Republic v Nakareke [2014] KIHC 30; Criminal Case 63.2012 (22 July 2014)

IN THE HIGH COURT OF KIRIBATI 2014

CRIMINAL CASE NO. 63 OF 2012

BETWEEN

THE REPUBLIC
PROSECUTOR

AND

GARY NAKAREKE
1ST ACCUSED

MITERU ANETI
2ND ACCUSED

BOREREI TIRITAAKE
3RD ACCUSED

Before: The Hon Mr Justice Vincent Zehurikize

20 June 2014

Ms Pauline Beiatau for Prosecutor
Mr Christopher Meibusch for 1st Accused
Mr Teetua Tewera for 3rd Accused

RULING ON SENTENCE

Zehurikize, J: The three convicts namely Gary Nakareke (A1), Miteru Aneti (A2) and Borerei Tiritaake (A3) were charged with three offences. In count one, they were charged with Burglary contrary to section 292(a) of the Penal Code Cap 67. In count two, they were charged with Damaging Property contrary to section 319(1) of the Penal Code while in count three, they are charged with Criminal Trespass contrary to section 182(2) of the Penal Code. When the charges were read to them, all the three convicts admitted the offences and were therefore found guilty and convicted as charged. The only point of contention is the severity of the sentence to be imposed on them.

Ms Beiatau Counsel for the Republic submitted that the first and third convicts had previous convictions and as such should be ordered to serve their sentences in this case after completion of the sentences they are serving.

On the other hand Mr Christopher Meibusch was of the view that since the previous convictions relate to offences committed after the commission of the offences in the instant case, the convicts should be treated as first offenders. He reasoned that if the Court system was efficient this case would have been tried before the case in which they were convicted as the incidents were subsequent.

I have considered submissions by both Counsel and I respectfully disagree with their respective opinions.

I do not see any legal basis for this Court to pass a sentence and in effect suspend its operation until the convicts have completed serving sentences in earlier convictions in different cases tried by different courts.

I find that the relevance of the earlier convictions is to set the antecedent of the convict clear so that in handing out its sentence this Court takes into account the criminal character of the convict. The fact of previous convictions would influence this Court in as much as to what sentence should now be imposed. It cannot go into the issue of how the sentence would be served. The sentence would have to be served according to the law. The sentence starts being served from the date of commitment to prison.

On the other hand this Court cannot shut its eyes to the fact that A1 and A3 have previous convictions in view of the evidence placed before Court by the Director of Public Prosecution simply because these convictions were in respect of offences committed subsequent to the crimes in this case. This Court has no business investigating why the subsequent offences were tried and concluded before the instant case. But what is clear is that both A1 and A3 now have previous convictions to the present conviction and they must be taken into consideration when assessing the sentence to be imposed. The convicts cannot be taken as first offenders which they are not.

I would also like to comment that the issue of whether Court should direct that the sentences should run concurrently or consecutively arises only where the convict is found guilty of offences in the same case in the same trial. It does not extend to other trials by different courts. Whether the sentences should run concurrently or consecutively is a matter of discretion by the trial Court bearing in mind the aggregate gravity of the offences as a whole.

Counsel for the third convict cited several cases such as R –v- Blake (1962) 2 All ER 125 and Republic –v- Teitikai (2010) KIHC 96 on the effect of consecutive sentences. I agree with the view that as a general rule consecutive sentences should not be such as to result in an aggregate term wholly out of proportion to the gravity of the offences, looked at as a whole and also agree that the final duty of the Court is to make sure that the totality of the consecutive sentences is not excessive. In fact it is because of this that the Court cannot look at convictions in other cases involving the same convict, but at the offences committed in the case before it.

Bearing the above in mind I will proceed to hand out the sentences in this case.

All the convicts pleaded guilty thereby saving the Court's time and scarce resources. The second convict apparently is a first offender as no previous criminal record was presented. On the other hand the first convict Gary Nakareke's character is tainted with three previous convictions. On 25 February 2013 he was convicted of Criminal Trespass contrary to section 182(1) of the Penal Code and sentenced to one year imprisonment but suspended within one year. This did not deter him because on 25 May 2013 he was convicted of Simple Larceny contrary to section 254(1) of the Penal Code and sentenced to five years imprisonment. Lastly on 3 June 2013 he was convicted of Theft contrary to section 254(1) of the Penal Code and sentenced to three years imprisonment. He is still serving the last two sentences.

The third convict, Borerei Tiritaake, carries on his shoulders 11 previous convictions, which I can summarise as follows: six of them are of Drinking under Age contrary to section 68(2)(b) of the Liquor Ordinance while others were of Damaging Property, Breaking and Entering, Escaping from Lawful Custody and Storebreaking. It is a record of a spoilt young man.

The second convict Miteru Aneti, as already pointed out, is a first offender. But he told the Court of how he has failed to live with anybody. He is a fighter who has decided to live alone on the rubbish heap.

Having considered all the circumstances of this case and the peculiar circumstances of each of the convicts I will sentence them as follows:

On the first count of Burglary contrary to section 292(a) of the Penal Code I sentence the first convict one Gary Nakareke and the third convict one Borerei Tiritaake to a term of six years imprisonment each. The second convict will serve a term of two years imprisonment.

On the second count of Damaging Property contrary to section 319(1) of the Penal Code, I sentence each of the convicts to a term of two years imprisonment.

On the third count of Criminal Trespass contrary to section 182(2) of the Penal Code I sentence each of the convicts to a term of one year imprisonment. The sentences imposed on each of the convicts shall run concurrently.

Dated the 22nd day of July 2014

THE HON MR JUSTICE VINCENT ZEHURIKIZE
Judge