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Republic v Biketi [2002] KIHC 100; Criminal Case 30 of 2001 (12 December 2002)

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

Criminal Case No. 30 of 2001

THE REPUBLIC

vs

TEBUANGUI BIKETI

For the Republic: Mr David Lambourne
For the Accused: Ms Emma Hibling

Date of Hearing: 10 December 2002

SENTENCE

Tebuangui Biketi: you have pleaded guilty to one count of fraudulent evasion of customs duty. Originally you were charged with 10 counts. The Republic did not proceed with the other nine counts but through your lawyer you have admitted them and ask that I take them into account in fixing penalty.

It was a course of conduct between April 1999 and September 2000. You were the General Manager of the Tarawa Fishermen’s Co-operative and were personally responsible for arranging payment of customs duty on goods which the Co-op imported to Kiribati.

You had arranged with an organization in Brisbane to import to Kiribati secondhand Australia Post motorbikes. You made a dishonest arrangement with the supplier. Under the Customs Tariff Schedule there is a much higher rate of duty payable on bikes with a capacity of over 100cc than on those of 100cc and below. The rate of duty is calculated also on the value of the bike. These bikes which you bought for $900 each had a capacity of 110cc. You declared them to be under 100cc capacity. You also arranged with the supplier to give two invoices. The first was for $900 (on which you would pay) and the other for $250 (which you shewed Customs). On other shipments the false invoices had shewn a unit value of $250. Thus much less duty was levied on each bike than should have been. The Co-op then undercut rival suppliers of the same bikes by $100 each and still made a good profit.

This went on until competitors complained, having realized you could not honestly afford to undercut them by so much.

The Solicitor General emphasized the loss to the Customs revenue. That is not the end of it. What you were doing was also very unfair on honest competitors who were paying full duty.

All in all it was most seriously dishonest and you must serve a substantial term of imprisonment.

The penalty for the offence is set out in S.134 of the Customs Act. Under subsection (8) you are liable to a term of imprisonment up to two years and to a fine of up to $5,000 or both imprisonment and fine.

However under Ss(10) which applies in the circumstances of this offence the maximum fine is much higher – equal to three times the value of the bikes. There were 20 bikes in this shipment each worth $900: that makes the fine 20 x $900 x 3 which is $54,000.

There are the other nine counts to take into account – both as to imprisonment and fine. The Solicitor General has calculated the duty evaded on these shipments to be over $44,000. Ms Hibling did not demur.

Ms Hibling has submitted that you did not make any direct personal gain from all this but as the Solicitor General had pointed out, indirectly you did as the Co-op prospered.

You are 43 and always had worked for co-operatives. You had been General Manger of the Tarawa Fishermen’s Co-operative for three years. You are married with three children. You have been living with your wife’s family in Bairiki. Since you lost the job you have been helping a family friend run a small shipping line.

Even though you have no previous convictions and pleaded guilty, viewing the totality of your criminal conduct, you deserve the maximum penalty, both imprisonment and fine.

You are fined $54,000 and sentenced to two years’ imprisonment to run from last Tuesday 10 December when you went into custody.

You will have three months within which to pay the fine. In default of payment imprisonment for one year cumulative on the sentence of two years.

Dated the 12^th day of December 2002

THE HON ROBIN MILLHOUSE QC
CHIEF JUSTICE