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Fiji Independent Commission Against Corruption (FICAC) v Bakani [2014] FJHC 594; HAC026.2009 (15 August 2014)

IN THE HIGH COURT OF FIJI
AT SUVA
CRIMINAL JURISDICTION
CRIMINAL CASE NO: HAC 026 of 2009


BETWEEN:


FIJI INDEPENDENT COMMISSION AGAINST CORRUPTION (FICAC)
PROSECUTION


AND:


1. KALIVATI BAKANI
2. KENI DAKUIDREKETI
ACCUSED PERSONS


Counsel : Mr.Blanchflower M, (SC), Ms. Yang E.
and Ms. Puleiwai F for FICAC
Mr. Keene B, QC, Ms. Cole Minstructed by Howard Lawyers for the 2ndAccused


Dates of Hearing : 23rd June 2014 – 28th July 2014
Date of Summing Up : 1st August 2014
Date of Judgment : 6th August 2014
Date of Sentencing Hearing : 8th August and 13th August 2014
Date of Sentencing : 15th August 2014


SENTENCE


  1. You, Mr. KalivatiBakani stands convicted of the following five separate counts of 'Abuse of Office' contrary to section 111 of the Penal Code, Cap 17, after pleading guilty to all five counts and admitted the Summary of Facts on 23rd of June 2014, the day the trial was to commence.

First Count

Statement of Offence (a)


ABUSE OF OFFICE: Contrary to Section 111 of the Penal Code Cap 17


Particulars of the offence (b)


KALIVATI BAKANI between about 31st March 2004 and 21st September 2004, at Suva in the Central Division, while being employed in the Public Service as the General Manager of the Native Land Trust Board and Director of Vanua Development Corporation Limited, in abuse of the authority of his office, did an arbitrary act for the purpose of gain, namely, facilitated a loan of $2,000,000.00 FJD to be made by the Vanua Development Corporation Limited to PacificConnex Limited, which was prejudicial to the Native Land Trust Board and indigenous Fijians.


Third Count

Statement of Offence (a)


ABUSE OF OFFICE: Contrary to Section 111 of the Penal Code Cap 17


Particulars of the offence (b)


KALIVATI BAKANI between about 16thNovember 2004 and 29th November 2004, at Suva in the Central Division, while being employed in the Public Service as the General Manager of the Native Land Trust Board and Director of Vanua Development Corporation Limited, in abuse of the authority of his office, did an arbitrary act for the purpose of gain, namely, facilitated a loan of $900,000.00 FJD to be made by the Vanua Development Corporation Limited to PacificConnex Limited, which was prejudicial to the Native Land Trust Board and indigenous Fijians.


Fifth Count

Statement of Offence (a)


ABUSE OF OFFICE: Contrary to Section 111 of the Penal Code Cap 17


Particulars of the offence (b)


KALIVATI BAKANI between about 28th February 2005to 28th April 2005, at Suva in the Central Division, while being employed in the Public Service as the General Manager of the Native Land Trust Board and Director of Vanua Development Corporation Limited, in abuse of the authority of his office, did an arbitrary act for the purpose of gain, namely, facilitated a Government Grant of $1,000,000.00 FJD disbursed to Vanua Development Corporation Limited through the Native Land Trust Board to be used as security for a loan provided to PacificConnex Limited by Dominion Finance Company Limited, which was prejudicial to the Native Land Trust Board and indigenous Fijians.


Seventh Count

Statement of Offence (a)


ABUSE OF OFFICE: Contrary to Section 111 of the Penal Code Cap 17


Particulars of the offence (b)


KALIVATI BAKANI between about 27thApril 2005 and3rd July 2007, at Suva in the Central Division, while being employed in the Public Service as the General Manager of the Native Land Trust Board and Director of Vanua Development Corporation Limited, in abuse of the authority of his office, did an arbitrary act for the purpose of gain, namely, facilitated a Government Grant of $1,000,000.00 FJD disbursed to Vanua Development Corporation Limited through the Native Land Trust Board to be used as security for overdraft and loan facilities provided to PacificConnex Limited, later renamed PacificConnex Investment Limited by the Australia and New Zealand Banking Group Limited, which was prejudicial to the Native Land Trust Board and indigenous Fijians.


Ninth Count

Statement of Offence (a)


ABUSE OF OFFICE: Contrary to Section 111 of the Penal Code Cap 17


Particulars of the offence (b)


KALIVATI BAKANI between about 23rd September 2005 and 29th September 2005, at Suva in the Central Division, while being employed in the Public Service as the General Manager of the Native Land Trust Board and Director of Vanua Development Corporation Limited, in abuse of the authority of his office, did an arbitrary act for the purpose of gain, namely, facilitated a loan of $1,000,000.00 FJD to be made by the Vanua Development Corporation Limited to PacificConnex Limited, then renamed PacificConnex Investment Limited, which was prejudicial to the Native Land Trust Board and indigenous Fijians.


