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Vunisea v Fiji Independent Commission Against Corruption [2020] FJCA 170; AAU98.2018 (16 September 2020)

IN THE COURT OF APPEAL, FIJI
[On Appeal from the High Court]

CRIMINAL APPEAL NO.AAU 98 of 2018

[In the High Court at Suva Case No. HAC 99 of 2014]

BETWEEN:

AMELIA VUNISEA
Appellant

AND:

FIJI INDEPENDENT COMMISSION AGAINST CORRUPTION

Respondent

Coram: Prematilaka, JA

Counsel Mr. I. Khan for the Appellant

Ms. F. Puleiwai for the Respondent

Date of Hearing: 11 September 2020

Date of Ruling : 16 September 2020

RULING

[1] The appellant (02^nd accused in the High Court) had been charged with one count of Abuse of Office (count 2) contrary to section 139 of the Crimes Act, 2009 and thirty three (33) counts of Causing a Loss (08 to 40) contrary to section 324(2) of the Crimes Act, 2009.

[2] The appellant had pleaded guilty to all charges against her. The summary of facts had been filed on 07 May 2018, understood and agreed to by the appellant. Having been satisfied that the appellant’s guilty pleas were voluntary, free from any influence and unequivocal, the learned trial judge had convicted her of all charges. The trial judge had given his mind to the question whether all the elements in the charges had been proved by the facts mentioned in the summary of facts and answered it in the affirmative before the convictions were entered against the appellant.

[3] The sentencing hearing had taken place on 30 May 2018 and on 27 September 2018 the appellant had been sentenced to 07 years of imprisonment for Count 2 on Abuse of Office contrary to section 139 of the Crimes Act, 2009 and 03 years of imprisonment for each of the counts from 08 - 40 on Causing a Loss contrary to section 324(2) of the Crimes Act, 2009; all sentences to run concurrently. The trial judge had not fixed a non-parole period.

[4] The brief facts, as set out in the summary of facts are as follows.

1. The 2^nd Accused in this case is AMELIA VUNISEA (hereinafter referred to as the “2^nd Accused”).
   
2. In 2010, the 2^nd Accused held the position of “Acting Assistant Accounts Officer” EDP Number 53425 based at the Mechanical Section of the Divisional Engineer Central Eastern Office (hereinafter referred to as “DECE”) of the Public Works Department (hereinafter referred to as “PWD”) at Walu bay, Suva and she held this position at all material times.
   
3. The 2^nd Accused began her career at the PWD in 1990 as a Temporary Relieving Clerical Officer before being appointed as a Clerical Officer in 1991. She was transferred to the Rewa Depot in 1993 before being transferred back to the Electrical section in 1998 to work as a cashier. Subsequently, she remained in the Mechanical Section as a cashier until 2008.
   
4. She was then transferred to DECE Accounts Section. She continued at DECE until September 2009 when she was then transferred back to Mechanical Section. In 2009 whilst at DECE Accounts Section, she held the position of Acting Assistant Accountant where she had the authority to sign cheques.
   
5. Thereafter, she remained at the Mechanical Section as an Acting Assistant Accounts Officer until March 2011 whereby she was transferred to the Ministry of Works Accounts Section (as it was then). From then on, she remained at the Headquarters until she was suspended from the Ministry of Works in November 2011.
   
6. In terms of her education, the 2^nd Accused sat and passed her H(1) Exams on 20^th August 1991, and in 2002, she again sat and passed her “U” Service Exams.
   
7. The 2^nd Accused had been employed at the Public Works Department for 20 years at the time of the offence. As the Assistant Accounts Officer, the 2^nd Accused was a mature and experienced officer. She brought with her a wealth of experience in the Accounts Section and had on previous occasions acted on the post of Assistant Accounts Officer. The 2^nd Accused’s experience of 20 years at the Ministry saw her being possessed with the necessary skills, competencies and knowledge to perform the duties of the post.
   
