R v Rasila
[2020] NZHC 965
•12 May 2020
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE
CRI-2019-004-5696
[2020] NZHC 965
THE QUEEN v
SUNDEEP KILIP RASILA
Hearing: 12 May 2020 Appearances:
B H Dickey for Crown A Holland for Mr Rasila
Judgment:
12 May 2020
Reasons:
12 May 2020
REASONS FOR JUDGMENT OF LANG J
[on application for order discharging defendant without conviction]
This judgment was delivered by me on 12 May 2020 at 3.30 pm.
Registrar/Deputy Registrar Date……………
Solicitors:
Crown Solicitor, Auckland
R v RASILA [2020] NZHC 965 [12 May 2020]
[1] Mr Rasila has pleaded guilty to corruptly accepting a bribe.1 The maximum penalty for this offence is seven years imprisonment.
[2] Mr Rasila sought an order under s 106 of the Sentencing Act 2002 discharging him without conviction. He contended the consequences of a conviction will be out of all proportion to the overall gravity of his offending. The Crown opposed the application. It said the likely consequences of the offending are entirely proportionate to its gravity.
[3] I received written submissions from both the Crown and counsel for Mr Rasila prior to the sentencing hearing this morning. After hearing from counsel I advised them the application was declined and I would give my reasons in writing. These are the reasons for my decision.
Approach
[4] An application for discharge without conviction is governed by s 106 of the Act, which relevantly provides as follows:
106 Discharge without conviction
(1) If a person who is charged with an offence is found guilty or pleads guilty, the court may discharge the offender without conviction, unless by any enactment applicable to the offence the court is required to impose a minimum sentence.
…
[5] In applying s 106, the Court must follow the guidance contained in s 107 of the Act. This provides:
107 Guidance for discharge without conviction
The court must not discharge an offender without conviction unless the court is satisfied that the direct and indirect consequences of a conviction would be out of all proportion to the gravity of the offence.
[6] A court considering an application for discharge under s 106 must consider three issues.2 It must first assess the gravity of the offending having regard to the facts
1 Crimes Act 1961, s 105(1).
2 R v Hughes [2008] NZCA 546, [2009] 3 NZLR 222 at [16] to [17].
of the particular case. This exercise is not restricted to the aggravating and mitigating factors of the offending itself. Factors personal to the offender may also be relevant.3 Next, it must identify the direct and indirect consequences of a conviction being entered. In this context there must be a “real and appreciable” risk that any posited consequence will occur.4 Thirdly, the court must determine whether the consequences of a conviction would be out of all proportion to the gravity of the offending. There is a residual discretion not to grant a discharge but that will rarely be exercised where the statutory criteria have been met.
The offending
[7] Mr Rasila was employed by the Auckland Council (the Council) as a procurement relationship specialist between June 2012 and 28 April 2016. This role required him to maintain the Council’s relationships with suppliers of goods and services, and in particular, office supplies.
[8] Mr Rasila and his co-defendant, Mr Sunil Chand, have been friends for a long time.5 At one stage they worked for the same employer. Mr Rasila also boarded with Mr Chand’s family for a period of approximately six years between 2005 and 2011. They maintained their friendship after Mr Rasila commenced working for the Council. During this period Mr Chand went on to establish his own commercial printing and office stationery supply company, On Time Print Finishers Limited (On Time Print).
[9] As part of its services, the Council supplies members of the public with property files for a fee. These contain information held by the Council that may be of interest to persons seeking to purchase or obtain information about properties in the Auckland area.
[10] Up until 2015, the Council delivered its property files to recipients using compact discs. During that year the Council investigated the possibility of delivering information to recipients on USB devices. Mr Rasila was one of the Council’s staff
3 Z (CA447/2012) v R [2012] NZCA 599, [2013] NZAR 142 at [27]; DC (CA47/2013) v R [2013]
NZCA 255 at [35].
4 DC (CA47/2013) v R, above n 3, at [43].
5 Mr Chand has pleaded guilty to a charge of providing a gift to Mr Rasila without the knowledge of the Council: Secret Commissions Act 1910, ss 3(1) and 13.
members responsible for investigating the proposed transition to USB devices. At that time his role at the Council was focussed on the maintenance of the Council’s relationship with a single supplier of office products, Staples Limited. His involvement in the establishment of a new Council contract and the procurement for USB devices was therefore outside the normal course of his duties.
[11] Mr Rasila knew, however, from his involvement in the process that the contract for the USB devices would be awarded to the supplier who could supply the devices at the cheapest price. Between September and December 2015 Mr Rasila undertook his own investigations and obtained a quote for the bulk supply of USB devices from an online wholesale company based in China. Mr Rasila then contacted Mr Chand and suggested Mr Chand’s company, On Time Print, should submit a quote to supply USB devices to the Council. The understanding at that time was that, if On Time Print secured the contract, it would purchase USB devices from the Chinese company and on-sell them to the Council for a profit.
[12] During January 2016 Mr Rasila received a quote from On Time Print to supply 22,000 USB devices. Between January and March 2016 Mr Rasila also sought and obtained quotes from other suppliers, including Staples Limited and the company that had formerly employed him and Mr Chand.