  1. You, Mr. KeniDakuidreketi, stands convicted after a full trial with five Assessors for the following five separate counts of 'Abuse of Office' contrary to section 111 of the Penal Code, Cap 17.

Second Count

Statement of Offence (a)


ABUSE OF OFFICE: Contrary to Section 111 of the Penal Code Cap 17.

Particulars of Offence (b)


KENI DAKUIDREKETI between about 31st March 2004 and 21st September 2004, at Suva in the Central Division, while being employed in the Public Service as the Director of the Native Land Trust Board and Chairman of Vanua Development Corporation Limited, in abuse of the authority of his office, did an arbitrary act for the purpose of gain, namely, facilitated a loan of $2,000,000.00 FJD to be made by the Vanua Development Corporation Limited to PacificConnex Limited, which was prejudicial to the Native Land Trust Board and indigenous Fijians.


Fourth Count

Statement of Offence (a)


ABUSE OF OFFICE: Contrary to Section 111 of the Penal Code Cap 17.

Particulars of Offence (b)


KENI DAKUIDREKETI between about 16th November 2004 and 29th November 2004, at Suva in the Central Division, while being employed in the Public Service as the Director of the Native Land Trust Board and Chairman of Vanua Development Corporation Limited, in abuse of the authority of his office, did an arbitrary act for the purpose of gain, namely, facilitated a loan of $900,000.00 FJD to be made by the Vanua Development Corporation Limited to PacificConnex Limited, which was prejudicial to the Native Land Trust Board and indigenous Fijians.


Sixth Count

Statement of Offence (a)


ABUSE OF OFFICE: Contrary to Section 111 of the Penal Code Cap 17.

Particulars of Offence (b)


KENI DAKUIDREKETI between about 28th February 2005 to 28th April 2005, at Suva in the Central Division, while being employed in the Public Service as the Director of the Native Land Trust Board and Chairman of Vanua Development Corporation Limited, in abuse of the authority of his office, did an arbitrary act for the purpose of gain, namely, facilitated a Government Grant of $1,000,000.00 FJD disbursed to Vanua Development Corporation Limited through the Native Land Trust Board to be used as security for a loan provided to PacificConnex Limited by Dominion Finance Company Limited, which was prejudicial to Native Land Trust Board and indigenous Fijians.


Eighth Count

Statement of Offence (a)


ABUSE OF OFFICE: Contrary to Section 111 of the Penal Code Cap 17.

Particulars of Offence (b)


KENI DAKUIDREKETI between about 27th April 2005 and 3rd July 2007 at Suva in the Central Division, while being employed in the Public Service as the Director of the Native Land Trust Board and Chairman of Vanua Development Corporation Limited in abuse of the authority of his office, did an arbitrary act for the purpose of gain, namely, facilitated a Government Grant of $1,000,000.00 FJD disbursed to Vanua Development Corporation Limited through the Native Land Trust Board to be used as security for overdraft and loan facilities provided to PacificConnex Limited, later renamed PacificConnex Investment Limited, by the Australia and New Zealand Banking Group Limited, which was prejudicial to Native Land Trust Board and indigenous Fijians.


Tenth Count

Statement of Offence (a)


ABUSE OF OFFICE: Contrary to Section 111 of the Penal Code Cap 17.

Particulars of Offence (b)


KENI DAKUIDREKETI between about 23rd September 2005 and 29th September 2005, at Suva in the Central Division, while being employed in the Public Service as the Director of the Native Land Trust Board and Chairman' of Vanua Development Corporation Limited, in abuse of the authority of his office, did an arbitrary act for the purpose of gain, namely, facilitated a loan of $1,000,000.00 FJD to be made by the Vanua Development Corporation Limited to PacificConnex Limited, then renamed PacificConnex Investment Limited, which was prejudicial to Native Land Trust Board and indigenous Fijians.


