State v Dhansukh Bhika and Suliasi Sorovakatini - Office of the DPP by dN5O7g

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									                           IN THE HIGH COURT OF FIJI
                                    AT SUVA

                                                           CRIMINAL JURISDICTION

                                            CRIMINAL CASE NO.: HAC 116 OF 2007


BETWEEN:

                         THE STATE


A N D:

                         1. SULIASI NAULIVOU SOROVAKATINI
                         2. DHANSUKH LAL BHIKA


Counsels:                Ms. S. Puamau & Ms. J. Prasad for the State
                         Mr. M. Raza for 1st Accused
                         Mr. P. Maiden S. C & Mr. R. Newton and Mr. S Parshottam
for
                         2nd Accused



Date of Hearing:         From 10th February 2011 to 14th March 2011


Date of Sentence:        17th March 2011



                          SENTENCE

1.    The Director of Public Prosecutions had preferred following charges
      against 1st & 2nd Accused persons.

                                       “FIRST COUNT

                                Statement of Offence

            OFFICIAL CORRUPTION: Contrary to section 106 (a) of the Penal
            Code Cap 17.




                              Particulars of the Offence
                SULIASI SOROVAKATINI, on or about 21st May, 2001 at Suva in
                the Central Division, being employed in the public service, and
                being charged by virtue thereof with the performance of certain
                duties as prescribed pursuant to section 6 of the Public Service Act
                of 1999, corruptly received a benefit, namely air travel from Suva to
                Nadi and return valued at $190.00, on account of acts done by him
                in the discharge of the duties of his office.

                                       SECOND COUNT

                                     Statement of Offence

                OFFICIAL CORRUPTION: Contrary to section 106 (b) of the Penal
                Code Cap 17.

                                   Particulars of the Offence

                DHANSUKH LAL BHIKHA and Others on or about 21st May, 2001
                at Suva in the Central Division, corruptly gave a benefit, namely air
                travel from Suva to Nadi and return, valued at $190.00 to a person
                employed in the public service, namely SULIASI SOROVAKATINI,
                on account of acts done by him in the discharge of the duties of his
                office.

                                         THIRD COUNT

                                     Statement of Offence

                OFFICIAL CORRUPTION: Contrary to section 106 (a) of the Penal
                Code Cap 17.

                                     Particulars of Offence


                SULIASI SOROVAKATINI, on or about 21st May, 2001 at Suva in
                the Central Division, being employed in the public service, and
                being charged by virtue thereof with the performance of certain
                duties as prescribed pursuant to section 6 of the Public Service Act
                of 1999, corruptly received a benefit namely air travel from Nadi to
                Melbourne and return valued at $1,638.00, on account of acts done
                by him in the discharge of the duties of his office.




                                       FOURTH COUNT

                                      Statement of Offence

HIGH COURT OF FIJI      CRIMINAL CASE NO. 116 OF 2007     SENTENCE                      Page 2
                OFFICIAL CORRUPTION: Contrary to section 106 (b) of the Penal
                Code Cap 17.

                                   Particulars of the Offence

                DHANSUKH LAL BHIKHA and others on or about 21st May, 2001
                at Suva in the Central Division, corruptly gave a benefit, namely air
                travel from Nadi to Melbourne and return, valued at $1,638.00, to a
                person employed in the public service, namely SULIASI
                SOROVAKATINI, on account of acts done by him in the discharge
                of the duties of his office.
                                         FIFTH COUNT
                                     Statement of Offence

                OFFICIAL CORRUPTION: Contrary to section 106 (a) of the Penal
                Code Cap 17.
                                   Particulars of the Offence

                SULIASI SOROVAKATINI, on or about 21st May, 2001 at Suva in
                the Central Division, being employed in the public service, and
                being charged by virtue thereof with the performance of certain
                duties as prescribed pursuant to section 6 of the Public Service Act
                of 1999, corruptly received a benefit derived from travellers
                cheques worth $10,000.00, on account of acts done by him in the
                discharge of the duties of his office.
                                         SIXTH COUNT

                                     Statement of Offence


                OFFICIAL CORRUPTION: Contrary to section 106 (b) of the Penal
                Code Cap 17.

