Police v Toka [2005] CKHC 4; CR 51-54 of 2005 (25 November 2005)

IN THE HIGH COURT OF THE COOK ISLANDS
HELD AT RAROTONGA
(CRIMINAL DIVISION)

CR NOS. 51/05,52/05
53/05,54/05

BETWEEN:

POLICE

AND:

MATANGARO TOKA

Mr Howard for Police
Mr J Ka for Defendant

Date of Sentencing: 25 November 2005

SENTENCE OF WILLIAMS CJ

[1] Mr Toka you appear today for sentence having admitted four charges of theft as a servant pursuant to s. 242 and 249 of the Crimes Act. The penalty for each offence is 5 years imprisonment. The offences occurred when you were Deputy Registrar of the Court at Aitutaki. The complaint was reported in June of this year and the offending relates to matters which took place between the 2nd of July 1999 to the 31st of March 2005. You were dismissed from your position with the Ministry of Justice once these offences came to light.

[2] To be more précise the first charge involves $1710.00 stolen on the 2nd of July 1999; second the sum of $6552.09 between the 1st of July 2003 and the 1st of March 2005; the third charge, theft of $1380.00 between 1 June 2004 and 31st of March 2005 and the 4th charge of $1654.67 on the 17th of February 2005. So it is apparent from this that there was a pattern of theft while you were working in the Ministry of Justice which ran from 1999 through to 2005.

[3] The monies were various payments that had been received by the Registry for land fees, birth death and marriage certificates and various other cash that in the normal course is received by the Registry. The money was used to purchase general goods for yourself and your family. The total amount stolen ($11,296.76) has been repaid. It was in fact repaid some months before charges were laid.

[4] You are a married man, aged 57 years, now a planter. It is said that you have taken up that occupation to avoid any further jobs where you are in charge of money.

[5] The facts show that you were twice previously convicted for similar offending. The first was on the 10th of December 1981 where the amount involved was $450.00 as a result of which you were convicted and fined $1000 plus $5.00 Court costs. The second appearance was before the High Court on the 11th of May 1983 for a similar offence of theft in the sum of $2900.00. You were convicted and placed on probation supervision for a period of 18 months.

[6] While it is true that there is a significant gap between 1983 and the commencement of the current spate of offending in 1999 it is obvious that nothing was learnt from the two earlier convictions.

[7] The critical question is whether you should receive a custodial sentence. There have been two Probation Reports. One from the Probation Service on Aitutaki did not recommend a custodial sentence. When the matter was referred to the Court in Rarotonga there was another Probation Report, this one of recent origin dated 20th September 2005.

[8] The most recent Probation Report states that the Probation Service wished to withdraw the recommendation made in the pre-sentence report submitted by the Probation Officer in Aitutaki. The current report from Mr Browne, who is the Senior Probation Officer, is that, due to the seriousness of this offence, a sentence of imprisonment is warranted at this stage.

[9] It goes without saying that, in spite of the long period of non offending, the recurrence of offending is a matter of serious concern to the Court. In the normal course one would feel that, to use a colloquial expression, "three strikes and you are out". This is the third time that you have committed a serious offence involving breaching the trust placed in you as an officer of the Court to properly care for and mind monies received by the Court.

[10] The question is whether the submissions made comprehensively on your behalf by Mr Ka in his Sentencing Memorandum can appropriately persuade the Court not to exercise the obvious option of a custodial sentence for a third offence.

[11] Mr Ka sets out a first option which is a suspended sentence. He points out in support of that option that you have co-operated with the police investigation, that you immediately made repayment in full, that you pleaded guilty at an early stage, that you have accepted offers from community leaders to undertake rehabilitative counselling, that you have shown genuine remorse and made an apology and that, for all those reasons, and because of your age and the fact that you have gone to other work, there is no need for personal deterrence. You have also made a final pledge never to offend again.

[12] Those were the key points put forward by Mr Ka. His supplementary points were that imprisonment will have an adverse effect on your sick wife and dependant grandchildren, you pose no danger to the public, and more would be achieved by keeping you out of prison. Deterrence is not an issue here and apart from this offending you are highly regarded in the Aitutaki community.

[13] You have worked in the Public Service for over 39 years and as Mr Ka points out it is something of a tragedy that you have ended up near the end of your career with offending of this kind. You have, as I understand it, because of your dismissal, lost the right to your pension.

[14] The alternative option that Mr Ka puts forward is community service. In support references from a Minister of Religion, a councillor at Aitutaki, the retired Principal of the Aitutaki College and a cultural councilor and former mayor of Aitutaki were submitted. Mr Ka has cited appropriate authorities in support of the positions which he advances.

[15] The Court finds this a most difficult case. Society is entitled to expect the Court to impose penalties on multiple offenders especially offences of this particular kind. However, there has been a very long gap between the previous offending. In addition, as a result, what has happened here, you have had your employment terminated and have taken up a new role as a planter. It is probably right to say that you are no longer a risk to society in respect of this kind of offending, because you will be going to be working away from situations where you have to look after money. I think it is also proper to take into account that there is an element of punishment here because as a result of dismissal you have lost your pension rights.

[16] Having given the matter earnest consideration, I have decided, under the special circumstances of this case, that there will be no incarceration. I want to emphasize that this is an exceptional situation because of the length of the time between the previous offending, the fact that all the money has been recovered and that you have removed yourself from the kind of temptations which obviously you can’t cope with. But my decision is not to be in any way a precedent. If he was a younger person and was going to be in the work force, I would have taken a different view.

[16] I think you should at least do something more to make reparation to the public. I am going to order that you be sentenced to 12 months community service where the authorities in Aitutaki will try to ensure that you at least, to some extent, makes good your debt to society.

CHIEF JUSTICE