Takiua v Republic [1998] KIHC 60; HCCrA 23.98 (12 November 1998)

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

HCCrA 23/98

BETWEEN:

IOATAKE TAKIUA
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 not guilty before the Bikenibeu Magistrates' Court to a charge of criminal trespass contrary to section 182(2) of the Penal Code Cap. 67. He was found guilty, convicted and sentenced to imprisonment for 1 year after which an order was made for him to be sent back to Beru to reside there for 1 year. This appeal is against sentence only. The grounds of appeal are as follows:

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

(2) Further, the magistrates erred by imposing a residence order in circumstances where the appellant was not provided with an opportunity to be heard as regards such imposition before hand.

As regards ground 1, it is true that the appellant was given the maximum sentence of 1 year's imprisonment. However, the facts are very serious. There is evidence that he put the nuns in fear and that a nun had to go for help to a nearby watchman who apprehended the appellant and handed him over to the police. There was also evidence that while the appellant was in the convent he roamed through the house in full view of the nuns, with the nuns powerless to stop him. When cross examined, he admitted that he knew that he was not permitted to go to the convent at night and that, once there, he had refused to leave. To make matters worse, there was evidence from Sr. Rosa that the appellant had done the same thing on a previous occasion and had apparently been taken to court, although no prior record of conviction was tendered. Quite obviously the appellant had learned nothing from the previous experience.

It must also be considered that having pleaded not guilty, the appellant was not entitled to the discount which a plea of guilty would have attracted. In my view, the sentence, while not lenient, was within the discretion of the magistrates and was not manifestly excessive. That ground of appeal must therefore fail.

As regards ground 2, I have heard sworn evidence from the appellant that he was not given any opportunity to be heard on the question of a residence order being made against him. The High Court has said time and time again that if the magistrates are thinking of making a residence order, it is important that the accused be given an opportunity to be heard on the subject. There may or may not be a good reason why a residence order should not be made in a particular case. The appellant should be allowed to say something on his own behalf. It is a simple matter for the magistrates to inform the accused before passing sentence that they are thinking of making a residence order but that if the accused has something to say in that regard, it will be taken into account. In the present case, I am satisfied that the appellant was not given the opportunity to be heard and has thereby suffered an injustice.

The appeal will therefore be partly allowed. In respect of the appeal against the sentence of 1 year's imprisonment the appeal is dismissed and the sentence of the Magistrates' Court is confirmed. In respect of the appeal against the residence order the appeal is allowed and the residence order is set aside.

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