Temwea v Republic [1997] KICA 11; Criminal Appeal 09 of 1996 (25 March 1997)

IN THE COURT OF APPEAL OF KIRIBATI
CRIMINAL JURISDICTION

CRIMINAL APPEAL NO. 9 OF 1996

BETWEEN:

TAMUERA TEMWEA
Appellant

AND:

THE REPUBLIC
Respondent

Date of Hearing: 17 March 1997
Delivery of judgment: 25 March 1997

Mr D Lambourne for the Appellant
Ms T Beero for the Respondent

JUDGMENT OF THE COURT
(Gibbs V.P., Connolly and Ryan JJ.A.)

Tamuera Temwea was convicted on 25.11.95 of two offences under S.299(1) of making false entries in the land court records purporting show a transfer of land to himself and his wife. The offences occurred at an interval of approximately 19 months. It is right to say that in neither case was the forged transfer used or intended to be used as an instrument of title.

In each case the document was presented to the Bank of Kiribati as security for a loan. On the first occasion a sum of $1,000 was advanced to the accused and on the second $17500.

The false entries were punishable under Part XXXII of the Penal Code, the maximum penalty being 7 years' imprisonment. The obtaining of the advances by the false pretences were punishable under s.301 (a), the maximum penalty being 5 years' imprisonment. The appellant had a position of responsibility on each occasion, being a court clerk at the time of the offences in May 1994 and an interpreter (a higher post) in January 1996 when the later offence was committed.

It is accepted by the learned Chief justice that on each occasion lie was under pressure by reason of his parents being under threat of eviction if they did not pay the money in question to the owners of the land on which they are living.

His Honour rightly drew attention to the seriousness of the offence, committed deliberately and in breach of the trust imposed in public officers. It was particularly serious in that falsification of the lands records could well lead to the prejudice of innocent parties in the future. Moreover the commission of the offences relating to the land court records are said to have involved the participation of the Presiding Magistrate who, in turn is said to have enlisted the other magistrates so that they all signed the forged minute which the applicant scaled.

In favour of the applicant it is accepted that he was under the very great pressure of family obligation, that he is regarded as an otherwise exemplary officer, that the bank loans have been repaid in full. He is a first offender and has given a full cautioned statement implicating the Presiding Magistrate and cooperating fully with the Police and prosecuting authorities. He is 33, married with four young children. He has resigned from the court staff and appears to have lost a law scholarship. The learned CJ accepted the fact that in place of a bright future lie has now little to look forward to. However his Honour concluded that the gravity of the offences is such that the only appropriate penalty is imprisonment. He was sentenced to 1 year on each charge of falsifying the lands records, the maximum penalty being 7 years, these sentences being cumulative. On the charges under s.301(a) he was sentenced to 6 months to be served concurrently with the former in effect a total of 2 years.

It cannot be said that these sentences are out of line with previous sentences for this type of offence. The most relevant case is that of Isopo (Cr.App. 4 of 1989) the offender being a higher executive officer in the Accounts Section. She received an effective sentence of 18 months for 7 cases of presenting pay sheets for alleged casual workers and receiving more than $57000. She was married with 4 children, 2 of them very young.

Over nearly 3 years she had made no attempt to repay any part of the defalcation, had shown no contrition and persisted in seeking to put the blame on a subordinate. There was no evidence that she had a pressing need for money. This Court held that the sentence was not excessive and that the learned judge had not erred in failing to suspend the sentence.

In this case the sentence for each of the major offences is one year which does not compare unfavourably with 18 months in the case of Isopo. The two offences were separated by a substantial interval and no error is involved in ordering the respective sentences to be cumulative.

The application for leave to appeal must be refused.

Vice President
Judge of Appeal
Judge of Appeal