                                   Particulars of the Offence
                DHANSUKH LAL BHIKHA and others on or about 21st May, 2001
                at Suva in the Central Division, corruptly gave a benefit in the form
                of a travellers cheques worth $10,000.00 to a person employed in
                the public service, namely SULIASI SOROVAKATINI, on account
                of acts done by him in the discharge of the duties of his office.

                                      SEVENTH COUNT
                                    [Representative Count]

                                     Statement of Offence

HIGH COURT OF FIJI      CRIMINAL CASE NO. 116 OF 2007     SENTENCE                      Page 3
                OFFICIAL CORRUPTION: Contrary to section 106 (a) of the Penal
                Code Cap 17.

                                     Particulars of Offence

                SULIASI SOROVAKATINI, between 16th May 2001 and 10th
                August 2001 at Suva in the Central Division, being employed in the
                public service, and being charged by virtue thereof with the
                performance of certain duties as prescribed pursuant to section 6 of
                the Public Service Act of 1999, corruptly received a benefit, namely
                cash, properties and payments to his carpenter from Credit Account
                HS483 with Suncourt (Wholesalers) Ltd, on account of acts done
                by him in the discharge of the duties of his office.

                                       EIGHTH COUNT
                                    [Representative Count]

                                     Statement of Offence

                OFFICIAL CORRUPTION: Contrary to section 106 (b) of the Penal
                Code Cap 17.

                                      Particulars of the Offence

                DHANSUKH LAL BHIKHA and others between 16th May 2001
                and 10th August 2001 at Suva in the Central Division, corruptly
                gave a benefit, namely cash, properties and payment to a carpenter
                from Credit Account HS483 at Suncourt (Wholesalers) Ltd, to a
                person employed in the public service, namely SULIASI
                SOROVAKATINI, on account of acts done by him in the discharge
                of the duties of his office.”

2.      The trial was taken up before the Judge and 5 Assessors.

3.      The trial commenced on 10th February 2011 and concluded on 14th March
        2011.


4.      The assessors unanimously found the 1st Accused Suliasi Sorovakatini guilty to
        1st, 3rd and 7th Count in the information.

5.      Similarly the assessors unanimously found the 2nd Accused Dhansukh Lal Bhikha
        guilty to 2nd, 4th and 8th Count.




HIGH COURT OF FIJI      CRIMINAL CASE NO. 116 OF 2007     SENTENCE                     Page 4
6.      Both the 1st Accused and 2nd Accused were found not guilty to the 5th and 6th
        Counts respectively.

7.      Considering the nature of the evidence and the considered unanimous decision
        of all 5 assessors, the Court found the 1st Accused Suliasi Sorovakatini guilty to
        1st, 3rd and 7th Count and convicted him accordingly. The Court found not guilty
        to the 5th Count and acquitted him from that Count. Further the Court found the
        2nd Accused Dhansukh Lal Bhikha guilty to the 2nd, 4th and 8th Count and
        convicted him accordingly.      The Court found not guilty to the 6 th Count and
        acquitted him from that Count.

8.      Now I proceed to pronounce sentence on the 1st and 2nd Accused persons.

9.      Penal Code Section 106 provides a maximum sentence of 7 years imprisonment.

10.     Now I consider the nature of the offence. In this case of 1st Accused Suliasi
        Sorovakatini was attached to the Ministry of Agriculture, Fisheries and Forestry
        (MAFF) as a Principal Accounts Officer.

11.     The 2nd Accused Dhansukh Lal Bhikha was the Managing Director of Suncourt
        (wholesalers) Ltd.

12.     I wish to make some general observation in this trial.       It appears from the
        evidence that there was a programme implemented by the MAFF in the name of
        FARMING ASSISTANCE AFFIRMATIVE ACTION PROGRAMME FOR FIJIAN
        AND ROTUMAN (Commonly known as Affirmative Action Programme). It was
        revealed this was not approved by the Government and it was not provided with
        approved budget allocation.          The officials attached to the MAFF had
        implemented the programme and accounted under different accounts.

13.     Counsels and 1st Accused submitted that this was a vote buying scam done by
        the political authorities of the day. Further the 1st Accused said the Minister Mr.
        Apisai Tora and Assistant Minister Ms. Marieta Rigamoto were unduly benefitted
        out of the programme. Since there is evidence before the Court now the DPP
        and/or relevant authorities may look into this allegation.      But it should be

HIGH COURT OF FIJI     CRIMINAL CASE NO. 116 OF 2007    SENTENCE                      Page 5
        mentioned here that the 1st Accused had not revealed these facts to the Police at
        the investigation.

