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High Court of Kiribati |
IN THE HIGH COURT OF KIRIBATI
(BEFORE THE HON R LUSSICK C.J.)
HCCrA 20/98
BETWEEN:
TEMEA WITORI
Appellant
AND:
THE REPUBLIC
Respondent
Ms J Fleer for the Appellant
Mr T Tabane for the Respondent
Date of Hearing: 2 October 1998
JUDGMENT
On 16th September 1998 in the Bairiki Magistrates' Court the accused pleaded guilty to the following three charges: (1) Throwing an object contrary to section 83A of the Penal Code Cap. 67; (2) Damaging Property contrary to section 319(1) of the Penal Code; (3) Being drunk and disorderly contrary to section 167(d) of the Penal Code. On the first count he was sentenced to 3 months' imprisonment, on the second he was sentenced to 3 months' imprisonment, and on the third he was fined $10 to be paid within one week in default 6 weeks' imprisonment. He was also ordered to pay $100 compensation and was ordered to be taken his home island of Kuria and remain there for one year.
The offence arose out of an incident in which the appellant was drunk and was standing with a group of other people on the side of the road. A car drove past - at a slow speed, I am told - and the accused threw a stone at it, causing damage to the car but, fortunately, no injury to any of the occupants.
There is no question that this offence has certain aggravating features. The stone was thrown at a moving car with reckless disregard for the safety of its occupants. There was great potential for causing injury although, as has been said, luckily that did not occur. The courts ought to deter this type of conduct by making it plain to those who would commit it that the consequence for them will be a substantial term of imprisonment.
It has been argued for the appellant that there was no evidence given in the lower court to prove damage to the car amounting to $100. In my view, that was not necessary. The facts were read to the accused. He had an opportunity to challenge the amount claimed if he disagreed with it, but he did not do so. However, some credit ought to have been given for the fact that the appellant was a first offender and had pleaded guilty. In my view, to order him to pay compensation in addition to imposing a sentence of 6 month's imprisonment was excessive.
With regard to the effective sentence of 6 months' imprisonment, it is true that the offences arose out of the one transaction and therefore the sentences should normally have been concurrent. However, it is clear from what I have said that I consider that there was nothing wrong with the totality of the sentence imposed and no purpose would be served in making a formal variation to achieve the same effective sentence.
As regards the residence order, the magistrates failed to do what the High Court has said time and time again that they must do. If the magistrates are thinking of making a residence order it is important that they inform the accused of that fact and tell him that they will consider anything he has to say on the matter. The accused may or may not have a good reason why such an order should not be made. In the interests of justice he should be allowed to say something on his own behalf in that regard. In the present case the appellant was not given an opportunity to be heard on the subject.
The appeal can therefore be said to be partly successful. The sentences imposed by the magistrates' court are confirmed with the exception that the compensation order and residence order are set aside.
I direct that a copy of this decision be sent to the Bairiki Magistrates' Court for the magistrates to note what has been said about residence orders.
THE HON R B LUSSICK
CHIEF JUSTICE
(02/10/98)
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URL: http://www.paclii.org/ki/cases/KIHC/1998/52.html