Bureteriki v Republic [2011] KIHC 39; Criminal Appeal 06.2011 (12 October 2011)

IN THE HIGH COURT OF KIRIBATI 2011

CRIMINAL APPEAL NO. 6 OF 2011

BETWEEN

KABOTAU BURETERIKI
APPLICANT

AND

THE REPUBLIC
RESPONDENT

Before: Hon Chief Justice Sir John Muria

12 October 2011

Mr Daniel Webb for Appellant
Ms Pauline Beiatau for Respondent

JUDGMENT

Muria CJ: The appellant originally came by way of a Notice of Appeal. At the hearing, Mr Webb of Counsel for the applicant, sought to proceed by way of an Application for Review under section 81(2) of the Magistrates' Court Ordinance upon the same grounds as stated in the original Notice of Appeal. Ms Beiatau did not object to the procedure under section 81(2) and so the matter was treated as an application for review.

Brief Background

The applicant was charged for common assault before the Magistrates' Court and was convicted on 28 March 2011 on his own plea of guilty in Criminal Case Bet No. 439/11. He was sentenced to five months' imprisonment, wholly suspended for one year on the condition that the appellant was to keep the peace for one year.

On 31 March 2011, the accused pleaded guilty to a charge of common nuisance in the Magistrates' Court in the Magistrates' Court Crim. Case Bet No. 483/11. The Magistrates' Court then ordered the accused to serve the full five months' imprisonment imposed and suspended on 28 March 2011. This is the subject of ground 3 of the application.

Enforcement of the 5 month suspended sentence

It is not disputed in this case that the applicant committed the offence of common assault on 14 March 2011. The circumstances of the offence were that on that particular date (14 March 2011) the applicant had some drinks and while he was drunk had some arguments with his wife (victim). As a result, he threw his wife to the ground.

In the evening, on 26 March 2011, the applicant while drunk went to Kaewateiti's house and caused disturbances and annoyance to Kaewateiti and his members of his family. This is the subject of the common nuisance charge. Both incidents were reported to the police.

The Magistrates' Court dealt with the common assault charge on 28 March 2011 and imposed five months' sentence suspended for one year on the condition that the applicant kept the peace for one year. On 31 March 2011 the Magistrates' Court dealt with the common nuisance charge. The applicant pleaded guilty. The Magistrates' Court ordered that the applicant served the full five months' sentence earlier imposed on common assault case.

Quite right, Ms Beiatau of Counsel for the prosecution, conceded ground three of the application. The applicant did not commit the offence of common nuisance after the suspended sentence on common assault was imposed. It was committed before the conditional suspended sentence was imposed. The Magistrates' Court was clearly in error to order the applicant to serve the five months suspended sentence in this case. This ground of the application must succeed.

Whether five months sentence excessive

I deal next with the complaint that the sentence of five months for commo0n assault is manifestly excessive. In support of his client's case, Mr Webb of Counsel for the applicant contended that the nature of the assault on the victim, who is the applicant's wife, was not particularly a bad example of common assault and that the applicant pleaded guilty to the charge. The applicant had no previous convictions and that he was the only bread-winner in the house.

Ms Beiatau submitted that a five months suspended sentence on a charge of common assault cannot be said to be excessive. The fact that the five months sentence was suspended clearly shows that the Court took into account the mitigating factors, such as those referred to by the applicant, before imposing the sentence.

In the course of his submission, Mr Webb relied on a number of cases on common assault which the High Court dealt with. In those cases, the sentences imposed sentences ranging from fines of $30.00 to three months imprisonment. However, as it is always important to bear in mind, each case depends on its own circumstances.

Although the sentence of five months' imprisonment is near the top end of the limit provided for under section 237 of the Penal Code, I do not think it can be described as "manifestly excessive" in this case. Not only that the Magistrates' Court imposed a sentence less than the maximum allowed by law, the Court also had the sentence, not in part but "wholly suspended" thereby taking into account the mitigating factors put to the Court. Any suggestion whether by implication or otherwise that an assault upon a wife by a husband while drunk is just as reprehensible or even more so, as an assault on any person. The Court must express society's abhorrence of such action.

While it is not a matter for the Court, rather it is for the legislature, I express the view that the maximum sentence of six (6) months' imprisonment for the offence of common assault, is in adequate in today's circumstance in Kiribati.

Be that as it may, the ground complaining that the sentence of five months wholly suspended imposed on the applicant is rejected.

