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State v Blake [2014] FJHC 375; Criminal Review Case 005.2013 (29 May 2014)

IN THE HIGH COURT OF FIJI
AT SUVA
REVISIONAL JURISDICTION


Criminal Review Case no. 005 of 2013


BETWEEN:


STATE


AND


SONNY DAVID BERNARD BLAKE
Respondent.


Counsel: Mr. M. Delaney for the State
Ms . A. Seruvatu for the Respondent


Date of hearing: 6, 7, 24 March, 16 May 2014
Date of Judgment: 29 May 2014


JUDGMENT


1. On the 9th December in the Magistrates Court at Nadi, the Respondent was sentenced on his own plea to one count of Bribery of a Public Official and one count of Found in Possession of Arms and Ammunition. The two charges read as follows:


FIRST COUNT


BRIBERY OF PUBLIC OFFICIAL: Contrary to section 134(1) (a)(i) of the Crimes Decree 2009


PARTICULARS OF OFFENCE

SONNY DAVID BERNARD BLAKE on the 12th day of November 2013 at Nadi in the Western Division, without lawful authority provided a benefit namely 2 x US$20 to ARVIND GOUNDER a public official with intend (sic) to influence the said ARVIND GOUNDER in the exercise of his duties as a public official.


SECOND COUNT


FOUND IN POSSESSION OF ARMS & AMMUNITION WITHOUT AN ARMS LICENCE: Contrary to sections 4 and 53(1) of the Arms and Ammunition Act 2003


PARTICULARS OF OFFENCE

SONNY DAVIS BERNARD BLAKE on the 12th day of November 2013 at Nadi in the Western Division was found in possession of 2 x Colt Automatic Caliber 25 spring powered gun, 1x Walter 6mm pistol, 1x V Dairy shotgun, 1 x 5000 count premium plastic ammunition and 1 x 6000 count zinc plated ammunition without an Arms Licence.


2. The sentences passed by the learned Magistrate were 18 months imprisonment on Count One and 6 months imprisonment on Count two, both suspended for a period of 5 years. In addition it was ordered that he pay a fine of $500 on each count with 100 days imprisonment on each count in default; that no conviction be recorded and that the arms and ammunition be confiscated and destroyed.


3. These proceedings are by way of a hearing pursuant to section 260 of the Criminal Procedure Decree 2009 to examine the record of proceedings below to consider whether the sentence imposed on the Respondent was correct and proper. The Court has of course given both parties time to make submissions on the sentence and the written submissions have been most helpful.


The Agreed Facts.


  1. The facts upon which the Magistrate based his sentence are very relevant to the review and for that reason they are rehearsed here in full:

"The accused ("SB") came into the country from Los Angeles, USA on Flight FJ811 for holiday. He was given 4 month visa on arrival. He is booked to return to USA on 23/11/13.


"At Customs Baggage Hall, Nadi International Airport a Customs Officer asked SB's suitcase to be searched. SB then took out 2 US$20 and handed it over to the officer, asking him not to search his suitcase but instead let it go. The officer took the money and referred to his work-mate (named) that he will report the matter to the Police.


"The Customs Officer told SB to wait at the customs examination counter whilst he will process the other passengers on the flight when SB collected his luggage and went outside at the arrivals and got into a taxi to leave the airport. The Officer managed to stop taxi and brought SB inside the Customs Hall where another officer searched

on (sic) his luggage and the above mentioned arms and ammunition were found in his black suitcase.


"SB was arrested and handed over to Police for investigation. All the seized arms and ammunition were inspected by Prikesh Singh, a Military Officer of Delta Coy and he confirmed it to be arms and ammunition.


"Matter was reported and SB was caution interviewed and he stated that all the arms and ammunition are toys and he brought it to be given as a gift to his cousins in Fiji. He also stated that he had not declared it on his arrival card."


The Sentence Below


  1. In his sentence the learned Magistrate set out the Summary of Facts (identical to the above) and then correctly identified the maximum penalties (10 years and five years /fine $50,000 respectively. He claimed the tariff for the first count is 12 months to 3 years imprisonment while stating that there is no tariff for the second count. He said that the aggravating factors for the first count were that money was used to bribe a customs official, that SB failed to comply with a directive of a Customs Officer and that he forced his way out of the Customs Hall. For the second count he said that it was an aggravating factor that the guns and ammunition were not declared on the customs form.