  1. According to the agreed Summary of Facts of Mr. Bakani, the 1st accused and the evidence transpired in the course of Mr. Dakuidreketi's trial, the offending background in respect of the above mentioned charges can be briefly summarized as follows.
  2. Mr. Bakani was the General Manager and Mr. Dakuidreketi was a Director of Native Land Trust Board (NLTB), a Board of Trustees established under the Native Land Trust Act, to control and administer the native lands in view of facilitating the commercial transactions involved with those lands for the benefit of the Indigenous Fijian landowners. NLTB held Extinct Mataqali Funds, the funds kept with NLTB until been transferred to Fijian Affairs Board after the extinction of Mataqali is confirmed, Trust Funds and its own funds.
  3. The NLTB had created Vanua Development Corporation Limited (VDCL), a limited liability company, for the principal purpose of engaging in the facilitation of investing NLTB's funds and to be the commercial arm of NLTB. On 18th December 2003, it was resolved by the NLTB to appoint Mr. Dakuidreketi as Chairman and Mr. Bakani as a Director of VDCL. The other three Directors of VDCL were Mr. Nalin Patel, Mr. Daniel Whippy and Mr. IsoaKaloumaira. VDCL's initial paid-up capital of $7.7 million was comprised of $3.1 million Extinct Mataqali Funds, $3.4 million Trust Funds and a Government grant of $1 million. (Exhibit 9)
  4. Mr. Bakani quite correctly admitted and in Mr. Dakuidreketi's case, the court ruled that in all material times to the charges, from March 2004 to July 2007, both the accused were performing a public duty as Directors of VDCL and thus, held a 'public office' that section 111 of the Penal Code speaks of.
  5. PacificConnex Limited, of which the Chairman was one Mr. Ballu Khan, got this new name on 14th of January 2004 after its previous name, 'Sasha Limited' was changed by a special resolution. TUI Consulting, of which Mr. Ballu Khan was the Chief Executive Officer, was successful in securing the contract of NLTB to provide MySAP software system. The total cost of this 'IT Project' was $4.6 million and to be payable to PCX for a period of 11 years. A Business Solution Agreement was signed between NLTB and PCX on 31st of March 2004 to this effect.
  6. It was discussed in VDCL's 2nd Board Meeting held on 11th February 2004 about the offer of PCX to have a joint venture with VDCL where VDCL would own 51% of PCX shares. Ultimately VDCL Board of Directors agreed to resolve this proposal and Mr. Dakuidreketi, Mr. Bakani and Mr. IsoaKaloumaira were appointed as Directors of PCX to represent the interests of VDCL. These three Directors were paid $10,000 per annum from the date of appointment to PCX.
  7. With the above background knowledge of NLTB, VDCL and PCX, now we can move to the charges laid against the two accused. The five individual charges pertaining to each accused focus on five different transactions:
  8. It was revealed in the course of the trial that PCX emerged only on 14th January 2004 (Exhibit 222), though it was informed to the 2nd VDCL Board Meeting held on 11th February 2004 that PCX is involved in "IT" development business both locally and offshore. It was discussed in that VDCL Board Meeting about the PCX offer to have a joint venture with 51% of its shares. (Exhibit 21) Mr. Ballu Khan, the Chairman of PCX told NLTB Board on 12th March 2004 that the NLTB's MySAP implementation upfront cost of $4.6 million will be borne by PCX. (Exhibit 31) The first PCX loan request of $2 million came to VDCL on 31st March 2004, the very same day PCX signed the Business Solution Agreement with NLTB. (Exhibit 38) This is a clear indication that PCX did not have the required financial capacity even to attend their maiden contract. The borrowings of PCX in 2004 and 2005 from financial institutions, including VDCL, had reached the $10 million mark.
  9. You, Mr. Bakani and Mr. Dakuidreketi, continued to render your active support to PCX whilst knowing pretty well that PCX was in dire financial crisis and does not deliver goods as anticipated by VDCL and NLTB. This situation was queried by Mr. Whippy, a fellow Director of VDCL in simple terms. (Exhibit 148)

"In PCX's first year of operation the loss is incredible which cast doubts about our ability to recognize opportunities and manage investments. What corrective measures, if any, are being suggested? What are the goals of PCX? Are these achievable? What are we doing about it? More importantly, if we continuously do not question on-going requests for additional borrowings in relation to achieving realistic objectives, the integrity of the Board will be brought into question. The credentials of our Board is impeccable and it will certainly be embarrassing to see this tainted."


  1. The same issue was raised by Mr. Boila, (PW#5) in his email to Mr. Saukawa, Board Secretary for VDCL and PCX. (Exhibit 157)

"Auditors normally conduct impairment loss assessments in order to evaluate returns on current investments. Further loan to PCX can increase provisions of "loss on investments". In NLTB's books if assessment of investments in PCX at the end of the year is not in NLTB & VDC's favour. We are talking about more than $3m loss adjusted against NLTB's 2005 surplus."


