IN THE HIGH COURT OF FIJI
AT SUVA
Appellate Jurisdiction

CRIMINAL APPEAL NO: HAA 0055 OF 1997

BETWEEN:

THE STATE
Appellant

&

RUSIATE SILIMAIBAU
Respondent

Mrs. R. Olutimayin for Appellant
Respondent in person

JUDGMENT

Between 3/1/91 and 30/9/95 the Respondent systematically stole and embezzled $9,052.20 while employed by the Controller of Prisons as Prison Officer in charge of cemeteries at Suva, Vatuwaqa and Nasinu cemeteries.

It was only discovered when the Respondent was relived by another officer prior to his going on leave on 6/10/92. An audit turned up the following misappropriations:-

i)	1991 – Vatuwaqa Cemetery 	- $800.00
ii)	1991 – Suva Cemetery 	- $1748.00
iii)	1992 - Vatuwaqa Cemetery	- $1152.60
iv)	1992 - Suva Cemetery 	- $2264.60
v)	1991 - Reserve Graves	- $2623.00
vi)	Nasinu Cemetery 		- $480.00
TOTAL				= $9052.20

In an initial interview on 24/11/92 with police, the Respondent was uncooperative and would not say anything until he had seen a lawyer. That, of course, was his right.

But when interviewed 3 months later under caution on 25/02/93 he stated that he misappropriated the monies by entering revenue receipts numbers previously issued for other revenue collected and accounted for.

The Respondent admitted he took money on a daily basis and used the money on food, drinks and cigarettes.

The Prison Authorities, despite this, kept the Respondent in their employment, and deducted $50 a fortnight from his salary to recover the sum stolen.

At that rate it would take 7 years to repay the deficiency. Who authorized this treatment of the offence does not appear, but, in effect, the Respondent was interdicted under section 27(3) of the Prisons Act Cap. 86 on three-quarter pay.

The Respondent was charged on 4th May 1993 with one count of Larceny as a servant of the amount $8562.20 and a second count of Embezzlement as a servant of the sum of $490.00.

Mr. Mehboob Raza appeared for the Respondent and plea was deferred until 19 July 1993 when the Respondent pleaded ‘Guilty’ to both offences, before Magistrate Shah.

The facts as noted by the Magistrate occupied 4 lines of his record as follow:-

“FACTS: Accused is employed by Prison Department. Accused used $8562.20 of Prison Department money.

On Count 2, $490 recovered by him but used.”

The Magistrate noted that there had been no recovery, that the facts were admitted, and that previous convictions were Nil.

Two full typed pages of Summary of Facts under the hand of the Investigating Officer wee not placed on file. If read to the Magistrate, they were not recorded by him.

They set out exactly how the offence was committed, particularly the extent of the deceit involved, and how it had gone on a daily basis for a period of 1 year and 9 months before the offender was caught out.

The Magistrate did not devote the slightest attention to any of this material, and, if it was not produced to him, he should have demanded it, especially that part that said the accused had” used the money for food, drinks and cigarettes.” Which would not suggest that it was spent on his family.

In my view the Magistrate was completely remiss in not recording the full facts of a serious offence. Nevertheless, the submission made in mitigation reads “Family needs, so used money. He is paying $100 per month.” Nemani’s case – 1989 committed similar offence. Controller allowed him to pay.

There was no proper legal reference to Nemani’s case, or what it said. The matter was then adjourned for 8 days to 27/0793.

On that date, Magistrates Shah further adjourned the matter of sentence to 3/8/93 noting the Record “No imprisonment proposed as initiative to repay taken.”

It is not records whose idea this was; whether it was Magistrate Shah’s own idea, or whether it was a course urged upon him by Mr.Raza.

In either case it is totally contrary to law and decided cases and to the Circular Memorandum on Suspended Sentences by the learned Chief Justice of 20/3/91.

The learned Chief Justice says that “except in very exceptional circumstances, the power (not to impose an immediate custodial sentence) is certainly not intended to be used in cases such as the following:-

“Frauds involving large sums of money”.

In Thomas “Principles of Sentencing” 2nd ed. At p.218 it is said quite clearly that even statutory provisions in England allowing for an adjournment for 6 months to see how an offender behaves including, where appropriate, making reparation for an offence, has not altered the previously established principle that compensation paid voluntarily by the offender, and intended to be paid, may be taken into account as a mitigating factor but does not entitle the offender to a specific discount from his sentence.

