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

HCCrA 26/98

BETWEEN:

TIEBERI RAOBIN
Appellant

AND:

THE REPUBLIC
Respondent

Ms J Fleer for the Appellant
Ms P Tebao for the Respondent

Date of Hearing: 21 October, 12 November 1998

JUDGMENT

On the 18th of September 1998 the appellant pleaded guilty before the Bikenibeu Magistrates' Court to one count of damaging property contrary to section 319(1) of the Penal Code Cap. 67 and two counts of criminal trespass contrary to section 182(1) of the Penal Code. On each of the three charges he was sentenced to 2 months' imprisonment, the sentences to run consecutively. 

That sentence is appealed on two grounds but it is only necessary for the Court to consider the first of the grounds, which reads as follows: 

(1) The sentence imposed by the Magistrates' Court is contrary to subsections (1), (3) and (4) of section 26 of the Magistrates' Courts Ordinance and, as such, is contrary to law. 

Under section 26 of the Magistrates' Court Ordinance no sentence of imprisonment shall be imposed on any person unless he is over the apparent age of 15 years. The magistrates asked the appellant during the hearing in the lower court how old he was and he told them that he was aged 17. Furthermore, the appellant looks a lot older than 15 years of age. The magistrates therefore were not at fault in dealing with the appellant as an adult. It was never alleged to them that he was under the age of 15 years. 

However, I have heard sworn evidence from the appellant and his mother. From that evidence it emerges that the reason why the magistrates were not told that the appellant was under 15 years of age was because the mother was unaware that the accused had been charged until he was actually put in prison. The birth was never registered and the appellant was under the belief that he was 17 years of age until his mother told him otherwise. It is clear from the evidence that the appellant is currently aged 14. 

I do not think that there was anything wrong with the sentences imposed by the magistrates at the time. However, in the light of subsequent evidence which was not placed before the lower court, it is clear that the sentences were contrary to law. I might add that there was no evidence tendered by the Republic to contradict the sworn evidence of the appellant and his mother. 

The appellant has already spent 1 month in prison and it is to be hoped that that has been a salutary lesson to him. 

It follows from what I have said that the appeal must be allowed, and the sentence imposed by the Magistrates' Court is accordingly set aside.

THE HON R B LUSSICK
Chief Justice
(12/11/98)