Court of Appeal of Fiji

[12] Thereforrefore, there is no reasonable prospect ofess is ground of appeaappeal.

01^{st ground of appeal (sentence)}

[13] The appellant’s counsel submits that the trial judge had erred in selecting the mid-range of the sentencing tariff by taking 07 years as the starting point and also argues that the trial judge had considered the same factors which were part of the tariff and already used in determining the starting point in enhancing the sentence under aggravating factors thereby committing ‘double counting’.

[14] The trial judge had taken level of authority and trust reposed in the position held by the appellant, and the level of prejudice caused to the victim in sentencing for Abuse of Office. He had said that 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. Accordingly, the trial judge had come up with the following diagram with a range of sentences from one (1) year to twelve (12) years and according to the trial judge the sentencing court is to determine the appropriate starting point based on the level of culpability (vertical axis) and the prejudice/ harm caused (horizontal axis) in any given case:

[15] While the above sentencing ranges for Abuse of Office could be subjective depending on what a trial judge would perceive as ‘lesser level’, ‘medium level’ and ‘high level’ of culpability and harm/prejudice with or without gain, it is clear that the range of sentences the trial judge had relied on applies only in so far as picking a starting point is concerned and does not denote the sentencing tariff for Abuse of Office (which, if required, may be laid down by the Court of Appeal or the Supreme Court according to the provisions of the Sentencing and Penalties Act) in the matter of the ultimate sentence. In other words the diagram depicting various sentence ranges would only apply to selecting a starting point of the sentencing process.

[16] Another important aspect of this exercise is that when a trial judge selects a starting point according to the above chart he has already considered the level of culpability and harm/prejudice with or without gain, for without going through that process he cannot decide where he would pick the starting point. The other aggravating and mitigating factors would thereafter determine the final sentence.

[17] There is, however, a fine line between factors considered to determine the level of culpability and harm/prejudice on the one hand and the other aggravating factors on the other. There could be overlapping of some factors in this process, for there is a wide spectrum of considerations under ‘culpability’ and ‘harm/prejudice’. This is partly due to the use of broad concepts such as ‘culpability’ and ‘harm/prejudice’ to determine the starting point and the multitude of factors that have been and could be included and accommodated within them. That is why, as discussed below, it is important for the appellate court to focus on the ultimate sentence rather than each step in the sentencing process in the original court when a sentence is challenged in appeal.

[18] The trial judge had in the sentencing order elaborated as to what factors would generally go to determine level of culpability and level of harm/prejudice:

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:
    
    1. The level of contribution or the influence made by the accused in the commission of the offence,

2. The level of authority, trust and the responsibility reposed in the position held by the accused,
3. Has the accused influenced or pressured others to involve in the offence,
4. Nature and the manner in which the offence was committed or planned,
5. Number of victims,
6. Whether the accused involved in the offence through force, coercion, exploitation or intimidation,
7. Not motivated by personal gain,
8. Opportunistic “one-off” offence with little or no planning,
   

27. The level of harm/prejudice can be determined by considering the level of gain and the impact on the victim.

[19] Then, the trial judge at paragraph 36 had stated what made him pick the starting point of 07 years:

36. Ms. Vaciseva Lagai, you held a senior position in the Accounts Section as the Assistant Accounts Officer. You certified false payment vouchers pertaining to nine counts of Causing a Loss. Apart from that you have signed printed purchase orders when they were approved by Ana Laqere online. By doing these, you have caused a loss of $70, 873.14 to PWD. Having considered the level of culpability and the harm, I determine seven (7) years for the offence of Abuse of Office and four (4) years for each counts of Causing a Loss.’
    

[20] The starting point picked by the trial judge is therefore towards the lower end of the range of 06-10 years. The trial judge had however not stated under which column he had picked 07 years as it could have been selected either from ‘Medium Level of Culpability with High Level of Harm/Prejudice with gain’ or ‘High Level of Culpability with Medium Level of Harm/Prejudice either with medium level gain or without gain.’ as under both categories the starting point of the sentence range is set as 6-10 years.

[21] The trial judge had then stated what he considered to be aggravating factors at paragraph 41 and 55 in enhancing the starting point of the sentence of 07 years by 03 years:

‘41. All of these six accused held positions of responsibilities and trust in the procurement process of the DECE. Each of them were given authority to check and verify the process of purchase and payment at different stages. Instead of fulfilling those responsibilities and trust, you all chose otherwise to satisfy your avarice. By perpetrating these offences, you all have breached the trust and confidence reposed in you by the public of this country. You all have repeatedly and surreptitiously committed these crimes without any remorse or concern about the use of public funds and responsibility attached to it. I consider these factors as common aggravating grounds.’