“The making of a compensation order (allowed for in Britain by statute) has no direct relevance to the process of determining the nature or length of the sentence imposed on the offender: ‘Compensation orders wee introduced ……..as a convenient and rapid means of avoiding the expense of…..civil litigation when the criminal clearly has means which would enable the compensation to be paid: R v Inwood (1974) 60 Cr. App. R. 70”.

“………it appears that the possibility of a compensation order should have no effect on the decision whether to impose a sentence of imprisonment or the calculation of its length.

Compensation paid under the order o f the Court can rarely be regarded as evidence of remorse, which is the basis for treating payment of compensation as a mitigating factor.”

“The same reasoning applies (where the English statute allows a 6-month adjournment period to have regard to an offender’s conduct subsequent to conviction)”.

“The section is not intended to alter the underlying principle that payment of compensation may be treated as a mitigating factor where it can be seen as evidence of remorse. It appears to be wrong in principle to defer sentence in order to put pressure on an offender to pay compensation and then adjust the sentence according to whether or not he had managed to fulfil the sentencer’s expectations: Cf. Crosby and Hayes (1975) 60 Cr. App. R. 234.”

“This case appears to support he wider principle that the payment of compensation under pressure is not a mitigating factor which should affect the sentence imposed for the offence.”

‘The proper approach to the treatment of compensation as a mitigating factor is illustrated by Cockburn (unreported, 22.7.74) where a man of previous good character admitted stealing a total of about £6000 from his employer; the money was apparently used to meet debts arising from a business venture which failed. There was evidence before the sentencer, who imposed three years’ imprisonment, that the appellant was anxious to repay the stolen money and had taken some steps towards doing so; the Court was invited to suspend his sentence so that the appellant’s chances of making good the loss would be improved. This the Court declined to do, as ‘this matter cannot be looked at simply from the point of view……..people from whom money has been stolen. These were thefts on a large scale and over a substantial period and…..it is necessary to impose a substantial punishment in order to deter others’. However, there was room for some mitigation in view of ‘this man’s character’ and ‘his genuine and we hope continuous, desire to pay’. His sentence was reduced to eighteen months,”

To return to the history of the present case, it will be recalled that before any sentence was imposed, Magistrate Shah noted the following:

“Mr Raza: Requests deferment of sentencing for to see if money could be paid slowly as agreed between the parties.”

Magistrate Shah accepted this submission with alacrity and adjourned sentence to 1 December 1993.

He then kept adjourning sentence for 3 ½ years, almost always before himself, thus perpetuating a course that was totally contrary to law.

On 19/03/97 what can only be described as a highly unlawful farce started to unravel.

Although pleas had been taken as far back as 19 July 1993 and the sketchiest of facts put up, there was now a note by Magistrate Shah that “Prosecution not ready with facts” Why had he not recorded them earlier? Why was this particular Defendant given an arm-chair ride outside the normal justice system?

The defence also was not overly given to disclosing the facts comment such as “Paid $1000. Need time.” (1.12.93) “Paid $1530. Need more time” (1.2.94) “Still paying” (1.12.94).

From then on, no reasons at all are recorded as to why the months and years should pass, and still no sentence on the accused; from 1st March 1995 to 11 April 1997!

On 11 April 1997, was still no facts recorded, Mr. Raza is recorded a saying “Overpaid to the complainant”. It is to be hoped that Magistrate Shah mis-recorded Mr. Raza on this occasion, as otherwise it would not be a correct statement of fact.

The Respondent was far from over-paying the missing money as a letter of 15 April 1997 from the Prisons Department showed. The Respondent in fact owed $5193.20 still after all this time! This exposes how futile was the course urged upon Magistrate Shah, and why it is forbidden by correctly-understood legal authority.

Mr. Raza now submitted at a 24 April 1997 appearance that it was ‘a loss system.” If he was referring to the course these proceedings had taken, he would be correct.

But if he was referring to the Prisons System, then his mere ipse dixit should not have been allowed to pass without him going into particulars as to how this was so. Where was this looseness?

After all, the accused’s job was, so far as appears, only to collect cemetery fees fixed by law give a receipt for them, and pay them over to the appropriate accounts person.

By 24 April 1997, the DPP had become involved and for the first time Magistrate Shah was compelled to end this charade.