He went on to take into consideration the very thorough written mitigation of Mrs Seruvatu, counsel for the accused below and indeed for him also in these proceedings. The Magistrate stressed the very early guilty plea as "an indication of honesty and being responsible for your unlawful conduct". He considered in detail the decision of Goundar J. in Winter v State HAA006.2012 (10 May 2012) in which the Magistrate said that the learned Judge had defined the meaning of Arms and Ammunition and the Magistrate then came to a conclusion which is not very clear, but stating that he disagreed with counsel for the accused. He then went on to analyse sentencing authorities for official corruption but then said that they were not applicable to the offence of Bribery of a Public Official.


He referred to the case of F.I.C.A.C. v Rizvi HAC 03 of 2010 (Ltk), which was a case which he said was a Bribery of Public Official case and which resulted in a sentence which was partially custodial and partially suspended with the addition of a fine. The learned Magistrate relied on this case as establishing a "principle that a suspended sentence can be imposed subject to the seriousness of the case as predetermined by its facts."


  1. The Magistrate then took a starting point of 12 months for each count. He increased the sentence on the first count by 18 months for his previously stated aggravating factors and by 6 months for those pertaining to Count 2. He reduced each sentence by 6 months for the early guilty plea. He further reduced the sentences for what he referred to as "strong and persuasive mitigation" by a further 6 months. The resultant final sentences were therefore 18 months imprisonment on the first count of Bribery of a Public Official and 6 months imprisonment for the possession of arms and ammunition.
  2. The Magistrate then ordered that no conviction be recorded because he was "truly remorseful and a first offender". He then took into account again his mitigation, this time referring to it in detail, and on the strength of the mitigation ordered that the sentences be suspended for a period of 5 years and that the accused pay a fine of $1,000.

Discussion


  1. It is the view of this Court that the learned Magistrate, in his stated awareness that the offences are serious, has put far too much weight on the mitigating factors proffered on his behalf.
  2. Not only that, but the Magistrate has unfortunately fallen into several errors on the way to his sentence.

10. In an age where commercial intercourse is paramount and where the nation's economy depends on honesty and propriety of commercial transactions, bribery is a canker that undermines economic growth and discourages investment. Bribery of public officials is of course more serious. It attacks the integrity of Government; it injures the moral fibre of Government Officials and if it succeeds it serves to disadvantage the underprivileged and the poor. Sentences must be passed by the Courts that would do everything to discourage the practice by sending a message that it will be punished severely. As Winter J. said in Suliasi Sorovakatini HAC 18 of 2005:


"We all know that public corruption betrays the public trust and erodes public confidence in our Government institutions. These are serious crimes and it is important that potential offenders and the public at large understand that these crimes will be met with stiff penalties".


  1. There are few authorities for guidance on the crime of Bribery of a Public Official but some assistance can be found in cases charged under the Prevention of Bribery Promulgation 12/2007 where sentences of 8 months to 2 years have been passed (see Niraj Singh HAC 004.2010 and Nathan HAA 003.2013)
  2. For a crime as serious and as damaging as Bribery of a Public Official sentences in the range of 9 months to 3 years must be regarded as the accepted range and it would be in the most exceptional circumstances that suspended sentences would be countenanced. Suspended sentences in a bribery context merely send a message that it is acceptable to offer bribes in some circumstances and the message must be given that it is never acceptable.
  3. Possession of Arms and Ammunition is another serious offence for the very reason that the potential of the possession is unfathomable. It can never be known what the arms and ammunition are going to be used for despite what an accused may say and the threat to human life or national security must remain paramount. In Taniela Tolose HAA90.2000 Shameem J. upheld a sentence of 18 months imprisonment for this offence on a plea of guilty. In Naqa HAA23 of 2003 a sentence of 3 years was upheld for the offence but Shameem J. said that a sentence of 18 months to two years would have been more appropriate.
  4. The maximum sentence for possession not in a prohibited area is five years. There was no evidence at trial that the airport is a prohibited area (although it is suspected that it probably is). Given that maximum, an appropriate range of sentences for this serious offence should be in the range of 12 months to 3 years. If the arms are found to be in possession in a prohibited area the maximum penalty is ten years and the tariff then would be double; from 2 to 6 years.

