Neneia v Republic [2021] KIHC 6; Criminal Appeal 6 of 2021 (15 November 2021)

IN THE HIGH COURT OF KIRIBATI

CRIMINAL APPEAL NO. 6 OF 2021

[MIITA NENEIA APPELLANT
[
BETWEEN [AND
[
[THE REPUBLIC RESPONDENT

Before: The Hon. Chief Justice William Kenneth Hastings

Date of Hearing: 5 November 2021
Date of Judgment: 15 November 2021

Counsel: Ms. Elsie Karakaua for the Appellant

Ms. Pauline Beiatau for the Respondent

JUDGMENT OF HASTINGS CJ

1. Miita Neneia was found guilty and convicted in the Banaba Magistrate’s Court of one count of criminal trespass contrary to s 182(1)(a) of the Penal Code and one count of damaging property contrary to s 319(1) of the Penal Code. She was sentenced to 6 months’ imprisonment on the first count, and 12 months’ imprisonment on the second count, to be served cumulatively for a total of 18 months’ imprisonment. She was in custody from 7 July 2021 until 24 August 2021 when her sentence was stayed pending appeal. She appeals her convictions and sentence.
2. I will consider the appeals against conviction first.
3. Ms Neneia pleaded not guilty to both charges. After hearing the evidence, the Magistrates found her guilty and convicted her. The translation of the evidence states that Ms Neneia said she “went to the place” to collect a payment for unloading cargo. She said she “went there” but she “wasn’t trespassing” because according to Banaban custom, as her mother Lillian’s daughter, it was lawfully her home, not her stepfather Tematau’s home. She said she kept belongings there and had access to the house. She cross-examined Tematau who gave evidence for the prosecution. She asked him “whose house did I visit?”. He answered “Lillian’s.” Inherent in that question is an admission that she did indeed visit the house. He did not actually see her throw something that damaged the glass louvres, but a neighbour named Tokomarewe Tebewbwe said he saw her throw “something at the window twice.” The appellant asked him, “Did you really know why I was there?”, again admitting that she was at the property.
4. With respect to the conviction for trespass, s 182(1)(a) provides that:
   182. (1) Any person who –

(a) enters into or upon property in the possession of another with intent to commit an offence or to intimidate or annoy any person lawfully in possession of such property;

is guilty of a misdemeanour, ... and if the property upon which the offence is committed is any building used ... as a human dwelling ... the offender shall be liable to imprisonment for 1 year.

5. Ms Karakaua submitted there was insufficient evidence to find the appellant entered the property, and in any event in Banaba custom, she had legal ownership of the house in the absence of the mother. Ms Beiatau submitted there was sufficient evidence before the Magistrates to find the appellant guilty.
6. I agree with Ms Beiatau. With respect to the first element of the offence, the appellant admitted several times that she “entered into or upon property” when she asked the prosecution witnesses questions, and when she gave her evidence in chief. With respect to the second element of the offence, s 182(1)(a) does not require proof of lawful ownership of the property that is entered. It merely requires proof of possession. In this case, it may well be Banaban custom that property is passed on to daughters, but it was her stepfather Tematau who was in possession of the house at the time. With respect to the third element of the offence, having admitted throwing something at the house, it can be inferred she had the intent at least to annoy Tematau. I find therefore that the prosecution proved beyond reasonable doubt the appellant trespassed. There was, as a result, sufficient evidence before the Magistrates to find the appellant guilty. The appeal against conviction on count one is dismissed.
7. Turning to the second conviction, for damaging property, s 319(1) states
   319. (1) Any person who wilfully and unlawfully destroys or damages any property is guilty of an offence, which, unless otherwise stated, is a misdemeanour, and he shall be liable, if no other punishment is provided, to imprisonment for 2 years.
8. Ms Karakaua submitted the word “unlawfully” requires that the property damaged must be the property of another. There was no evidence before the Magistrates that the appellant unlawfully damaged the property of another. She also submitted that there was no evidence of willfulness. Proof of both willfulness and unlawfulness is required. Ms Beiatau submitted that both elements are satisfied by evidence that the appellant threw something at the house. There was no dispute that the third element of the offence was satisfied. Some glass louvres were damaged.
9. I now must agree with Ms Karakaua. The Nauru Supreme Court interpreted a similar provision in Republic of Nauru v Dogupe.^[1] The Nauru Supreme Court said unlawful damage required proof of damage to the property of another. That is a different question from who was in possession of property. Unlawfulness requires an absence of permission from the legal owner of the property to damage it. Under Banaban custom, the legal owner of the glass louvres, as distinct from who was possessing them at the time, was Lillian and in her absence, the appellant. If the property was indeed legally owned by the appellant, then there was no unlawful damage because it is generally not possible to unlawfully damage one’s own property. There was no evidence as to whether or not Lillian gave permission to the appellant if the property was legally owned by Lillian, but she did not complain about it later. I find therefore there was insufficient evidence for the Magistrates to convict the appellant on the second count because there was no evidence the louvres were “unlawfully” damaged. The appeal against conviction on the second count is allowed, and the conviction is quashed.
10. That leaves the appeal against sentence. Both Ms Beiatau and Ms Karakaua submitted the sentence was too harsh. Both agreed that the sentences on each charge should have been concurrent as they both arose from the same incident. Ms Karakaua submitted that a non-custodial sentence was appropriate in this case because the incident was relatively minor. To my mind, this was an ideal case for the Magistrates to have invoked s 35(1) of the Magistrates’ Courts Ordinance in order to “promote reconciliation and encourage and facilitate the settlement in an amicable way.” It is apparent that the appellant and her stepfather do not get along, but they will have to find a way to live with each other as long as Tematau and Lillian are together.
11. Furthermore, imprisonment should only ever be imposed as a last resort, and only if the offending is so serious that no other sentence would be appropriate. In this case, the appellant spent six weeks in custody before being granted bail pending the outcome of this appeal. Her offending was at the lower end of the scale and did not warrant a sentence of 12 months’ imprisonment. I consider the time she served in custody to be sufficient punishment.
12. In summary,
    1. The appeal against conviction on count 1 is dismissed.
    2. The appeal against conviction on count 2 is allowed. The conviction and sentence are quashed.
    100. The appeal against sentence on count 1 is allowed. The sentence of 6 months’ imprisonment is quashed and replaced with time served.

Dated 15^th day of November 2021

Hon William Kenneth Hastings

Chief Justice

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^[1] Republic of Nauru v Dogupe [2016] NRSC 12.