8. Prior to the 2^nd Accused’s appointment as an Assistant Accounts Officer, she carried out back reconciliation duties, afterwards, whilst carrying out the duties and responsibilities of an Acting Assistant Accounts Officer, she reported firstly in 2008 to one Mrs Miriama Smith and then to Mrs Ana Laqere (1^st Accused) in 2009.
   
9. By reasons of her appointments and experience outlined in paragraphs 2 to 8 above, the 2^nd Accused was employed in the public service as an Acting Assistant Accounts Officer within the meaning of Section 4 of the Crimes Act 2009 during all material times to the offence.
   
10. The 2^nd Accused’s responsibilities as an “Acting Assistant Accounts Officer” within the period material to this case included checking quotations and other source documents before processing payments, matching invoices received against the purchase orders costing or private hire dockets from various contractors, preparing schedule of bills, updating creditors ledger card, process cash requirement report and filing of payment correspondence.
    
11. The 2^nd Accused’s responsibilities also included submitting monthly reports, reconciliation of suspense account, preparing expenditure report, signing cheques, supervising accounts clerical officers, attending to queries regarding accounts and expenditure, banking and General Ledger reconciliation as well as authority of signing cheques and any other duties assigned by the Accountant.
    

Cheque Signatories

12. Procedurally, cheque signatories are authorised persons either through their appointment they are vested with such duty or through their positions they held within the various Department or the Ministry. Two authorized persons are required to sign a cheque. The requirement of two signatories is a control mechanism aimed at preventing fraud of government funds.
    
13. The first person is the signatory and the second person is the counter signatory of the cheque. Both persons have a fiduciary duty to properly check the cheque with other supporting source documents are in order before they put their respective signatures. As a cheque signatory, it was the 2^nd Accused duty to verify important information attached to the batch of documents submitted before she puts down her signature on the Cheques.
    
14. The 2^nd Accused was an experienced and mature officer at DECE and in carrying out her duties as an Acting Assistant Accounts Officer within the time period of the offence, she was a signatory to the Government cheques for DECE Operating Fund Account and Trade & Manufacturing Accounts. At the relevant period, the 2^nd Accused was not based at the Accounts Section of DECE but based at the Mechanical Section of DECE.
    
15. There were also instances in which cheques were brought to the 2^nd Accused whilst she was at her residence for signing in which she would not ask to see the supporting documents before putting her signature on the Cheques. She knew this breached financial and accounting instructions and regulations, thus failing to perform her duty with due diligence and care.
    

Abuse of Office (Count 2)

16. Between the 1^st day of February 2010 to the 31^st day of May 2010, thirty (30) Westpac Banking Corporation (WBC) Cheques were prepared amounting to a total of $93,512.48 before it was forwarded to the 2^nd Accused for her signature. Out of the 28 Cheques received, the 2^nd Accused had signed on ten(10) manual cheques whilst the remaining 18 Cheques were printed and through FMIS (Refer to “Annexure A”).
    
17. With knowledge of her fiduciary duty as a Cheque signatory outlined in paragraph 12 to 15 above, and in abuse of the authority of her office, the 2^nd Accused did arbitrary acts for the purpose of gain namely, facilitating the processing of false payments to Crazy Office Supplies and Entire Office Supplies Limited, which was prejudicial to the rights of the Public Works Department.
    
18. In brief summary, the various abuses done by the 2^nd Accused are as follows:

(i) Placing her signature on all the 28 Cheques stated in Count 8 to Count 40 in the Information, amounting to a total of $93,512.48 which was paid to the company, because the 2^nd Accused failed to exercise due diligence by ensuring that all the supporting documents were in order.

