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FICAC v Dalituimua [2017] FJMC 42; Criminal Case 1755.2016 (13 March 2017)

IN THE MAGISTRATES’ COURT OF FIJI

AT SUVA

Criminal Case : 1755/2016

FICAC
V
POE DALITUIMUA

Counsel : Mr. Sam Savumiramira for the Prosecution
Ms.Berni Lata (LAC) for the Accused
Date of Sentence : 13^th of March 2017
SENTENCE

1. POE DALITUIMUA, you were charged with one count of Unauthorized Modification of Data contrary to section 341(1) of the Crimes Decree No 44 of 2009.
2. You pleaded guilty to this charge on 23^rd of January 2017 and also admitted the following summary of facts presented by the prosecution :

Poe Dalituicama on or about 5^th February 2013 at Suva in the Central Division, being a Temporarily Relieving Clerical Officer at the Registrar General’s Office, knowingly caused unauthorized modification of data held in a computer at Birth, Death and Marriage Registry at the said Registrar General’s Office, namely, created a false birth registration number 1569104 for one Hari Krishna, and the said act was reckless as to whether the said modification impairs the reliability of such data.

On 5^th February 2013, the 1^st Accused, whilst being employed as a Temporary Relieving Clerical Officer at the Registrar for Births, Deaths and Marriages (BDM), accessed the BDM System after logging into his account with his User Name and Password. Upon logging in, the 1^st Accused created a new Birth Registration number 1569104 of one Hari Krishna aged 58 years, a Principal Education Officer for Ba and Tavua. The newly created Birth Registration generated a new Birth Certificate for Hari Krishna with a falsified year of birth as 1961. The 1^st Accused knew that a Birth Registration had already been in existence in the BDM system under Birth Registration Number 677191 bearing the true date of birth of Hari Krishna dated 07 October 1958.

The 1^st Accused proceeded on to create Hari Krishna’s new Birth Registration without following the proper verification and confirmation process where he was to get more details of the said new Birth Registration. The new registration number 1569104 was not verified and checked by his Supervisor as required by the BDM procedures. This action by the 1^st Accused caused the duplication of date stored for Hari Krishna in the BDM system. The said act was reckless and impairs the reliability of such data in the BDM system.

3. I am satisfied that your plea was made on your own free will after understanding the consequences and convict you for this offence.
4. The maximum penalty for Unauthorized Modification of Data under the Crimes Decree is 10 years imprisonment.
5. Both parties in their written submission agreed that this is a new offence in Fiji created under the Crimes Decree and there are no guideline judgments about tariff at the moment.
6. Further the learned counsel from the FICAC has brought the attention of this court to the decided cases from Australian jurisdiction where the courts have dealt with offenders for computer related offences.
   7. In the case of R v Stevens [1999] NSWCCA 69 the New South Wales Criminal Court of Appeal upheld the District Court decision of 03 years imprisonment with 18 months imprisonment to be spent in custody to be proper for an accused who committed a computer crime of insertion of data intentionally without lawful authority. The maximum penalty for that offence was 10 years imprisonment.
   8. The court in the above case also referred to a case of R v Caldwell (Unreported, 3 March 1993 where the accused pleaded guilty of erasing data stored in computer intentionally without authority or lawful excuse. In making comparison the court stated :

“The sentence imposed in that case was a minimum term of 9 months penal servitude and an additional term of 3 months. It is to be observed that the maximum penalty under the State Act in respect of the category of offence for which Caldwell was convicted was ten years imprisonment, that is to say the same term as is provided for an offence in the nature of that charges in the present indictment”.

9. In the case of Soyke v R [2016] NSWCCA 112 the New South Wales Criminal Appeal reviewed the sentence of related computer offence where an unauthorized modification charge and upheld a 12 months’ imprisonment term.
10. Hence it appears that in Australia the sentencing range for computer related offenses are from suspended sentence to 03 years imprisonment. Considering the maximum penalty for this offence is similar to above precedents, I find this sentencing range can be taken as guideline in sentencing the accused in this case.
11. In Laisiasa Koroivuki v the State [2013] FJCA 15; AAU0018.2010 (5 March 2013) his Lordship Justice Goundar discussed the guiding principles for determining the starting point in sentencing in the following manner:

"In selecting a starting point, the court must have regard to an objective seriousness of the offence. No reference should be made to the mitigating and aggravating factors at this time. As a matter of good practice, the starting point should be picked from the lower or middle range of the tariff. “

12. Considering the nature of offending and your culpability, I select 14 months as the starting point for your sentence.
13. You were working in Registrar General’s Office as a clerk in Birth, Death and Marriage Registry. The general public accepts the records keep in the registry to be accurate and expect the people employed in the department to work according to the proper procedures. You were given access to sensitive information by the Department because they trusted you. By committing this offence you not only betrayed that trust but also general public in this country. This is considered as aggravating factor in this case and to reflect that I add 12 months to reach 26 months imprisonment.
14. In her mitigation the learned legal aid counsel submitted the following :
    1. You are 40 years old;
    2. Married with 3 year old daughter;
    100. Full time law student at University of Fiji with hoping to graduate this year;
    4. Seeks forgiveness and remorseful;
    5. First offender.
15. The prosecution also confirmed that you are a first offender. In a criminal trial, past good behavior is a valid mitigating factor which has to be taken in to consideration by a sentencing court. But for an accused who is a public servant involved in breach of trust offence, little weight can be given for this ground. One of the factors considered for appointment of position of trust is past good behavior and hence a person who breached that trust should not claim credit for that ground.
16. The above position has been confirmed by her Ladyship Justice Shameem in State v Bole when she said :“ In breach of trust cases, comparably less weight is put on good character, because only people of good character are given positions of trust and responsibility. It is the breach of trust which is the harm done in these offences. “
17. Hence I would disregard your past good behavior as valid ground. But for other mitigating factors I deduct 05 months to reach 21 months imprisonment.
18. After getting proper legal advice you pleaded guilty without wasting time and for that I deduct 1/3 to reach 14 months imprisonment.
19. Now I have to consider whether to suspend your sentence.
20. In this country the government departments are increasingly dependent on computers which are replacing traditional methods of recording. The public officers who are given access to these instruments and data need to follow proper guidelines bearing in their mind that they are trusted by the general public. The public servants are maintained by people through their taxes and need to serve them instead of using the position for their benefits. Further being a final year law student with well aware about the law it is not acceptable from your part to breach the trust of public like this manner. Hence a custodial sentence is warranted to denounce your behavior and deter these incidents from happening in public institutions in future.
21. POE DALITUIMUA, I sentenced you to 14 months imprisonment for the offence of Unauthorized Modification of Data contrary to section 341(1) of the Crimes Decree No 44 of 2009.
22. 28 days to appeal.

Shageeth Somaratne

Resident Magistrate