  1. This financial background was known, if not felt, even to ANZ Bank officials. (Exhibit 183)
  2. Yet for all, you portrayed a totally different picture about PCX to NLTB and VDCL respectively and allowed the PCX to receive undue gains out of Public money.
  3. You, Mr. Bakani, expressly admitted that you facilitated the above five transactions by;

andallowed PCX to secure financial facilities and VDCL loans.You further admitted that apart from your personal involvement you instructed others to prepare and sign some documents relating to PCX financial facilities. In allthe instances relating to the charges, you have not informed NLTB of PCX's financial situation or of VDCL loans to PCX or of VDCL's security for PCX's financial facilities. Mr. Bakani, you finally agreed that the Funds used to lend to PCX or to secure their financial facilities with other institutions were Extinct Mataqali Funds, Trust Funds and Government Grants, which had been entrusted to VDCL to use for the benefit of Indigenous Fijians and the said facilitations resulted gains to PCX, whilst prejudicing the rights of NLTB and Indigenous Fijians.


  1. You, Mr. Dakuidreketi, was found to have facilitated all the above five transactions, as revealed in evidence presented during the trial, by;

It was concluded that your acts were arbitrary in nature and thus, amounted to abuse of authority of public office you held to secure gains to PCX whilst depriving the rights of NLTB and Indigenous Fijians.


  1. The maximum sentence for the offence of "Abuse of Office for the purpose of gain is 3 years imprisonment. Section 111 of the Penal Code, on which all the above charges rest upon is as follows:

"Any person who, being employed in the public service, does or directs to be done, in abuse of the authority of his office, any arbitrary act prejudicial to the rights of another, is guilty of a misdemeanour.


If the act is done or directed to be done for purpose of gain, he is guilty of a felony, and is liable to imprisonment for three years."


  1. The line of decided case authorities in our jurisdiction shows that the sentences for the offence of 'Abuse of Office' contrary to section 111 of the Penal Code ranges from probation orders to 26months imprisonment. [The State v. VuetasauBuatoka&MaciuLagibalavu, (Criminal Case No: HAC 005 of 2006; 14th August 2007); State v. Eminoni Bola, (Crim. Case No: HAC 039/2005S); BeniaminoNaiveli v. State (Crim. App. No: 04 of 1992; FCA); State v. PeniasiKunatuba, (Criminal Case No: HAC 018 of 2006); FICAC v. Farzand Ahmed Khan, (Criminal Case No. HAC 082 of 2010); FICAC v. InokeDevo, (Criminal Case No. HAC 177 of 2007); FICAC v. TevitaPeni Mau &MahendraMotibhai Patel, (Criminal Case No: HAC 089 of 2010); FICAC v. LaiseniaQarase, (Criminal Case No. HAC: 027 of 2009); The State v. SuliasiSorovakatini, (Criminal Case No: HAC 018 of 2005); FICAC v. FoanaTukanaNemani, (Criminal Case No: HAC 37A of 2010).
  2. Whereas the responsibilities attached to the 'public offices' held by both of you, and the offending background are almost similar in nature, I will take a starting point of 12 months imprisonment for each count against you two.
  3. I now turn to see the aggravating features of this instance. Mr. Bakani and Mr. Dakuidreketi, you both held very high ranking offices in NLTB and VDCL as far as the 'decision making' process is concerned. You were expected and in fact empowered to make business decisions and implement the same in the light of the powers you acquired through the 'high public offices' you held. The higher the 'public office' you hold, the greater the involvement and influence in decision making. That is one main aggravating factor. Then comes the huge sums of public monies which were entrusted to your offices to manage and invest for the betterment of a larger community. Therefore, it is indisputable that the much anticipated 'public trust' been eroded, when you abused the authority of your high public offices. The abuse of your respective offices for a long period of time, 3 years in total in this case,is also an aggravating feature as for all this time you managed to conceal your arbitrary acts from the public. Finally, the amount involved, or rather the loss to public will definitely aggravate the nature of the offences. VDCL had spent around $5 million over PCX and got only around $285,000 in return, without any interests or dividends been received. The loss of around $5 million of Public money will have the effect of enhancing your sentence.
  4. For the above stated aggravating factors, Mr. Bakani and Mr. Dakuidreketi, I will add 12 months imprisonment to the starting point of your sentences. The interim sentences now stand at 24 months imprisonment for each count.
  5. You, Mr. Bakani urged following grounds to be considered in mitigation.
  6. Apart from the above mitigation submissions, Mr. Bakani, you called three character witnesses; MrAnasaVocea (former Permanent Secretary, Ministry of Works) Mr. SolomoneDuru(General Secretary of the Bible Society of the South Pacific)and Mr. IlaitiaCaginavanua (former Native Land Commissioner). All the three character witnesses who claimed to have known you for almost four decades, stressed that you are a trustworthy and dependable person of integrity and honesty with high moral standards and said that the charges laid against you are "totally uncharacteristic", for them to believe. They all urged court for its leniency when sentencing you as you are "not that kind of person".
  7. Having considered all the above mitigatory factors, apart from your 'plea of guilt', especially the fact that you are a first offender with no criminal record; I deduct 6 months from the interim sentences of 24 months of imprisonment. Now it stands at 18 months imprisonment for each count.
  8. Mr. Dakuidreketi, I now turn to see the mitigatory factors urged in your Mitigation submissions. You are 55 years old, married for 25 years and having two children. You had obtained a Bachelor's Degree in Property Management from the University of South Australia in 1983. You were recruited as a cadet by NLTB in 1980 and after you been graduated you were promoted as a NLTB Estate Officer in 1984. In 1990, you started your own property company, Rolle Associates. You served as Chairman of Fiji Rugby Union from 2002 – 2009 and Chairman and CEO from 2009 – 2011. You claimed that Fiji qualified for the quarterfinals of the 2007 Rugby World Cup and won Rugby 7's World Cup in 2005, during your tenure. You were a member of Naitasiri Provincial Council between 2000 – 2005 and remains the Treasurer of Naitasiri Provincial Education and Development Fund since 1992. You had served in the Boards of Housing Authority, Land Transport Authority, YMCA, The Learning Centre School and Queen Victoria School. With this background of your personal and social life, you said that,
  9. You then called four (4) Character witnesses. Ms. KusumLataLalauvaki, your secretary for the last 22 years, said that you are "a very good man", "a man on integrity" and "very professional, very effective, very efficient, objective in whatever he does". Speaking of your 'generosity", she said that you paid her fares across to go to Australia and New Zealand and also transferred a company car to her name for her personal use when she delivered a baby. She further said that everyday somebody would be there seeking your help and you went out of the way to help people. She recalled how you picked up 'James', a street boy, and helped him and his family in every aspect until 'James' could manage on his own. Mr. IlaitiaTuisese, a former Minister of Regional Development and Agriculture told court that you are an "icon" to your village, Serea, and the community because you achieved a lot in your life after a lot of struggle for education; travelling right from the hills through thick grass and bush, wade across river to get to school, with a poor state of life that could not afford that much. Mr. Tuisese hailed your contribution to the field of Rugby. He said you are a good father, good family man, a strong Christian and a proud Fijian. Mr. Daniel Lobendhan, your neighbor for the last 26 years and Mr. LaisiasaJoji, Pastor of the World Harvest Centre echoed the same kind sentiments of your good character.
  10. Having paid due consideration to all the above averred mitigatory grounds, especially you being a first offender with an immaculate character and your contribution to uplifting the Fijian society, I reduce 6 months from the interim sentences. Now, for each count against you, the sentences stand at 18 months imprisonment.
  11. Now it is time to pay attention to Mr. Bakani's 'Plea of Guilt'. Mr. Bakani, you claimed that you entered your 'plea of guilt' at the first available opportunity and therefore you are entitled to have a reduction of 25% to 33% of your sentence. This court in Suresh Lal v. The State (Criminal Appeal Case No: HAA 020 of 2013, p. 7/8 12th November 2013) said that:

"[21]. Nevertheless, it has to be stressed that there is no such mathematical precision that the offenders who plead guilty to the allegations will receive a definite one third reduction. This amount of reduction will heavily depend on the stage at which the offender expresses his willingness to admit guilt. That is why, in most of the cases, the full recommended reduction is given to the offenders who plead guilty at the first available opportunity. The later the admission of guilt is, the lesser the reduction will be. At the same time the sentencing court need to be mindful on the fact that whether the plea of guilt was ignited out of the recognition of inevitable fate, had the offender proceeded for a full trial or it reflects the true colours of remorse and contrition, when deciding the amount of leniency to be extended for the plea of guilt. Still, it is the duty of the sentencing court, which has the discretion to decide upon the amount of reduction in sentence to specify in express terms that on what basis it determined to grant the reduction."


  1. The court proceedings against the 1st accused initiated somewhere back in 2009. Nevertheless, the Information was amended by FICAC several times to contain several different offences in time to time until this court ruled on 8th August 2013 that any further material amendment to the information will not be allowed. The existing 'Amended Information' was filed in court by FICAC on 15th of May 2014 and in fact the formal particulars pertaining to the charges of 1st accused were made available to him only on 16thJune 2014, just one week before the commencement of the trial. This sequence of events clearly demonstrate that the guilty plea of the 1st accused, though delayed, was because he was not certain where FICAC is going to be landed at last. In this backdrop I decide that the first accused deserves to have a reduction of a third of his sentence.
  2. Mr. Bakani, that brings down your final sentence to 12 months imprisonment for each count against you. Mr. Dakuidreketi, your final sentence is 18 months imprisonment for each count against you.
  3. Mr. Bakani and Mr. Dakuidreketi, you both have pleaded for a suspended sentence. Section 26 (2) of the Sentencing and Penalties Decree 2009 empowers this court to suspend a sentence if it does not exceed 3 years imprisonment. Shameem J, (as she was then) whilst referring to R v. Peterson [1994] 2 NZLR 533, discussed about suspension of sentences in The State v. Dinesh Chand (Criminal Appeal No: AAU 0027 of 2000S).