(ii) However, in all the 28 Cheques raised, there were about 32 transactions altogether, whereby the Purchase Orders were photocopied, and reused in other transactions making it either a double, triple or quadruple payments to the company, giving an undue advantage as reflected in the following counts and further in the Annexure A:
i. Count 8 and 9 - Double payments;
ii. Count 10 and 11 - Double payments;
iii. Count 12 and 13 - Double payments;
iv. Count 16, 17 and Count 18 - Triple payments;
v. Count 20 and 21 - Double payments;

6. Count 27, 28, 29, 30 and 31 - Double, triple and quadruple payments.

(iii) Furthermore, in all the payment vouchers, the procedures were not followed as to the various people who were signing in the checked column. Passed for Payment and certify column certifying the payments to be done.

(iv) Apart from the discrepancies noted in the Payment Vouchers, the Requisition attached was photocopied and used twice in two of the Payment Vouchers whereby the items ordered were all the same in all three Requisitions.

(v) There were no Deliver Dockets attached in any of the 32 transactions to show the delivery was done.

(vi) In all the Purchase Orders attached to the Payment Vouchers, the person signing in the authorised column was not authorised and did not have the authorized limit to approve the amount for each of the PO’s which the 2^nd Accused could have easily picked, if she did her duty properly it could have been easily rectified, instead she willingly signed Cheques for those bogus payments.

(vii) The 2^nd Accused failed to cross check the FMIS records and the printed PO’s which on record showed that all orders cancelled were in the FMIS system. All payments were in breach of the Financial Management Information System (FMIS) of Government and she entirely disregarded those breaches. As a cheque signatory, it was her duty to verify if payments are done properly with FMIS compliance. (Refer to Annexure A). The Payment was done to either Crazy Office Supplies or Entire Office Supplies Limited between 1^st February to the 31^st May 2010 (Refer to Annexure A).

(viii) The person signing in the Payment Vouchers certified column was not authorised to be signing on behalf of DECE or the Senior Accounts Officer (SAO).

(ix) Further in the FMIS record, this Payment Voucher and the PO91011-012403 was cancelled in the system, thus no Cheque should ever had been printed. Failure to cross check the FMIS record and other details in the Payment Vouchers, the 2^nd Accused failed to exercise due diligence, thus resulting in the payment being made to Crazy Office Supplies and Entire Office Supplies Limited.

19. Therefore, in respect of the 30 Cheques mentioned in paragraph 16, a total of FJD$93,512.48 was paid to Crazy Office Supplies and Entire Office Supplies Limited. The gain was to be said companies due to the 2^nd Accused arbitrary act of signing on the Cheques without properly checking the source documents attached with the Cheques. The 2^nd Accused knew that there were a number of irregularities and breaches to the standard financial and accounting procedures and regulations, but she wilfully kept a blind eye and went ahead and signed all the 30 Cheques. (Refer to the Annexure A).
    
20. Through the 2^nd Accused arbitrary act, in abusing the authority given to her as an Acting Assistant Accounts Officer, the company Crazy Office Supplies and Entire Office Supplies Limited had gained FJD$93,512.48.
    
21. In respect of count 2 against the 2^nd Accused, PWD was prejudiced when the money was paid out to Crazy Office Supplies and Entire Office Supplies Limited without the proper procedure being followed and when no delivery was done in all the 30 transactions.
    

Causing a Loss – (Count 8 – Count 40)

22. Between the 1^st day of February 2010 to the 31^st day of March 2010, the 2^nd Accused had dishonestly caused a loss to the PWD by falsely facilitating the process of payments through 30 x WBC Cheques (Refer to Annexure A) amount to FJD$93,512.48 to Crazy Office Supplies and Entire Office Supplies Limited and knowing that the loss will occur or a substantial risk of loss will occur to the PWD.
    
23. The 2^nd Accused dishonest act is the fact that she falsely facilitated the process of payments through 30 x Westpac Banking Corporation Cheques amounting to FJD$93,512.48 to Crazy Office Supplies and Entire Office Supplies Limited by putting her signature on the Cheques knowing that all source documents were not in order.
    