14.     Within a short period approximately 27th March 2001 to 30th April 2001 there
        were more than 153 purchases were done at Suncourt and none of these
        purchases were followed the government standard procurement procedures.
        Further the Court observed that the dates in many invoices (at least 23 invoices)
        submitted by Suncourt were altered.

15.     1st Accused says that he was directed by the political authorities of government
        of the day and forced him to do this.           Even though there was an interim
        government after a coup d’état, existing laws prevailed.              Except certain
        constitutional matters all other activities were governed by the law that was
        existed. The 1st Accused said he was made as a “fall-guy” in other words he was
        made the scapegoat. Considering this case and other judgments submitted to
        me by both Counsels I do not find that to be correct.

16.     The Defence Counsels submitted to Court that this is a political motivated inquiry.
        I find from the agreed facts that the inquiry was commenced by the same
        government. Therefore I do not find this is a politically motivated trial.

17.     Within a very short period beginning from 27th March 2001 to 30th April 2001
        these purchases were done.          On the 11/05/2001, the vouchers were raised;
        cheque for the value of $225092.04 was drawn up and paid to Suncourt on the
        same day. This cheque was signed by a junior officer and the 1 st Accused.
        Court couldn’t find proper approval from relevant authority set out by the Finance
        rules & regulations.



18.     On the 16/05/2001 the 1st Accused had opened a credit account bearing number
        HS483 at the Suncourt hardware and received goods and CASH ADVANCE
        from that account. As per the record the 1st Accused owed $51,921.12. 1st
        Accused disputes the amount and states it may be between $18,000 to $20,000.
        It is interesting to note that the 1st Accused had not repaid even a cent. Further
        there is no interest levied by the Suncourt and no recovery processes were taken
HIGH COURT OF FIJI      CRIMINAL CASE NO. 116 OF 2007     SENTENCE                     Page 6
        till 2008.   In 2008 the Suncourt had obtained a caveat against the property of
              st
        the 1 Accused. In 2011 Suncourt made a complaint with the credit reference
        bureau regarding the credit. It should be noted that this criminal a proceeding
        commenced in August 2007 the case number is 116/2007.

19.     The 1st Accused while giving evidence more than 3 occasions said that the 2 nd
        Accused Dhansukh Lal Bhikha didn’t know anything about the travelling and
        credit facilities. Perusing the evidence before the Court we could clearly see the
        2nd Accused was there in most of the transaction if not all.

20.     The 2nd Accused had signed the payment cheques for the purchase of air tickets
        of 1st Accused and Manoj Kumar Bhikha who was the nephew (as submitted by
        the Counsel at the Mitigating submissions) of the 2 nd Accused and the Executive
        General Manager of Suncourt.

21.     On many occasions the 2nd Accused had authorized cash advances and signed
        cheques to be paid in 1st Accused’s credit account, which were adequately dealt
        in the summing up and in my judgment.


22.     Now I consider the tariff for the offence of Official Corruption. In State v Alifereti
        [2008] FJHC 231; HAC018.2005 & HAC040.2007s (17 September 2008) – 4
        years and 3 years imprisonment respectively.


23.     In State v Carlos Taylor High Court, Crim Case No: 001 of 1999, - the accused
        pleaded guilty to 4 counts of Official Corruption, sentence of 3 years
        imprisonment reduced to 2 years on account of the guilty plea.
24.     In Prem Chand v The State [2001] FJHC 130; HAM 0017/2000, 8 November
        2008, the appellant had pleaded guilty to one count of official corruption and
        sentenced to 4 years imprisonment on that count.

25.     In State v Sorovakatini High Court, Crim Case No: 018/07, 26 September 2007,
        the accused pleaded to one count of official corruption and was sentenced to 2 ½
        years imprisonment after discounting the guilty plea.


HIGH COURT OF FIJI     CRIMINAL CASE NO. 116 OF 2007     SENTENCE                       Page 7
26.     In Isireli Kini v The State [2004] FJCA 55, AAU 0041/02, 26 November 2004,
        the Court of Appeal upheld a sentence of 12 months imprisonment for one count
        of Official Corruption.

