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Tooma v Republic [2006] KICA 7; Criminal Appeal 01 of 2006 (26 July 2006)

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

Criminal Appeal 1 of 2006

BETWEEN:

IEKERUA TOOMA
Appellant

AND:

THE REPUBLIC
Respondent

Before: Hardie Boys JA
Tompkins JA
Fisher JA

Counsel for Appellant: Karotu Tiba
Counsel for Respondent: Eweata Maata

Date of Hearing: 20 July 2006
Date of Judgment: 26 July 2006

JUDGMENT OF THE COURT

Introduction

1. Iekerua Tooma appeals against a sentence of three years imprisonment imposed in the High Court of Kiribati on 2 March 2006 after being found guilty on two counts of fraudulent falsification of accounts and two of forgery.

Background

2. The appellant had had eleven years experience as an Island Council Clerk and Treasurer on various islands. On 1 February 2004 he became Clerk of the Aranuka Island Council. On arrival he told the existing Council Treasurer to take leave. That left the appellant as acting Treasurer over the two months that followed.

3. As acting Treasurer the appellant was in charge of Government cash kept on the island. During the two months that he had that responsibility, approximately $5,500 went missing (variously described by the auditors as $5,408.05 and $6,485).

4. To cover the missing cash the appellant forged two fake telegraphic money transfers ("telmos"). The purpose of legitimate telmos is to authorise the Treasurer to pay cash to payees identified on the telmos. In this case two payees had been paid out small sums on legitimate telmos. The appellant destroyed the legitimate telmos and substituted forged telmos for much greater sums.

5. The appellant then instructed another employee to enter into the records the greater sums shown in the forged telmos. By that means there appeared to be a reconciliation between the total of the sums appearing in the various telmos, the accounting records, and the cash which remained in the Treasury coffers.

Sentencing in the High Court

6. On sentence the learned Chief Justice emphasised that an Island Council Clerk held a position of great responsibility and trust; that the Appellant’s actions had been dishonest and a breach of trust; and that a person acting dishonestly in that position must expect a term of imprisonment. He noted that in the Appellant’s favour the Republic had not pursued a charge of embezzlement, that it could not be assumed that the Appellant had taken the money in question, and that the Appellant had no previous convictions.

The Appeal

7. In this court Mr Tiba submitted that the sentence imposed was manifestly excessive and contended that the sentence should be reduced to two years’ imprisonment.

8. Ms Maata for the respondent submitted that in recent years cases of this nature resulted in sentences of imprisonment of two years or less. She pointed out that the Chief Justice accepted that as the Republic did not proceed with a charge of embezzlement he had to accept the appellant’s denial that he took the money. She therefore advised that the Republic conceded that a lesser custodial penalty of two years was justified.

9. We agree with the position taken by the Republic. The appeal is allowed. The sentence of three years imprisonment is quashed and in its place a sentence of two years imprisonment is imposed.

Hardie Boys JA
Tompkins JA
Fisher JA