Republic v Tabuaka [2003] KIHC 106; Criminal Case 33 of 2003 (26 September 2003)

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

Criminal Case No. 33 of 2003

THE REPUBLIC

vs

KAEBIN TABUAKA

For the Republic: Mr David Lambourne
For the Accused: Mr John O'Sullivan

Date of Hearing: 18 September 2003

SENTENCE

Kaebin Tabuaka: you have pleaded guilty to one count of embezzlement and have asked that 48 other instances of embezzlement be taken into account. The total of the money you took is $22,101.86.

You are 34 years old, married with three children. Your husband is a seaman but the marriage is not a happy one. You had worked for the Bank of Kiribati since 1989. You began taking this money in July 1998 when you found out that your husband was having an affair with another woman. For 17 months you took money and wasted it on riotous living. You had told a friend what had been going on not long before the Bank found out. At the end of 1999 the Bank discovered the losses when an old couple from Butaritari came to draw their Interest Bearing Deposit of $11,101.68. Their account was empty. You had taken the lot. The Solicitor General emphasized the distress and inconvenience this caused the old couple.

This was a breach of trust, very bad conduct indeed. You have repaid none of the money. As a rule what you did, without question, means a substantial term of imprisonment.

Mr O'Sullivan has made submissions about the delay which has occurred in bringing you to court. He gave me a timetable:

(1) You signed a Statutory Declaration on 28 January 2000 admitting appropriating "approximately $22,000"

(2) On 1 February 2000 the Bank referred the matter to the police. In a letter the Bank put the defalcation accurately at $22,101.68 and said, "At this point we believe we have sufficient evidence to prove the allegations".

(3) On 27 September 2000 the police wrote to the Bank asking for documents.

(4) The documents appear to have been provided on 30 January 2001.

(5) In June and July 2001 the police interviewed four witnesses.

(6) In August 2001 you signed a record of interview confessing to taking $22,101.68. You told the police you were going to plead guilty.

(7) The police referred the matter to the Attorney General on 18 October 2001.

(8) The High Court received the Attorney General's indictment on 5 June 2003.

The delay was inexcusable, on the part of the Bank and of the Police and of the Attorney General.

The Solicitor General sought to excuse it by saying that the Bank and police were not to know you had been forthright in your confession: they had to check the extent of the loss. So they did but the Bank said within a month of discovering the frauds that it had sufficient evidence to prove the allegations.

Of course the authorities have the responsibility of gathering evidence to put before the Court. That is not, though, an absolute right to take as long as they like. The need to gather evidence must be weighed against the hardship to a person waiting to be brought to court. I readily accept what Mr O'Sullivan put to me about the distress and hardship you have suffered for 3½ years.

I expect that in future such awful delays will not occur. The Bank of Kiribati is now under different management. Mr Lambourne handed me a letter from Mr Neville Oldham, the Managing Director asking for a severe penalty but saying:

"The Bank of Kiribati is continually working at improving its internal audit procedures firstly to discourage staff from attempting such actions and secondly to detect frauds as early as possible".

The Solicitor General assured me that the Commissioner of Police is improving methods of investigation. I believe that procedures in the Attorney General's office have already been improved to avoid a delay such as this – over 19 months – happening again.

If, disappointingly delays do continue, the Court will in imposing penalty, be very unsympathetic to the submissions of the prosecution.

However I have the responsibility of your case. Apart from the delay and the consequential hardship to you which will certainly mean a much lesser penalty, in your favour also are that on discovery you immediately confessed, you pleaded guilty early, it is your first offence.

None of the money has been repaid. You have about $10,000 in your account with the KPF but are too young to draw it. In the case of Birea Neeti I was told that once the Bank had a judgment against her then her KPF money could be used to satisfy a judgment. You have made admissions and the Bank should be successful in suing you. So about half the amount you took should be recovered.

The Solicitor General tells me that I am wrong in what I believed about the Bank being able to recover any moneys from your KPF. Even if there is a judgment against you, the KPF moneys cannot be drawn to satisfy it until you are 45.

I said in Nei Birea's case that if it were not for the delay I would not even have considered suspension. Mr O'Sullivan asked for suspension for you, too: the Solicitor General vigourously opposed it. I have considered their submissions carefully.

Each case must stand alone. In Birea's case the delay was substantially longer, her reasons for taking the money more compelling and there was the prospect of some restitution. In your case a short term of imprisonment unsuspended is the appropriate penalty. You will be imprisoned for three months.

Dated the 26^th day of September 2003

THE HON ROBIN MILLHOUSE QC
Chief Justice