Republic v Temwea [1996] KIHC 105; HCCrC 18.96 (25 November 1996)

IN THE HIGH COURT OF KIRIBATI
(BEFORE THE HON R LUSSICK C.J.)

HCCrC 18/96

THE REPUBLIC

versus

TAMUERA TEMWEA

Ms T Beero for the Republic
Mr D Lambourne for the Accused

SENTENCE

The accused has pleaded guilty to two charges under Section 299(1) of the Penal Code, Cap. 67 in that he made false entries purporting to be the records of land court cases wilfully and with intent to defraud. The charges come under Part XXXII of the Penal Code which deals with frauds by trustees and persons in a position of trust and false accounting. The maximum penalty under section 299(1) is imprisonment for 7 years.

The accused has also pleaded guilty to two charges under section 301(a) of the Penal Code in that by false pretence and with intent to defraud he obtained from the Bank of Kiribati money in the form of loans amounting to about $1,000 on the first occasion and $1,500 on the second occasion. The maximum penalty for an offence under section 301(a) is imprisonment for 5 years.

A written summary of facts has been tendered. Counsel for the accused has not challenged that summary of facts and in fact has very frankly expanded upon it. For instance, the amounts of money obtained from the loans from the Bank are said to have been somewhat higher than alleged in the summary of facts.

The facts are very serious. The accused at the time of the first offence was a court clerk charged with statutory duties under Section 12 of the Magistrates' Courts Ordinance Cap. 52, which duties are summarised in the first paragraph of the summary of facts. At the time of the second offence the accused was an interpreter, which was a promotion from his previous position.

In the first case, in order to obtain a bank loan he prepared a bogus record of a court case in which the Lands Court purportedly approved the transfer of land to himself and his wife. According to Counsel for the accused, he was assisted in doing this by the Presiding Magistrate, who provided him with advice on how to go about it. The accused wrote out a false minute of the proceedings in the first available blank page of the minute book and circulated it amongst the magistrates for their signature. The accused was relying on the fact that the magistrates did not read minutes before signing them. When the minute had been signed, the accused tore it from the minute book, affixed the court seal, photocopied it and then destroyed the original. The photocopy was then presented to the Bank of Kiribati in order to obtain a loan. The document, of course, purported to evidence the transfer of land to the accused and his wife and no doubt it represented some form of collateral for a loan.

On the second occasion, as explained by Counsel for the accused, the accused was no longer a court clerk but had been promoted to an interpreter. Again he approached the Presiding Magistrate Kakiaba, who this time assisted him to an even greater degree. Again he obtained a minute book and wrote out a false minute describing the sale of land to himself and his wife. He then gave the minute book to Kakiaba who obtained the signatures of the other magistrates. The accused then did the same things that he did on the first occasion, that is, he tore the page out, stamped it and threw the original away after photocopying it. Again he took the photocopy to the Bank and was granted a bank loan.

It has been explained on behalf of the accused that the reason he committed these offences was to prevent his parents being evicted from the land on which they were living. On the first occasion he was told by one of the owners of the land that if he did not come up with a deposit of $1,000 before the end of the week his parents would be evicted. It was only upon this ultimatum that the accused embarked on the course I have just described. Again, for the second offence, it was explained on behalf of the accused that the balance of the money was demanded or else his parents would be evicted and that is why the accused once more took the course he did.

I accept what Counsel for the accused says as to the accused's motive in doing what he did but that motive does not constitute any excuse. His involvement in these offences reflects a very high degree of culpability. They were not spur of the moment offences or offences which he entered into without a second thought. In fact both offences required a high degree of thought. It was he who wrote out the false minutes, tore the page out of the minute book, sealed it with the court seal and photocopied it. I have no doubt at all that he not only knew that what he was doing was a serious criminal offence but that it would also involve the criminal cooperation of at least one magistrate. The fact that he has paid the loans in full is quite irrelevant to these offences. I accept that his motive in committing the offences was to obtain a bank loan and not to obtain a transfer of the land mentioned in the bogus court records. He succeeded in obtaining those bank loans by the exercise of a great deal of cunning.

In the accused's favour he is a first offender and he has pleaded guilty to these offences; not only pleaded guilty but, I am told, given a full cautioned statement which implicates the Presiding Magistrate previously mentioned. He has fully cooperated with the Police and I am told that he intends to fully cooperate in subsequent prosecutions. He is a 33 year old man, married with 4 young children. His wife at present is working. I accept all that. I also accept that he has already suffered to a considerable extent from his crimes. He has resigned from the court staff. His promising career as a lawyer is at an end. He was on a scholarship to study law but that has now come to an end. In fact in place of what was once a bright future there is now very little for him to look forward to. Counsel has tendered the records of two sentences which he submits ought to be comparable. I find the facts in those cases distinguishes them from the present case. I think that Counsel for the accused has said everything that possibly could have been said in favour of the accused.

Having taken all of the factors that go to the accused's favour into account, in my view the gravity of the offences is such that the only appropriate penalty is one of imprisonment. On each of the offences under section 299(1), that is, making a false entry in a book with an intent to defraud, the accused is convicted and sentenced to imprisonment for one year and each of such terms will be cumulative. On each of the offences under section 301(a), that is, obtaining money by false pretence, the accused is convicted and sentenced to six months' imprisonment, such sentences to be served concurrently with one another and with the previous sentences. To remove any doubt the total period of imprisonment is 2 years.

THE HON R B LUSSICK
CHIEF JUSTICE
(25/11/96)