Republic v Ioane [2019] KIHC 2; Criminal Case 56 of 2016 (20 February 2019)

IN THE HIGH COURT OF KIRIBATI 2019

CRIMINAL CASE NO. 56 OF 2016

[THE REPUBLIC PROSECUTOR
[
BETWEEN [AND
[
[TERETIA BARANIKO IOANE ACCUSED

Before: The Hon Chief Justice Sir John Muria

13 February 2019

Ms Eveata Maata for the Prosecutor
Mr Teetua Tewera for the Accused

SENTENCE

Muria, CJ: The accused had been charged with 12 counts of Forgery contrary to section 329(2) of the Penal Code, 12 counts of Causing money to be paid on a forged document contrary to section 338(a) of the Penal Code and 1 count of False Pretence contrary to section 301(a) of the Penal Code. The accused pleaded guilty to all the 25 counts.

Brief Background

2. The background of this case presents a serious but sad story of the accused. It seems pretty obvious that the accused fell to be a victim of a greedy and a heartless con-artist whom she met in Manila while on work-related meeting in April 2013. Innocently, the accused was lured into believing and developing a friendly relationship with the person by the name of one Darel Hill who presented himself as a businessman. The accused and Darel Hill exchanged contacts before the accused left Manila to return to Kiribati.

3. The accused and Mr Hill continued to make contact which led to Mr Hill requesting financial help from the accused in the sum of $6,000.00. Despite the inability and reluctance from the accused to assist, Mr Hill continued to insist on the accused giving him financial help to sort out his financial problem. It was in January 2014 that the accused gave in to Mr Hill’s scam-insistance and sent him $6,000.00 through forged cheque. Thereafter various amounts were sent to
Mr Hill by the accused by forging cheques from her employer, WHO, hoping that Mr Hill would repay the money as he promised.

4. The repayments never came from Mr Hill. The accused defrauded her employer, WHO, a total of $47,275.60 to send to Mr Hill, hanging on a thin hope and a vale promise from him, that he would repay the money and in turn, the accused would cover the loss she caused to WHO. Fate has caught up with the accused and she now faces the 25 counts of criminal charges to which she has no answers but to admit them.

5. Mr Hill achieved his con-scheme and I doubt for one moment that he is in any way sympathetic to the accused. It is for this Court now to decide if the accused deserves sympathy or not.

Prosecution call for Custodial Sentence

6. The offences are undoubtedly very serious. Ms Maata of Counsel for the prosecution calls for custodial sentences in this case. No doubt this is to show society’s disapproval of such dishonest conduct.

A criminal course of action, executed over a period of time consistently in order to defraud one’s employer rightly meets the threshold for a custodial sentence. Very properly Counsel submitted that the offences committed by the accused merit custodial sentences.

Defence in Mitigation

7. At the top of the defence’s mitigating entreaties is the accused’s plea of guilty. The accused admitted her wrongdoing to her superior in the office, to the police and to this Court. She made no attempt at all to hide the truth of what she did. She confessed and admitted her guilt without hesitation.

8. In addition to her plea of guilty, the accused had reimbursed the WHO through her United Nations Pension Fund (UNPF). The Court was told that the full amount had been refunded to WHO who advised that the case with them had closed, as all monies had been repaid.

9. While not absolving the accused’s unlawful activities, the Court was told that the former WHO In-country Liaison Officer had to shoulder some of the blame for what had happened, since the matter occurred during his time in office in Kiribati. The Court was told that the WHO made sure that the accused and the Liaison Officer fully refunded the WHO.

10. Mr Tewera asked the Court to also take into account the delay in prosecuting this case. The accused admitted the matter in March 2014, at which time she resigned from her job. In October 2015, she admitted her guilt to the police in her Caution Statement. She was not brought to Court until 2017.

11. Other mitigating factors relied on by Counsel include the accused’s previous good character; that she was remorseful for what she did; that the WHO has been fully compensated; that she is the sole breadwinner in her family; that she did not personally benefitted from her actions; and that she has now moved on and settles into her new employment in Hanan’s Company in Tarawa, serving as Manager of Seaman’s Shipping (One of Hanan’s business operations).

12. Mr Tewera accepted that custodial sentence is the appropriate punishment in this case. Counsel, however, submitted that in the circumstances of this case, any custodial sentence imposed on the accused ought to be suspended. Counsel cited in support of his submission the case of Birea Neeti
–v- the Republic [2004] KICA 3; Crim. App. 03 of 2005 (17 August 2004).

