Nicholls v Police [2002] CKCA 1; CA 5.2002 (11 December 2002)

IN THE COOK ISLAND COURT OF APPEAL
HELD AT AUCKLAND, NEW ZEALAND

CA 5/02

BETWEEN

LOUISA APII NICHOLLS
Appellant

AND

POLICE
Respondent

Hearing: 11 December 2002

Coram: Casey JA (Presiding)
Barker JA
Smellie JA

Counsel: T P Browne for Appellant
T Elikana for Respondent

Judgment: 11 December 2002

JUDGMENT OF THE COURT

[1] This is an appeal against sentence of 18 months total imprisonment imposed on the Appellant in the High Court at Rarotonga on 21 August 2002. The Appellant had pleaded guilty to six charges of dishonesty involving the theft of $19,200 from her employer, the Edgewater Resort Hotel. She had been employed as Head Cashier at the Resort. Her responsibilities involved cash reconciliation, documentation and banking on a daily basis from both the restaurant and the office of the Resort. She was also required to supply a monthly reconciliation overview. When interviewed, she admitted theft over a period from April to September but was not able to say on what particular day she stole any particular amount of money: generally she would take about $100 to $300 a day. She also admitted to falsifying her monthly reconciliation prior to handing it to the Financial Controller at the end of each month in such a way as to cover up the theft. She admitted spending all the money that she had stolen on food, clothing and raffle tickets. She is a married woman with four children, the eldest being 15 years of age. Although she had been dismissed from the Edgewater Resort, at the time of sentencing, she had employment with an agency of the Ministry of Health. She had never previously appeared before the Court.

[2] At sentencing, the Judge had before him a very lengthy probation report: he considered submissions from the Appellant's counsel. He noted that she was a good community supporter and mother, but was also a thief. He said that his initial thought was for a term of 2½ years' imprisonment but, after listening to counsel and the Appellant, reading a number of references and "noting that you are beginning to try and pick yourself up", he took into account her past contribution to the community. Nevertheless, the Judge felt that the Appellant needed a sharp lesson on the major charge he sentenced her to 18 months' imprisonment and on each of the theft charges to 1 years' imprisonment, the sentences to be concurrent. He made no order as to restitution, as requested by the prosecution. He stated that he took into account the alleged inadequate systems at the Edgewater, but also that he did not wish to burden her family whilst she was in jail. He said it would be up to the Edgewater to decide to pursue the Appellant in the civil courts.

[3] At the hearing of the appeal today, Mrs Browne has said everything that is possible to be said in support of the appeal. She stressed that the Appellant was a first offender and had pleaded guilty at first appearance. She submitted that the Sentencing Judge had not paid sufficient weight to the effect on her children of a sentence of imprisonment. The children were to have been cared for by their natural father, but according to Mrs Browne, this arrangement has not worked out: it seems that the children have been in the care of the Appellant's brother and his family. The brother sought financial help from the government for his additional responsibilities but this was declined on the basis that the natural father should maintain the children. There was concern that the oldest daughter, aged 15, had been leaving the uncle's home to live with a 20 year old boy. Counsel also mentioned the behaviour of the offender subsequent to the offence in that, once arrested, she had sought counselling from Punanga Toturu. However commendable her resort to counselling took place at a rather late stage.

[4] Both counsel have carefully reviewed a number of previous decisions of the High Court both from single Judges of the High Court and three Justices of the Peace for sentences of persons convicted of dishonesty offences. It is hard to make any real comparisons or to detect any pattern. The case of Police v Anna Tamangaro involved false accounting by an employee, a 31 year old first offender falsely accounted for $15,352 and who was sentenced to 12 months' imprisonment followed by 12 months' community service. Then there was Police v Basilio Tutai Kaokao: the accused was found guilty by a jury on two counts of forgery and three of theft as a servant. The amount involved was $41,768. He was sentenced to 2½ years' imprisonment for forgery, 2 years' for false accounting, 2 years' for one theft charge and 1 year on the other theft charge. The sentences to be served concurrently. Clearly, that offender did not qualify for any discount on the grounds of an early guilty plea.

[5] Counsel correctly referred to a previous decision of this Court, Paio Paio v Police (CA 14/95, 29 October 1996). The Appellant there had been sentenced to 8 months' imprisonment for an offence o£ dishonesty. The Court noted the basic principle which must guide this Court, namely, that a Court of Appeal can interfere with a sentence only if the Judge in the Court below has proceeded on a wrong basis or the sentence was manifestly excessive.

[6] We are unable to say that the Judge proceeded on a wrong basis or that the sentence was manifestly excessive. It was certainly within the range. We think the Judge did take account of the mitigating factors when he reduced his original thought of 2½ years' imprisonment by 12 months. Clearly, he had taken into account this Appellant's early guilty plea and the fact that she was a first offender. We see some merit in the point made by Mr Elikana for the Respondent that the Judge must have had some concern by the Judge about the effect on the family because of the Judge's refusal to make the order for restitution which he felt would have impacted on the family which was clearly going to suffer when the mother of the family was imprisoned.

[7] Consequently, though we have every sympathy with the submissions made by Mrs Browne for the Appellant, we cannot see that this Court is justified in interfering with the sentence. The appeal is therefore dismissed.

Casey JA
Barker JA
Smellie JA

Solicitors:
Browne Gibson Harvey PC, Rarotonga for Appellant
Crown Law Office, Rarotonga for Respondent