Attorney-General v Tekabu [2004] KICA 11; Criminal Appeals 04 and 05 of 2004 (23 August 2004)

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

Criminals Appeal Nos. 4 and 5 of 2004

BETWEEN:

ATTORNEY GENERAL
Appellant

AND:

TETEKI TEKABU
Respondent

BETWEEN:

ATTORNEY GENERAL
Appellant

AND:

KOBEBE TETAUA
Respondent

Coram: Hardie Boys JA
Tompkins JA
Fisher JA

Counsel: David Lambourne, Solicitor General for appellants in both appeals
Jennifer Troup for respondent Tekabu
B Berina for respondent Tetaua

Date of hearing: August 2004
Date of judgment: August 2004

JUDGMENT OF THE COURT

Introduction

[1] As these two appeals against sentence by the Attorney General on behalf of the Republic relate to sentences imposed on both respondents on their convictions for reckless driving causing death, the Court heard the appeals together and now delivers a joint judgment on both appeals.

[2] The respondent Tekabu was charged with reckless driving causing death. Following a defended hearing, he was convicted. On 8 March 2004 he was sentenced by the Chief Justice to six months imprisonment. The Attorney General on behalf of the Republic has appealed against the sentence imposed on the ground that the sentence was manifestly inadequate.

[3] The respondent Tetaua was charged, that on 25 October 2002 at Ambo village on South Tarawa he drove a motor vehicle on a road recklessly and caused the death of Kobebe Tetaua. Following a defended hearing before the Chief Justice he was convicted. On 17 March 2004 he was sentenced to six months imprisonment. The Attorney General on behalf of the Republic has appealed against that sentence on the ground that it is manifestly inadequate.

Facts - Tekabu

[4] On 20 September 2002 at about 9 pm the respondent Tekabu was driving a hired left hand drive pick-up from Terawanabakoa towards London. The pick-up collided with a bicycle being ridden by the deceased in the company of his brother in law. They were riding from St Francis High School towards London. As a result of the collision the bicycle was damaged and the pick-up also suffered damage to the right side and the left headlight and the windscreen were broken.

[5] Tekabu gave evidence at the trial. He said that he saw someone coming out of a road junction turning to that person's right to ride in the same direction as he was driving. He said that he did not have time to avoid the collision with the deceased and his bicycle. As result of the impact the deceased hit the windscreen of the pick-up and landed on the left hand side of the road.

Facts - Tetaua

[6] At about 10 o'clock on the evening on Friday 25 October 2002 the deceased was a passenger in a 2 ton truck driven by the respondent Tetaua. They were driving from Betio to Bikenibeu on Ocean Island. Outside the Steward Club at Ambo the truck went to its left, partly at least off the bitumen and hit a casuarina tree. The passenger side of the truck took the main force of the impact. The deceased was so badly injured that he died on the way to hospital.

[7] In his judgment at the trial the Chief Justice found that Tetaua was so much under the influence of alcohol as to be incapable of effective control of the truck. He was not able, on the evidence, to find that Tetaua was driving the truck at an excessive speed.

The sentence on Tekabu

[8] In passing sentence on Tekabu, the Chief Justice referred to the circumstances of the accident. He held that the nature of the deceased's injuries and the damage to the vehicle and the bicycle showed that Tekabu must have been travelling very fast and not keeping a proper lookout. He referred to the actions of Tekabu in not going over to the deceased but driving home and calling the police, as a result of which he and the police returned to the scene within minutes. He considered that from then on Tekabu did everything he could to expressed remorse and regret. He paid for the funeral. The Chief Justice noted that the deceased's wife is Tekabu's aunt.

[9] Tekabu is 23 years old married with two children. Counsel for Tekabu submitted that any sentence of imprisonment should be suspended. The Chief Justice did not accept that submission, noting that Parliament regarded the offence so seriously as to make the maximum penalty life imprisonment and there were no special circumstances justifying suspension. He imposed a sentence of six months imprisonment and suspended Tekabu's driving licence until further order.

The sentence on Tetaua

[10] When sentencing Tetaua the Chief Justice observed that the incident was a great tragedy for Tetaua and his family and for the deceased's family. The deceased was the uncle and a friend of Tetaua. The Chief Justice took into account in fixing penalty Tetaua's suffering and the suffering of those close to him.

[11] Tetaua is thirty years old, married with two young children. He has no previous convictions. He was a senior aircraft engineer with Air Kiribati. The Chief Justice accepted that Tetaua had not drunk alcohol for over twelve months. In response to a submission by counsel for Tetaua he held that there were no special circumstances that would justify suspending any sentence of imprisonment. He was sentenced to be imprisoned for six months. His driving licence was cancelled and he was disqualified from holding or obtaining a driving licence until further order.

The legislative history

[12] By s 24(2) of the Traffic Ordinance the maximum penalty for the offence of reckless driving causing death was 5 years imprisonment. On 9 July 2000 that was amended by increasing the maximum sentence for the offence to imprisonment for life. The Traffic Ordinance was repealed on 1 January 2003.

[13] On the same day, 1 January 2003, the Traffic Act 2001 came into force. Section 31 provides that the driver of a motor vehicle must not drive the vehicle on a road recklessly or in a manner dangerous to persons using the road. By subs (c), where that offence causes death, the maximum penalty is a fine of not more than $2,000 or imprisonment for not more than 5 years, or both.

[14] We were advised by the Solicitor General that there is currently a bill before the Maneaba ni Maungatabu to amend s 31(c) by increasing the maximum penalty to imprisonment for life.

[15] Thus at the time these offences were committed on 20 December 2002 and 25 October 2002, the maximum sentence was imprisonment for life. When the appellants were sentenced on 8 March 2004 in the case of Tekabu and 25 March 2004 in the case of Tetaua, the maximum sentence for the similar offence under the Traffic Act was imprisonment for five years.

Submissions for the Attorney General

[16] The Solicitor General, in his submissions to this Court, set out detailed reasons in support of his submission that the sentences imposed on each respondent were manifestly inadequate. However, he accepted that, since both respondents had served their sentences and had been released from prison, it would be inappropriate for this Court to allow the appeals by increasing the sentences in a way that would require the respondents to return to prison.

[17] It was his submission that this Court, while for that reason not allowing the appeals by increasing the sentences, should nevertheless pronounce on what would otherwise have being appropriate sentences. Such advice, he submitted, would be a guide for the High Court in the future when considering sentences for offences under s 31 (c).

Result

[18] We do not accept this submission. As a general approach, this Court will not give what are in effect advisory opinions where those opinions can have no direct application to the parties before the Court. But in the present case, such a course would be even more inappropriate when the present maximum penalty for the offence may, if the bill presently before the Maneaba ni Maungatabu is passed, be altered. In that event whatever is determined to be the maximum penalty will affect what would be an appropriate sentence in circumstances similar to these two appeals.

[19] Accordingly, both appeals are dismissed. In doing so we wish to make it clear that the sentences imposed in these cases should not be regarded as appropriate sentences to be imposed in similar circumstances. What those sentences should be is to be determined by the High Court in the circumstances of cases coming before that Court and, should there be an appeal, by this Court

Hardie Boys JA
Tompkins JA
Fisher JA