State v Murti [20 I0) FJHC 514: HAC195.20 I0 (17 November 2010)
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State v Murti [2010] FJHC 514; HAC195.2010 (17
November 2010)
IN THE HIGH COURT OF FIJI
AT SUVA
CRIMINAL JURISDICTION
Criminal Case No: HACI95 of2010
STATE
v
KADALI SURYANAYANARA M RTI
Hearing: 1-8 November 2010
Sentence: 17 Tovember 2010
Counsel: Ms S. Tagivakatini for State
Ms N. Nawasaitoga & Mr. S. Waqainabete for Accused
SENTENCE
[I) Mr. Murti, you appear for sentence having been convicted of I count of trafficking in persons and 7
counts of obtaining property by deception. The maximum penalty for trafficking in persons is 12 years
imprisonment, and for obtaining property by deception. the maximum penalty i~ 10 years imprisonment.
[2) The charges arose from the same facts. You and the seven victims are from India. You met the
victims in Delhi. They contacted you after learning that you were arranging overseas work for the Indian
nationals. The victims were Indian men with different backgrounds. Four of them were married and two
were single men. They fluently spoke the Punjabi language. They had limited command of Hindi and
English languages. They were ordinary but genuine people. They desired to work overseas to improve
their economic wellbeing.
[3) In this sense the victims were vulnerable. You took advantage of their vulnerability and convinced
them that you could arrange work for them in a farn1 in New Zealand. You asked them for payments of
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3116120 II
fees for your service but they insisted that they will only pay you upon sighting documents that they
have been offered jobs in New Zealand. You then showed them documents purporting to be
employment offer letters from a company in ew Zealand.
[4] The documents were false. The victims were not offered any employment in New Zealand.
[5] By deception you dishont>stly obtained substantial amount of money from each victim. Three of
them paid you 150,000 Indian rupees each w:tile four of them paid you Z$4300.00 each. You
convinced them that there was no need to document the payments because yOll were travelling with
them to New Zealand.
[6] You had no intention oftaking the victims to New Zealand. You made all the travel arrangements for
them. You booked them to travel to Fiji, a country that they never heard of. You bought electronic
tickets, which you gave them at the airport in India on the day of travel. When they enquired where adi
was, you convinced them that Nadi wp in ew Zealand by saying they were taking a d;;:nestic flight
from Nadi.
[7] When you arrived at Nadi International Airport you told the victims to lie to the immigration officers
that they were here for holidays. You were carrying substantial amount of ew Zealand and US
currencies in your hand carry bag. You kept the money in six separate envelopes and yuu claimed that
they were your money. You told an immigration officer that you were assisting the victims with the
English translation. You told the immigration officer that you did not know the victims.
[8] Your intention was to leave the victims in Fiji and return to India. You were reckless as to whether
the victims were going to be exploited knowing that they had limited funds with them.
[9] I turn now to consider what is the appropriate sentence for the offence of trafficking in persons and
obtaining properry by deception. The use of deception to obtain money from the victims was part of
your arrangement to facilitate their entry into Fiji. I therefore do not draw any distinc:iol1 in your
culpability as far as the two offences are concerned.
[10] As you have heard, there is no direct precedent to which I can turn for guidance as you are the first
person in Fiji to be convicted of trafficking in persons. There is some guidance to be obtained from
overseas cases.
[11] InA-G's Referellce (No.6 of2004) [20M} ALL ER (D) 3/2, the offender was involved in the
illegal bringing of young girls into the United Kingdom and forcing them into prostitution. He was
convicted of numerous offences including kidnapping, inciting to rape and assisting illegal entry and
was sentenced to a total term of 10 years imprisonment. On appeal, the English Coun of Appeal
considered the sentence to be unduly lenient and increased it to 23 years imprisonment.
[12] In R v Maka [2005} EWCA Crim 3365, the offender was convicted of 5 counts of trafficking
women for sexual exploitation and was sentenced to a total sentence of 18 years imprisonment. The
English Court of Appeal confirmed the sentence on appeal.
