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Police v Henry - Sentence [1979] CKHC 3 (20 August 1979)

IN THE HIGH COURT OF THE COOK ISLANDS
RAROTONGA REGISTRY

POLICE

v.

ALBERT ROYLE HENRY
GEOFFREY ARAMA HENRY
CHARLES MAXWELL TURNER

Counsel: D.S. Morris for the Police, with S.B.W. Grieve
L.W. Brown, Q.C., for Henry and Henry
A. Deobhakta for Turner

Sentence: 20 August 1979

SENTENCE OF BEATTIE J

SIR ALBERT HENRY: you appear for sentence having pleaded guilty to the two charges of conspiracy and a further charge laid under the Public Moneys Act 1969. You have had many months in which to consider your position. On the statement of facts referred to by Mr. Grieve last Thursday coupled with the overwhelming documentary evidence, it is abundantly clear to me that you very rightly pleaded guilty to these three charges. Nor can it be said that in pleading guilty you have shouldered the blame to save others. As one of the principal perpetrators of this scheme to use public money, together with the complicated steps that were taken to cover up, you have in my judgment forfeited the right to serve this country further in any political fashion: I shall deal more explicitly with this aspect in a moment or two.

You were for your undoubted services to this country made a Knight of the British Empire. One of the legacies left by the former Empire, now the British Commonwealth, is the rule of law and more particularly the English Common Law. In many of the emerging countries, as well as in the older Commonwealth nations, that law is available as a powerful check against corruption and the abuse of power. Although you have enjoyed very high office as Premier and have, as counsel so eloquently enumerated, done a great deal for this country, in the long run, by committing these offences, you not only placed yourself above the democratic process but you let down your people.

The major charge of conspiracy relates to the fraudulent scheme whereby $337,000 of public monies was paid to Ansett Airlines of Australia for the charter of aircraft to fly Cook Islands Party supporters from New Zealand to Rarotonga to vote in the last election. Restitution has been made by Mr. Kenny who has also been ordered to pay substantial costs. If you had had the money I would order you to pay a large sum towards the costs of this case bearing in mind, of course, Mr. Brown’s submission that you are no millionaire. But information placed before me indicates that you have very little money in your bank accounts - and I mean very little. You have a car whose repayments equate your superannuation as a former Minister of the Crown, and you do have what is in fact an unencumbered house. At the age of 73 you have no other income save a sum per month from the sale of vegetables and fruit grown on family land.

After careful consideration of what I know to be your state of health and your previous contribution to this country, I rule out a term of imprisonment as the first choice of punishment. So the sentence of this Court is the maximum fine of $200 plus $2,000 contribution towards the cost of this prosecution. The fine is to be paid within fourteen days, in default six months’ imprisonment. Pursuant to s. 16 of the Crimes Act 1969 you are to pay the costs I have ordered in such instalments as the probation officer directs. In addition, pursuant to the Criminal Justice Act 1967 I admit you to probation for three years for the sole other purpose of imposing on you a condition that you shall not offer yourself or become a candidate for election to the Legislative Assembly of the Cook Islands or for any other political office in the Cook Islands. I am prepared to withdraw that condition if through counsel I receive a signed undertaking to the same effect as came from Mr Little.

On the second conspiracy charge which concerns the sum of $14,973 used to pay for your travel in connection with the charter of aircraft and election expenses in New Zealand, this again was in my view rightly described by Mr. Grieve as a blatant use of public monies. You are fined the maximum of $200, payment within fourteen days, in default six months’ imprisonment.

On the charge under the Public Moneys Act 1969, you committed this offence when you banked a cheque which came from the Cook Islands Philatelic Bureau for $337,000 into the bank account of the Cook Islands Government New Project Company. As Mr. Grieve said, it was not a bona fide Government company. The maximum fine of $1,000 is far more realistic than the then fines under the conspiracy charges. You are ordered to pay $1,000 by such instalments as the probation officer directs. Your passport is to be returned to you today.

GEOFFREY ARAMA HENRY: You have pleaded guilty to being a party to the commission of an offence under the Public Moneys Act 1969 by Sir Albert Henry. You were at the time Minister of Finance and one would expect that a person in that high office would pay meticulous attention to the requirements of observing statutory fiscal matters. You are fined $500 and given time to pay which can be the subject of separate submissions. Your passport is to be returned.

CHARLES MAXWELL TURNER: Like Mr. Geoffrey Henry, you are charged and have pleaded guilty to the offence of being party to he commission of an offence against S.49 of the Public Moneys Act, the offence being committed by Sir Albert Henry, that is, neglecting to pay public monies into the right account. Obviously you have some misgivings, otherwise you would not have been prompted to take a legal opinion in Auckland, that the opinion informed you that that money in the New Project Company account at the Commercial Bank of Australia was, in the lawyer's opinion, public money. When Sir Albert neglected to pay that money into the public account at the National Bank of New Zealand Limited in Rarotonga you were a party to the commission of the offence by him.

I accept that Mr. Deobhakta has said that your part is not as culpable as others, and I think you were to a certain extent "led up the garden path". At 71 years of age, as a person taking no advantage from this transaction and certainly (and it is very welcome to hear) with no political aspirations, and being a first offender, you are ordered to pay $300 towards the cost of this prosecution. If you do that you will be discharged without conviction. You passport is to be returned to you today.

Before parting with this matter - there is going to be no speech from me as a visiting Judge about closing up wounds now that the "blood" has been on the floor - I would just like to thank the Minister of Justice, the Secretary for Justice, his Registrar and staff, for the facilities they arranged for what may well have been a very protracted hearing. Every reasonable request for equipment on our part was granted. In particular as a visiting Judge I would like to compliment Superintendent Khan and Inspector Downey and their officers for their help in the unravelling and the clear presentation of this unusual and complicated case. The police work in my respectful view was excellent. Counsel do not usually receive bouquets, but I thank them very much.

BEATTIE J