24. The 2^nd Accused given her knowledge and experience in her position as Acting Assistant Accounts Officer at PWD, she knew that all the source documents should be in order, apart from the fact that it should follow the proper tender procedure; it should be signed and approved by the relevant authorised persons before the Cheque is signed by her and counter signed by another authorised signatory for the pay-out.
    
25. All the 30 x WBC cheques were accompanied by incomplete source documents and the irregularities noted were the approving and certifying signatures signing on behalf of someone else which procedurally is wrong. Delivery Dockets not attached, tender procedure not followed and many more discrepancies which should have been picked by the 2^nd Accused before signing on the Cheques.
    
26. However, despite all the irregularities noted, the 2^nd Accused still signed on all the 30 x WBC Cheques amount to FJD$93,512.48 blindly which was payable to Crazy Office Supplies and Entire Office Supplies Limited, knowing that a risk or substantial risk of loss would occur to PWD.
    
27. The same amount noted in the above paragraph was then debited from PWD CFA Trading & Manufacturing Account (TMA), Westpac Banking Corporation Account No. 9800014858 through Cheques noted in Annexure A.
    
28. Summarily, the 2^nd Accused through her deliberate disregard for proper execution of her duties caused a loss to PWD and the Government of Fiji.
    
29. Lastly, the 2^nd Accused’s actions in failing to adhere to proper accounting standard and procedures contributed to the loss of a total of FJD$93,512.48 from the Public Works Department and the Government of Fiji.
    
30. The 2^nd Accused was interviewed under caution on the 01/06/12, 04/06/12, 30/11/12, 04/12/12, 12/12/12, 25/11/13, 27/11/13, 01/12/13, 02/12/13, 04/12/13 and later charged on the 4^th December 2013 for one (1) count of Abuse of Office contrary to Section 139 of the Crimes Decree (now known as Act) and thirty two (32) counts of Causing a Loss contrary to Section 324 (2) of the Crimes Act 2009.’
    

[5] On 04 October 2018 through his lawyers Iqbal Khan Associates (Barristers and Solicitors) the appellant had filed a timely notice of appeal and an application for leave to appeal against sentence. The same law firm had tendered written submissions on 17 June 2020.The respondent had filed its written submissions on 23 July 2020.

[6] Grounds of appeal urged on behalf of the appellant were as follows.

Against sentence.

1) That the Appellant’s sentence appeal against sentence being manifestly harsh and excessive and wrong in principle in all the circumstances of the case.

2. That the Learned Trial Judge erred in law in fact in taking irrelevant matters into consideration when sentencing the Appellant and not taking into account relevant considerations.
   
3. That the Learned Trial Judge erred in law and in fact in passing sentence of imprisonment was dis proportionately severe punishment contrary to section 25 of the Constitution of Fiji (1998) [section 11(1) of The 2013 Constitution of Fiji].
   
4. That the Learned Trial Judge erred in law and in fact in not taking into consideration adequately the provisions of the Sentencing and Penalties Decree 2009 when he passed the sentence against the Appellant.
   

[7] The counsel for the appellant and the respondent stated at the leave to appeal hearing that they would rely on their respective written submissions.

[8] In terms of section 21(1)(c) of the Court of Appeal Act, the appellant could appeal against sentence only with leave of court. The test for leave to appeal is ‘reasonable prospect of success’ (see Caucau v State AAU0029 of 2016: 4 October 2018 [2018] FJCA 171, Navuki v State AAU0038 of 2016: 4 October 2018 [2018] FJCA 172 and State v Vakarau AAU0052 of 2017:4 October 2018 [2018] FJCA 173, Sadrugu v The State Criminal Appeal No. AAU 0057 of 2015: 06 June 2019 [2019] FJCA87 and Waqasaqa v State [2019] FJCA 144; AAU83.2015 (12 July 2019) in order to distinguish arguable grounds [see Chand v State [2008] FJCA 53; AAU0035 of 2007 (19 September 2008), Chaudry v State [2014] FJCA 106; AAU10 of 2014 and Naisua v State [2013] FJCA 14; CAV 10 of 2013 (20 November 2013)] from non-arguable grounds.

