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Fiji Independent Commission Against Corruption [FICAC] v Baleiwai [2012] FJMC 152; Criminal Case 217.2012 (9 July 2012)

IN THE MAGISTRATE'S COURT OF FIJI
WESTERN DIVISION AT NADI
CRIMINAL JURISDICTION

CRIMINAL CASE NO: 217 /12

BETWEEN:

FIJI INDEPENDENT COMMISSION AGAINST CORRUPTION
("FICAC")
COMPLAINANT

AND:

ATUNAISA TAUVOLI BALEIWAI
1ST ACCUSED

AND:

LARIO SALATOVOU
2ND ACCUSED

Ms Tema for FICAC

Christina Choy (L/A) for Accused

Date of Sentence: 09. 7. 2011.

SENTENCE

1. You, ATUNAISA TAUVOLI BALEIWAI (1st Accused) were charged with two counts of Embezzlement contrary to section 274 (b) (ii) of the Penal Code and both of you were jointly charged with nine (9) counts of False Pretence contrary to section 309 (a) of the Penal Code, Cap 17.

2. You (both) pleaded guilty to the charges when the charges were read over and explained to you and after confirming that you understood the charges. That was your own freewill.

3. Summary of facts was put to you by the prosecution and you (both) admitted the facts stated therein. I have reviewed the facts against the charges laid in the information by the prosecution against you and I am satisfied that it supports the essential ingredients of the charges. I therefore convict you (both) as charged.

4. The outline of facts admitted by you both confirms that you (both) as the former officers of iTauke Land Trust Board (TLTB) at Namaka, Nadi Office between 24 November 2008 and 23 April 2009 embezzled the funds amounting to $21,924.15.

5. These funds were payment of Lease Offer Letter that was received from 11 residents of Legalega, Nawaka and Sikuturu area inside the TLTB office in Namaka, Nadi.

6. ATUNAISA, you were a Support Services Assistant (Trainee Estate Assistant) and Lario, you were an Estate Assistant 1, both of you were issuing Offer Letters to these residents who were desperate to lease a piece of land from TLTB for residential and agricultural purposes. Both of you prepared the 11 TLTB Offer Letters and issued to the 11 residents during your official working hours at the office before you received cash payment in full or in part. You both received cash payment and receipted through TLTB Official Receipt books number 23, 25, and 26. Atunaisa, you had hidden the Receipt books numbers 23 and 25.

7. Both of you received all the cash payments from the residents and shared between you. On 2 occasions you, Atunaisa received the cash payment and used it alone for your own use and benefit.

8. During the caution interview you both admitted committing the offences.

9. The Aggravating Factors were that:

(1) The amount of money involved in this case is substantially large sum which is $20,924.15.

(2) Premeditation-you committed the offence continuously over a course of 6 months.

(3) Total disregard for the law and the trust of the public.

(4) Breach of Public Trust on the TLTB, the Government Institution. Both of you were in a position of trust to maintain confidence in TLTB.

(5) Breach of trust by employee-both of you breached and betrayed the trust and confidence of your employer, the TLTB.

(6) Use of stolen money for personal benefit.

(7) Joint criminal enterprises.

10. The Mitigating Factors were: your personal circumstances, guilty plea, previous good character, and remorse.

11. The offence 'Embezzlement' carries a maximum penalty of 14 years imprisonment under section 274 (b) (ii) of the Penal Code.

12. The tariff for serious breach of trust sentences range from 18 months to 3 ½ years [State v Bole (HAC 38 of 2005S 4 October 2005].

13. In the case of Vinod Prasad v State (HAA 012/08S Ruling 18 April 2008) it was held that 2 years imprisonment was held to be within the tariff.

14. The offence of "False Pretence" carries a maximum penalty of 5 years imprisonment under section 309 (a) of the Penal Code.

15. In the case of State v Salendra Sen Sinha [2010] FJHC 589 his Lordship have made reference to Jona Saukilagi HAC 21 of 2004 considered the tariff for this offence under the Penal Code as 18 months to 5 years.

16. Atunaisa Tauvoli Baleiwai, on two different occasions you fraudulently embezzled an amount of $10,499.00.

17. I would pick 30 months imprisonment as my starting point for each count of Embezzlement. I add 12 months to reflect the abovementioned aggravating factors. This takes an interim total of 42 months.

18. You pleaded guilty to the charges in the first available opportunity that you saved time and resources of the court. I consider your guilty plea as an early guilty plea although you recorded your guilty plea two months after the charge was farmed. I therefore deduct 14 months to reflect your guilty plea. For your previous good character and mitigation I deduct further 6 months. Atunaisa, on each count of Embezzlement you receive 22 months imprisonment. These sentences to be served concurrently with each other hence in total you have to serve 22 months imprisonment for the offence of Embezzlement.

19. You both were jointly charged with 9 counts of False Pretence. For each count of False Pretence I would pick 24 months imprisonment as my starting point. I add 12 months to reflect the above aggravating factors. I deduct 12 months to reflect your guilty plea. I deduct further 6 months for your previous good character and mitigation. Your final sentence for each count of False Pretence is 18 months imprisonment. These offences had been committed in the same series. Therefore these sentences are to be served concurrently with each other. Hence in total each one of you must serve 18 months imprisonment for the offence of False Pretence.

20. Atunaisa Tauvoli Baleiwai, your sentence is as follows:

(i) For the offence of Embezzlement you receive 22 months imprisonment.

(ii) For the offence of False Pretence you receive 18 months imprisonment.

(iii) You have to serve these sentences concurrently with each other hence in total you have to serve 22 months imprisonment.

21. Lario Salatovou, you have to serve 18 months imprisonment.

22. There has been no genuine remorse in this case because no attempt was made to restitute the amount stolen which amounted to $20.924.15.

23. In State v Roberts [2004] FJHC 51 HAA0053J 2003S (30 January 2004) it was said as follows:

"...Where there is a guilty plea, a custodial sentence may still be inevitable where there is a bad breach of trust, the money stolen is high in value and the accused shows no remorse or attempt at reparation".

24. In this case, the amount of money involved is high, both of you did not attempt to restitution.

25. Gates, J in the case of State v Prasad [2003] FJHC 320; HAC0009T,2003S (30 October 2003) observed this:

"The gravity of breach of trust needs to be marked by an immediate term of imprisonment no matter how sad the accused's story, or how compelling the mitigation in his favour."

26. Both of you were in a position of trust by your employer and your positions expected a certain level of integrity and transparency towards your employer, iTLTB. You cannot expect a lenient or custodial sentence after committing serious breach of trust offences.

27. In your case immediate custodial sentence is warranted by the nature of offences you had committed. I therefore decline to suspend the sentence although you both are first time offenders.

28. Twenty eight (28) days to appeal.

ORDER

29. I make the following order:

(a) ATUNAISA TAUVOLI BALEIWAI, you are hereby sentenced to 22 months' imprisonment.

(b) LARIO SALATOVOU, you are hereby sentenced to 18 months imprisonment.

M H Mohamed Ajmeer
Resident Magistrate

Dated at Nadi this 9th day of July 2012.