Police v Pare [2005] CKHC 5; CR 454-459 of 2005 (25 November 2005)

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

CR NO: 454/05,455/05,456/05,457/05
458/05,459/05

BETWEEN:

POLICE

AND:

PERI VAEVAE PARE

Mr Elikana for Police
Mr McFadzien for Defendant

Date of Sentence: 25 November 2005

SENTENCE OF WILLIAMS CJ

[1] Mr Pare, you have been convicted on three charges under s. 251A of the Crimes Act of using with intent to defraud, documents capable of being used to obtain a pecuniary advantage and as you have heard the penalty provided under s. 251A is imprisonment for a term not exceeding 5 years, so it is obvious that it is a serious offence.

[2] The circumstances of your offending have been outlined in the judgment that I gave earlier this week and in that respect I refer to the three particular instances involving Emma Tearikiuri’s project which I have discussed at paragraphs 15 through 23 and the second aspect of that project, the first being the hardboard, the second is the louvre windows and then there was the Mama Purenga project and the ready mix cement.

[3] It is not necessary to go through all of those details which are found in the judgment as I said at paragraphs 15 on hardboard through to 23, on louvre windows 24 to 30 and on the ready mix from 31 to 37. They all involved you giving instructions to Mr Tangapiri to order materials on project accounts and those instructions were carried out and goods were supplied to you and used by you which because of the fact that the invoices went through Government processing, were paid for by the Government.

[4] The question before the Court is what is the appropriate penalty. The first thing that needs to be said is that, as Mr McFaidzien explained in contrast to the Drollett case, the offending was in one sequence and I think it is proper to therefore deal with the charges together on the basis that whatever sentence is found appropriate, will apply to all of them so that there will be a cumulative sentence.

[5] I have been referred to the relevant cases in this area which give some guidance on such matters and I shall attach to my sentencing remarks a copy of the schedule produced to me.

[6] Sufficient to say that counsel were agreed that based on particularly the Drollett case and the Areai case, an offence under 251A would probably involve a starting point in the consideration of a proper sentence of 1 and a ½ years.

[6] The position of the Prosecution is that giving credit for your truly outstanding community service. One would come down making those allowances to a situation where the appropriate sentence would be the one recommended by the Probation Service, namely, 6 months imprisonment.

[7] My duty today is to consider the particular facts of your case and decide whether that analysis by the Prosecution is correct or whether as Mr McFadzien so happily put it, accepting that starting point that your offending was at the bottom end of the scale, so far at the bottom end of the scale or so close to the bottom of the scale that you are best dealt with some punishment other than an imprisonment.

[8] Before I consider all the circumstances I should say that I have considered what Mr McFadzien’s primary submission is, namely that there should be a discharge without conviction.

[9] I have had the advantage of receiving Mr McFadzien’s excellent submissions yesterday and I’ve carefully reflected on that. I have come to the view that it would be quite inappropriate, just as it was in the Drollett case or any similar cases involving misuse of public money for there to be a discharge without conviction and not even in a case like yours where there is so much to be said for you in terms of your prior blameless record and your excellent contributions to the community.

[10] It needs to be said that the sentence of the Court must balance the need to demonstrate the serious nature of the offending on the one hand with the particular circumstances which you present to the Court as the offender. And it is proper for me to deal with the first issue at somewhat greater length and to stress that it is of the very greatest importance in this or any other civilized society that people working in Government, especially the leaders, the Minister of the Crown do not betray their trust to the people by inappropriate behaviour involving misuse of public funds, whatever form that misbehaviour takes, whether it be kickbacks as in the Drollett case or taking Government property for own purposes or as here, acting in a way that results in public money being used for the private purpose of an individual.

[11] I would like to stress as well that not only the leaders must strictly obey their obligations to behave honestly but civil servants have an equally important duty and they also have a responsibility to be vigilant as to what they may observe or see around them.

[12] In this case I was left in some doubt as to whether the civil servants or some of them at least, had done that. The kind of misuse of public funds and related matters that I have been talking about can be placed under the broad heading of official corruption. And while there may be as Mr McFadzien has said, some slightly different approaches and the blurring of lines between the public function and private matters, this Court must enforce the law and the law is founded on the assumption that corruption is a deadly and insidious evil which strikes at the heart of any democratic society. The duty of the Court is to take a very strong stand against it when sentencing offenders and it usually justifies a strong element of deterrence in sentencing as was made clear by the Court of Appeal in the Drollett case.

[13] It is no answer or at least no complete answer to say that in a case like this where the amounts in question are not great, that there is no need for deterrence condoning small instances of misuse of public moneys is likely indirectly to encourage to it and allow it to spread to cases where there are significant amounts of money at stake.

[14] Having said all that, one must of course focus on your particular conduct and your background. I have, as I’ve said, been greatly assisted by what Mr McFadzien has said in his eloquent written submissions and apart from the proposition that a discharge without conviction is appropriate, and apart from his analogy with the ordinary man, I agree with a great deal of what has been said. If one puts to one side discharge without conviction, the essential becomes whether the recommendation of the Probation Service should be followed and here I should briefly summarize the matters which you are entitled to have brought into count in your favour and which Mr McFadizien has referred to.

[15] First of all, you are and have been an achiever in Cook Islands society and you have made a great contribution in your work initially as a laboratory technician and then as the officer in charge of the medical laboratory.

[16] Secondly, you have obviously done good things since being elected to Parliament and as I acknowledged in my judgment there is no doubt that you have tried very hard to assist the less fortunate from your ministerial position. I am not sure that I agree with Mr McFadzien’s shop lifting analogy but I think it’s fair to say that this conduction on your behalf might be regarded in some way as an abhorration and something which doesn’t fit with the general pattern that we are seeing with you because apart from your achievements and employment at the hospital and your achievements as a Member of Parliament and a Minister, it is correct to use Mr McFadzien’s phrase that you are a pillar of the Matavera community and as he has said the written submissions provide eloquent testimony to your contributions.

[17] The next thing that can be said in your favour is that the scale of the offending was not significant and that it did not take place over a lengthy period of time. I agree with Mr McFadzien that because a conviction will result in your losing your seat, that is a matter which must be taken into account and of course everybody knows that that is the law and that should be considered when Ministers are going about their businesses.

[18] I also agree with Mr McFadzien that you are most unlikely to re-offend. I have come to the view that a sentence of imprisonment would be in the special circumstances in this case, inappropriate. I consider that as some of your supporters have said in their letters that you have done a great deal for society and on this occasion, society, through the judiciary bring that into balance.

[19] The question is then what is the appropriate sentence.

[20] In my view, it is that you should be called upon to come up for sentence if necessary within one year. I want to say that if I had been disposed to impose a sentence of imprisonment, it would probably have been 3 months imprisonment. Why do I mention that, because in the unlikely event of you offending during the one year period you can have an understanding that is the kind of thing that would be imposed, that sentence would be imposed if you are called on. I think it is permissible under s. 113 as is being pointed out. It says "the making of an order shall not limit or affect the power of the Court to make an order for the payment of costs, damages or compensation" and I’m going to take up the invitation from McFadzien to order that you pay $5,000 towards the cost of the Prosecution.

[21] So the sentence of the Court on all charges is that instead of passing sentence at this time, there will be an order that you will appear for sentence if called upon by the Court to do so within a period 12 months from today and that in the meantime you will pay within 14 days the sum of $5,000 towards the costs of the Prosecution.

David Williams
CHIEF JUSTICE