Isopo v Republic [1990] KICA 6; Criminal Appeal No 4 of 1989 (29 March 1990)

IN THE COURT OF APPEAL OF KIRIBATI

Criminal Jurisdiction

Criminal Appeal No 4 of 1989

BETWEEN:

BETTY ISOPO
Appellant

AND

THE REPUBLIC
Respondent

Mr. Koaru for Appellant
Mr. Tabane for Respondent

Date of Hearing: 28th March 1990
Delivery of Judgment: 29th March 1990

JUDGMENT OF THE COURT
(Gibbs V.P., Frost and Mitchell J.J.A.)

The appellant was convicted on one count of fraudulent falsification of accounts (section 299 of the Penal Code (Cap 67)) and one count of false pretences (section 301(a) of the Penal Code) and was sentenced to imprisonment for eighteen months on the first count and imprisonment for twelve months on the second count, the sentences to run concurrently. She appeals against conviction and sentence on both counts.

The offences were alleged to have occurred between the months of October 1986 and May 1987 and to have related to seven transactions. The amount of money involved was $5467.56.

At all material times the appellant was employed by the Ministry of Communications as Higher Executive Officer in the Accounts Section. In that position she had control of all the accounts of the Ministry. Her main responsibility was to prepare salaries for established, unestablished and casual workers. She prepared payment vouchers which she signed as accounting officer. She collected the money for payment of wages to those whose names appeared on a pay Sheet prepared by her, cashed the cheque which she had received, paid each individual to whom money was due and received his signature as acknowledgement.

The charges related to moneys received by her following the presentation by her of payment vouchers which she had prepared claiming wages for casual workers. Each such payment voucher was accompanied by a pay-sheet also prepared by the appellant giving the names of the alleged workers and, with respect to each, hours worked, gross pay, tax and net pay. It should have been accompanied by a time sheet for each worker, but in the case of the seven payment vouchers relating to these charges no time sheet was attached to any of them. This finally gave rise to suspicion and to the investigation following which the appellant was charged with the offences for which she was convicted.

The evidence for the prosecution satisfied the learned trial judge that the names in the seven pay sheets in question were fictitious; that the appellant received and retained for her own purpose the moneys which she obtained on presentation of each of the payment vouchers, that when she obtained and retained the moneys she intended to defraud her employer. He was also satisfied that in each case she falsified the seven pay sheets which she presented with the seven payment vouchers in order to secure the money which she obtained by false pretences.

The learned trial judge accepted as truthful and accurate the evidence of the prosecution witnesses and rejected the appellant's evidence. She had claimed that she had paid at the airport casual workers employed by the Civil Aviation Division and at her office had paid marine workers.

But Buraake Kaitu, who was Senior Flight Service Officer in the Ministry of Communication at the material time, denied that he had hired casual workers and said that he knew none of the names of the persons whom the appellant showed as being paid as casual workers at the airport.

Bernard Warrell, who was Chief Marine Superintendent of Kiribati in the Ministry of Communications at the relevant time, said that sometimes there were casual labourers employed, but never more than two.

The appellant said in evidence that both the last mentioned witnesses had lied upon these matters but the learned trial judge accepted them as being truthful and accurate.

Upon the findings of fact made by the learned trial judge, all of which were justified by the evidence, there is no basis for a finding that, as is claimed in ground 1 of the notice of appeal, the evidence of fraudulent falsification of accounts by the appellant was unsatisfactory and insufficient or that there was no wilful and intentional defrauding of the accounts. Further the claim in ground 2, that the evidence of false pretences is unsatisfactory and insufficient in the element of representation, must be rejected. The documents which the appellant produced and supplied to her employer and upon which she obtained payment of the moneys, the subject of the charge, constituted a representation and upon the evidence accepted by the learned trial judge the representation was intentionally and dishonestly false.

We find no reason to set aside the convictions.

The grounds of appeal against sentence are that the learned trial judge erred in law in not directing his mind to the appropriate sentences available or open and that the sentences imposed were in the circumstances, manifestly excessive.

The maximum sentence for the offence of falsification of accounts prescribed by section 299 is imprisonment for seven years and for false pretences prescribed by section 301 is imprisonment for five years. The sentences imposed upon the appellant were therefore within the lower limits of sentences for the offences of which she was found guilty. Mr. Koaru submitted, however, that the learned trial judge had failed to consider the alternatives to an immediate custodial sentence available under part VI of the Penal Code. In particular he referred to the power to suspend a sentence of imprisonment contained in section 44. He mentioned a number of cases in which sentences for conversion and embezzlement of substantial amounts had been suspended. It appeared that is most of those cases there had been a plea of guilty and restitution had either been made voluntarily or ordered to be made.

Section 44 does not enable a court to apply any sanction if a person required to make restitution, as a condition of having a sentence of imprisonment suspended, fails to make restitution. Section 45 specifically provides that the making of restitution may be a matter to be considered by a court in determining whether to defer sentence to enable it to have regard to the conduct of the offender since conviction before sentence is pronounced. But this is not a case in which it would be appropriate to defer sentence.

In the period of nearly three years that has elapsed since the discovery of the appellants fraudulent conduct she has made so attempt to repay the amount of her defalcation or any part of it. During the hearing of the appeal she offered through her counsel to repay half the amount over a period of two years. She has persisted in her denial of wrongdoing and in her allegation that the prosecution's witnesses lied. In her evidence she cast some blame upon her assistant for wrong numbers appearing in some of the documents. There is no reason to believe that this was the responsibility of anyone other than herself. She has shown no contrition for her actions nor is there any thing before us to indicate that she had a pressing need for money such to weaken her moral judgment.

She has four children and two of whom are very young and her imprisonment will cause hardship to them and to her husband. But that sad fact alone is not sufficient to warrant suspension of a sentence of imprisonment.

It is very unfortunate that a woman who was apparently capable and who had achieved considerable success in her work should find herself in the position which confronts the appellant. But the facts that she was intelligent and that she had been placed in a position of trust must weigh against showing her untoward leniency.

In all the circumstances we are of the view that the learned trial judge did not fall into error when he failed to suspend the sentences of imprisonment which he imposed upon the appellant. Nor were the sentences manifestly excessive in the circumstances.

The appeal will be dismissed.

Vice President
Judge of Appeal
Judge of Appeal