Paio v Police [1996] CKCA 1; CA 14.1995 (29 October 1996)

IN THE COURT OF APPEAL OF THE COOK ISLANDS
HELD AT AUCKLAND
NEW ZEALAND

C.A. NO.14/95

BETWEEN

PAIO PAIO
Appellant

AND

POLICE
Respondent

Coram: Sir Duncan McMullin (Presiding)
Hillyer, JA
McHugh, JA

Counsel: BH Giles, QC for Appellant
PM Smith for Respondent

Hearing: 25 & 26 September 1996
Date of Judgment: 29th October 1996

JUDGMENT OF THE COURT DELIVERED BY HILLYER, JA

This is an appeal against sentence. The Appellant was sentenced to eight months imprisonment by the High Court at Rarotonga on 6 December 1995. He had pleaded guilty in the High Court at Aitutaki to a breach of s 76(d) of the Public Monies and Stores Act 1987.

The Appellant was Comptroller of Customs for Aitutaki. On 1 June 1995 he received the sum of $2,900 from Paerau Kare in payment of import duty on a cargo of personal property Mr Kare had imported from New Zealand. The Appellant did not give Mr Kare a proper customs receipt, nor did he deliver a customs clearance. He simply gave a receipt on plain paper. He did not pay the money into the Cook Islands' Government account and used it for his own purposes. His failure to give the proper receipt and clearance would seem to indicate that he decided to keep the money when it was paid to him.

On or about 19 June 1995 the Appellant told Mr Kare what he had done and asked Mr Kare to lend him the $2,900. Counsel for the Appellant and for the Respondent told us that Mr Kare refused. Presumably to obtain release of his goods Mr Kare on 23 June 1995 paid a further sum of $2,154.75 and obtained a proper receipt. On 6 July 1995 the Appellant was interviewed by the Police. Counsel said this was because he was using large denomination notes to settle debts. Whatever the reason he apparently told the Police he had taken the $2,900. On 12 July he was suspended from Customs. On 27 September he repaid Mr Kare the sum of $1,000 and on 3 October 1995 the further sum of $1,900. On 7 November 1995 a "substituted" information was laid against the Appellant. We were not told what it was substituted for or why it was substituted, but we note it was four months after the Appellant was interviewed by the Police.

We think it proper to say that the record of proceedings we were given was not particularly helpful. Counsel agreed that the Summary of Facts annexed to the record was inaccurate and in the light of information we were given during the hearing of the case was quite misleading. We had to adjourn the case overnight to enable counsel to ascertain the position. There was no record of the Judge's Remarks on Sentence so we did not have the benefit of his reasons for imposing the sentence of 8 months imprisonment.

On behalf of the Appellant Mr Giles, who was appearing pro bono, made careful and persuasive submissions. He referred to the maximum penalty for the offence of 12 months imprisonment, the Appellant's plea of guilty, the fact the Appellant was a first offender, his being a married man with three children and the consequences for them. He pointed out that the Appellant had been dismissed from his employment with the Customs Department, his loss of superannuation, the fact that full restitution has been made and produced references from members of the local community.

He further referred to the necessity for consistency in sentencing and in particular referred to the decision of this Court in Bishop v The Crown CA No 7/95 which had some similarities to this case. In that case this Court reduced a sentence of four years imprisonment to one of community service for a period of 12 months.

The basic principle on which a Court of Appeal must operate in an appeal against sentence is that it should not interfere with the sentence unless the Judge in the court below has proceeded on a wrong basis or the sentence is manifestly excessive. This is particularly so where the Court is considering the decision of a judge in a local community. That judge is better able to decide what a proper sentence would be in that community than three Judges of the Court of Appeal who do not have the knowledge of circumstances or the background of a judge who is familiar with the area.

In the Bishop case, as in this case, there was no misunderstanding of the law or the facts. The question was simply whether the sentence was manifestly excessive. We came to the conclusion that four years imprisonment was manifestly excessive in the circumstances of that case and in the light of the other cases to which we were referred. Indeed counsel for the Crown, unlike in this case, accepted that the penalty in the Bishop case was inappropriate.

In this case we have given anxious consideration to this question and have come to the conclusion that although the sentence of eight months imprisonment was severe it was not manifestly excessive. The Appellant was in a position of trust. He was the Senior Officer in the Customs Department in a small community and he deliberately misappropriated money with which he had been entrusted. He had worked his way up to that position over a number of years and we have no doubt that, as set out in some of the references produced, he was well known in and respected by the community. Such an abuse of trust requires a penalty that will demonstrate to the community that the Courts regard such matters very seriously and in the popular phrase he should not be allowed to "get away with it". We have considered the facts in Bishop's case and the other cases to which we referred in that case and in this case. We are not prepared to interfere with the decision of the Judge in the court below. The appeal is dismissed.

In the circumstances, in particular the Appellant's financial circumstances, there will be no order as to costs.

Decision

Appeal dismissed. No order as to costs.

By the Court
PG Hillyer, JA