[13] In R v Sailli; R v Ka/yan; R v Deo [2004} EWCA Crim 1900, the offenders pleaded guilty to
conspiracy to facilitate illegal entry into the United Kingdom. The offenders mane false documents to
facilitate the entry and in return the illegal migrants paid a fee of £3000 and £8000 per person per
passage. The offenders were sentenced for their individual roles in the conspiracy to 7'h., 5 and 4 years
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."llIte v Murti [20 I0] FJHC 514; HAC 195.2010 (17
/
ovember 2010)
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imprisonment respectively. The maximum penalty for the offence was 10 years imprisonment.
[14] In R v Fellg Lill [2001] NSWCCA 7; (2001) Jl9 A Crim R 19-1 (CA NSW), the offender received
US$3.000 for three migrants to be smuggled into Australia on the container boat on which he was an
officer. The sentencing judge had taken a starting point of 7 years imprisonment and reduced that to 4
years imprisonment for mitigating factors, including an early guilty plea. On appeal to the ew South
Wales Court of Appeal, the sentence was further reduced to three years imprisonment by majority
decision.
[15] In C!lec!leillitski v R [200-l} f\'ZCA 20S (l SepTember 200-1), the offender pleaded guilty to three
charges of people smuggling into New Zealand. The offence carried a penalty of 20 years imprisorunent.
The offender was sentenced to 3 Y, years imprisonment, which was upheld by the New Zealand Court of
Appeal.
[16] [ consider these overseas authorities to be oflimited assistance on the basis that the maximum
penalties were different and the sentencing considerations and parole regimes were likely different too.
[17] The overseas authorities however "emonstrate a common principle that a prison sentence should be
imposed to deter the offender and others from committing this type of offences.
[18] The Crimes Decree 2009. which can1e into effect on I February 2010. creates a number of offences
designed to fulfill Fiji's obligation under the United Nations Convention Against Transnational
Organised Crime and two of its three protocols, the Protocol to Prevent. Suppress and Punish
Trafficking in Persons, Especially Women and Children (the Trafficking Protocol), and the Protocol
against the Smuggling of Migrants by Land, Sea and Air (the Migrant Protocol).
[19] Although Fiji has not signed these international conventions, by criminalizing human trafficking
and smuggling under the domestic law, Fiji has shown commitment to effectively address this global
problem.
[20] Trafficking in persons is a human right issue. Traffickers are motivated by greed to take advantage
of vulnerable victims. Traffickers use coercive tactics including deception, fraud, inti!l1idation, isolation,
threat and use of physical force. and/or debt bondage to control their victims. The victims are generally
subjected to degrading forms of exploitation such as forced prostitution, domestic servitude and other
kinds of work.
[21] However, I do not consider this case to be the worst case of human trafficking. The victims were
only exposed to exploitation. They we.,; not physically exploited.
[22] I consider a term of 6 years imprisonment is an appropriate starting point for the offence of
trafficking in persons. I use the same starting point for each count of obtaining property by deception.
[23] In mitigation your counsel said you are 62 years old and a retired seaman. You have no criminal
history. Your wife is sickly and your fan1ily members are financially depended on you. You have been
in custody since your arrival in Fiji on 10 September 2010.
[24] You facilitated entry of seven men into Fiji by deception. The men were not your relatives. They
were strangers. You look substantial amounts of money from them. Because of you the victims were
detained in Fiji upon arrival. These are the aggravating factors.
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ate v Murti [2010] FJHC 514; HAC195.20 10 (17 November 2010)
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[25] J increase your sentence by 2 years to reflect the aggravating factors and J reduce your sentence by
2 years to reflect your old age, family circumstances in India, previous good character and the remand
period.
[26] For the offence of trafficking in persons and for each offence of obtaining property by deception, [
sentence you to 6 years imprisonment. [ fix a non-parole period of 4 years imprisonment.
[27] [ order you serve all your sentences concurrently.
Daniel Goundar
JUDGE
At Suva
17 November 20 I0
Solicitors:
Office of the Director of Public Prosecutions for State
Office of the Legal Aid Commission for Accused
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