Unlike the offence bribery of a public official there perhaps could be rare circumstances in which a sentence for possession of Arms and Ammunition could be suspended depending on the nature of the weapons seized.


  1. Counsel for the accused had relied in the lower court on a decision by Goundar J. in Winter HAA006/12(Lbs) in which the learned Judge had placed a very restrictive test on the definition of arms in which he said that the charge and the facts must recite that the arms in question were designed or adapted to discharge any shot, bullet or other missile which could be lethal or dangerous to people. In that case the Judge was considering whether a bow and arrow constituted arms and ammunition. The learned Magistrate in these proceedings below disagreed with counsel that the Winter case was relevant because he said that the arms and ammunition seized from SB satisfied the test. The Magistrate is correct. In this case there was a report from an Arms expert from the Military that stated that the items seized were arms and ammunition. That report and its expert opinion is an admitted fact.
  2. The admitted facts disclose that the import of the arms and ammunition was effected in rather suspicious circumstances. The accused had attempted on at least three occasions to prevent revelation of the guns. He had failed to disclose them on his arrival card, he had tried to prevent opening of his case and he had tried to flee the airport with the arms. It is obvious that he was taking great pains to not have his luggage opened and his excuse that he was also carrying several bottles of liquor does not assist him. The accused had submitted that the guns and pellets were easily bought at a common "Mall" variety store. That submission does not assist him either. It is well know after world wide reporting of shooting tragedies in the U.S.A. that it is very easy for anybody to buy weapons cheaply in that country.
  3. This Court does not take such a generous view of either crime that the learned Magistrate did and in that light and the light that the sentence were miscast in any event, this Court would confirm the conviction of the accused on both charges but would set aside the sentences passed below and proceed to sentence afresh pursuant to sections 262 and 256 of the Criminal Procedure Decree.
  4. For the Offence of Bribery of a Public Official I take a starting point of 18 months' imprisonment and for the sole aggravating feature of then ignoring the Official's directives and trying to flee from his authority I would add further one year's imprisonment bring the interim total to 2 years and six months' imprisonment. For his mitigation of ignorance of local custom given the prevalent "tipping culture" in the USA and for the powerful written character references he has provided, I would deduct the twelve months added . From the 18 month sentence I would deduct a full third for his co-operation with the authorities and for his early guilty plea living a term of imprisonment to be served of 12 months.
  5. For the Offence of Possession of Arms and Ammunition I would take a starting point of 18 months. The aggravating features of the crime are that there was a concerted attempt to conceal the arms from detection from the authorities. For that I add a term of 12 months to the sentence. Again for his character mitigation and clear record I deduct that 12 months and again I would deduct 6 months from the sentence for his co-operation and plea of guilty, leaving a final sentence of 12 months imprisonment.
  6. The convictions are to be recorded against his name and an aggregate fine of $1,000 is imposed.
  7. The two terms of imprisonment are to be served concurrently.
  8. Despite the Court's view expressed in paras.10 and 12 (supra) that it would only be in truly exceptional circumstances that sentences for either of these very serious crimes could be suspended, this Court is of the view that exceptional circumstances do exist in this case. The Magistrate quite rightly recognized his strong mitigating factors, the fact that he was co-operative with the authorities and entered pleas of guilty at the earliest opportunity. He has provided glowing references as to his character and he undertakes two jobs in Nevada to provide for his young family and to care for his widowed mother and aged grandmother. Most important of all he has stayed back in Fiji in response to this review procedure. The Court has had no power to detain him or to order him to remain but he has of his own volition remained to see this matter to the end which is very much to his credit.
  9. In the circumstances and most exceptionally the Court orders that the concurrent sentence of 12 months be suspended for a period of three years.
  10. The $1,000 fine has already been paid.

Summary


  1. The two convictions for Bribery of a Public Official and Possession of Arms and Ammunition are to be recorded.
  2. The concurrent sentence of 12 months for each offence is to be suspended for three years.
  3. A fine of $1,000 (already paid) is to remain imposed.

P. Madigan
Judge
At Suva
29 May 2014.

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