[1979] KILR 131

HIGH COURT OF THE GILBERT ISLANDS

Criminal Appeal No 9 of 1979

REGINA

v

TANIERU AWERIKA

(O'BRIEN QUINN C.J.)

Betio: 22nd November 1978

Criminal law - breach of suspension order - sentence suspended by High Court - offence leading to breach of order tried in Magistrates' Court - procedure to be applied - section 43A(3) (e) of Cap 8 applied.

The accused had been sentenced by the High Court to 2 years' imprisonment on 24th August 1978 for larceny by a servant and the sentence was suspended for a period of 2 years. On 21st November 1978 the accused was convicted and fined for the offence of common assault by the Magistrates' Court. The Presiding Magistrate referred the matter to the High Court as the new conviction indicated a breach of the suspension order.

HELD: That the presiding Magistrate was correct to refer the matter to the High Court as the accused was in breach of the suspension order but that as the suspended sentence was for dishonesty and the new offence was for common assault which was a totally different type of offence and as this was the first case of such a breach coming before the Courts in the Gilbert Islands the provisions of section 43A (3) (e) of the Penal Code (Cap 8) would be applied and the suspended sentence not activated.

Authorities referred to:

Penal Code (Cap 8)
Sections 43A (3) (e), 43A (5)

EDITORIAL NOTE:

This case should have been reported in 1978 G.I.L.R. but was inadvertently omitted.

O'BRIEN QUINN C.J.:-

Tanieru Awerika, who was convicted of larceny by a servant contrary to section 266(b) (1) of the Penal Code (Cap 8) by this Court on 24th August 1978 in HC Crim 9 of 1978 fined $100 and given a suspended sentence of 2 years' imprisonment, was on 21st November 1978 found guilty of Common Assault contrary to section 237 of the Penal Code (Cap 8) and fined $30 by the Magistrates' Court for the Bikenibeu Magisterial District.

2. He is, therefore, in breach of the suspension order and the Presiding Magistrate was correct to refer the matter to the High Court. In so doing he was acting within the scope of section 43A (5) of the Penal Code (to be found in the Penal Code (Amendment) Ordinance 1976 (Ordinance No 10 of 1976)).

3. The accused came before me this morning and was asked to account for his breach of the Order. His account was unsatisfactory as he could only say that his friends made him drunk and that he did not remember what he did.

4. In view of the fact that the offence before the Magistrates' Court did not involve dishonesty and in view of the fact that this is the first breach of a suspension order that has come officially before the Courts in the Gilbert Islands I will invoke the provisions of section 43A (3) (e) Cap 8 and not make any order in this matter.

5. However, I give the accused a severe warning that if he is ever in breach of his suspension order again during the two years running from 4th August 1978 he will be sent to prison for the two years which have been suspended in addition to any punishment he may be awarded by the Court for the offence which caused the breach.

6. The conviction and sentence of the Magistrates' Court, Bikenibeu are confirmed.