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Teababa v Republic [2015] KIHC 14; Criminal Appeal 6.2014 (8 April 2015)

IN THE HIGH COURT OF KIRIBATI

CRIMINAL APPEAL NO. 6 OF 2014

BETWEEN:

BENIATI TEABABA
APPELLANT

AND

THE REPUBLIC
RESPONDENT

Before: The Hon Justice Vincent Zehurikize

8 April 2015

Ms Maere Kirata for Appellant
Ms Pauline Beiatau for Respondent

ON SPOT JUDGMENT

Zehurikize, J: This is an appeal against sentence of five years imposed by the trial magistrate after the appellant had pleaded guilty to Assault Causing Actual Bodily Harm contrary to section 238 of the Penal Code.

I agree with both Counsel that the record of proceedings availed to Court do not show that the convict made any presentation in respect of mitigating factors. Even the prosecution did not make any submissions at all. It is therefore not clear what persuaded the trial magistrate to impose the maximum sentence of five years. The magistrate did not attempt to give reasons for her decision. The sentence of five years was not only excessive but it was also arbitrary as no grounds were disclosed for such a punishment.

For the above reasons the appeal is allowed and a sentence of five years set aside. It is substituted with a sentence of one year and six months.

Before I take leave of this matter I would like to again comment on the way pleas of guilty are conducted in the Magistrates' Courts. In the instant case the magistrate omitted to record the words used by the accused in pleading guilty as required under Rule 15(2) of the Magistrates' Courts Ordinance.

After narrating the facts and admitted by the accused the magistrate should have gone ahead to find the accused guilty as charged and convict him accordingly. Then the magistrate should have gone ahead to allow the prosecutor to make submissions on aggravating circumstances if any. Then the Court should have given the convict/appellant an opportunity to say something in mitigation.

It is only after the above that magistrate could go ahead to impose her sentence giving reasons for her decision. This procedure was not followed in this case. However although the procedure was not properly adhere to, I find that on the whole the conviction cannot be disturbed since the convict got explained of the contents of the charge and pleaded guilty to it. May be it is for this reason that the appeal is against sentence only and since the prosecution did not attack the conviction I have no reason to disturb the same.

In conclusion the appeal is allowed with the consequences stipulated above.

Dated the 8th day of April 2015

THE HON MR JUSTICE VINCENT ZEHURIKIZE
Judge