"A discussion of the process which should be undertaken when a judicial officer is considering a suspended sentence is found in the decision of the New Zealand Court of Appeal in R v. Peterson [1994] 2 NZLR 533. There may be differences of details between the Fijian and New Zealand statutes. However, the principles stated in Petersen are helpful. These principles are summarized in the headnote thus:


"The Court's first duty was to consider what would be the appropriate immediate custodial sentence, pass that and then consider whether there were grounds for suspending it. The Court must not pass a longer custodial sentence than it would otherwise do because it was suspended. Equally, it would be wrong for the Court to decide on the shorter sentence than appropriate in order to take advantage of the suspended sentence regime (see p. 538 line 47, p. 539 line 5). R V. Mah-Wing (1983) 5 Cr App R (S) 347 followed.


In concluding our consideration of the principles, we wish to add this. Understandably, the form of the legislation requires the sentencer to pass through a series of statutory gates, before reaching the point of availability of a suspended sentence. Subject to that however, like most sentencing what is required in the end is an application of common sense judgment, in which the sentencer must stand off and decide whether the imposition of a suspended sentence would be consonant with the objectives of the new legislation. In many instances an initial broad look of this kind will eliminate the possibility of a suspended sentence as an appropriate response."


  1. This court in SaleshPrakash v. The State (Criminal Appeal Case No: HAA 027 of 2013) said that,

[11]. "... the basic general rule, that before passing a suspended prison term, the sentencing court has to be certain that the "offence" warrants a term of imprisonment. The elementary principle in sentencing is that the 'sentence' has to be proportionate to the 'offence'."


[12] It is stated in 'Principles of Sentencing' (2nd Edition) by D.A. Thomas, that;


"Thecourt has stated many times that a sentencercontemplating a suspended sentence should first consider whether the offence would justify a sentence of imprisonment in the absence of power to suspend". (page 240)


[13] Blackstone's Criminal Practice 2011 (E6.2, page 2150) says that;


"...provides that while there are many similarities between the suspended sentence and the community order, the crucial difference is that the suspended sentence is a prison sentence (or a sentence of detention in a young offender institution) and is only appropriate for an offence that crosses the custody threshold, and for which custody is the only option. As far as the length of the sentence is concerned, before making the decision to suspend, the court must first have decided that a prison sentence (or sentence of detention in a young offender institution) is justified and should also have decided the length of that sentence, which should be the shortest commensurate with the seriousness of the offence if it were to be imposed immediately."


  1. As I have already stated the loss incurred by VDCL over the transactions pertaining to the charges is around $5 million. The arbitrary acts of you both amply demonstrate that there was no respect at all about the high expectations of the public on your performance. The worst part is that you both did all the arbitrary acts whilst been very much conscious of what you were doing. Mr. Bakani, your Board Paper for the VDCL Board meeting dated 23rd February 2006, is a good example for that; (Exhibit 187)

"The performance of VDCL for the year 2005 could be classified as moderate with a lot of proposals received and analyzed thoroughly by the Board. The capabilities of the current Board members should also be acknowledged because whilst there is the urge to have VDCL's existence felt in the market there is also the responsibility in and amongst the Board to protect the interest of the landowners as they are ultimately the shareholders of this company. This responsibility becomes paramount when proposals are analyzed."


  1. On the other hand, the arbitrary conduct of you two was clearly against the VDCL Investment Policy Guidelines (Exhibit 46) and its Memorandum of Association. (Exhibit 3)

"ACKNOWLEDGING AND RESPECTING FIJIAN CULTURE, CUSTOMS AND TRADIONS, the prime object for which the Company is established is to engage in the facilitation of the investment of native land in Fiji for projects, businesses and enterprises and, in support of this object, to facilitate the investment of income trust, development, erection, construction, management and/or operation of projects, businesses and enterprises, to be pursued singularly and/or in partnership or in joint venture with, and/or for and on behalf of individuals, partnerships, other companies and/or other entities, either as partners consultants, advisors, managers, agents, brokers or otherwise and in this regard and without limiting the generality thereof the Company shall either singularly or otherwise: to be the Commercial vehicle for Native Land Trust Board as trustee for the Fijian landowners as stipulated under NLTA Cap. 134."


