Tonganibeia v Republic [1996] KIHC 94; HCCRA 15.96 (6 September 1996)

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

HCCrA 15/96

TABUARIKI TONGANIBEIA

versus

THE REPUBLIC

Mr D Lambourne for the Appellant
Mr D Sim for the Respondent

JUDGMENT

This is an appeal from the decision of the Betio Magistrates' Court fining the appellant $20 for the offence of criminal trespass contrary to section 182(2) of the Penal Code and $50 for the offence of damaging property contrary to section 319(1) of the Penal Code.

The appellant pleaded not guilty and was convicted on his trial. The facts were reasonably serious for offences of this nature. The appellant after fighting with the complainant's son came on to the complainant's property and shook the complainant's house with such violence that the post fell over and took the wall with it. The complainant's husband ended up underneath the wreckage and had to be helped out.

The appeal goes to the severity of the sentence and not to the conviction. Counsel for the appellant has tendered a schedule of trespass and damage to property cases dealt with in the Betio Magistrates' Court for the past five months. That schedule shows that the average fine imposed on convictions for criminal trespass was $11-20 which is of course much less than the appellant's fine. The schedule also shows that the average fine for convictions for damaging property was approximately $14 which again is much less than the appellant's fine.

The problem with schedules is that they do not show the facts behind the sentence. I note that the spectrum of sentences revealed by the schedule runs from offences which are regarded as so serious as to warrant a term of imprisonment while other sentences are dealt with by a very light fine or bond. What is an appropriate penalty depends on the particular facts of the case. In the present case I have indicated that the facts are reasonably serious. The maximum penalty for the offence of criminal trespass is one year's imprisonment and the maximum penalty for damaging property is two years' imprisonment.

I do not consider that the fines of $20 and $50 respectively imposed by the Magistrates' Court were manifestly excessive and I do not intend to interfere with those fines. However the default period of 6 months' imprisonment imposed by that court for non payment of the fines was clearly wrong. Section 30(1) of the Penal Code provides that the maximum term of imprisonment to which a person may be sentenced in default of payment of a fine not exceeding $20 is 6 weeks. For a fine not exceeding $50 the maximum period is 3 months.

The appeal is therefore dismissed but the order of the Magistrates' Court is varied to show a default period of 6 weeks' imprisonment in respect of the $20 fine for criminal trespass and a default period of 3 months' imprisonment in respect of the $50 fine for damaging property. The order of the Magistrates' Court is further varied by allowing the appellant until the 31st of October 1996 to pay these fines in full.

THE HON R B LUSSICK
CHIEF JUSTICE
(06/09/96)