Kautoa v Republic - judgment [1996] KIHC 25; HCCrA 09.96 (28 June 1996)

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

HCCrA 9/96

KAUTOA KAUTOA
MIKAERE ROKOMAIMATANG

vs

THE REPUBLIC

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

JUDGMENT

The two appellants pleaded guilty in the magistrates' court to the offence of criminal trespass and they were sentenced to imprisonment for 5 months. There was a third defendant and he was only fined $15. Unfortunately the magistrates did not give any reason why this third defendant was treated differently from the other two. The magistrates should have given some reasons, however brief, as to why they did this. Nevertheless the sentences imposed on the two appellants were, in any event, unlawful.

Upon the facts provided to the lower court the two appellants were simply drinking on premises owned by the Temwanoku Primary School in Betio. The maximum penalty for that offence is imprisonment for 3 months. It would need some evidence that they were drinking in a building, tent or vessel used as a human dwelling or place of worship or place for the custody of property before it would be possible to impose a sentence longer than 3 months' imprisonment. The magistrates were therefore wrong and their sentence cannot be allowed to stand.

As regards the appellant Mikaere he was a first offender when he appeared before the magistrates and he does not seem to have been given any credit for this nor for the fact that he pleaded guilty. He has been in custody since the 2nd of May 1996 and in my view that is sufficient punishment. As regards the appellant Mikaere the appeal is allowed. Sentence of the magistrates' court is set aside and in lieu thereof he is sentenced to the time already served so that he is to be released immediately.

As regards the appellant Kautoa, he is a person with a very bad criminal record. This means therefore that the court would not be entitled to depart from what could be regarded as a normal sentence for this type of offence. The magistrates were empowered only to impose a sentence of up to 3 months' imprisonment and I think in the case of Kautoa 3 months' imprisonment is an appropriate sentence. In the case of Kautoa the appeal will be allowed. The sentence of the magistrates' court is set aside and in lieu thereof Kautoa is sentenced to imprisonment for 3 months.

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