CI Times Weekly | Current Issue 255 | 16 June 2008

No Jail time for Areai

For more than three years, Junior Areai has waited for his appeal to the Court of Appeal to be determined.
Now his appeal has been heard, Areai will not now serve 8 months in prison but instead he has been ordered to do community service for 12 months.
On Monday 9 June 2008 the Court of Appeal, Barker JA (Presiding), Henry JA and Paterson JA heard the appeal and their judgment was delivered on Friday 13 June 2008.
At the hearing Charles Little represented Areai and Acting Solicitor General Tingika Elikana represented the Crown.
The Court granted leave to appeal the two sentences and allowed the appeals. It set aside the sentence of 8 months imprisonment and the order for reparation of $8,000.
In substitution, the Court imposed a community service order for 12 months under s8 of the Criminal Justice Act 1976 and made a formal reparation order for $5,000 representing the sum earlier paid into Court prior to sentencing in April 2005.
Areai’s medical condition (rheumatic valvular heart disease) and the three year delay in disposing of the appeal were factors which lead the Court to its decision.
To recap, Areai was found guilty at trial on 18 April 2005 on two charges brought under s244 of the Crimes Act 1969. On 21 April 2005 he was sentenced to 8 months imprisonment on each charge and was also ordered to pay $8,000 restitution. On 22 April 2005 he applied for leave to appeal conviction and sentence and was granted bail pending determination of the appeal.
Areai was employed by government as a Ministerial Liaison Officer. Acting on his recommendation, the Ministry decided to purchase a grader for use on Aitutaki. It was bought from Eagle Spares Ltd in Auckland, New Zealand. Areai was supplied with a Bank draft for $65,000 drawn in favour of Eagle Spares. He bought a grader but of smaller capacity than originally quoted. The price was $57,000. Areai handed the draft for $65,000 to Eagle Spares which at his request, then gave him a cheque drawn on its account for $8,000 authorising this to be paid in cash. The $8,000 in cash was retained by Areai and not directed in part or whole to government purposes.
These events led to two charges of theft on which Areai was convicted at trial.
In summary, the first charge was that he dishonestly omitted to account or pay part of such proceeds namely $8,000 to Teina Frank on behalf of the government. The second charge, in summary, was that on terms requiring him to pay the proceeds of the bank draft to Eagle Spares Ltd he dishonestly converted part of such proceeds namely $8,000 to his own use.
At the appeal hearing, Charles Little drew attention to the inappropriateness of both charges. They were not presented in the alternative and there was an apparent inconsistency between them. The question of duplication arose. The Court found neither charge embraced the alleged criminal activity. It said the appropriate charge under s244 was;
“On or about the 11 June 2002 at Rarotonga having received a valuable security, namely a cheque drawn by Eagle Spares Ltd in the sum of $8,000 on terms requiring him to account for its proceeds to the government of the Cook Islands, dishonestly omitted to account for the same thereby committing theft.”
Under s131 of the Criminal Procedure Act 1980-81, the Court granted leave to appeal the convictions, it quashed the charges on which Areai was found guilty and substituted in their place a charge under s244 of the Crimes Act 1969 as above.
At the time of sentencing, Areai had no previous convictions, was of good character and had contributed to the community. He had also raised $5,000 for reparation which was paid to the Court. The Judge noted Areai’s abuse of his position of trust as a senior member of government and held a dominant factor was that of deterrence. The Judge determined imprisonment was the only appropriate sentence and reduced a starting point of 12 months by a discount of 4 months to allow for full reparation.
Charles Little in appeal contended the sentence was excessive and relied primarily on three factors.
Firstly about October 2005, Areai acknowledged his responsibility for defrauding government and provided evidence to the effect another person was primarily responsible for the scheme and had in fact received the $8,000. That person has been charged.
Secondly, Areai’s medical condition which is now ongoing, was not addressed at the time of sentencing.
Thirdly, the delay in disposing of the appeal resulted in Areai being under a shadow of an 8 months term of imprisonment for a period exceeding three years.
The Court gave little weight to the first factor citing several reasons one being it would be a rare case which would treat a post trial and sentence admission of fault or the provision of police assistance as a valid ground of appeal.
As to the second factor, Areai’s medical condition, the Court held this to be a matter of concern which raised new material not before the Judge. In the Court’s view it was relevant to an assessment of the appropriate sentence.
As to the third factor, concerning the delay, the Court said it was concerned at the delay in disposing of the appeal. It said the overall interests of justice require appeals against sentences of imprisonment to be heard expeditiously.
In principle the Court did not regard the sentence of 8 months as excessive but concluded the combined effect of Areai’s supervening medical condition and the lengthy delay while awaiting the outcome of the appeal was such as to make it unjust for Areai to now be called upon to serve the term of imprisonment. The Court also considered it inappropriate to now order the reparation of the additional $3,000.

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