R v Rasila

[2020] NZHC 964

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CRI-2019-004-5696

[2020] NZHC 964

THE QUEEN

v

SUNDEEP KILIP RASILA

Hearing:

12 May 2020

Appearances:

B Dickey for Crown

A J Holland for Mr Rasila

Judgment:

12 May 2020

SENTENCING REMARKS OF LANG J

Solicitors:

Crown Solicitor, Auckland

R v RASILA [2020] NZHC 964 [12 May 2020]

[1]    Mr Rasila, you have pleaded guilty to one charge of corruptly accepting a bribe.1 The maximum penalty for that offence is seven years imprisonment. You originally 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 under s 147 of the Criminal Procedure Act 2011.

[2]    You have applied to be discharged without conviction under s 106 of the Sentencing Act 2002 but for reasons I will give in writing later today I decline to grant that application. I do not consider you have established the direct and indirect consequences of conviction are out of all proportion to the overall gravity of your offending.

The offending

[3]    The facts on which you are to be sentenced are contained in an agreed summary of facts. This reveals that you were employed by the Council as a procurement relationship specialist between June 2012 and 28 April 2016. This role required you to maintain the Council’s relationship with suppliers of goods and services and, in particular, office supplies.

[4]    You and Mr Sunil Chand have been friends for a long time and at one stage both worked for the same employer. You also boarded with Mr Chand’s family for a period of approximately six years between 2005 and 2011. You then maintained your friendship with Mr Chand after you began 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).

[5]    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.

1      Crimes Act 1961, s 105(1).

[6]    Up until 2015, the Council delivered its property files to recipients on compact discs. During that year the Council began investigating the possibility of delivering information to recipients on USB devices rather than compact discs. You were one of the Council’s staff members responsible for investigating the proposed transition to USB devices. Up until that time your role at the Council had focussed on the maintenance of the Council’s relationship with a single supplier of office products, a company called Staples Limited. Your involvement in the establishment of a new Council contract for the procurement for USB devices was therefore outside the normal course of your duties.

[7]    You knew, however, from your involvement in the process that the contract for the supply of USB devices to the Council would be awarded to the supplier who could supply the devices at the cheapest price. Between September and December 2015, you undertook your own investigations and obtained a quote for the supply of USB devices in bulk from an online wholesale company based in China. You then passed this 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 understanding between you 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.

[8]    In January 2016 you received a quote from On Time Print to supply 22,000 USB devices to the Council. Between January and March 2016, you also sought quotes from other suppliers, including Staples Limited and the company that had formerly employed you and Mr Chand.

[9]    You provided the Council’s management team with a spreadsheet showing the quote from On Time Print as well as other quotes for the supply of devices for a greater sum than that submitted by On Time Print. You did not, however, advise the management team of the quote you had obtained from the Chinese company. Nor did you disclose the fact that you had obtained another lower quote from your former employer.

[10]   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 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 forward to Mr Chand a draft contract for the supply of 22,000 USB devices to the Council for the sum of $152,250 (exclusive of GST). Both Mr Chand and the Council subsequently signed the contract, which required On Time Print to supply the 22,000 devices in two equal consignments.

[12]   You left the Council’s employment at the end of April 2016. In or about August 2016, after On Time Print had delivered the first consignment of USB devices, you 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.2 You requested payment 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 you. You then cashed the cheque and deposited the bulk of the proceeds into your own bank account.

Starting point

[13]   The first stage in the sentencing process is to select a starting point for the sentence to be imposed on you. This reflects the sentence that is appropriate to reflect the overall gravity of the offending but putting to one side aggravating and mitigating factors personal to you.

[14]   Your offending had several aggravating features. First, it involved deliberate dishonesty that occurred in two different ways and continued over several months. You misled suppliers, including your former employer, by obtaining quotes from them when you knew you were not going to pass on quotes that were lower than that submitted by On Time Print. You then misled your fellow employees at the Council

2      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.

by failing to tell them about the quote you had obtained from the Chinese company and the fact that you had received a lower quote from your former employer. All of this means the scheme clearly involved significant premeditation.

[15]   The scheme also resulted in the Council paying $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. You received a personal benefit in the form of the payment of $7,500 from On Time Print.

[16]   The gravity of your offending is aggravated by the fact that it took place whilst you were a public official involved in making decisions about the expenditure of public funds. A similar situation, albeit more much serious, arose in R v George.3 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.

[17]   Having regard to these factors, the Crown contends your offending should attract a starting point of between 18 months and two years imprisonment. Your counsel submits a starting point of between 12 and 18 months imprisonment is justified.

[18]   Both counsel have referred me to several authorities, some of which relate to offending that is clearly much more serious than yours.4 The Crown has also referred me to cases involving the bribery of prison officers.5 Those cases have some similarity

3      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 years imprisonment. I am conscious, however, that those cases involve different policy considerations to those that arise in your case so care must be taken in applying them to your offending.

[19]   Your offending related to a single instance of accepting a bribe and it resulted in you receiving a limited financial benefit. Having regard to the overall effects of the offending, however, I consider a starting point of 18 months imprisonment is appropriate.

Aggravating factors

[20]   You have no previous convictions. There are therefore no aggravating factors that require the starting point to be increased. You are, however, entitled to receive credit 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 many difficulties in your personal life and you were plainly under a great deal of pressure at work. Fortunately, you have always had strong support from your wife, to whom you have 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 present charge you have come to understand the causes of your offending. This has no doubt been 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 volunteer work for the Auckland City Mission as a means of demonstrating both your remorse and desire to contribute back to the community. The pre-sentence report also suggests you 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 have also had serious consequences for you. You have spent your career in the area of procurement and you have now lost other jobs in that area. Just last week you also lost a job as a security guard even though you had told your employer of the existence of the charges when you were employed. I accept that these are significant consequences 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 your integrity 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 the original 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 11 months imprisonment. This means it is necessary to determine whether the sentence should be converted to one of home detention.

[26]   The Crown acknowledges the Court may find a sentence of home detention is appropriate in your case, although it points out that this decision is firmly one for the Court. There are no technical impediments to you serving a sentence of home detention because your address has been assessed as being technically feasible for electronic monitoring, and I proceed on the basis that your wife and daughter are likewise suitable persons with whom you should reside whilst serving such a sentence.

[27]   Notwithstanding the seriousness of the offending I consider your previous good character, your remorse and the probability that you will not offend again mean a sentence of imprisonment is not required in your case. The sentencing purposes and principles of deterrence, denunciation and the need to hold you accountable for your offending are adequately addressed by the conviction and a sentence of home detention.

End sentence

[28]   Mr Rasila you are sentenced to five and a half months home detention. The sentence is imposed on the following conditions:

(a)You are to serve the sentence at the address that has been assessed as suitable for a sentence of home detention.

(b)Following sentencing today, you are to travel directly to that address and to await the arrival of the monitoring company.

(c)You are to reside at that address for the duration of the sentence and you are not to move address unless you have the prior written consent of your probation officer.

(d)You are to comply with the requirements of electronic monitoring as directed by a probation officer.

(e)You are not possess or consume alcohol, controlled drugs or psychoactive substances except controlled drugs prescribed for you by a health professional.

(f)You must, if given notice by the police, a probation officer or authorised person undergo testing for a controlled drug, psychoactive substance or alcohol.

(g)You are to attend an assessment for any counselling, treatment or programme including departmental programmes as directed by a probation officer.

[29]Stand down.

Lang J