Mwamwanne v Republic [2004] KIHC 93; Criminal Appeal 06 of 2001 (7 January 2004)

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

Criminal Appeal 6/01

TOTEERO MWAMWANNE
TITIU TEIKAURIARIA

vs

THE REPUBLIC

High Court Criminal Appeal 8/01

AMATIA TEOTEAI

vs

THE REPUBLIC

Ms Jacqueline Huston for the three Appellants
Ms R Iteraera for the Republic

Date of Hearing: 7 January 2004

JUDGMENT
(Ex Tempore)

These three young men made nuisances of themselves on Beru on 18 August 2001. One of them, Amatia, also did damage to a building in the Council Area. They were all dealt with by the magistrates on 21^st August. They pleaded guilty. Toteero and Titiu were each given three months' imprisonment, the maximum for the offence with which they were charged. It was a first offence for each. Added to the term of imprisonment was a directive that they do community service. The law does not provide as a penalty both for a term of imprisonment and for community service. They immediately appealed and were released on bail within a day. It has taken since August 2001 for their appeals to be heard. They have now been on Betio for a month, separated from their families, as Ms Huston emphasized, over Christmas.

Even if the appeals had been heard as they should have been, within a few months at the most, the penalties imposed could not stand. It is only in the worst cases of an offence that the maximum penalty for it is ever imposed, let alone for a first offender.

After so long a delay the most appropriate course of action is to confirm the convictions but to quash the penalties imposed and not to substitute any other penalty in their place.

As to Amatia, he had some previous convictions for the same or similar offences and was charged with a more serious offence as well. He was given six months for criminal trespass and 18 months for damaging property, the maximum penalty for criminal trespass being 12 months and for damaging property two years. He spent five days in custody before being bailed pending appeal. Like the other two he has been obliged to spend a month on Tarawa before the hearing of the appeal.

If the offences were not so stale, especially in view of the obviously serious view which the magistrates took of his conduct, he should have served some time in gaol although not as long as the magistrates gave him.

Ms Huston says he has a sick mother on Beru to whom he is anxious to return. On his behalf Ms Huston suggests he pay a fine. Perhaps after so long that is the most appropriate penalty. Ms Huston mentioned $50. That is not enough.

Amatia's conviction is confirmed but the penalty imposed by the magistrates is quashed. In lieu the defendant is fined $100.00 for damage to property and $25 for criminal trespass, fines of $125 in all.

I should add two things. The Republic very properly conceded the appeals acknowledging that the penalties were too severe and to combine community service and imprisonment is not permissible. Secondly, if the appeals had been heard promptly, although the terms of imprisonment would have been less, probably all three young men would have had to spend some time in prison.

ORDER

The convictions of Toteero and Titiu are upheld, the penalties imposed are quashed: no other penalty imposed in lieu.

The convictions of Amatia are upheld: the penalties imposed are quashed: in their place Amatia is fined $25.00 for criminal trespass and $100.00 for damaging property.

Three months to pay: if the fines are not paid in full within that time imprisonment for one month.

THE HON ROBIN MILLHOUSE QC
Chief Justice