Toora v The Republic [2005] KICA 6; Criminal Appeal 07 of 2005 (8 August 2005)

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

Criminal Appeal No. 7 of 2005

BETWEEN:

REKAU TOORA
Appellant

AND:

THE REPUBLIC
Respondent

Coram: Millhouse P
Tompkins JA
Fisher JA

Counsel: Karotu Tiba for appellant
Teretia Mantaia for respondent

Date of hearing: 3 August 2005
Date of judgment: 8 August 2005

JUDGMENT OF THE COURT

Introduction

[1] The appellant was charged with simple larceny after having been convicted of a felony contrary to s 254 (2) of the Penal Code Cap 67 in that on 13 March 2003 at Betio he stole a pram. He pleaded not guilty. After a defended hearing before Takabwebwe J on 30 and 31 August 2004, he was convicted of larceny. On 14 September 2004 he was sentenced to imprisonment for eight years, and on completion of that sentence, ordered to be conveyed to Nonouti Island, his island of origin, to reside there for one year. He has appealed against sentence.

The reasons for sentence in the High Court

[2] In his sentencing of the appellant, the Judge referred to his being found guilty of simple larceny after having been convicted of several felonies, as a consequence of which he considered the crime for which he had been found guilty was very serious and attracted a penalty of a maximum of ten years imprisonment.

[3] He referred to the appellant feeling sorry for having committed the crime and to the extent to which the appellant had improved his performance over the past 17 years. For those reasons he imposed the sentence to which we have referred above.

[4] The maximum penalty to which the Judge referred is contained in the s 254 (2) of the Penal Code Cap 67:

Any person who commits the offence of simple larceny after having been previously convicted of felony, shall be liable to imprisonment for ten years.

[5] The police clearance certificate shows that the appellant had been convicted of theft on three occasions, namely 19 January 1994, 23 July 1995, and 14 August 2000.

Conclusion

[6] We are satisfied that the sentence imposed by the Judge was, in all the circumstances of the case, manifestly excessive. This was a property offence involving an item that, no doubt significant to its owners, was not of substantial value.

[7] But for the appellant's previous convictions and the provision of s 254, a non-custodial sentence may have been appropriate. But when those previous convictions are taken into account as well as the provisions of the section, a custodial sentence should be imposed.

[8] We were informed from the bar that the appellant has been living on Tarawa for about twelve months and is unemployed. We agree with the Judge that in considering an appropriate sentence, an order, pursuant to s 37 (1) of the Penal Code, for him to be conveyed to his island of origin and reside there for a period of one year was appropriate.

[9] When that part of the sentence is taken into account, we are satisfied that the sentence of imprisonment should be for a term of eighteen months.

The result

[10] The sentence imposed in the High Court is quashed. In lieu thereof the appellant is sentenced to a term of imprisonment of eighteen months. The order that he be conveyed to his island of origin and reside there for one year remains.

Millhouse P
Tompkins JA
Fisher JA