Eneri v The Republic [2023] KIHC 38; Criminal Appeal 5 of 2023 (25 August 2023)

IN THE HIGH COURT OF KIRIBATI

HIGH COURT CRIMINAL APPEAL 5 OF 2023

BETWEEN	EMIMWA ENERI Appellant
AND	THE REPUBLIC Respondent

Hearing:	21 July 2023
Judgment:	25 August 2023
Appearances:	Ms Taoing Taoba, for the Appellant Ms Teneaki, for the Republic

JUDGMENT

1. This is an appeal from the decision of the Magistrates Court of Arorae in case Arocrim 02/23 with the following grounds of appeal:
   
   • The appellant wish to invoke section 271(1) of the Criminal Procedure Code challenging the extent or legality of the sentence.
     

In the alternative:

• The Magistrates Court erred in law in holding that the only penalty available is imprisonment when in fact the court had a discretion whether to impose a fine or an imprisonment;
• The sentence imposed by the Magistrates is excessive.
  

2. For the first ground, Ms Taoaba, submitted that the conviction should not stand. The reasons being that the Paralegal from the Office of the Public Legal Services advised the Appellant to plead guilty when in fact she did not want to.
   
3. Another explanation for ground 1 is the fact that the Appellant was not given time to respond whether she agreed with the summary of facts read out by the prosecution.
   
4. The Appellant’s alternative grounds of appeal refers to the sentencing measures applied by the court below and the final sentence imposed. Ms Taoaba, for the Appellant submitted that the circumstances of the Appellant’s offending and mitigating factors submitted to the court below does not warrant a custodial sentence. She further submitted that a fine is more appropriate.
   
5. Ms Teneaki for the Republic strongly opposed the appeal grounds and submitted that for the first ground, section 271(1) is against the Appellant in which she could not challenge her conviction in light of her guilty plea. She emphasized the fact that she was legally represented in the court below and always in court during the hearing and sentencing.
   
6. She could not come to this court now on appeal complaining about her guilty plea and the processes involved in the Magistrates Court.
   

Findings of this court

7. Section 271(1) of the Criminal Procedure Code set out the following provision:
   

Limitation of appeal on plea of guilty and in petty cases

(1) 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. (my emphasis)

8. The above provision is very clear that an accused person cannot appeal against conviction if the accused pleaded guilty in the court below. I agree with, Ms Teneaki, that the Appellant cannot complain now about her sentence given that she pleaded guilty to the charges laid by the prosecution in the court below. Not only that but she was legally represented and she appeared in every court’s hearing until her final sentence was imposed.
   
9. However convincing the Appellant’s submission is, section 271(1) barred her from appealing her conviction. I reject the first ground of appeal.
   
10. As to the sentence imposed, Ms Taoaba, submitted that two months is excessive for an offence of common assault in light of section 237 of the Penal Code.
    
11. The records of the proceedings in the court below shows that the Magistrates in their decision sentenced the Appellant to two months imprisonment with no reasons for such decision. The sentence imposed should always be explained in terms of why the court reached such sentence. It should reflect the offence committed, proportionate to how the offending is committed by the accused and to have a look at other measures of sentencing not only imprisonment.
    
12. Common assault is a minor offence in categorizing the offences. In terms of the offending committed by the Appellant, she pleaded guilty of common assault in which she hit the face of the victim three times causing a scratch to the victim’s lower lip. Even though the offence charged was common assault, the summary of facts amounts to a more serious charge. However, this court will treat the charge as it was charged by the Police, a minor offence of common assault.
    
13. I agree with Ms Taoaba that the final sentence is excessive and should be overturned. The Magistrates Court of Arorae failed to clarify and justify their decision in sentencing the Appellant to two months imprisonment.
    
14. I grant the third ground of appeal (similar to the second ground) and quash the sentence passed by the Magistrates Court of Arorae in case Arocrim 02/23.
    
15. In light of the aggravating and mitigating factors presented to the court below, I substitute the sentence to a fine of $200 to be paid to the Republic one week from the date of this judgment.
    

Orders of this court:

1. The first ground of appeal against conviction is rejected and the conviction made by the Magistrates Court of Arorae is upheld;
2. The third ground of appeal (similar to the second ground) against the sentence is granted and the sentence of two months’ imprisonment is quashed;
3. A substitute sentence against the Appellant of a fine of $200 to be paid to the Republic, two weeks from today is imposed.
   

__________________________
MR ABUERA URUAABA,
COMMISSIONER OF THE HIGH COURT