It was submitted by Ms Tabuya, State Counsel, that a deterrent custodial sentence was needed, and that accused persons should not be allowed to buy their way out of trouble.

Mr.Raza in reply, in effect claimed that English decisions in Thomas “Principles of Sentencing should be given discharge when paid.

No decision of Fatiaki J. is recorded by Magistrate Shah having authorized any such approach. These are noting but vague statements.

But by the time he wrote his sentencing reasons Magistrate Shah had possessed himself of two decisions of Fatiaki J. Neither of them was in point.

In Review No. 1 of 1990 a student raped another on a picnic at Pacific Harbour and received 5 years’ imprisonment. This was quashed on appeal by Fatiaki J. and substituted with a $200 2-year good behaviour bond, allegedly on the basis that the accused was a young person with a bright future and should be given an opportunity!.

The facts are that the present Respondent was 35 years old, married for 11 years with 3 sons and was a Sergeant Major Class ”A”. He, a senior officer, was guilty of calculated deceit of his employer over a long period, not a crime of passion o a beach at Pacific Harbour, by a young student.

The second decision of Fatiaki J, was Revision No. 5 of 1993, an application of section 44 of the Penal Code dealing with conditional and unconditional discharges. It was a traffic case of driving with excess alcohol in the blood, in which Fatiaki J. thought a particular offender should not have his driving licence taken away.

Magistrate Shah drew from this that present offender should not have a conviction against him because “a conviction would mean loss of employments”.

There was absolutely nothing in either of these cases that could possibly justify the application of section 44 of the Penal Code to the present Appellant. A devious long-term system had been employed by an older experienced officer who should have known better, and $5193.20 out of $9052.20 stolen monies was still outstanding.

The Circular Memorandum No. 11 of 1991 of Chief Justice Tuivaga, issued well before this case, indicated that only in exceptional circumstances should suspended sentences be used in the case of “frauds involving large sums of money.”

A fortiori section 44 should not be used, where not even a conviction let alone a sentence is imposed.

The learned Chief Justice thereby urged Magistrates to restore the bad image they were giving the judicial service because of indiscriminate and unwarranted use by some Magistrates of their powers in this regard.

In my view Magistrate Shah gave no heed to this warning, under the urging of Mr. Razam in using sec. 44 of the Penal Code in this case.

If present up-to-date High Court authority is wanted, I cite with my respectful approval the decision of my learned brother Scott J in Commissioner or Inland Revenue v Druavesi App. No. HAA0012 of 1997 at pp. 4-5: “Perhaps it is time to re-emphasize that the powers conferred by section 44 (1) of the Penal Code should be exercised sparingly (see Halligan v Police NZLR 1185) where the direct or indirect consequences of convictions are out of all proportion to the gravity of the offence and after the Court has balanced all the public interest considerations as they apply in the particular case (see Tipple v Police [1994] 2 NZLR 362).”

In Druavesi’s case Scott J. also held that the mitigation offered on the accused’s behalf was uncritically accepted. I make the same observation in the present case.

Right from the start of these proceedings, Magistrate Shah in complaisant manner adopted every suggestion of defence lawyer Raza, particularly that adjournment of sentencing go on ad infinitum for 3 years and more.

The slightest acquaintance with the law would tell both men that this was a wholly unacceptable mode of dealing with the case. It is wide open to corruption, and the public could well ask: why was this particular accused’s case treated outside the normal course of the legal system?

Scott J. in Druavesi’s case (supra) had this to say at p.2: “Having recorded the mitigation the Chief Magistrate ‘adjourned for sentence’. It was not until over 2 months and 3 adjournments later that sentence was passed.” (Here it was 23 adjournments and 3 ½ years later!)

Scott J. continued: “This practice of adjourning for sentence for substantial periods of time is to be avoided. Section 215 of the Criminal Procedure Code is quite clear. It doest not envisage adjournment:-

'The Court having heard both the Prosecutor and the Accused person and their witnesses and evidence shall either convict the accused and pass sentence upon or make an order under the provisions of section 44 of the Penal Code.'

“While a magistrate who wishes to consider the appropriate sentence perhaps after consultation with his colleagues or following study of reported sentence decisions undoubtedly has the power to adjourn for a short period, say, 1 or 2 days, and while even longer adjournments may be justified to enable relevant enquiries to be made or to obtain a social enquiry report, there is nothing to be said in favour of long adjournments of the kind which occurred in this case and the practice of adjourning in such circumstances should cease (See R. v. Esterling (1946) 175 LT 520)”.

