Neeti v Republic [2004] KICA 3; Criminal Appeal 03 of 2003 (17 August 2004)

IN THE KIRIBATI COURT OF APPEAL
CRIMINAL JURISDICTION
HELD AT BETIO
REPUBLIC OF KIRIBATI

Criminal Appeal No. 3 of 2003

BETWEEN:

BIREA NEETI
Appellant

AND:

THE REPUBLIC
Respondent

Coram: Hardie Boys JA
Tompkins JA
Fisher JA

Counsel: Banuera Berina for the Appellant
David Lambourne, Solicitor General for the Respondent

Date of Hearing: 17 August 2004
Date of Judgment:

JUDGMENT OF THE COURT

[1] On 12 June 2003 Nei Birea Neeti pleaded guilty in the High Court to one count of embezzlement and one count of forgery. The charges were representative of over 70 similar offences committed between 20 August 1992 and 28 June 1996 while she was an employee of the Bank of Kiribati. They involved a total sum of $58,648.45.

[2] The appellant, who is now aged 49, had previously been a person of good character and had been employed by the Bank since early in 1975. It appears that she gave most of the money to relatives, but she has savings which are available to repay a considerable part of what she took.

[3] This was serious offending by a person in a position of trust, and warranted a substantial term of imprisonment; three years, the Chief Justice thought appropriate. But there was an unusual feature to the case. The Bank had detected the offending in October 1996, and as soon as it was discovered the appellant made a full oral admission which she confirmed in a letter not long afterwards. She was immediately suspended. Yet she was not charged until March 2003, six and a half years later. The delay was, the Chief Justice declared, as unnecessary as it was inexcusable, and on that account – and no other - he accepted counsel's submission that the sentence should be suspended. Accordingly, the sentence he imposed was one of three years' imprisonment for the embezzlement and two years for the forgery, these to be served concurrently, but suspended for two years.

[4] Early in October 2003, the Attorney-General's office adverted to S.44(1) of the Penal Code which enables the Court to suspend a sentence only where the sentence is for a term of not more than two years. At the request of the Solicitor-General, the matter was brought back before the Chief Justice. He was at first inclined simply to recall his order and reduce the sentence for embezzlement to two years, for in his words: "I could not contemplate the defendant now going to gaol to serve three years, believing after 6½ years of uncertainty, that her sentences were suspended and that she would not have to go to prison. It would be cruel". However, such a course was not within his power: he was functus officio.

[5] Obviously sympathetic, the Solicitor-General, rather than argue that only the suspension was invalid, and that the appellant was therefore liable to serve her three year term immediately, agreed with her counsel that she should be given leave to appeal out of time against her sentence and that pending the appeal she should be released on bail. That course was followed.

[6] In this Court, Mr Lambourne did not oppose the appeal, and proposed a sentence that would achieve what the Chief Justice had wished to, but was unable to, achieve. We agree that this is the appropriate course. But we emphasise that in a case of dishonesty as serious as this a sentence of three years' imprisonment would normally be unexceptionable. It is only the very unusual circumstances that justify the lesser sentence we now impose.

[7] The appeal is allowed in respect of the count of embezzlement, and the sentence imposed on that count is quashed. In its place, the appellant is sentenced to two years' imprisonment, to be served concurrently with the sentence imposed on the count of forgery, the sentence to be suspended in accordance with the provisions of S.44 of the Penal Code, on the same terms as for the count of forgery.

Hardie Boys JA
Tompkins JA
Fisher JA