IN THE HIGH COURT OF KIRIBATI
(BEFORE THE HON R LUSSICK C.J.)

HCCrA 16/96

BETWEEN:

BAITAU TEEM
Appellant

AND:

THE REPUBLIC
Respondent

Mr D Lambourne for the Appellant
Mr T Tabane for the Respondent

JUDGMENT

On the 5th of November 1996 the accused pleaded guilty in Bikenibeu Magistrates' Court to one charge of simple larceny and one charge of damaging property. On the first count he was sentenced to 3 months' imprisonment and on the second count he was sentenced to 2 months' imprisonment, the sentences to run consecutively. The appellant appeals the decision of the lower court on the grounds that in all the circumstances, the sentence imposed was manifestly excessive. 

The charge sheet shows the accused as being 17 years of age and coming from Nonouti Island. It appears that the Magistrates' Court accepted the information on the charge sheet without addressing any enquiries to the accused. 

There is evidence before me that at the date of the hearing the accused was in fact aged 16 years and 11 months and not 17 years as thought by the magistrates. The age of the accused was significant because, being under 17 years of age, he comes under the definition of "young person" in section 26 of the Magistrates' Courts Ordinance. Under that section a young person cannot be sent to prison for more than one month. Therefore the sentence of the Magistrates' Court was unlawful and cannot be allowed to stand. 

The Magistrates' Court, as part of the sentence, also ordered that the appellant be returned to Nonouti where he was to remain for one year. This particular order was apparently made without any questions being asked of the accused and without giving him a chance to address the court on that issue. As it turns out, there is evidence now before me to establish that the accused was born in Tarawa and that he has never been to Nonouti. Had he been given a chance to address the court no doubt he would have apprised the magistrates of these facts. In my view, the fact that he was not given that opportunity amounts to a miscarriage of justice. 

It is clear that in all the circumstances the appeal against sentence should be allowed. The custodial sentences of the Magistrates' Court are set aside and in lieu thereof the accused is sentenced to the time already served, the effect of which is that he is to be released from custody immediately. The residence order made by the Magistrates' Court is also set aside.

THE HON R B LUSSICK
Chief Justice
(13/12/96)