The facts of that case were that Druavesi had failed to comply for 412 days from 2 June 1992 with a motive under sec. 50(1) of the Income Tax Act to supply information about his tax affairs.

This followed his failure to file tax returns for the years 1985, 1986, 1987, 1988 and 1989.

There was a financial penalty for each day of default but a limit of $2000 as the maximum fine a Magistrate could impose. Druavesi’s failure could have attracted a penalty of tens of thousands of dollars in the High Court.

So with such a straight-forward case with a mathematical penalty, Scott J. was eminently right to say in effect: where was the need to think too long about sentence in a such a matter?

The same reasoning applies in the present case. Once the kind of deceit of his employer practiced by a senior prison officer of 35 years of age over more than a year was seen, there was no reason whatever to adjourn sentence for over 3 years to constitute the Magistrate Court as a kind of debt-collecting agency.

However well intentioned it may have been, if indeed it truly was that, it was totally contrary to principle and applicable authority.

I join with my brother Scott J. in saying that it has to cease.

By the time he appeared before me, the Respondent’s lawyer Mr.Raza had taken himself off the record.

The Respondent appeared for himself after first trying to avoid appearing by sending his wife along with a purported medical certificate saying he had a “migraine headache”.

There was no decipherable name of any Doctor or address of a medical practice, and the document could even have been a forgery, for all that appeared.

The Court had a message sent to the Respondent to present himself in person as there was no credible medical evidence that the Respondent could not appear in Court.

When the Respondent turned up there appeared to be nothing wrong with him. He put up his mitigation quite effectively.

It was that his contract had not been renewed recently and he was in the process of moving out of his Government quarters. He was building some cheap structure for himself and his family to live in.

He said he had no idea what employment he could engage in but he would seek work as a security officer. He had been in the Army before he became a prison officer.

As I told the Respondent, the offence was a serious one, but he had been brought to his present sorry pass by an improper handling of his case, and that he should have faced the music years ago, when it would now be behind him. Not hanging over his head for years.

I take into account that the Respondent has been subjected to a species of cruel and unusual punishment by the efforts of those over who he had no control.

Taking into account that the Respondent was not responsible for the way his case was handled, I determine that a custodial sentence to operate immediately at this late stage, and at this precise point in his career, would operate harshly. The maximum penalty for each offence is 14 years’ imprisonment.

But a large amount of taxpayers’ money viz., $5193.20 remains unrecovered. I give the Respondent time to find the money to pay fines equivalent to the outstanding monies, which fines shall be paid over to the Controller of Prisons.

That time I have stretched out as far as I can justify it to 31 January 1998. The Respondent will have to go to jail if the fine is not paid. It will be for a lesser period that the sentence he should have received in 1993, which would have been of the order of 15 months’ imprisonment at least, maybe even more.

This Court’s order therefore is:

1)	The Suva Magistrates Court orders of 6.5.97 discharging the Respondent without conviction under section 44 of the Penal Code are set aside;

2)	In lieu thereof the Respondent is convicted on both counts amended as follows:

FIRST COUNT

LARCENY BY PUBLIC SERVANT: -
Contrary to section 274 (b) (i) of Penal Code, Cap. 17.

Particulars of Offence

RUSIATE SILIMAIBAU between the 3rd day of January 1991 and 30th day of September, 1992 at Suva in the Central Division being employed in the public service of the Government of Fiji namely the Fiji Prisons Service, embezzled money, namely $490.00 taken into possession by him by virtue of his employment;

3)	On Count 1 the Respondent is fined the sum of $4500 to be paid to the Registrar High Court on or before the 31 January 1998 in default 5 months’ imprisonment such fine to be paid out by him to the Controller of Prisons

4)	On Count 2 the Respondent is fined $693.20 to be paid to the Registrar High Court on or before the 31 January 1998 in default 1 month’s imprisonment, such fine to be paid out by him to the Controller of Prisons;

5)	If such fines or any part of them remain unpaid on 31 January 1998, the Respondent is to appear at the High Court in Suva at 9.15am on that date to show cause why the default penalties should not be executed.

K.J. TOWNSLEY
PUISNE JUDGE

8th October 1997
SUVA