Kaeba v Republic [2015] KIHC 85; Criminal Appeal 9 of 2014 (13 March 2015)

IN THE HIGH COURT OF KIRIBATI

CRIMINAL APPEAL NO. 9 OF 2014

BETWEEN

TOKATAAM KAEBA
APPELLANT

AND

THE REPUBLIC
RESPONDENT

Before : The Hon Mr Justice Vincent Zehurikize

13 March 2015

Ms Fuatino Noa for Appellant
Mr Taburuea Rubetaake for Respondent

JUDGMENT

Zehurikize, J: This judgment is in respect of an appeal against the decision of the Magistrates' Court sitting at Bairiki, in criminal case
No. 289/2014, dated 30th June 2014. The appeal is against the sentence of five years passed by the Magistrate on ground that it is manifestly excessive.

The Appellant prays:

(i) That the appeal be allowed;
(ii) That the sentence be set aside;
(iii) Such further orders that this Honourable Court may deem just.

When the matter came up for hearing Ms Fuatino Noa appeared for the Appellant while Mr Rubetaake was for the Respondent.

In support of the appeal Ms Noa pointed out that the Appellant, in the trial court, was not informed of his right to seek legal advice and as such he was not legally represented.

With due respect to learned Counsel, I do not see the relevance of this argument to the appeal against sentence. Counsel did not cite any law which requires the accused in a magistrates' court to be legally represented. There is none.

The learned Counsel further complained that the Magistrate did not specify the sentence for each count. I think there is merit in this contention. The appellant was faced with two offences. In Count 1 he was charged with Criminal Trespass contrary to section 182(2) of the Penal Code. The maximum sentence for this offence is one year. He was also charged in Count 2 with Unlawful Wounding contrary to section 223 of the Penal Code. The maximum sentence Court could impose is five years' imprisonment.

The trial Magistrate ought to have imposed separate sentences for each count and determine whether the sentences will run concurrently or consecutively. However this is an error that can be corrected by an appellate court as I will do hereinbelow.

Counsel went further to clarify that the main issue in this appeal is that the sentence of five years is excessive. She cited criminal appeal
No. 6/01 Toteero Mwamwanne v Republic, criminal case No. 52 of 2003 Republic v Bonrawa and criminal case No. 12 of 2004 Republic v Barenaba in a bid to drive his point home. The main point was that the five years sentence was excessive.

In reply Mr Rubetaake told the Court that he did not support the conviction and sentence because the trial was tainted with irregularities. He pointed out that the trial magistrate did not take into account mitigating and aggravating factors. That the appellant was not legally represented, because he needed a lawyer to explain the charge to him, but at the same time Counsel recognised that there is no law obliging the accused in a magistrate's court to be represented by a lawyer. I must add here that it is the duty of the trial magistrate to explain the charge to the accused before he/she takes the plea.

I have considered submissions by both Counsel and perused the short record of the trial court. I will begin with Mr Rubetaake's view that the trial had a lot of irregularities which was the reason why he did not support the conviction.

I must state that I have noted with concern the way magistrates conduct the plea of guilty. It is sometimes difficult for the Court to know whether the charge was fully explained to the accused and whether he knew what he was pleading guilty to. Let alone what his plea really was.

In criminal appeal No. 8 of 2014 Tarataake Karakaua v Republic this Court outlined the procedure to be followed to ensure that the plea being taken is unequivocal and not revocable. Briefly it is as follows. The charge has to be read and explained to the accused and if he admits the offence, the words used in admitting the offence should be recorded. Thereafter a plea of guilty is recorded. Thereafter the prosecutor should state the facts that led to the charge. This statement of facts should be capable of disclosing all the ingredients of the offence.

If the accused agrees that the facts are true, again the trial magistrate should record the words used by the accused in admitting the facts as narrated. It is at this stage that the trial magistrate should put it on record, that on his own plea he finds the accused guilty of the offence and convict him accordingly.

Before sentencing, the magistrate should hear both the prosecution and the convict's submission on mitigating and aggravating factors before he/she imposes the appropriate sentence. The submissions from both sides would help the magistrate in identifying reasons for the sentence imposed. Such procedure will be of great help to the appellate court (High Court) to determine whether the plea of guilty was proper and unequivocal and also whether the sentence was appropriate in the circumstances of the case.

It should be noted, however, that there is no legislation detailing out the procedure to be followed when conducting a plea of guilty. Regulation No. 15(2) to the Magistrates' Court Ordinance states:

"If the person charged pleads 'guilty', the plea shall be recorded in the exact words used by him and he may be convicted thereon". The underlining is mine.

The reason why the plea must be recorded "in the exact words used by him" is to ensure that there is no complaint that he was misunderstood as to what plea he was taking. It is important that the plea is not ambiguous or one capable of several meanings or which can be explained one way or the other. The plea of guilty must be one which is not revocable or one that raises any argument one way or the other. In other words it must be unequivocal.

The most important point in a plea of guilty is that the accused must fully understand the charge he is pleading to and to take a clear and unequivocal plea of guilty.

In the instant case the two charges were read to the accused. It is recorded that the plea is of guilty to both counts. Facts in respect of each count were stated and recorded. Then on previous conviction the magistrate recorded "NIL". Then the Magistrate went ahead to find the accused guilty and imposed his sentence.

The procedure followed by the trial court is not as elaborate as I have tried to set out above. But the most important thing to be noted is that having entered a plea of guilty to both counts the Magistrate first received facts in respect of each offence before finding the accused guilty as charged. This was a fundamental step, despite the fact that he did not record the accused's reaction to the facts as stated.

In my view, this was an irregularity that did not affect the validity of the conviction. The two offences were simple and straight forward without complicated elements of the offence. I have no doubt that the appellant admitted that he entered the complainant's premises at night and stabbed his child. It was as simple as that.

While it is true that the trial magistrate did not elaborately follow the procedure in recording a plea of guilty, I am nevertheless of the view that the failure to do so did not cause a substantial miscarriage of justice and therefore within the spirit of the proviso to section 70(1) of the Magistrates' Courts Ordinance I find no merit in Counsel for the Republic's contention that the conviction cannot stand. I find that on the whole the appellant understood what he was pleading to and his plea of guilty was unequivocal. The argument by Counsel for the Republic is rejected. The conviction is valid.

As regards contention by Counsel for the appellant, I have already found that the argument that the appellant was not legally represented has no merit. However, I do agree that the trial magistrate should have listened and recorded statements from both sides as to the mitigating and aggravating factors before proceeding to impose the sentence. It was not enough to note that the convict had no previous conviction.

Further, since the appellant was convicted of two offences, it was incumbent on the trial magistrate to hand out a sentence for each count and determine whether such sentences would run concurrently or consecutively. However, the above error does not invalidate the conviction. It is an error which can be corrected by this Court. I do this by setting aside the sentence of five years and impose separate sentences for the two offences. On Count 1 of Criminal Trespass, bearing in mind that he was a first offender, who pleaded guilty, I sentence him to a term of six months' imprisonment.

For similar reasons, but also taking into account that entering the complainant's premises at night to stab his child was a traumatising act I sentence the convict/appellant to the term of 2½ years' imprisonment. Both sentences shall run concurrently. It is noted that by the time the appellant was admitted on bail on 22 December 2014 he had already served almost six months of the sentence, it follows that he will go back to prison to serve the remaining two years.

To that extent the appeal is allowed, the sentence of five years is set aside and substituted with that of 2½ years' imprisonment less the six months already served.

Dated the 17th day of March 2015

THE HON MR JUSTICE VINCENT ZEHURIKIZE
Judge