Tibaua v Republic [1998] KIHC 59; HCCrA 24.98 (12 November 1998)

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

HCCrA 24/98

BETWEEN:

NAMAKIN TIBAUA
Appellant

AND:

THE REPUBLIC
Respondent

Ms J Fleer for the Appellant
Ms P Tebao for the Respondent

Date of Hearing: 12 November 1998

JUDGMENT

The appellant pleaded guilty before the Bikenibeu Magistrates' Court to a charge of theft contrary to section 254(1) of the Penal Code Cap. 67. The offence involved the theft of secondhand clothing namely 5 shirts and 3 dresses. The accused was sentenced to imprisonment for 6 months and a residence order was made returning him to his home island to stay there for 6 years. That sentence is appealed on the following two grounds:

(1) In all the circumstances the sentence is manifestly excessive

(2) The magistrates erred by imposing a residence order for a period in excess of the statutory limit and in circumstances where the appellant was not provided with an opportunity to be heard as regards such imposition beforehand.

As regards the first ground, the appellant was apparently a first offender and had pleaded guilty. No value was placed on the stolen items of clothing but it can be inferred that as secondhand clothing they would not have been worth any substantial amount. The appellant has given sworn evidence that he was not given the opportunity by the magistrates to say anything in mitigation of the offence or the residence order. The minutes of the proceedings in the lower court are extremely brief but are consistent with what the appellant claims. Furthermore, the magistrates do not seem to have given the appellant sufficient credit for the fact that he was a first offender and that he had pleaded guilty. I find that in the circumstances the sentence was manifestly excessive.

In relation to the second ground of appeal, the residence order was clearly unlawful in that a residence order is not to exceed a period of one year as prescribed in section 37(1) of the Penal Code. I am also satisfied that the appellant was not given any opportunity to be heard on the question of whether or not a residence order should be made. There are standing instructions to magistrates' courts that if the magistrates are considering 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. That was not done in this case and as a result the appellant, in my view, has suffered an injustice. It follows from what I have said that the appeal will be allowed.

I make the following orders:

(1) The sentence of imprisonment for 6 months imposed by 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.

(2) The residence order imposed by the Magistrates' Court is set aside.

THE HON R B LUSSICK
CHIEF JUSTICE
(12/11/98)