Tabunga v Republic [2021] KIHC 26; Criminal Appeal 6 of 2020 (23 April 2021)

IN THE HIGH COURT OF KIRIBATI 2021

High Court Criminal Appeal Case No. 6 of 2020

[TEBOTU TABUNGA
[ APPELLANT
[
BETWEEN [AND
[

[THE REPUBLIC
RESPONDENT

Before: The Hon Commissioner of the High Court

31 March 2021

Mr Raweita Beniata (Director of the Office of the Public Legal Service) for Appellant
Ms Pauline Beiatau (Director of Public Prosecutions) for Respondent

JUDGMENT

1. This is an appeal against the decision of the Nonouti Magistrates’ Court in Case Number NoCrim 5/20, decision delivered on 14 May 2020. Mr Beniata for the Appellant appealed both the conviction and sentence on three grounds namely:
   • The Applicant was not advised of his right to legal representation and court procedures during the trial;
   • The Magistrates Court erred in convicting the Applicant when there is enough evidence from the record that showed that the supposed plea of guilty is not unequivocal;
   • The sentence is far too harsh and unreasonable.
     
2. The Appellant through his lawyer prayed for remedies to set aside both the conviction and sentence.
   
3. At the outset, there are important issues to be accounted by the lawyers in how they presented and conducted the appeal. On the part of the Appellant, it is always a matter of good practice to support the appeal by an affidavit rather than submitting evidence of facts from the Bar Table. This also applies for counsel for the Respondent.
   
4. A good and extensive preparation is vital for an appeal where the inferior court have presided over the adduced facts and decided the fate of the accused accordingly. It would be a challenge for legal practitioners bringing the appeal to the Appellate court thus the need to be well groomed in all factual and legal issues with respect to the case. The is equally the case for the counsel representing the Respondent.
   
5. I will now deal with the appeal. I have considered oral submissions by counsels for both the Appellant and Respondent as well as studying the record of the proceedings in the Magistrates’ Court of Nonouti. The first ground of appeal raised by the Appellant is the lack of advice by the court below to the Appellant to exercise his right to legal representation and failure of the court to assist the Appellant is advising him of the court’s processes during the trial.
   
6. Mr Beniata, argued that even though there is no specific provision for the accused in the court below to be legally represented, it is the duty of the court to advise and give ample time for the accused to get legal representation. I reject this assertion as from what I see in the record, the accused did not raise his need for a lawyer and there is no law obliging the Appellant to be represented by a lawyer in the Magistrates Court.
   
7. With respect to the submission by Mr Beniata about the failure of the court below to advise the Appellant about the relevant court’s processes during the trial, the record speaks otherwise. The accused was advised about the charge, the facts related to the offence alleged and even asked by the court if he have something to say before the sentence is given. What the Appellant submitted to the court were mitigating factors. The record shows that the court has done its part in leading the unrepresented accused through the court’s processes. I reject this second part of the first ground of appeal for the Appellant.
   
8. The second ground of appeal presented by the Appellant refers to the conviction of the Appellant in which Mr Beniata argued that the plea of guilty given in the court below is not unequivocal.
   
9. What I observed from the record, however, is that the accused pleaded guilty to the offence matched with the facts set out by the Prosecutor. When asked by the court if the statements by the Prosecutor which read,
   

“Tebotu Tabunga on the 3^rd day of April 2020 at Teuabu vil in the Nonouti Magisterial district did unlawfully took Toromon’s motorbike without his consent and then stole the headlight frame and vehicles meter tram”, were understood, the Appellant said, I understand.

In mitigation, the Appellant submitted that he apologized to the complainant for stealing his motorbike and parts of the motorbike. He further admitted that he stole the motorbike while he was drunk accompanied by the complainant’s son.

10. Another valid argument submitted by Ms Beiatau is the provision of the Criminal Procedure Code (1977) section 271 (1) in which “no appeal shall be allowed in the case of an accused person who has pleaded guilty and has been convicted of such plea by a magistrates' court, except as to the extent or legality of the sentence.” The Appellant pleaded guilty in the court below and is barred from appealing against conviction in light of his guilty plea.
    
11. The guilty plea by the Appellant was made based on the Appellant’s understanding of the offence alleged and facts of the offending charged. It is made unequivocally and with respect to section 271(1) of the Criminal Procedure Code, I reject this ground of appeal.
    
12. Finally, is the harsh and unreasonable sentence put forth as the final ground of appeal by the Appellant. Ms Beiatau for the Republic accepts the unreasonableness of the sentence passed by the court below. I agree with Ms Beiatau that the sentence, in all circumstances of the case, is manifestly excessive.
    
13. This was a property offence involving an item which was of significant value to the owner. However, the court should weigh the mitigating factors raised by the Appellant including the compensation made to the complainant, the fact that the son of the complainant assisted the Appellant in the commission of the offence, and more importantly, that there is no prior conviction of the offence.
    
14. In light of the above reasoning, the sentence passed by the Magistrates Court of Nonouti cannot stand and should be quashed.
    
15. The decision of this court is that the appeal is rejected for grounds one and two but succeed on the third ground. The conviction therefore stands but the sentence quashed and in lieu thereof the appellant is sentenced to a term of imprisonment already served on Nonouti and if he is still in custody, should be a free man now.

Dated the 23^rd of April 2021

ABUERA URUAABA
COMMISSIONER