Offence of Common Nuisance

The submission proferred by Mr Webb is that on the facts of the case 483/11, no offence of common nuisance was committed. The offence of common nuisance is set out in section 165(1) of the Penal Code (Cap 67) which provides:

165(1) Any person who does an act not authorized by law or omits to discharge a legal duty and thereby causes any common injury, or danger or annoyance, or obstructs or causes inconvenience to the public in the exercise of common rights, commits the misdemeanor termed a common nuisance, and shall be liable to imprisonment for 1 year.

Mr Webb submitted that the essential element of the offence is that: the public at large be commonly injured, put at risk of danger, annoyed, obstructed or inconvenienced by the conduct of the accused. In support of that proposition, Counsel relied on the case of Attorney General –v- PYA Quarries Ltd [1958] EWCA Civ 1; [1957] 2 QB 169 where at p. 191 Denning LJ stated:

".... a public nuisance is a nuisance which is so widespread in its range or so indiscriminate in its effect that it would not be reasonable to expect one person to take proceedings on his own responsibility to put a stop to it, but that it should be taken on the responsibility of the community at large".

Thus submitted by Mr Webb that in the present case the elements of common nuisance were not met and the appellant could not be convicted of the offence of common nuisance. Counsel further submitted, even if the applicant pleaded guilty to the charge, the Magistrate has the discretionary power not to accept the appellant's plea of guilty, as the facts did not support the charge of common nuisance. The reference to the words "may convict" in section 247 in Criminal Procedure Code, says Counsel, give the Court the discretion not to convict where, on the evidence before the Court, the elements of the offence could not be established. That says Counsel is the position in this case and the conviction should be quashed.

Ms Beiatau, on the other hand, was adamant that the element of "public" in the offence was satisfied. Counsel submitted that the element of "public" as defined in section 4 of the Code was satisfied in this case. Counsel, however, acknowledged that to ascertain whether the "public" element of the offence is satisfied is a question of fact.

The facts of charge of common nuisance to which the appellant pleaded guilty are:

"On 26 March 2011 about 5.30 pm to 8 pm at Temakin, the accused was drunk and caused lots of disturbances and annoyances to Kaewateiti and house members".

Ms Beiatau submitted that "Kaewateiti and house members" satisfy the definition of "public" in this case. Thus, says Counsel, the conviction was properly entered in this case.

As acknowledged by Counsel, to ascertain whether the "public" element of the offence has been satisfied or not in a case of this nature, is a question of fact. In this case the disturbance or annoyance was done to "Kaewateiti and members of his house" at Temakin. The sphere and effect of the nuisance complained of in this case, in my view, must be shown to be such as to be of common or public concern before it can be actionable as an offence under section 165(1) of the Penal Code. The facts of the present case do not, in my judgment, satisfy the elements of common or public nuisance under section 165(1) of the Penal Code. Consequently the applicant pleaded guilty to an offence that he could not have committed.

Mr Webb developed the argument that because of section 271 of the Criminal Procedure Code, the applicant could not come by ay of appeal because he pleaded guilty. This is a case that can properly be dealt with under the powers of the Court in section 81(2) of the Magistrates' Court Ordinance. Having done so, and having found that on the facts admitted do not constitute the offence of common nuisance, the conviction must be quashed.

In her final submission Ms Beiatau argued that if the Court finds that the offence of common nuisance is not established in the case, the Court can proceed to convict the applicant of a lesser offence since the facts proved constituted the offence of criminal trespass. I do not feel convinced that in a case such as this, the argument advanced by Ms Beiatau can succeed. First, both the offences of common nuisance and criminal trespass are misdemeanours with one year imprisonment as the maximum. So criminal trespass is not the lesser offence of the two.

Secondly, on my reading of the facts to which the applicant had pleaded guilty, a conviction of criminal trespass under section 182(1)(a) of the Penal Code cannot be supported. The element of "intent" to commit an offence would still have to be shown on the evidence before a conviction for criminal trespass can be sustained. As I have said, that cannot be so in the present case.

It remains to be decided what to do with the applicant now that the five months sentence of imprisonment is found not to be excessive. On the facts before the Court, the applicant had not breached the terms of his suspended sentence. He should not, therefore, have been ordered to serve the five months sentence for common assault. The order suspending that sentence for one year still stands but the order to serve the said sentence imposed on 30 March 2011 is quashed.

Except as otherwise stated in this judgment, the application is granted as already indicated.

Dated the day of December 2011

SIR JOHN MURIA
Chief Justice