[9] Further guidelines to be followed for leave to appeal when a sentence is challenged in appeal are well settled (vide Naisua v State CAV0010 of 2013: 20 November 2013 [2013] FJSC 14; House v The King [1936] HCA 40; (1936) 55 CLR 499, Kim Nam Bae v The State Criminal Appeal No.AAU0015 and Chirk King Yam v The State Criminal Appeal No.AAU0095 of 2011). The test for leave to appeal is not whether the sentence is wrong in law but whether the grounds of appeal against sentence are arguable points under the four principles of Kim Nam Bae's case. For a ground of appeal timely preferred against sentence to be considered arguable there must be a reasonable prospect of its success in appeal. The aforesaid guidelines are as follows.

(i) Acted upon a wrong principle;
(ii) Allowed extraneous or irrelevant matters to guide or affect him;
(iii) Mistook the facts;
(iv) Failed to take into account some relevant consideration.

[10] It is clear that the appellant’s grounds of appeal have been framed in very general terms. The written submissions also render very little help in that regard as they lack elaboration and sufficient details. In Rauqe v State [2020] FJCA 43; AAU61.2016 (21 April 2020) the Court of Appeal remarked as follows [see also Kishore v State [2020] FJCA 70; AAU121.2017 (5 June 2020)] on framing of appeal grounds.

‘[14] It is clear that the sole ground of appeal is so broadly formulated that neither the respondent nor the court would have been in a position to understand what the real complaint of the appellant was. The Court of Appeal in Gonevou v State [2020] FJCA 21; AAU068.2015 (27 February 2020) reiterated the requirement of raising precise and specific grounds of appeal and frowned upon the practice of counsel and litigants in drafting omnibus, all-encompassing and unfocused grounds of appeal. The Court of Appeal said

‘[10] Before proceeding further, it would be pertinent to briefly make some comments on the aspect of drafting grounds of appeal, for attempting to argue all miscellaneous matters under such omnibus grounds of appeal is an unhealthy practice which is more often than not results in a waste of valuable judicial time and should be discouraged.’

[11] Similar observations were earlier made in the case of Rokodreu v State [2016] FJCA 102; AAU0139.2014 (5 August 2016) by Goundar J. as follows.

‘[4] I have read the appellant's written submissions. In his submission, apart from reciting case law, counsel for the appellant made no submissions on the grounds of appeal. The grounds of appeal are vague and lack details of the alleged errors. The Notice states that full particulars will be provided upon receipt of the full court record. This is not a reasonable excuse for not complying with the rules requiring the grounds of appeal to be drafted with reasonable particulars so that the opposing party can effectively respond to them.

[5] In the present case, the State was not able to effectively respond to the grounds because they were vague and lack details. It appears that the alleged errors concern directions in the summing up. A copy of the summing up, the judgment and the sentencing remarks were made available to the appellant after the conclusion of the trial. In these circumstances, the appellant cannot be excused for not providing better particulars of the alleged complaints in the summing up. Without reasonable details of the alleged errors, this Court cannot assess whether this appeal is arguable.’

01st ground of appeal
[12] The appellant’s counsel had not elaborated this ground of appeal at all and therefore cannot be considered at this stage. In any event the complaint under this ground is caught up under the third ground of appeal dealt with below.
02nd ground of appeal

[13] The appellant had made a brief submission that the trial judge in paragraphs 32 and 33 of the sentencing order had not given adequate consideration to the fact that the appellant was a first offender and a person of good character and failed give a higher discount. While paragraph 32 of the sentencing order has not dealt with any of the above matters, paragraph 33 has focused on another accused.

