R v RASILA [2020] NZHC 964

R v RASILA [2020] NZHC 964 [12 May 2020]IN THE HIGH COURT OF NEW ZEALANDAUCKLAND REGISTRYI TE KŌTI MATUA O AOTEAROATĀMAKI MAKAURAU ROHECRI-2019-004-5696[2020] NZHC 964THE QUEENvSUNDEEP KILIP RASILAHearing: 12 May 2020Appearances: B Dickey for CrownA J Holland for Mr RasilaJudgment: 12 May 2020SENTENCING REMARKS OF LANG JSolicitors:Crown Solicitor, Auckland[1] Mr Rasila, you have pleaded guilty to one charge of corruptly accepting abribe.1 The maximum penalty for that offence is seven years imprisonment. Youoriginally faced another charge of using a document to obtain a pecuniary advantage.The Crown has offered no evidence on that charge and I now discharge you on it unders 147 of the Criminal Procedure Act 2011.[2] You have applied to be discharged without conviction under s 106 of theSentencing Act 2002 but for reasons I will give in writing later today I decline to grantthat application. I do not consider you have established the direct and indirectconsequences of conviction are out of all proportion to the overall gravity of youroffending.The offending[3] The facts on which you are to be sentenced are contained in an agreed summaryof facts. This reveals that you were employed by the Council as a procurementrelationship specialist between June 2012 and 28 April 2016. This role required youto maintain the Council's relationship with suppliers of goods and services and, inparticular, office supplies.[4] You and Mr Sunil Chand have been friends for a long time and at one stageboth worked for the same employer. You also boarded with Mr Chand's family for aperiod of approximately six years between 2005 and 2011. You then maintained yourfriendship with Mr Chand after you began working for the Council. During this periodMr Chand went on to establish his own commercial printing and office stationerysupply company, On Time Print Finishers Limited (On Time Print).[5] As part of its services, the Council supplies members of the public withproperty files for a fee. These contain information held by the Council that may be ofinterest to persons seeking to purchase or obtain information about properties in theAuckland area.1 Crimes Act 1961, s 105(1).[6] Up until 2015, the Council delivered its property files to recipients on compactdiscs. During that year the Council began investigating the possibility of deliveringinformation to recipients on USB devices rather than compact discs. You were one ofthe Council's staff members responsible for investigating the proposed transition toUSB devices. Up until that time your role at the Council had focussed on themaintenance of the Council's relationship with a single supplier of office products, acompany called Staples Limited. Your involvement in the establishment of a newCouncil contract for the procurement for USB devices was therefore outside thenormal course of your duties.[7] You knew, however, from your involvement in the process that the contract forthe supply of USB devices to the Council would be awarded to the supplier who couldsupply the devices at the cheapest price. Between September and December 2015,you undertook your own investigations and obtained a quote for the supply of USBdevices in bulk from an online wholesale company based in China. You then passedthis on to Mr Chand with the suggestion that Mr Chand's company, On Time Print,should submit a quote to supply USB devices to the Council. The understandingbetween you was that, if On Time Print secured the contract, it would purchase USBdevices from the Chinese company and on-sell them to the Council for a profit.[8] In January 2016 you received a quote from On Time Print to supply 22,000USB devices to the Council. Between January and March 2016, you also soughtquotes from other suppliers, including Staples Limited and the company that hadformerly employed you and Mr Chand.[9] You provided the Council's management team with a spreadsheet showing thequote from On Time Print as well as other quotes for the supply of devices for a greatersum than that submitted by On Time Print. You did not, however, advise themanagement team of the quote you had obtained from the Chinese company. Nor didyou disclose the fact that you had obtained another lower quote from your formeremployer.[10] Not surprisingly, the Council's management team awarded the contract for thesupply of the devices to On Time Print as the lowest bidder. This meant the Councilpaid approximately $27,000 more than it would have done if it had been aware of theother quotes. Furthermore, On Time Print stood to make a profit of approximately$57,000 from the sale of the USB devices to the Council under the contract.[11] One of your last acts before leaving the Council's employment was to forwardto Mr Chand a draft contract for the supply of 22,000 USB devices to the Council forthe sum of $152,250 (exclusive of GST). Both Mr Chand and the Councilsubsequently signed the contract, which required On Time Print to supply the 22,000devices in two equal consignments.[12] You left the Council's employment at the end of April 2016. In or about August2016, after On Time Print had delivered the first consignment of USB devices, youapproached Mr Chand and asked for a payment of $15,000 for facilitating the contractawarded to On Time Print. This amounted to approximately ten per cent of the originalvalue of the contract.2 You requested payment of $7,500 immediately, with the balanceto be paid following delivery of the second consignment. Mr Chand drew a chequepayable on his company's account for the sum of $7,500 and handed this to you. Youthen cashed the cheque and deposited the bulk of the proceeds into your own bankaccount.Starting point[13] The first stage in the sentencing process is to select a starting point for thesentence to be imposed on you. This reflects the sentence that is appropriate to reflectthe overall gravity of the offending but putting to one side aggravating and mitigatingfactors personal to you.[14] Your offending had several aggravating features. First, it involved deliberatedishonesty that occurred in two different ways and continued over several months.You misled suppliers, including your former employer, by obtaining quotes from themwhen you knew you were not going to pass on quotes that were lower than thatsubmitted by On Time Print. You then misled your fellow employees at the Council2 The value of the contract was ultimately reduced by approximately $12,000 after the Councilelected not to have its logo on the USB devices.by failing to tell them about the quote you had obtained from the Chinese companyand the fact that you had received a lower quote from your former employer. All ofthis means the scheme clearly involved significant premeditation.[15] The scheme also resulted in the Council paying $27,000 more than it ought tohave paid. In addition, it enabled Mr Chand's company, On Time Print, to make asignificant profit. You received a personal benefit in the form of the payment of $7,500from On Time Print.