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Fiji Independent Commission Against Corruption v Khan [2010] FJHC 145; HAC082.2010 (28 April 2010)

IN THE HIGH COURT OF FIJI
AT SUVA
CRIMINAL JURISDICTION

Criminal Case No: HAC 082 of 2010

FIJI INDEPENDENT COMMISSION AGAINST CORRUPTION

V

FARZAND AHMED KHAN

Hearing: 26th April 2010
Sentence: 28th April 2010

Counsel: Mr. S. Dissanayake & Ms E. Leweni for FICAC
Mr. T. Terere for Accused

SENTENCE

[1] Farzand Ahmed Khan, you stand convicted of forgery and abuse of office following pleas of guilty.

[2] The facts are that you were employed as a Customs Officer of the Fiji Revenue and Customs Authority. You were stationed at Nausori Airport. Your duties included processing departing and arriving passengers on international flights.

[3] On 19 December 2008, during the course of your official duty, an outbound international passenger to Tonga, Mohammed Aiyaz approached you. Mohammed Aiyaz had an order issued against him by the Nadi Magistrates’ Court, restraining him from travelling out of Fiji pending a proceeding in that court. Your actions allowed Mohammed Aiyaz to depart Fiji in breach of an order of the court.

[4] You altered the Departure Maintenance Record of one Kolinisau Vakaceguvinaka Sarusaru by substituting his name and date of birth with that of Mohammed Aiyaz. Your intention was to defraud the Immigration Department so that Mohammed Aiyaz could leave Fiji undetected.

[5] You acted unreasonably and with improper motive in breach of established departmental rules and regulations. Your act was an abuse of authority of your office and prejudicial to the rights of your employer to ensure court orders are complied with.

Personal Circumstances

[6] You are 29 years old. When you committed the offences you were 28 years old. You are single. When you were 5 years old your parents separated. You were raised by your mother, who now is old and sickly. She is depended on you. You have a sibling who is married. You have a Diploma in Accounting. You have been terminated from your employment and your prospect of securing another employment is slim. You sell vegetables to sustain yourself and earn about $20-$30 per week.

Remorse

[7] You have shown genuine remorse. You cooperated with the FICAC Officers in your caution interview and admitted the offences. You pleaded guilty upon arraignment.

Character

[8] You are a first time offender.

Maximum Penalty

[9] The offences you committed are misdemeanours. The maximum penalty prescribed for both offences is 2 years imprisonment.

Aggravating Factors

[10] By committing these offences in the course of your official duty, you have grossly breached the trust of your employer and the public. Your actions have allowed a person to circumvent a court order and to avoid the justice system. I treat these as aggravating factors.

Mitigating Factors

[11] The mitigating factors are your early guilty pleas, cooperation with the authorities, remorse, previous good character and personal circumstances.

Sentence

[12] For each offence, I pick 12 months as my starting point. I add 6 months for the aggravating factors and deduct 12 months for the mitigating factors. For each offence, I arrive at a term of 6 months imprisonment.

[13] I now consider whether to suspend your sentence. Suspension of sentence is generally reserved for a first time and a young offender. Although you are a first time offender, you are not a young offender.

[14] You were 28 years old and of mature mind when you committed the offences. You must have realized that your actions would be harmful to your employer and the public. I must remind you that Customs Officers have an important responsibility. You were placed in a position to provide border security at an international port of entry. The Customs Officers are expected to conduct themselves in a responsible manner and follow the departmental rules and regulations. They must not fall into temptations. To alter passenger records to allow a person to escape the jurisdiction in breach of a court order is a serious matter that must be denounced. Despite your previous good character and other compelling mitigating factors, I give priority to the principle of deterrence. The purpose of your punishment is not only to deter you but others as well from committing this kind of offences.

[15] For these reasons, I decided not to suspend your term of imprisonment.

[16] You are sentenced to 6 months imprisonment for the offence of forgery and 6 months imprisonment for the offence of abuse of authority, to be served concurrently.

Daniel Goundar
JUDGE

At Suva
28th April 2010

Solicitors:

Office of the FICAC for Prosecution
Office of the Legal Aid Commission for Accused