[14] It is paragraphs 31 and 36 of the sentencing order that have dealt with the appellant’s previous good character and her being a first time offender as follows. However, strictly speaking she had not been a first time offender due to her conviction in HAC 56 of 2014 earlier. The trial judge had deducted 02 years each from the sentences for Abuse of Office and Causing a Loss.

‘[31] In mitigation you have submitted as follows:

(i) You are both first offenders and that you have no previous convictions to date (prior to being convicted for the connected High Court of Suva Case No. HAC 56 of 2014). The State also confirms that there are no previous convictions recorded against you, other than for the aforementioned case.

(ii) ............

(iii) .....................’

‘[36] Amelia Vunisea, I accept that you are a person of previous good character. I also accept your remorse as genuine. Accordingly, considering these mitigating factors, I deduct 2 years from your sentences. Now your sentence for Abuse of Office is 9 years and for each count of Causing a Loss is 3 years.’

[15] In Balaggan v State [2012] FJHC 1032; HAA031.2011 (24 April 2012) Goundar J. remarked

‘[9] The second ground of appeal is that the learned Magistrate erred in law and fact when she failed to give a one-third discount to the appellant as a first offender.

‘[10] This ground is misconceived. I am not aware of any law that says that a first time offender is entitled to one-third reduction in sentence...’

[16] Therefore, there is no sentencing error in the discount for the appellant’s previous good character and being a first time offender even if she could be considered as such.

[17] Thus, there is no reasonable prospect of success in this ground of appeal.

03^rd ground of appeal

[18] The appellant argues that her sentence is disproportionately severe in that her degree of participation should have helped her getting a lenient sentence compared to those who had financially benefited. She also argues that she had only followed the instructions of her superiors.

[19] The maximum penalty for Abuse of Office in terms of Section 139 of the Crimes Act is 10 years imprisonment. However, if the act is done or directed to be done for gain the maximum penalty is 17 years imprisonment. The maximum penalty for the offence of Causing a Loss under section 342 (1) of the Crimes Act is 05 years imprisonment.

[20] The trial judge had given reasons from paragraphs 13 – 24 of the sentencing order as to how he arrived at the starting point of 08 years for the offence of Abuse of Office and 03 years for Causing a Loss. They are as follows.

‘[13] In Fiji Independent Commission Against Corruption (FICAC) v. Ana Laqere and Others [2017] FJHC 337; HAC 56.2014 (10 May 2017); His Lordship Justice Rajasinghe held:

“All of these offences are founded on the ground of corrupt activities of public officers. Undoubtedly, offences of this nature committed by the public officers adversely and seriously affect the very fundamental fabric of the society. Public officers are the intermediary link between the State and Public. They are appointed to implement and provide the duties, responsibilities and the protection undertaken by the State towards the public. In pursuant of a collective social contract between the State and the Public, the public hand over their individual and collective rights to the State, entrusting the State the responsibility and duty to provide and protect those rights of the public. This Social Agreement, provides the legitimacy for the functioning of the State. Hence, it is paramount to the State to maintain high standard of transparency and integrity in performing its duties and responsibilities through the public officers. Otherwise, the trust and the confidence entrusted by the public on the State would erode, leading to a catastrophic end of the State and the society.

...........

In view of the seriousness of the offences of this nature and its adverse effects on the public and the State, it is my view that the court in sentencing offenders of this nature must impose heavy and severe punishment. Accordingly, the main purpose of this sentence is founded on the principle of deterrence and protection of the community.”

[14] In determining the tariff for Abuse of Office, having discussed previous authorities, His Lordship Justice Rajasinghe opined: “In view of above sentencing precedents, it appears that the courts of Fiji have considered the level of authority and trust reposed in the position held by the accused, and the level of prejudice caused to the victim in sentencing. If the level of authority and trust, and the prejudice caused are high, the court could go to the higher starting point and vice versa.”

[15] Accordingly, His Lordship held:

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:

[16] I too agree with this tariff and the basis for same.

