Tekaniti v Republic [1996] KIHC 19; HCCrA 14.96 (28 June 1996)

IN THE HIGH COURT OF KIRIBATI
(BEFORE THE HON R LUSSICK C.J.)

HCCrA 14/96

BETWEEN:

KIAU TEKANITI
Appellant

AND:

THE REPUBLIC
Respondent

Mr D Lambourne for the Appellant
Ms T Beero for the Respondent

JUDGMENT

This is an appeal against the decision of the Magistrates' Court convicting the appellant on two charges, one of assaulting a police officer in the execution of his duty and the other of resisting arrest and escape contrary to section 117 of the Penal Code Cap. 67. In respect of the first charge the appellant was convicted and sentenced to 2 years' imprisonment and in respect of the second charge the appellant was convicted and sentenced to 6 months' imprisonment, both sentences to run concurrently. The appellant had pleaded not guilty to both charges.

The appellant appeals the sentence in the first charge and appeals both conviction and sentence in the second charge. As regards the second charge, having perused the record I find that there is no evidence whatsoever that the appellant did in fact resist arrest because at the time he was not under arrest at all. In fact the police officer did not see him until apparently he came from nowhere to assist his friend who was being arrested. It is true that the appellant did assist another person to resist arrest. There is no doubt of that on the evidence. However, the way the case was presented by the prosecution in the lower court was that the appellant was a principal offender. It was never alleged that his only role in the case was to assist somebody else to resist arrest.

It seems to me that if an accused is to be given a fair chance to defend the charge against him then it must be made clear with reasonable certainty exactly what it is that he has to answer and that was not done in the lower court. In the lower court it was at all times claimed that the appellant was a principal to the charge of resisting arrest. I find that there was no evidence whatsoever to support the charge in that form and therefore the magistrates were wrong to convict him. As regards the appeal against the conviction on the charge of resisting arrest that appeal is allowed and the conviction and sentence are set aside.

As regards the second charge of assaulting a police officer in the execution of his duty, this was quite a serious incident of this type of offence. The accused assaulted a police officer without warning, punched him in the face and kicked him when he was down, causing injuries to the police officer. It will be a very rare case where a term of imprisonment is not imposed in a case where a police officer is assaulted in the execution of his duty. Where a policeman is actually injured as a result of that assault then of course that is a most serious aggravating factor.

In this case the appellant, in my view, was very rightly convicted of that charge by the magistrates. He of course is not entitled to the discount which a plea of guilty would have earned him. It is also quite clear that the appellant has shown no remorse whatsoever. However, he was a first offender and apparently was not given any credit whatsoever for that because he was sentenced to the maximum penalty to this offence. I think in the circumstances that that sentence was excessive and should not be allowed to stand.

The appeal is therefore allowed. The sentence of the magistrates' court is set aside and in lieu thereof the accused will be sentenced to a term of imprisonment of 9 months.

THE HON R B LUSSICK
CHIEF JUSTICE
(28/06/96)