Regina v Karoba [1979] KIHC 23; 1979 KILR 74 (21 June 1979)

[1979] KIHC 23; [1979] KILR 74

HIGH COURT OF THE GILBERT ISLANDS

Criminal Revision Case No 12 of 1979

REGINA

v

RAWETE KAROBA

(O'BRIEN QUINN C.J.)

Betio: 21st June 1979

Criminal Revision order - section 81(1) of the Magistrates' Courts Ordinance 1977 - charge under section 76(b) of Cap 69 wrongly drawn - sentence - sentence beyond permitted maximum - no record of previous conviction - section 125 of Cap 7 - Residence Order - sentences reduced - Residence Order confirm.

The accused was convicted by the Magistrates' Court Abemama on his own plea of guilty to "possession of a weapon contrary to section 76(b) of the Liquor Ordinance Cap 69" and, when the Police prosecutor announced in Court that the accused had many convictions on record at Tarawa, the Magistrates sentenced him to 6 months' imprisonment and ordered that he return to his home island, Beru, and remain there for 12 months.

ORDERED: (1) That the charge should have been "possession of a dangerous (or offensive) weapon whilst under the influence of drink";

(2) That the sentence of six months' imprisonment was clearly beyond the maximum sentence of $50;

(3) That the previous convictions of an accused person should not be mentioned to the Court unless they are specifically set out and are capable of being proved in accordance with section 125 of the Criminal Procedure Code (Cap 7);

(4) That the sentence of imprisonment of six months would be set aside and a fine of $40 substituted therefore;

(5) That the Residence Order would be confirmed as the accused had shown a propensity for violence when drunk.

O'BRIEN QUINN C.J.:-

This case came to my notice on my perusal of the Monthly Return of Criminal Cases for May 1979 and I called for the Record under the powers given to me by section 81(1) of the Magistrates' Courts Ordinance 1977 (No 17 of 1977).

2. The accused pleaded guilty to a charge of "Possession of a weapon contrary to section 76(b) of the Liquor Ordinance Cap 69" and, having no previous conviction on the record, was, after the Police Prosecutor had gratuitously informed the Magistrates' Court at Abemama that the accused had many convictions on record at Tarawa, of which he had no record, sentenced to 6 months' imprisonment and ordered to leave Abemama for Beru and there to remain for 12 months.

3. There are at least three grave irregularities in this case. The first one is that the charge is wrongly drawn. The offence is the possession of a dangerous or offensive weapon whilst under the influence of drink not merely the possession of a weapon, which is no offence. The proper way of drafting a charge for an offence contrary to section 76(b) of Cap 69 is set out in the Magistrates' Courts Handbook at page 156 and the drafting of the charge is explained as is the evidence required to prove it. Every Police Prosecutor should have a copy of the Handbook and every Clerk of Court should use his Handbook to check the Charge Sheets before they are presented to the Presiding Magistrate for signature. The Magistrates have the power to alter or amend wrongly drafted charges and should exercise that power after consultation with the Clerk of Court who should be alert to such matters.

4. The second irregularity is that while the maximum sentence for the offence charged is a fine of $50, the accused was sentenced to six months' imprisonment, which is clearly beyond the maximum stipulated in section 76(b) of Cap 69 and, therefore, illegal.

5. The third irregularity is that, even though the prosecution could not produce any record of previous convictions before the Court, the prosecutor informed the Court that the accused had had previous convictions but never produce any record thereof. This was patently wrong and unjust and contrary to section 125 of the Criminal Procedure Code (Cap 7). Again the Police Prosecutor would do well to read Chapter 4 of the Magistrates' Courts Handbook.

6. In view of these irregularities I consider that the sentence of the accused should be reduced and that he should be treated as a first offender. He has been in custody now for almost 2 months and the only fine, under section 30 of Cap 8, commensurate with such a sentence is a fine of $100 which is beyond the maximum for the offence. A fine of $50 is commensurate with a sentence of 3 months, but as the accused must be treated as a first offender I alter the sentence of imprisonment to a fine of $40 which is commensurate with 2 months' imprisonment and if he has earned remission he should be released immediately provided he is not in custody for any other offence and he need not pay the fine.

7. In view of the fact that the Court has the power to repatriate convicted persons to their home islands under section 37 of Cap 8 and as the accused has shown a propensity for violence when drunk I confirm the Magistrates' Courts' Residence Order that the accused should be repatriated to Beru on his release from prison, for a period of 12 months.

8. The sentence in the Magistrates' Court is, therefore reduced to a fine of $40 or imprisonment for 2 months which should lead to the accused's release at once provided he has earned maximum remission and is not in Custody on any other charge, while the Residence Order is confirmed.

9. This Order is to be communicated immediately to the Superintendent of Prisons, and the Assistant Community Affairs Officer, Betio.