[17] In Fiji Independent Commission Against Corruption [FICAC] v Mohammed [2015] FJHC 479; HAC 349.2013 (24 June 2015); His Lordship Justice Madigan sets out the tariff for Causing a Loss in the following terms:

“Causing a loss is again a mirror image of obtaining a financial advantage in a case of corruption; then as with that obtaining offence the tariffs for this offence can be split between causing a loss (simpliciter) and causing a loss where there is bribery or corruption involved.

The tariff for general dishonesty for causing a loss could be fixed at between suspended sentence to 4 years with suspended sentences to be passed for very small losses caused unwittingly.

Causing a loss when proved in conjunction with a generating corruption offence will attract the higher tariff of 4 to 5 years.”

[18] In Fiji Independent Commission Against Corruption [FICAC] v Mohammed (supra) Justice Madigan discussed the tariff limit for the offence of Obtaining a Financial Advantage, contrary to Section 326 (1) of the Crimes Act. His Lordship held that:

“There is much authority to dictate that the tariff for "Obtaining Financial Advantage by Deception" (s. 318) lies between 2 to 5 years but a tariff has 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 to 4 years but in cases where the obtaining is linked to a far more perfidious crime then the sentence for that crime should flow on to 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 to 4 years should apply but if charged in conjunction with another "enabling "offence, it will adopt the sentencing tariff for that particular offence”

[19] In determining the starting point within a tariff, the Court of Appeal, in Laisiasa Koroivuki v State [2013] FJCA 15; AAU 0018 of 2010 (5 March 2013); has formulated the following guiding principles:

“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.”

[20] Amelia Vunisea, in terms of the Summary of Facts which you have admitted to, in the year 2010, you held the position of Acting Assistant Accounts Officer, EDP Number 53425 based at the Mechanical Section of the Divisional Engineer Central Eastern Office (“DECE”) of the Public Works Department (“PWD”), at Walu Bay, Suva.

[21] You had been employed at the Public Works Department for over 20 years at the time of this offence. As the Assistant Accounts Officer, you were a mature and experienced officer. You brought with you a wealth of experience in the Accounts Section and had on previous occasions acted in the post of Assistant Accounts Officer. With your experience of over 20 years, you were possessed with the necessary skills, competencies and knowledge to perform the duties of your post.

[22] You have now been convicted of one count of Abuse of Office and 33 counts of Causing Loss. The total loss you have caused to the PWD amounts to FJD$93,512.48.

[23] For the said reasons I find the level of culpability and the level of prejudice/harm caused to be within the highest range of the tariff limit. In view of that I select 8 years as the starting point for the offence of Abuse of Office (Count 2).

[24] Similarly, in the light of the above guiding principles, and also taking into consideration the objective seriousness of the offence, Amelia Vunisea, I commence your sentence at 3 years for each of the 33 counts of Causing a Loss.

[21] Thus, the trial judge had followed the existing sentencing guidelines for ‘Abuse of Office’ based on the level of authority and trust the appellant enjoyed in her position, and the prejudice caused by the commission of the offence and for ‘Causing a Loss’ based on loss (simpliciter) and loss in conjunction with a generating corruption. It appears that the learned judge has decided that the appellant’s case for ‘Abuse of Office’ falls into the high range of 8-12 years of imprisonment in terms of the level of authority and trust (culpability) and the prejudice (harm) caused but taken the lowest of it at 08 years of imprisonment as the starting point. In respect of ‘Causing a Loss’ the judge had taken the higher end of 03 years as the starting point in the range of suspended sentence to 04 years of imprisonment.

[22] After allowing for aggravating and mitigating circumstances the trial judge had arrived at the head sentence of 07 years of imprisonment for ‘Abuse of Office’ and 03 years of imprisonment for ‘Causing a Loss’. Thus, the final sentence for ‘Abuse of Office’ has fallen into the range of sentence for the medium level of authority and trust but high level of harm or high level of authority and trust but medium level of harm. The final sentence for ‘Causing a Loss’ has remained within sentencing range for loss (simpliciter) towards the higher end.

