Restitution payments lowered in $1.3 million case

LIHU‘E — A defendant who failed to make a restitution payment of $314,421.10 was given a new probation Wednesday in 5th Circuit Court.

Jon Anderton, 57, a self-employed accountant and tax preparer, was sentenced to a new five-year felony probation and reduced restitution payments against the $1,257,684.39 he still owes three investors after a 2011 conviction on three counts of first-degree theft.

Anderton ran an Anahola-based domestic and international investment property sales firm that profited from deferred capital gains or losses. He was convicted of taking $1.2 million from three Kauai investors between 2006 and 2008 and failing to make payments.

Judge Kathleen Watanabe said in retrospect the plea agreement presented “lofty and overly optimistic goals.”

The defendant’s ambitious payment plan was created in the mindset that she said got him into this financial and criminal trouble.

“Turning a quick buck without the assurances that it will succeed,” Watanabe said.

Anderton had already completed two years on his first probation. The court found him in non-compliance and denied a motion to modify the restitution agreement in June.

Watanabe said she was disappointed the state sought first to enforce punitive measures, rather than work to restructure the restitution in the spirit of making the victims’ whole. The plea agreement called for a 90-day jail term for a first missed payment but the court changed the conditions after reviewing an ability to pay assessment.

Anderton now must make $500 payments each month for the duration of his probationary period. He has reportedly paid about $15,000 in restitution since 2011, including two recent payments totaling $1,200.

Deputy Attorney General Debbie Lyn Tanakaya said it was the defendant who presented the plea deal as a way to keep him out of jail and able to pay restitution to victims. He was aware that the consequences of failing to make restitution payments included jail.

The state could have asked for an 18-month jail sentence with probation, but agreed to the plea deal in the interest of restitution, she said. That has failed and there must consequences.

“The state is asking for three months jail today,” Tanakaya said.

The court sentenced Anderton to the maximum 18-month jail term possible with a felony probation. However, Watanabe stayed the jail order for one-year provided Anderton can comply with probation and make all monthly payments.

“Should you miss one payment the 18 months jail will kick in,” Watanabe said.

If the state files for revocation of probation the maximum possible prison term is 10 years, she said. The court ordered a proof of compliance hearing on July 9, 2014.

State Deputy Public Defender Samuel Jajich said that if the American criminal justice system could be summarized in one word it would be “reasonableness.” It is unreasonable to send a defendant to jail and take the ability to make future payments and find them in contempt again in a viscous cycle.

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