Daniel v Republic [1976] NRSC 6; [1969-1982] NLR (D) 53 (22 October 1976)

[1969-1982] NLR (D) 53

IN THE SUPREME COURT OF NAURU

Criminal Appeal 12 of 1976

RUVAE BAUEA DANIEL

v

THE REPUBLIC

22^nd October 1976

Sentence - malicious damage - mitigation - wrongful arrest.

Appeal against conviction for malicious damage to a telephone cord and the sentence of six weeks' imprisonment.

The appellant went to the police station voluntarily to report a traffic accident. The police officer to whom he made it accused him of being drunk. The appellant became angry and stood up to leave. The police officer caught hold of him to stop him doing so. He did not inform the appellant why he was stopping . A struggle ensued in the course of which the appellant deliberately pulled and broke the cord of a telephone. He pleaded guilty to doing so.

Held: Although the wrongful arrest of the appellant afforded no defence to the charge, it was a strongly mitigating factor. Sentence of six weeks' imprisonment with hard labour set aside and a fine of $20 imposed instead.

D. Degoregore for the appellant.
D. Gioura for the respondent.

Thompson CJ:

The facts as given to the District Court and agreed to by the appellant include a deliberate act of malicious damage by the appellant. It appears that he now regrets having admitted deliberately doing the damage, but he did admit it and his plea was properly recorded as a plea of guilty.

However, the other facts were not clearly stated to the District Court. At no time apparently was the appellant told that he was to be arrested or why. The sequence of events as related is that the police officer told the appellant that he was drunk, the appellant became angry and stood up to leave the police station and. the police officer then caught hold of him. As being drunk in a public place is an arrestable offence against section 3 of the Police Offences Ordinance 1968, the police officer was acting lawfully but should have told the appellant why he was arresting him. Possibly he did so, but that is not included in the facts as stated to the District Court. If he did not, it is questionable whether the manner of arrest was lawful and, if the appellant's offence had been one of assault, he might have had a defence of self-defence. By no stretch of the imagination can pulling; a telephone from its cord be an act of self-defence. But the circumstances in which the act was done may afford mitigation. Possibly, if all that facts were before the Court, it would be clear that there was no mitigating circumstance. But, on the basis of the facts which are before it, the appellant had some grounds for resenting the police officer catching hold of him and for struggling with him. The offence was committed during that struggle. Accordingly, on that basis there were mitigating circumstances which warrant a sentence less severe than that imposed.

The appeal is, therefore, allowed; the sentence is- set aside and a sentence of a fine of $20 or 2 weeks' imprisonment in default is imposed in its place.