  1. Whilst being privy to what was expected from you, the lavish attitude that you two showed when taking decisions on "public money", and in fact, a huge amount, does not reflect any 'honour' to the monies of people. The "gain", whether personal or not, is immaterial.It is rather unrealistic for me to believe that you two were riding a tiger without knowing how to get away without being eaten. Therefore, your attitude does not justify a non-custodial sentence. You will receive a custodial sentence.
  2. Failing the option of a "suspended term", Mr. Bakani, your counsel urged to consider a "Vocea type Sentence" to you as well. That 'type of Sentence', according to your counsel, was applied in FICAC v. AnasaVocea (Criminal Case No. HAC 129 of 2009). In Vocea, (supra) [ironically, Mr. Vocea was one of your character witnesses], the accused had pleaded guilty to seven (7) counts of "Fraudulent Conversion" contrary to section 142 of the Penal Code. Goundar J, in sentencing Mr. Vocea made following remarks;

"[20]In the end, however, it is not possible for me to give undiminished weight to your previous good character and record of public service. You are a man who knew much about the ideals of public service. You were given power and authority. With power and authority comes an obligation of trust. You betrayed that trust and in course of doing that, you undiminished the very values that were your duty to uphold."


"[27] The reason is that either you were entrusted with the Director's Fees to be paid to the Fiji Government or they were income for you to disclose in your tax returns. You could not have been guilty of both. When this was pointed out in my ruling of no case to answer, the prosecution elected to withdraw the false declaration charges if you offered to plead guilty to fraudulent conversion. You took on the offer and pleaded guilty immediately after the prosecution withdrew the false declaration charges and the last count of fraudulent conversion on the ground that you were no longer employed in the public service during the period alleged in that charge. I therefore think that if you were presented with the correct charges when you were arraigned before the commencement of the trial you would have pleaded guilty to the charges."


"[28] I accept your plea of guilty as evidence of genuine remorse. I observed your demeanour during the proceedings. You had your head down most of the times as you set in the dock. For you, a fall from grace is punishment in itself."


"[29] In the circumstances, I decide to partially suspend your sentence. The Sentencing and Penalties Decree provides for a range of sentencing orders."


"[30] I order that you serve the first 6 months, partly in custody and partly in the community. Effective from 1 November 2010 you will remain in prison from 8am to 4pm during the weekdays under the supervision of a prison officer. After 4pm on the weekdays and on weekends and public holidays, you will remain in the community without any supervision. After you have served this term of 6 months, the remaining term of 18 months is suspended for 2 years. Suspended sentence explained."


  1. It is this sentence, the defence calls 'Vocea type Sentence'. It is this formula the defence urged to have when sentencing the accused in this instance as well; partly serve the prison sentence daily between 8.00am – 4.00pm for a period fixed by court. FICAC, in response told court that they could not find any precedent of this type of sentencing, especially in respect of offences of this nature.
  2. Section 15 (1) (b) of the Sentencing and Penalties Decree provides the facility to a sentencing court to "record a conviction and order that the offender serve a term of imprisonment partly in custody and partly in the community." The total discretion of selecting the 'type' of sentence which is going to be imposed on an offender from a variety of available sentencing options is with the Sentencing Judge or the Magistrate. It is suffice to say that whatever the nature and colourof it may be, a crime is a crime and with respect, this court is not inclined to entertain the defence request for a "Vocea type Sentence".
  3. The final issue to be dealt with is whether the sentences for each count should be concurrent or consecutive. In terms of section 22 (1) of the Sentencing and Penalties Decree, the sentencing court has the discretion to order consecutive sentences or partly consecutive sentences. In Visawaqa v. The State [2003] FJHC 138, 23rd September 2003; Pathik J said that:

"The power to order sentences to run consecutively is subject to two major limiting principles, which may be called the "one transaction rule" and the "totality principle" (Thomas: Principles of Sentencing 2nd ED.p.53). It does not mean that consecutive sentences cannot be imposed, so long as the overall sentence is not unduly harsh and by the same token the outcome of the concurrent sentences are not rendered unduly lenient in view of aggravating features (Regina v. Johnson (Thomas), The Times 22.5.95).


The totality principle has been expressed by Thomas in his Principles of Sentencing 2nd Ed at p. 56 as follows:


"The effect of the totality principle is to require a sentencer who has passed a series of sentences, each properly calculated in relation to the offence for which it is imposed and each properly made consecutive in accordance with the principles governing consecutive sentence, to review the aggregate sentence and consider whether the aggregate is just and appropriate."


