Mataio v Republic [2019] KICA 10; Criminal Appeal 3 of 2018 (21 August 2019)

IN THE KIRIBATI COURT OF APPEAL ] Criminal Appeal No. 3 of 2018
CRIMINAL JURISDICTION ]
HELD AT BETIO ]
REPUBLIC OF KIRIBATI ]

BETWEEN TAMUINE MATAIO APPELLANT

AND THE REPUBLIC RESPONDENT

Before: Blanchard JA

Handley JA

Heath JA

Counsel: Mantaia Kaongotao for appellant

Manrongo Kararaonnang for respondent

Date of Hearing: 15 August 2019
Date of Judgment: 21 August 2019

JUDGMENT OF THE COURT

[1] The appellant, Tamuine Mataio, pleaded guilty to a charge of assault causing actual bodily harm (s.238 Penal Code Cap 67) in the Magistrates’ Court on 30 October 2017. He was sentenced to nine months’ imprisonment but granted a stay of execution of his sentence pending an appeal to the High Court.

[2] That appeal was heard by the Chief Justice who delivered a judgment dismissing it on 31 August 2018. The Chief Justice commented that in fact the sentence was “overly generous in the circumstances of this case”.

A change of plea?

[3] Mr Mataio has nonetheless brought a second appeal to this Court “seeking consideration of a question of fact and law”. He contends that he was advised in relation to his guilty plea by a paralegal from the Office of the People’s Lawyer who, allegedly, did not fully advise him of the consequences. He wishes this Court to treat his appeal as an appeal against conviction as well as sentence and to set aside his conviction so that he can change his plea to one of not guilty and stand trial.

[4] A second appeal to this Court from a decision of the High Court in a criminal matter is not a general appeal. Section 21(1) of the Court of Appeal Act 1980, as amended in 2010 – an amendment that counsel failed during the hearing to draw to our attention and which we have had to discover for ourselves – now reads:

(1) Any party to an appeal from a magistrates’ court to the High Court may appeal, under this part of this Act, against the decision of the High Court in such appellate jurisdiction to the Court [i.e. the Court of Appeal] on any ground of appeal which involves a question of law.

The section previously restricted such a second appeal to a “question of law only”. Removal of the word “only” has opened the way for consideration of appeals that raise issues of mixed fact and law.

[5] As is accepted in the way in which Mr Mataio’s application to amend is framed, any consideration of a change of plea in this case would require this Court to make determinations of fact as well as law and that would require evidence of what occurred.. We would have, at the very least, to determine what advice he received from the Office of the People’s Lawyer and (subject to s.271(1) of the Criminal Procedure Code (Cap 17) which we will shortly mention) to consider whether the case was of the exceptional kind in which an appeal against conviction will be entertained following entry of a plea of guilty. In R v Le Page [2005] NZCA 67; [2005] 2 NZLR 845 the New Zealand Court of Appeal identified “at least three broad situations” in which a miscarriage of justice arising from a guilty plea might exist:

(a) Where the appellant did not appreciate the nature of or did not intend to plead guilty to, a particular charge – shortcomings in legal advice might create such a situation;

(b) Where on the admitted facts the appellant could not in law have been convicted of the offence charged; and

(c) Where it could be shown that the plea was induced by a ruling which embodied a wrong decision in law.

[6] We are not in a position to express any view on the quality of the advice received by the appellant before entering his guilty plea, and observe that privilege has not been waived (assuming, without deciding, that it exists in relation to advice from a paralegal and, if it does, that it is not waived when allegations are made against someone bound by the privilege); and we do not know what the adviser might have to say in response to the appellant’s allegation. Nor do we have any information about the availability of people to give advice to accused persons in Magistrates’ Courts throughout Kiribati. Nor would we have the benefit of the views of a High Court Judge, familiar with local conditions, on such a potentially important question of legal representation. The appeal may raise a question of law concerning the right to representation under s.10(1)(d) of the Constitution of Kiribati but resolution of it would be so dependent on factual issues on which we have no evidence that it is entirely unsuitable for determination on this occasion on a second appeal.

[7] Furthermore, s.271(1) of the Criminal Procedure Code (Cap 17) provides that no appeal is allowed in the case of an accused person who has pleaded guilty and has been convicted of [sic] such plea by a Magistrates’ Court, except as to the extent or legality of the sentence. That may or may not preclude an appeal seeking to allow a change of plea in the kinds of circumstances discussed in Le Page, but we did not hear argument on the subsection and must therefore leave that question for another day.

The sentence

[8] The question of whether a sentence by a Magistrate is deemed to be excessive is a matter of law (s.270(4) of the Code) and thus falls within s.21(1) of the Act.

[9] The facts of the case are that the complainant, who was unarmed, was fighting with another young man or youth called Teiaia and was getting the better of the fight. The appellant chose to intervene to assist Teiaia in defending himself. Regrettably he did so by hitting the complainant with an iron rod. The appellant claimed to have aimed the blow at the complainant’s arm but it landed on the side of the complainant’s head causing severe injury. Even if the complainant was acting in defence of another (Teiaia), the force he used was plainly very excessive against someone who was unarmed.

[10] The maximum penalty for committing an assault causing grievous bodily harm is five years’ imprisonment. Even allowing for the mitigating circumstances – acting in defence of Teiaia, first offender, early guilty plea – we agree with the Chief Justice that far from being excessive the sentence was generous. The Chief Justice considered that a sentence of 12-18 months’ imprisonment would have been more normal and considered increasing the sentence. What the appellant did was extremely dangerous and it had severe consequences. We entirely reject counsel for the appellant’s submission that this was not violent offending. The fact that the appellant may have been helping someone else defend himself does not mean that the use of the weapon causing substantial injury was not violence.

[11] The element of violence involving a weapon made it an unsuitable case for suspending the sentence and we are not surprised that the Chief Justice did not feel the need to consider doing so. We are aware that in the recently enacted Penal Code (Amendment) Act 2019 it has been provided, in the new s.44A of the Penal Code, that sentences are not to be suspended where a weapon has been used or involved in the commission of an offence. That provision does not apply in this case because the offending occurred in 2017 but it confirms the refusal of the courts to use suspension in a case of this kind.

Order

[12] The appeal is dismissed. We understand the appellant’s bail has continued. It is now revoked and he must immediately surrender himself to the Police to serve his sentence of imprisonment.

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Blanchard JA

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Handley JA

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Heath JA