[23] However, it appears that the trial judge may have been unwittingly guilty of double counting in selecting the starting point at the high range of 08-12 years based on the level of culpability and harm and again enhanced the sentence for aggravating factors which may have been inbuilt into the high tariff itself for ‘Abuse of Office’. Similarly, the judge once again may have factored some aggravating factors into the starting point of higher end of 03 years for ‘Causing a Loss’ but may have further enhanced it on account of the same factors [see the Supreme Court pronouncements in Senilolokula v State [2018] FJSC 5; CAV0017.2017 (26 April 2018), Kumar v State [2018] FJSC 30; CAV0017.2018 (2 November 2018) and Nadan v State [2019] FJSC 29; CAV0007.2019 (31 October 2019)].

[24] Nevertheless it is the ultimate sentence that is of importance, rather than each step in the reasoning process leading to it. When a sentence is reviewed on appeal, again it is the ultimate sentence rather than each step in the reasoning process that must be considered [see Koroicakau v The State [2006] FJSC 5; CAV0006U.2005S (4 May 2006)]. In determining whether the sentencing discretion has miscarried the appellate courts do not rely upon the same methodology used by the sentencing judge. The approach taken by them is to assess whether in all the circumstances of the case the sentence is one that could reasonably be imposed by a sentencing judge or, in other words, that the sentence imposed lies within the permissible range [see Sharma v State [2015] FJCA 178; AAU48.2011 (3 December 2015)].

[25] On the other hand the learned trial judge appears to have erred in favour of the appellant by not fixing a non-parole period as at the time of sentencing the trial judge was obliged to give reasons as to why a non-parole period was not fixed as permitted under section 18(2) of the Sentencing and Penalties Act, for otherwise as a rule he had to fix a non-parole period in terms of section 18(1). The trial judge had not given any reasons why he decided to act under section 18(2). This is to the advantage to the appellant as she became entitled to the full benefit of the remission of her sentence for an early release.

[26] In terms of the new sentencing regime introduced by the Corrections Service (Amendment) Act 2019, when a court sentences an offender to be imprisoned for life or for a term of 2 years or more the court must fix a period during which the offender is not eligible to be released on parole and irrespective of the remissions that a prisoner earns by virtue of the provisions in the Corrections Service Act 2006, such prisoner must serve the full term of the non-parole period. In addition, for the purposes of the initial classification, the date of release for the prisoner shall be determined on the basis of a remission of one-third of the sentence not taking into account the non-parole period. In other words, when there is a non-parole period in operation in a sentence, the earliest date of release of a pensioner would be the date of completion of the non-parole period despite the fact that he/she may be entitled to be released early upon remission of the sentence.

[27] Therefore, one cannot say that the ultimate sentences imposed upon the appellant were hash and excessive and disproportionately severe.

[28] It was held by the New South Wales Court of Criminal Appeal (NSWCCA) in R v Gentz [1999] NSWCCA 285 (09 September 1999) where the appellant had defrauded the government through fraudulent invoices and gained AUD 196,000.00:

‘12. It is, I should add, not an unusual situation in the experience of the Courts that when persons do find themselves both charged and ultimately convicted of an offence of this nature, that are persons of impeccable prior 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...’

[29] Therefore, there is no reasonable prospect of success in appeal on this ground of appeal.

04^th ground of appeal

[30] This ground of appeal is couched in too general terms in complaining that the trial judge had not adequately considered section 2(d) and (i) and 5(d) of the Sentencing and Penalties Act. Considering the sentencing order prima facie there are no merits in this complaint.

[31] This ground of appeal, therefore, cannot be meaningfully considered at this stage.

Order

1. Leave to appeal against sentence is refused.

Hon. Mr. Justice C. Prematilaka

JUSTICE OF APPEAL