  1. It is said in Archbold [2012] p.732, that consecutive sentences should not be imposed for offences which arise out of same transaction or incident, whether or not they arise out of precisely the same facts, but much is left to the discretion of the court. (R. v Lawrence, 11 Cr. App. R (S) 580 CA) It is only in exceptional circumstances that a court will impose consecutive sentences if the offences arise from the same transactions. (R v. Wheatley, 5 Cr. App. R. (S) 181 CA)
  2. "Totality principle", basically means that when a court passes a sentence with number of consecutive sentences, it should review the aggregate or the totality of the sentences and consider whether the 'total' is just and appropriate when considering the 'offences' as a whole. As Jiten Singh J said in Nauma v. The State [2002] FJHC 171; HAA 0078 – 89.2002S (6th September 2002), the application of this principle does not mean that a judicial discount offering for "multiple offending" or encouraging offenders to continue offending, after a serious crime, with the impression that there is little to lose. It must always make clear that the more the number of crimes and the more the gravity of those crimes, the longer the sentence is to be received.
  3. The instances reflect in charges, according to the 1st accused's admitted Summary of Facts and evidence led in trial, show similar features of the conduct of the accused. The "facilitation" had been done in a same manner when entertaining the financial requirements of PCX. But, apart from VDCL Term Deposits in Dominion Finance and ANZ, which were used as securities for PCX loans, I do not see the other three instances, namely granting of $2 million loan, $900,000 loan and $1 million loan to PCX, stemmed out of the "same transaction" or 'same incident'. These three instances are distinct transactions with a considerable amount of time gap. The "mental element" or the "improper motive" gathers momentum and increases in degree, with that passage of time. This provides the main ingredient for a separate offence. Hence, charges pertaining to three VDCL loans to PCX will receive consecutive sentences.
  4. Nevertheless, VDCL's Term Deposit in ANZ is a continuation of its Dominion Finance Term Deposit. The Government Grant to VDCL in 2005 had been used to provide the security to PCX loan in Dominion Finance and when ANZ Overdraft facility of $1 million to PCX settled its Dominion Finance loan, both the PCX loan and VDCL Term Deposit were moved to ANZ simultaneously. Though two separate offences constitute over these "two transactions", for the purposes of sentencing, I consider it as 'one transaction'. Therefore, the sentences pertaining to Dominion Finance and ANZ transactions will be ordered to run concurrent to each other, but consecutive to the other three direct VDCL transactions.
  5. Now, Mr. Bakani, your final sentence is calculated as follows:

You will serve a total period of 4 years imprisonment with a non-parole period of 3 years for all the charges laid against you.


  1. Mr. Dakuidreketi, your final sentence is calculated as follows:
  2. You will serve a total period of 6 years imprisonment with a non-parole period of 5 years for all the charges laid against you.
  3. It is indeed sad to listen to the agonizing stories narrated on behalf of the two accused at the Sentencing Hearing. Apart from losing their wealth and health, now they will have to spend time in jail. This, undoubtedly, amounts to fall out of the frying pan into the fire. But, I wish to stress that the "Public Officers" who handle the responsibility of "Public funds" will have to be mindful of the long term consequences of their decisions and acts. They are appointed to such 'offices' because of their knowledge, skill and experience to nurture the expectations of a country. They are duty bound to safeguard and uphold the interests of ordinary people through good governance and sound systems of internal control. They are not supposed to deploy symptomatic of dishonesty to pervade the entire social fabric. It is high time the Public Officers realize that their interest is vested with the public and one day they are accountable for all their actions. They cannot run with the hare and hunt with the hounds.Therefore, when a 'Public Officer' is found to be criminally responsible for his official conducts, however sad his side of the story may be, he will have to face an immediate custodial term.
  4. I am compelled to quote you Mr. Bakani, as my closing remarks of the sentence. In responding through an Internal Memo dated 10th August 2005 to Mr. Daniel Whippy's queries over the VDCL and PCX transactions, you wrote that;

"I sympathize with Directors who have a concern for their reputation. The choice to serve is an individual one. As for me, there is more than just my reputation at stake, it is my future."


  1. It is rather ironical that you foresaw the fate of your actions. Mr. Dakuidreketi, who endorsed your views in that instance has also become a part of that 'future'.
  2. Mr. Bakani, your Sentence of 4 years imprisonment with a non-parole period of 3 years and Mr. Dakuidreketi, your Sentence of 6 years imprisonment with a non-parole period of 5 years are ordered to commence from today onwards.

JanakaBandara
Judge


At Suva
Office of the Fiji Independent Commission Against Corruption for the State
Mamlakah Lawyers for the 1st Accused
Howards Lawyers for the 2nd Accused

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