[13] Mr Rasila provided the Council’s management team with a spreadsheet showing On Time Print’s quote along with other quotes for the supply of devices at a greater cost than the quote submitted by On Time Print. He did not, however, advise the management team of the quote he had obtained from the Chinese company. Nor did he disclose the fact that he had obtained another lower quote from his former employer.
[14] Not surprisingly, the Council’s management team awarded the contract for the supply of the devices to On Time Print as the lowest bidder. This meant the Council paid approximately $27,000 more than it would have done if it had been aware of the other lower quotes. 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.
[15] One of Mr Rasila’s last acts before he left the Council’s employment was to forward Mr Chand a draft contract for the supply of the devices to the Council in accordance with his quoted price. The contract required On Time Print to supply the Council with the devices in two equal consignments. Mr Chand and the Council subsequently signed the contract.
[16] In or about August 2016, after On Time Print had delivered the first consignment of USB devices, Mr Rasila approached Mr Chand and asked for a payment of $15,000 for facilitating the contract awarded to On Time Print. This amounted to approximately ten per cent of the original value of the contract.6 Mr Rasila requested payment of the sum of $7,500 immediately, with the balance to be paid following delivery of the second consignment. Mr Chand drew a cheque payable on his company’s account for the sum of $7,500 and handed this to Mr Rasila. Mr Rasila then cashed the cheque and deposited the bulk of the proceeds into his own bank account.
Gravity of offending
[17] Mr Rasila’s offending had several aggravating features. First, it involved deliberate dishonesty that occurred in two different ways and continued over several months. First, he misled suppliers, including his former employer, by obtaining quotes from them when he knew he was not going to pass on quotes that were lower than that submitted by On Time Print. He then misled his fellow employees by failing to tell them about the quote he had obtained from the Chinese company and the fact that he had received a lower quote from his former employer. This means the offending involved significant premeditation.
[18] The scheme also resulted in the Council paying approximately $27,000 more than it ought to have paid. In addition, it enabled Mr Chand’s company On Time Print to make a significant profit. Mr Rasila receiving a personal benefit in the form of the payment of $7,500 from On Time Print.
6 The value of the contract was ultimately reduced by approximately $12,000 after the Council elected not to have its logo on the USB devices.
[19] The offending is aggravated in gravity by the fact that it took place whilst Mr Rasila was a public official involved in overseeing the expenditure of funds raised by ratepayers in the Auckland region. A similar situation, albeit more serious, arose in R v George.7 In that case this Court observed:
[36] Mr George’s offending took place whilst he was a public official entrusted with overseeing the expenditure of funds raised from ratepayers of the 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 system was not robust because persons within it were prepared to take rewards for undertaking their roles within the system.
[37] This has a widespread effect. First, it causes loss of morale within the Council. Other employees will feel let down and under suspicion that they are involved in similar types of offending. The Council as a whole will come under suspicion for not having robust processes. Furthermore, the offending tarnishes New Zealand’s current reputation as a place where public corruption is virtually non-existent.
[20] I acknowledge Mr Holland’s submission on Mr Rasila’s behalf that the offending was not particularly sophisticated and it did not result in the Council suffering a large financial loss or in Mr Rasila receiving a significant financial benefit. I consider, however, that those factors are overshadowed by the fact that the offending involved corruption by a public official and all that this entails. Taking these factors into account, I would assess the gravity of Mr Rasila’s offending as being high before mitigating factors are taken into account.
[21] Mitigating factors include an early guilty plea, coupled with Mr Rasila’s previous good character. He was also facing a significant number of issues in his work and personal life at the time of this offending although, as Mr Holland readily accepts, this does not excuse his actions.
[22] Furthermore, Mr Rasila has taken steps to address the causes of his offending, including undertaking counselling. He is also genuinely remorseful and has voluntarily completed almost 100 hours community work with the Auckland City Mission to demonstrate both his remorse and his desire to give something back to the community.
7 R v George [2016] NZHC 1730.
[23] Taking these factors into account I would categorise the overall gravity of Mr Rasila’s offending as moderate to high.
The consequences of a conviction
[24] The offending has already had significant consequences for Mr Rasila in terms of his employment. He has worked in the field of procurement for many years but since the offending came to light he has lost one job in that area. Just last week he also lost his job as a security guard even though his employer knew of the charges when it employed him.
[25] These issues are likely to confront Mr Rasila for some considerable time. I also accept Mr Holland’s submission that he is unlikely to be able to find further employment in his chosen field regardless of whether a conviction is entered. However, I consider the Crown is correct to submit that he should not work in that field again given the circumstances of the present offending.
[26] Mr Rasila will not be precluded from finding another job in the future. He is likely, however, to find it difficult to obtain employment that involves any level of trust on his part. He must accept that as a necessary consequence of the offending he has acknowledged.
[27] Taking these factors into account I assess the likely direct and indirect consequences of a conviction to be moderate to high.
Are the consequences of conviction out of all proportion to the overall gravity of the offending?
[28] I have assessed both the overall gravity of the offending and the likely consequences of a conviction for Mr Rasila as being moderate to high. This means the consequences are broadly proportionate to the overall gravity of Mr Rasila’s offending. They certainly cannot be said to be out of all proportion to the gravity of the offending as s 107 requires.
[29] For these reasons I concluded Mr Rasila had not met the statutory threshold giving rise to the jurisdiction to discharge him without conviction.
Lang J
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