27.     In State v Sorovakatini (2007 FJHC 32 Justice Gerard Winter quoted the words
        of Pratt J in Robert Yabara v The State (1984) PNG LR 378:

                “The offence official corruption is a serious one. It is difficult to
                prove as it relies on the honesty of the person who is offered the
                bribe or encouraged to engage in corrupt practices.           There are
                rarely independent witnesses to the event.          For these reasons
                when a case has been successfully proved this Court has a duty to
                treat the matter seriously. Once detected, tried and proved the
                need to impose a punitive and deterrent sentence to deter others,
                becomes crucial.”

28.     In State v Pita Alifereti (2008 FJHC Justice Isikeli Mataitoga made a conclusion
        observation as follows:

                “Public interest demands that the sentence must address the need for
                deterrence and to warn others similarly inclined that severe sentence will
                be passed by the courts on anyone found guilty of the offence of Official
                Corruption. Those involved in this type of offending betray public trust
                and their acts erode public confidence in our government institutions.
                These are serious crimes. It is needful that potential offenders and the
                public at large understand that these crimes will be met with stiff
                penalties.”


29.     In Pita Alifereti it was “determined that the proper starting point for the sentence
        in this case is 5 years imprisonment.” After considering the aggravating and
        mitigating factors the court sentenced Pita Alifereti to 4 years and the second
        accused, Peli Kete Doviyaroi to 3 years imprisonment. In addition the court also
        held in respect of Peli Kete Doviyaroi that “[the law must treat both parties
        equally in terms of starting point of their sentence.”


HIGH COURT OF FIJI       CRIMINAL CASE NO. 116 OF 2007      SENTENCE                         Page 8
30.     Considering all above authorities the tariff is between 12 months to 5 years.

31.     Considering all I commence my sentence as following:

        1st Count      -         3 years imprisonment
        2nd Count      -         3 years imprisonment
        3rd Count      -         3 years imprisonment
        4th Count      -         3 years imprisonment
        7th Count      -         4 years imprisonment
        8th Count      -         4 years imprisonment


32.     Now I considered the aggravating factors of the 1st Accused.


        (i)     You were employed as Principal Accounts Officer of MAFF and you were
                in gross breach of trust of your office.
        (ii)    Your period of offence was several months at least from may 2001 to
                August 2001
        (iii)   Because of your action a serious disrepute brought on MAFF and all
                Government Servants especially who are working in the Finance sectors
        (iv)    Because of the payment, you received kick backs from the Suncourt, at
                the bottom of this the tax payers money were improperly used and wasted
        (v)     You brought disrepute to the entire public servants.

        Considering all I increase 3 years. Now your sentence reads as follows:

        1st Count      -         6 years imprisonment
        3rd Count      -         6 years imprisonment
        7th Count      -         7 years imprisonment

33.     Now I consider your mitigating circumstances.

        (a)     You are married with 5 children. Two of your children are presently
                schooling.
        (b)     Recommendations submitted by two Pastors.
        (c)     Your Counsel claims that you are remorseful
        (d)     Presently you are serving as a Pastor and assisting training programmes
for
                the prisoners.



HIGH COURT OF FIJI         CRIMINAL CASE NO. 116 OF 2007   SENTENCE                     Page 9
        Considering all your mitigating circumstances I reduce 2 years from each Count.
        Now your sentence reads as follows:

        1st Count       -         4 years imprisonment
        3rd Count       -         4 years imprisonment
        7th Count       -         5 years imprisonment

34.     State Counsel and the Defence Counsel made submissions on your previous
        conviction under ‘one transaction rule’ and ‘totality principle’.    I considered
        Justice D. Pathik Dictum in TUKOLI VISAWAQA (2003) FJHC 138 and WONG
        KAM HONG (2003) FJSC 13. I conclude this as a separate case. Further I wish
        to place it on record that the previous conviction of the 1st Accused was not
        considered as an aggravating factor.

35.     But considering all above submissions I order all three sentences to run
        concurrently.

36.     Now I consider the aggravating factors for the 2nd Accused Dhansukh Lal Bhikha.

        (a)     The period of offence was lengthy, at least from March to August 2001.
      (b)       Your position in the Government statutory bodies including PACFO etc.
      (c)       The loss of money and reputation to the Government of Fiji
      d)        Your Counsel submitted that you are a leader of Gujarati community
(known
                as Darji Community), you were the Lord Mayor for 8 years. Further it was
                submitted to Court through the witness Aqela Cakobau that you took
                leadership of the youngsters in Fiji under Hibiscus Festival. These factors
                can be aggravating factors because your community people and youth of
                Fiji may set a bad example of what you did therefore I consider this as an
                aggravating factor as well.

