Crown v Baniani [2010] CKHC 57; CR520.2010, 521,2010 (23 July 2010)

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

CR: 520/10, 521/10

BETWEEN

THE CROWN

AND

EIAO BANIANI

Hearing Date: 23 July 2010

Court: Nicholson J

Appearances: Miss Evans for the Crown
Mr N. George for Defendant

ORAL DECISION OF NICHOLSON J

[1] Eiao Baniani, after a Jury Trial, the jury found you guilty of the offence of theft as a servant and stipulated that found the amount stolen was in the range of $25,000.00 to $30,000.00.

[2] The maximum penalty for this offence is a sentence of 5 years imprisonment. Today Miss Evans for the Crown submitted that imprisonment was the appropriate sentence and that a starting point for the term of imprisonment should be 3 years. I will come back to her submissions in a moment.

[3] The basic facts are that you were employed by Mr and Mrs Maoate to be the Manager of their motel business called Paradise Cove from late 2005 until they dismissed you in early 2007. During that time you installed a computer system which showed the amount of money received by the business and the receptionist there using that system tallied and reconcile the amount taken each day particularly the amount of cash which was left for you as manager to bank. And you were responsible directly for the banking of the cash over that period.

[4] Mr and Mrs Maoate the proprietors said that because of your church activities and your apparent excellent, they trusted you enquisively. They became concerned about the lack of profitability of the business during the time that you were managing, despite the steps which they in conjunction with you took to upgrade the business and to promote it.

[5] When in early 2007 the receptionist became suspicious of your conduct particularly because she found cash and two deposit forms in respect of that for your bank account and drove to the attention of Mr and Mrs Maoate. They dismissed you as Manager and your employee and say that they confronted you and that you agreed that you've taken cash but said that it was less than $50,000.00 that a financial advisor Mr Simmons have told them of.

[6] You agreed to make reparation and offered interest in land but you later reneged on this.

[7] At your trial, you gave evidence and said that you have not misapply any cash from the business and that such cash that you did take was as compensation for cash you have paid on behalf of the business for renovations and promotion of the business and also it was cash in respect of the fund maintained for employees, for breakfast contributions and staff savings.

[8] By their verdict and assessment of amount, the jury obviously accepted that some of the cash that you took and being applied for the purposes that you said in your evidence but clearly the bulk of the cash taken between $25,000.00 and $30,000.00 for your own personal purposes.

[9] During evidence, Mr and Mrs Maoate said that when they confronted you, their primary wish was to obtain compensation and repayment for what you have taken and that they only reported the matter and pursue they complaint when they felt you were not paying any reparation.

[10] In her submissions for the Crown, Miss Evans emphasised that the aggravating factors wee that you were in a position of absolute trust and was trusted to the extent that you had almost you need at your control over the business and its venting that you abused that trust by stealing as you did. That the offending was repeat offending with the taking almost weekly of cash and was well over 1 year period of offending. And that you did not steal until the offending did not stop until the offending was discovered. But you have shown no remorse or offered any apology to the victims. And that you have not repaid any of the money stolen.

[11] On this basis Miss Evans submitted that there should be a starting point f 3 years imprisonment. The Probation Officer in his report referred to your age of 43 years, your family situation of providing support and being a good father or good husband and father and also your history of contribution to your church, youth and recent times to the education of young people in your island of Aitutaki.

[12] Referred to the fact that you have no previous convictions and with previously regarded as being of excellent character with a great number of testimonials and references provided in annexed to the Probation Officer's report.

[13] The Probation Officer recommended that you be ordered to serve 8 months community service order and 12 months probation and be ordered to pay reparation to the victims.

[14] You lawyer Mr George in his submissions referred to your good character and work and referred in particular to three further references from the head elder of your church, the principal of Araura College for which you have done excellent work as a teacher and Eikura Turia a school teacher, church treasurer and Pathfinder Director.

[15] Mr George said that through him you did express remorse and apology to the owners of the motel upon the basis of accepting the jury's verdict. He said that you wish to pay reparation and Mr George asked me to disregard any thought of imprisonment. He emphasized that you were a first offender and you otherwise good character and your ability to contribute to the community. Mr George submitted that in the circumstances it would be appropriate because the victims were more concerned about compensation and having you imprisonment to order reparation be paid of a mid figure of $27,500.00 to be paid over 12 months. And submitted that an appropriate sentence would be for such a reparation order to be made and use the order to come up for a sentence under Section 113 of the Criminal Justice Act if you did not pay such reparation.

[16] My view is that because of the factors the aggravating factors as or the nature of the offence, theft as a servant of a substantial amount by repeated stealing over a substantial period. The abuse of trust involved that imprisonment is an appropriate sentence and as a starting point it should be of the order of 3 years as submitted by the Crown. However I am very cognisant of the statement of the victims that their business has been put in a precarious position they'll have to borrow further money to ensure survival and their wish is repayment rather than imprisonment. So baring in mind they situation and your offer to pay I consider that the balance of justice goes to reparation being paid rather than imprisonment but with the sanction for repayment of the likelihood of imprisonment for a substantial term should you not repay.

[17] I have accordingly going to give you the chance to avoid a substantial term of imprisonment if you pay reparation. I accordingly and going to exercise power given by Section 113 of the Criminal Procedure Act and order that you appear for sentence within the period of 2 years from today. I order as authorised under Sub Section 2 of that Section that you pay compensation to the victims of $27,500.00 and that you do this within 12 months of today. I point out to you that if you do not do that, pay the full amount of $27,500.00 to the victim Paradise Cove Limited within 12 months of today then it is likely that the Crown will request that the matter of that you be called to come up for sentence and that you will then be sentenced.

[18] I warn you that if that happens then the likelihood of you being imprisoned for a substantial term for the offence is very high. So your future is now very much in your own hands. That is the order of the Court and the matter will proceed accordingly.

Nicholson J

Editorial Note: Derived from the Court’s electronic records and believed to be correct and final.