (“ADF”) at [143]; or

b) the imposition of consecutive sentences would be in keeping with the gravity of the offences: see Law Aik Meng at [56].

46 However, whenever a sentencing judge considers it appropriate to depart from the one-transaction rule it would be appropriate to state the reasons or considerations that prompt such a course. This would displace any prospect of it being construed as a decision made in ignorance of the rule and it would also afford an appellate court the opportunity to assess the appropriateness of the sentence should this arise.”

83. As for the Totality Principle in Hay v The Queen [2009] NSWCCA 228, [124], the Court cited Sully J’s comments in R v Wheeler [2000] NSWCCA 34 at [37]:

“ It needs to be clearly understood by all concerned that a person who commits a deliberate series of discrete offences ... must not be left with the idea that by intoning references to the principle of totality as though it were some magic mantra, he can escape effective punishment...”

84. Sentencing and Penalties Act which governs the sentencing in Criminal courts in Fiji presently codified the above principles in Section 22 (1) which states that every term of imprisonment imposed on a person by a court must, unless otherwise directed by the court, be served concurrently with any uncompleted sentence or sentences of imprisonment. This means if the court is imposing consecutive sentences for multiple offences there need to be good reasons which need to be given in the sentence.
85. The above position has been confirmed by the Fiji Court of Appeal in Vukitoga v State [2013] FJCA 19; AAU0049.2008 (13 March 2013). The Court held that a concurrent sentence should be imposed and that if the court intends to impose a consecutive sentence, then the court must give a justifiable reason to do so.
86. In this case you elected this court expecting a lenient sentence. In fact through your counsel you were asking for 07 years concurrent imprisonment for all these offences. But I can’t turn a blind eye to the nature and seriousness of your offending. From 2008 to 2016 whilst working as the acting deputy official receiver in the office of the Official Receiver, you dishonestly obtained nearly $4 million dollars for your personal benefit by preparing forged emails, making unlawful data entries in the computer and giving false information to other public officials. I do not think a court in Fiji has ever come across such magnitude of corruption by a public official. Imposing concurrent sentence for all these counts would in my view result in inadequate overall sentence eroding the public confidence in the judicial system as well as encouraging the others to commit multiple offences like these in future in the public service hoping to get a lenient sentence.
87. Richard G Fox & Arie Freiberg, Sentencing: State and Federal Law in Victoria (Oxford University Press, 2nd Ed, 1999) (at p 721) stated that:

“Courts often fear that concurrent sentences are tantamount to an inducement to criminal conduct inasmuch as offenders may reason that, if caught, they are unlikely to suffer any material extension of their imprisonment by virtue of the further offences.”

88. Even though the earliest guilty plea has compelled me to give substantial deduction in this case saving you from serving 15 years imprisonment, I am going to make 6^th count partly consecutive to the 5^th count (4 years from the 6^th count consecutive to the 5^th count) which would allow me to give the maximum penalty this court has power to impose on you pursuant to section 7(2) of the Criminal Procedure Act. In my view this maximum sentence would be adequate to denounce your criminal behavior for such a long period of time for these multiple crimes .It would also prevent you from enjoying your ill-gotten gains which you failed to return to the complainant up to now.
89. I would like to finish your sentence with the following words. The public officials are appointed to serve the people in this country. The public is entitled to expect the highest standards of conduct, honesty and integrity from them. When some of these officials see this opportunity as one for their personal benefits by corrupt practices, then the country faces a bleak future. When the majority is struggling to make a living in this country it is a disgrace to witness people who have the benefit of good education and good fortune of a job in the civil service should subvert that service for personal gains. Hence this sentence would be a reminder to other public officials also that if they use their position for personal gains they have to be prepared to serve long period in correction centers like the accused in this case .
90. VILIAME KATIA, you are sentenced to 14 years imprisonment for this charge with a non-parole period of 12 years imprisonment.
91. 28 days to appeal.

Shageeth Somaratne

Resident Magistrate