Consideration

13. A guilty plea is a powerful mitigating factor and one that earns the accused 25% to 30% discount in the sentence if made at the earliest opportunity. The offences in this case are very serious indeed – 12 counts of forgery, 12 counts of causing money to be paid on a forged document and 1 count of false pretence – 25 counts altogether. A custodial sentence of three years’ imprisonment would be appropriate in the present case.

14. Giving the accused the benefit of her early admission to her office superior, the police and the Court, I feel a 30% reduction of that three years sentencing range should earn the accused nine months reduction. That leaves a balance of 2 years 3 months. In addition to the guilty plea, I feel the accused should be given the benefit of the reimbursement made to the satisfaction of the WHO, as well as the delay in prosecuting the case. Those additional factors should further reduce the sentence by 3 months. Thus the appropriate custodial sentence in this case is one of 2 years.

15. The next issue is whether in the circumstances of the present case the custodial sentence should be suspended. Mr Tewera strongly urged the Court that circumstances of the case, together with those of the accused personally, merit a suspended custodial sentence in this case. Ms Maata did not seek to contend that a suspended custodial sentence would not be appropriate. Counsel simply asked for custodial sentence.

16. In determining whether the custodial sentence should be suspended or not, the Court will take into account the circumstances of both, the offending and the offender. I have already alluded to the circumstances of the offending.
Mr Tewera did not seek to persuade the Court otherwise of the seriousness of what the accused had done. Counsel simply focused on the present case that justify a wholly suspended custodial sentence.

17. Insofar as the accused’s personal circumstances are concerned, she is a mother of six children. Only two are still in the care of the accused. The accused is the only breadwinner in the family, with her two children in her care. They are of schooling age and attending school. I have no doubt that a custodial sentence on the accused would have a drastic impact on her two little children.

18. A further factor which the Court would be obliged to take note of in this case is the fact that the accused found and settled into her new employment. She holds a managerial position in Hanan’s shipping business operation. A custodial sentence to be served would clearly result in the loss of her employment. This is also an important matter, for the Court to bear in mind as it would impact upon, not only herself but also on the welfare of her two children.

19. I think it is also fair to say that the accused is really a victim of a well calculated con-scam by Darel Hill. She had fallen into the con-artist’s scam and unable to get out from it until it was already too late.

20. I bear in mind the fact that the accused derives no benefit from her wrongdoing. If anything, the accused lost out financially. She lost all her financial savings in UNPF. Only Darel Hill benefitted financially through the accused’s criminal conduct.

21. Nevertheless, the offences to which the accused pleaded guilty are very serious offences of dishonesty. Custodial sentence is inescapable. As I have indicated earlier, a sentence of three (3) years’ imprisonment would be within the appropriate range for the offences of Forgery contrary to section 329(2) of the Penal Code.

22. In the light of all the mitigating factors including a plea of guilty, that sentence is reduced to two years. As for the offences of causing money to be paid on a forged document, contrary to section 338(a) of the Penal Code, the appropriate sentence should be the same, that is, three years’ imprisonment, as I do not see any reason to differentiate between the two offences. The sentence for the offence under section 338(a) of the Penal Code is also one of three years’ imprisonment, reduced to two years for the mitigating factors.

23. The offence of False Pretence carries a maximum of five years’ imprisonment. In this case, I feel a sentence of 1 year 6 months would be more appropriate, reduced to 1 year and it is so imposed.

24. The offences were committed in a continuing set of circumstances. As such the sentences should be made concurrent. The sentence for each of the offences of Forgery is 2 years’ imprisonment. The sentences for each of the offences of causing money to be paid on a forged document is also one of 2 years’ imprisonment. The sentence for the offence of False Pretence is one of one (1) year’s imprisonment. All sentences are concurrent to each other.

25. For the reasons stated in this judgment, I accept the defence submission that there is justification to have all the sentences suspended in full. The Court orders all the sentences to be suspended in full.

ORDER:

1. Accused is sentenced to 2 years’ imprisonment on each of the counts of Forgery contrary to section 329(2) of the Penal Code;
   
2. Accused is sentenced to 2 years’ imprisonment on each of the counts of Causing money to be paid on a forged document contrary to section 338(2) of the Penal Code;
   
3. The accused is sentenced to 1 year imprisonment on the count of False Pretence contrary to section 301(a) of the Penal Code.
   
4. All sentences are to be made concurrent to each other.
   
5. All the sentences are suspended in full.
   

Dated the 20^th day of February 2019

SIR JOHN MURIA
Chief Justice