Tekoru v Republic [1998] KIHC 53; HCCrA 19.98 (2 October 1998)

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

HCCrA 19/98

BETWEEN:

BAITEKE TEKORU
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 12 June 1998 the appellant pleaded guilty before the Bikenibeu Magistrates' court to 3 charges of damaging property contrary to section 319(1) of the Penal Code Cap. 67. The maximum penalty for such an offence is imprisonment for 2 years.

The property damaged in the first charge was a flash light radio with an estimated value of $80. The property in the second charge was a portable radio. No value was mentioned. The property in the third charge was the masonite wall of a house and the damage was estimated at $17.

The facts are not quite clear but it seems that the accused went on a drunken spree at his aunty's house and committed the said offences.

It is also not clear from the minutes of the lower court proceedings whether or not the appellant had any previous convictions. The minutes show that when the court asked about previous convictions, the prosecution simply replied "not yet ready" and that is where the matter was left.

The magistrates sentenced the appellant to 3 months' imprisonment on each charge, to run consecutively, so that a total of 9 months' imprisonment was imposed.

That decision is now appealed on the ground that the sentence was manifestly excessive.

I think that the magistrates were correct in making the sentences consecutive, as the three incidents involved three different victims and were separate, at least in that sense. However when dealing with separate incidents it is not just a matter of a court doing the arithmetic and passing the sentence produced by the arithmetic. The court must consider what is the appropriate sentence for all the offences having regard to the totality of the criminal behaviour involved.

In the present case, the appellant pleaded guilty, no criminal record was produced so it was proper to regard him as a first offender and the damage to the three items of property, while not negligible, was not inordinate. In those circumstances, I am of the view that a total sentence of 9 months' imprisonment was manifestly excessive.

The appeal will therefore be allowed. The appellant has been in prison since 12/6/98. I think justice will be served if I order as follows:

The sentence of the magistrates' court is set aside and in lieu thereof the appellant is sentenced to the time already served, so that he is to be released immediately.

THE HON R B LUSSICK
CHIEF JUSTICE
(02/10/98)