55. Ms. Vaciseva Lagai, in respect of the discussed aggravating factors, I increase three (3) years for the offence of Abuse of Office and two (2) years for the each count of Causing a Loss, reaching an interim imprisonment period of ten (10) years for the offence of abuse of office and six (6) years for each counts of Causing a Loss. I reduce one (1) year in consideration of your age and family circumstances and further one (1) year for delay, making the final imprisonment period of eight (8) years for the offence of Abuse of Office and four (4) years for each count of Causing a Loss.’
    

[22] The counsel for the appellant based on paragraph 41 argues that when the trial judge enhanced the initial sentence by 03 years he had considered the same factors that he had already taken into account in picking the starting point of 07 years committing ‘double counting’. This argument is not totally without merit.

[23] In Senilolokula v State [2018] FJSC 5; CAV0017.2017 (26 April 2018) the Supreme Court has raised a few concerns regarding selecting the ‘starting point’ in the two-tiered approach to sentencing in the face of criticisms of ‘double counting’.

[24] “Double-counting” is reflecting one or more of the aggravating features of the case more than once in the process by which the judge arrives at the ultimate sentence. Firstly, the judge can only then use the aggravating features of the case which were not taken into account in deciding where the starting point should be. Secondly, many things which make the crime so serious have already been built into the tariff and judges should not treat as aggravating factors those features of the case which have already have been reflected in the tariff itself [vide Kumar v State [2018] FJSC 30; CAV0017.2018 (2 November 2018)]. Although, the formula that the trial judge had suggested in the diagram is not a sentencing tariff for Abuse of Office but how to arrive at the starting point, the same concerns on double counting may apply there as well.

[25] This concern on double counting was echoed once again by the Supreme Court in Nadan v State [2019] FJSC 29; CAV0007.2019 (31 October 2019) where it was stated that in many jurisdictions, the court identifies its starting point, states the aggravating and mitigating factors and then announces the ultimate sentence without saying how much was added for the aggravating factors and how much was then taken off for the mitigating factors. In Qurai v State [2015] FJSC 15; CAV24.2014 (20 August 2015) the Supreme Court pointed out another approach namely "instinctive synthesis", by which is meant a more intuitive process of reasoning for computing a sentence which only requires the enunciation of all factors properly taken into account and the proper conclusion to be drawn from the weighing and balancing of those factors and remarked that the two-tiered process (see Naikelekelevesi v State [2008] FJCA 11; AAU0061.2007 (27 June 2008) when properly adopted, has dvantage of providing consistency of approach in sentencingncing and promoting and enhancing judicial accountability. The Court of Appeal recently considered the issue of double counting in Naua v State [2021] FJCA; AAU 056.2015(29 April 2021).

[26] Coming back to the complaint of double counting, after the trial judge had determined the starting point having considered the level of culpability and level of harm/prejudice with the ensuing loss, he could have considered only other factors as aggravating features, if any, to enhance the sentence. However, it appears from paragraph 41 that the trial judge had considered once again somewhat similar aspects of culpability and harm/prejudice, of course, along with other factors such as breach of trust and confidence, abuse of public funds with no remorse or concern etc. as aggravating factors. These are features that could have been legitimately considered as aggravating factors to enhance the sentence.

[27] Therefore, it appears that to some extent there is a degree of double counting in the process of enhancing the sentence for aggravating features which the trial judges should endeavor to avoid. However, the trial judge had considered other factors too as aggravating the offences in enhancing the sentence. For e.g. breach of trust and confidence which, however, is not part of Abuse of Office and could be taken into account as an aggravating factor [see R v Stanbouli [2003] NSWCCA 355 (04 December 2003) and R v Martin [2005] NSWCCA 190 (20 May 2005)]. The trial judge, however, had not given any discount for previous good character in mitigation on the premise that anyway only the people with good character are given positions of trust and responsibility in the public service (see R v Gentz [1999] NSWCCA 285 (09 September 1999) and Fiji Independent Commission Against Corruption v Mau [2011] FJHC 222; HAC089.2010 (14 April 2011).

[28] However, 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 (vide 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 (Sharma v State [2015] FJCA 178; AAU48.2011 (3 December 2015).

[29] Despite some degree of double counting, viewed in the light of other aggravating factors and the maximum sentence of 17 years of imprisonment one cannot say that there is a sentencing error in the ultimate sentence of 08 years or it is harsh, excessive and disproportionately severe requiring the intervention of the Court of Appeal.

[30] 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...’

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

Orders

1. Leave to appeal against conviction is refused.
2. Leave to appeal against sentence is refused.
   

Hon. Mr. Justice C. Prematilaka

ACTING RESIDENT JUSTICE OF APPEAL