        Considering all aggravating factors I increase 3 years on each Count. Now your
        sentence reads as follows:

        (a)     2nd Count         -       6 years imprisonment
        (b)     4th Count         -       6 years imprisonment
        (c)     8th Count         -       7 years imprisonment

37.     Now I consider your mitigating circumstances.

        (a)     Your are 1st offender

HIGH COURT OF FIJI          CRIMINAL CASE NO. 116 OF 2007   SENTENCE                 Page 10
        (b)     Your are married with two grown up children
        (c)     You have submitted two medical records dated 13th November 2008 and
                21st November 2008. Those are more than 2 years old.
      (d)       You submit that the staffs of Suncourt are depending on you. (this
contradict
                with the stance that you have taken in the trial, you said that the company
                was managed by others and you were involved in other public service)
        (e)     Your service to the public
        (f)     Your Counsel claims that you are remorseful

        Considering all mitigating circumstances I reduce 2 ½ years on each Count.
        Now your sentence reads as follows:

        (a)     2nd Count     -       3 ½ years imprisonment
        (b)     4th Count     -       3 ½ years imprisonment
        (c)     8th Count     -       4 ½ years imprisonment

38.     In Khan v State [2008] FJHC 121; HAA0008, Justice Mataitoga quoted Justice
        Pathik’s observations in Tukoli Visawaqa v The State [2003] FJHC 138 which
        was restated by the Supreme Court in Joji Waqasaqa v The State [2006] FJSC
        6, Justice Pathik said:

                “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’. It does not mean that
                consecutive sentence cannot be imposed, so long as the overall
                sentence is not unduly harsh and by the same token the outcomes
                of the concurrent sentences are not rendered unduly lenient in view
                of the aggravating factors.”

39.     After considering evidence and all factors I order all these sentence of the 2nd
        Accused to run concurrently.

40.     Now I consider section 18 (1) of the Sentencing & Penalties Decree.

               “Subject to sub-section (2), when a court sentences an offender to
               be imprisoned for life or for a term of 2 years or more the court must
               fix a period during which the offender is not eligible to be released
               on parole.”
HIGH COURT OF FIJI      CRIMINAL CASE NO. 116 OF 2007    SENTENCE                       Page 11
41.     Considering the nature of the offence and the strength of evidence before the
        Court I fix 4 years as non parole period for the 1st Accused Suliasi Sorovakatini
        and 3 ½ years as non parole period for the 2nd Accused Dhansukh Lal Bhikha.

42.     I strongly endorse the view expressed by Sir Moti Tikaram President Fiji Court of
        Appeal, Justice Sir Peter Quilliam and Mr. Justice Peter Hillyer in Naiveli v
        State [1994] FJCA 29.

                “We wish to make it clear however that people in high office who
                abuse their power may well in the future be required to serve an
                immediate prison sentence. This comment should serve as notice
                to any such people that the courts are not prepared to regard such
                offences lightly and that they will not suspend sentences just
                because the consequences for such a person are severe.”

43.     1st Accused Suliasi Sorovakatini you are sentence as follows:

        For the 1st Count     -       4 years imprisonment
        For the 3rd Count     -       4 years imprisonment
        For the 7th Count     -       5 years imprisonment

        All these sentence will run concurrently with 4 years non parole period.



44.     2nd Accused Dhansukh Lal Bhikha you are sentence as follows:

        For the 2nd Count     -       3 ½ years imprisonment
        For the 4th Count     -       3 ½ years imprisonment
        For the 8th Count     -       4 ½ years imprisonment

        All these sentence will run concurrently with a non parole period of 3 ½ years.

45.     You have 30 days to appeal to the Court of Appeal.




HIGH COURT OF FIJI      CRIMINAL CASE NO. 116 OF 2007   SENTENCE                     Page 12
                                                         S Thurairaja
                                                         Puisne Judge

At Suva
Solicitors
Office of the Director of Public Prosecution for State
Mehboob Raza & Associates for 1st Accused
Parshotam & Co. for 2nd Accused




HIGH COURT OF FIJI    CRIMINAL CASE NO. 116 OF 2007       SENTENCE      Page 13

								
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