[1979] KILR 81

HIGH COURT OF THE GILBERT ISLAND

Criminal Appeal No 23 of 1979

KAITU OMERI alias BIRIRO

v

REGINAM

(O'BRIEN QUINN C.J.)

Betio: 5th July 1979

Criminal appeal - appeal against sentence - previous convictions of appellant not available - Magistrates' Court informed that appellant was "a notorious criminal" - appeal allowed - sentences reduced.

This appeal is reported only on the point that the procedure was totally wrong, as if the Police cannot produce proper evidence of an accused's previous convictions they should refrain from mentioning them.

HELD: That if the accused has previous convictions they should be read out in Court, after the accused has been convicted, and the accused asked if he agrees with them and, if the accused agrees, the Court should take account of them but, if the accused disagrees, they must be proved by the prosecution, under section 125 of the Criminal Procedure Code (CAP 7), or abandoned. That the informing of the Court that the accused was a "notorious criminal" was a totally wrong, unfair and unjust procedure.

Authorities referred to:

Criminal Procedure Code (Cap 7) Section 125

O'BRIEN QUINN C.J.:-

This is an appeal against the sentence passed by the Magistrates' Court for the Bikenibeu Magisterial District on 6th June 1979 when the appellant having pleaded "Guilty" to four counts, namely Drunken driving contrary to section 26(1) of the Traffic Ordinance (Cap 71), Damaging property contrary to section 319(1) of the Penal Code (Cap 8) and Driving without a driving licence contrary to section 16 of the Traffic Ordinance (Cap 71), and was sentenced to six months' imprisonment on the first count, three months' imprisonment on the second count, two months' imprisonment on the third count and one month's imprisonment on the fourth count, the sentences on the first, second and fourth counts being ordered to run concurrently, while that on the third count was ordered to run consecutively and all the sentences ordered to run consecutively to the sentence he was serving at the time of conviction.

2. The appellant's grounds of appeal are that he was injured in the accident and was suffering from those injuries while in prison as his jaws had been wired together and he was finding it difficult to eat.

3. The facts given by the Police Prosecutor in the Magistrates' Court and agreed to by the appellant were that he took the motorcycle of a Mr Comer without his consent and, while drunk, fell off the motorcycle at the end of the causeway near Ambo Club causing damage to the motorcycle and injuring himself. The appellant also admitted that he did not have a driving licence.

4. When the appellant had been convicted the prosecution stated that the previous convictions of the appellant were not available but stated that the appellant was "a notorious criminal".

5. This procedure was totally wrong. If the accused in a case has previous convictions they should be read out in Court and the accused asked if he agrees with them; if the accused agrees the Court will take account of them but if the accused disagrees, they must be proved by the prosecution or abandoned. Previous convictions which are not agreed by the accused or proved in the proper legal manner under section 125 of Cap 7 (C.P.C.) cannot be taken into account and the Court must, in passing sentence, ignore previous convictions which are neither agreed to nor proved. In this present case the appellant was given no opportunity to agree, nor were any convictions proved. Accordingly, the Magistrates' Court should have ignored what the Police prosecutor said and should have treated the appellant as a first offender.

6. The police should not make any mention of previous convictions unless they have the necessary documents in Court as it is most unfair and unjust to inform the Court of the bad character of the accused if there is nothing to substantiate it.

7. I must, therefore, now look upon the appellant as a first offender and treat the Magistrates' Court as having taken account of previous convictions of the appellant which were not proved or agreed to and reduce the sentences accordingly.

8. The maximum sentence under section 26(1) of Cap 71 as amended by Ordinance No 6 of 1975 is a fine of $200 and imprisonment for one year, while the maximum sentence for the other motoring offences are proportionately lower. Further it is not normal to imprison accused persons for first offences in drunken driving cases. Also, while the maximum sentence, for damaging property, under section 319(1) of Cap 8, is two years, in the circumstances of this case it would not be usual to imprison a first offender.

9. Taking all these matters into consideration and, bearing in mind that the appellant has already served just one month's imprisonment, I do not consider that any purpose would be served by converting the imprisonment to a fine. However, as drunken driving is a serious offence and as the appellant was entirely reckless in his conduct I must not err on the side of leniency in the matter.

10. I, therefore, order that the sentence on the first count be reduced to one of 9 weeks' imprisonment, that on the second count to one of 2 months' imprisonment, that on the third count to remain the same and that on the fourth count to be reduced to two weeks and I order that all the sentences run concurrently but consecutively to any term of imprisonment the appellant may now be serving.

11. This means, in effect, that the appellant will now serve a total sentence of 9 weeks' imprisonment commencing at the end of any sentence he was serving on 6th June 1979, less any remission that he may earn.

12. The appeal is allowed to the extent stated above and the Police and the Courts are directed to note the procedure on previous convictions for the future.