[16] The gravity of your offending is aggravated by the fact that it took place whilstyou were a public official involved in making decisions about the expenditure ofpublic funds. A similar situation, albeit more much serious, arose in R v George.3 Inthat case this Court observed:[36] Mr George's offending took place whilst he was a public officialentrusted with overseeing the expenditure of funds raised from ratepayers ofthe region. Ratepayers are entitled to expect that their funds are used properly,and that the manner in which funds are expended is subject to robust oversight.Mr George's offending call into question both of those fundamental tenets.When this offending becomes public, ratepayers will know that the systemwas not robust because persons within it were prepared to take rewards forundertaking their roles within the system.[37] This has a widespread effect. First, it causes loss of morale within theCouncil. Other employees will feel let down and under suspicion that theyare involved in similar types of offending. The Council as a whole will comeunder suspicion for not having robust processes. Furthermore, the offendingtarnishes New Zealand's current reputation as a place where public corruptionis virtually non-existent.[17] Having regard to these factors, the Crown contends your offending shouldattract a starting point of between 18 months and two years imprisonment. Yourcounsel submits a starting point of between 12 and 18 months imprisonment isjustified.[18] Both counsel have referred me to several authorities, some of which relate tooffending that is clearly much more serious than yours.4 The Crown has also referredme to cases involving the bribery of prison officers.5 Those cases have some similarity3 R v George [2016] NZHC 1730.4 R v Borlase [2017] NZHC 236; R v Nua [2001] 3 NZLR 483 (CA).5 R v Dufresne [2017] NZHC 1082; R v Faapoi [2017] NZHC 2969.to your offending and have attracted starting points of two to three yearsimprisonment. I am conscious, however, that those cases involve different policyconsiderations to those that arise in your case so care must be taken in applying themto your offending.[19] Your offending related to a single instance of accepting a bribe and it resultedin you receiving a limited financial benefit. Having regard to the overall effects of theoffending, however, I consider a starting point of 18 months imprisonment isappropriate.Aggravating factors[20] You have no previous convictions. There are therefore no aggravating factorsthat require the starting point to be increased. You are, however, entitled to receivecredit for several mitigating factors.Mitigating factors[21] You are 42 years of age and have never appeared before the courts. The pre-sentence report makes it clear that you are genuinely remorseful for, and ashamed of,the events that gave rise to the charge. They occurred when you were facing manydifficulties in your personal life and you were plainly under a great deal of pressure atwork. Fortunately, you have always had strong support from your wife, to whom youhave been married for eight years and with whom you have a four year old daughter.[22] I am also satisfied that since the events that have given rise to the presentcharge you have come to understand the causes of your offending. This has no doubtbeen assisted by the fact that you have undertaken counselling to address these causes.[23] You are plainly remorseful for your offending and have carried out volunteerwork for the Auckland City Mission as a means of demonstrating both your remorseand desire to contribute back to the community. The pre-sentence report also suggestsyou are unlikely to appear before the courts again in the future.[24] There can be little doubt that the events giving rise to the present charge havealso had serious consequences for you. You have spent your career in the area ofprocurement and you have now lost other jobs in that area. Just last week you alsolost a job as a security guard even though you had told your employer of the existenceof the charges when you were employed. I accept that these are significantconsequences and they are likely to continue well into the future. They largely reflect,however, the fact that the present offending raises a serious question regarding yourintegrity and honesty. Taking mitigating factors other than the guilty plea into account,I consider you are entitled to a discount of three months, or 15 per cent, from theoriginal starting point.[25] The Crown accepts the guilty plea should attract a full discount of 25 per cent.This reduces the sentence by another four months, and results in an end sentence of 11months imprisonment. This means it is necessary to determine whether the sentenceshould be converted to one of home detention.[26] The Crown acknowledges the Court may find a sentence of home detention isappropriate in your case, although it points out that this decision is firmly one for theCourt. There are no technical impediments to you serving a sentence of homedetention because your address has been assessed as being technically feasible forelectronic monitoring, and I proceed on the basis that your wife and daughter arelikewise suitable persons with whom you should reside whilst serving such a sentence.[27] Notwithstanding the seriousness of the offending I consider your previousgood character, your remorse and the probability that you will not offend again meana sentence of imprisonment is not required in your case. The sentencing purposes andprinciples of deterrence, denunciation and the need to hold you accountable for youroffending are adequately addressed by the conviction and a sentence of homedetention.End sentence[28] Mr Rasila you are sentenced to five and a half months home detention. Thesentence is imposed on the following conditions:(a) You are to serve the sentence at the address that has been assessed assuitable for a sentence of home detention.(b) Following sentencing today, you are to travel directly to that addressand to await the arrival of the monitoring company.(c) You are to reside at that address for the duration of the sentence andyou are not to move address unless you have the prior written consentof your probation officer.(d) You are to comply with the requirements of electronic monitoring asdirected by a probation officer.(e) You are not possess or consume alcohol, controlled drugs orpsychoactive substances except controlled drugs prescribed for you bya health professional.(f) You must, if given notice by the police, a probation officer or authorisedperson undergo testing for a controlled drug, psychoactive substance oralcohol.(g) You are to attend an assessment for any counselling, treatment orprogramme including departmental programmes as directed by aprobation officer.[29] Stand down.Lang J