Republic v Neeti [2003] KIHC 115; Criminal Case 10 of 2003 (14 October 2003)

IN THE HIGH COURT OF KIRIBATI
CRIMINAL JURISDICTION
HELD AT BETIO
REPUBLIC OF KIRIBATI

Criminal Case No. 10 of 2003

THE REPUBLIC

vs

BIREA NEETI

REASONS FOR EXTENDING TIME WITHIN WHICH TO APPEAL
AND FOR GRANTING BAIL

I made a mistake when sentencing this woman. On 12 June I sentenced her to three years' imprisonment for embezzlement and to two years' imprisonment for forgery, the sentences to be served concurrently. I then suspended the sentences on her undertaking to be of good behaviour for two years.

My mistake was in overlooking the provision in S.44(1) of the Penal Code giving power to a court to suspend a sentence but only a sentence "of not more than two years".

On 8 October the Solicitor General wrote to the Chief Registrar asking that the matter be brought on again "so that (the error) can be corrected, if possible".

The case came on for mention last Friday, 13 October. My first reaction was to recall my order and reduce the sentence for embezzlement to two years. I could not contemplate the defendant now going to gaol to serve three years, believing, after 6½ years of uncertainty, that her sentences were suspended and that she would not have to go to prison. It would be cruel.

The point came on for argument yesterday when the Solicitor General submitted that I am functus officio: it is too late to recall my order. He relied on a passage in the judgment of Lord Goddard, LCJ, in Thomas McNally ((1954) 8 Crim App R 90 @ 94) "Once the sentence has been pronounced there is no power in the court to allow the plea to be withdrawn". While not on all fours with the present case, the Solicitor General submitted that the principle is the same.

I have always understood that a judge may recall his order until judgment had been entered: once the judgment is entered, the judge is functus officio (cf R v Cross (1973) 2 All ER 920). We do not, in Kiribati, have a formal procedure for entering judgment. It may, however, conveniently be taken to be entered when the judge signs the record of sentencing remarks. I signed this record on 12 June.

I accept that I am functus officio, have no power now to recall my order.

The Solicitor General relying on Edward Thomas Arkle, (1972) 56, Crim App R 722) further submitted that only the suspension is invalid: the sentence stands and the defendant is liable to immediate imprisonment for three years. Mr Lambourne did not ask for this but told me that he and Mr Berina for the defendant, had agreed that Mr Berina should immediately apply for leave to appeal out of time: if leave be given, then the defendant will appeal against sentence and will apply for bail pending hearing. Perhaps this arrangement suggested itself from what was done in Arkle.

The disadvantage is that the defendant will now have another 10 months of suspense until her appeal can be heard next August. This is most unfortunate but Counsel have agreed on it and I can see no alternative.

Mr Berina has now made the application for leave to appeal out of time.

Application for leave to appeal out of time granted: time extended to 15 October 2003.

It is noted that notice of appeal against sentence is to be lodged today.

Order that the appellant be released on bail pending the hearing of appeal.

Dated the 14^th day of October 2003

THE HON ROBIN MILLHOUSE QC
Chief Justice