[1979] KILR 22

HIGH COURT OF THE GILBERT ISLANDS

Criminal Appeal No 7 of 1979

MARIA KAUTU

v

REGINAM

(O'BRIEN QUINN C.J.)

Betio: 2nd February 1979

Criminal appeal - appeal against conviction and sentence - simple theft - first offender - surrounding circumstances - custodial sentence not proper punishment for a first offender where offence not serious - money stolen recovered - sentence reduced and suspended - fine imposed - right of re-examination abused.

The appellant, a young mother of five children, while at the counter at the Nanolelei Co-operative, Betio, where a large amount of money was being checked, succumbed to the temptation to take a $50 note with which she left the shop and was later found using elsewhere. In her cautioned statement to the Police she said that the note had stuck to her basket which she had put on the counter and she discovered the note only later and, not realising it was the property of the Nanolelei, she kept it. In the Magistrates' Court she said she was drunk at the time and remembered nothing. She was convicted and sentenced to 6 months' imprisonment.

HELD: (1) That the conviction would be confirmed but the sentence would be reduced to one of three months' imprisonment and suspended for one year and a fine of $25 imposed, as a custodial sentence is not the proper punishment for a first offender where the offence is not serious and the surrounding circumstances such as age and family circumstances are such as to warrant leniency.

(2) That the abuse of the right to re-examine witnesses by asking questions which do not remotely arise out of the cross-examination must stop.

Authorities referred to:

R v Tareta Tekarawa 1977 G.I.L.R. 72
R v Binoka Randolph 1977 G.I.L.R. 35

O'BRIEN OUINN C.J.: This is an appeal against the sentence of 6 months' imprisonment passed by the Magistrates' Court for the Betio Magisterial District on 1st February 1979 when the appellant was convicted of the simple larceny of $50 from the Nanolelei Co-operative Store, Betio on Saturday 6th January 1979.

2. The facts of the case were that the appellant having bought some goods at the store earlier in the day returned to the cash desk late in the evening complaining that she had not been given the change due to her out of a $10 note. The staff, to ascertain whether or not a mistake had been made, had to count and check off all the money in the cash register. While they were doing this they asked the appellant to wait. As the appellant stood there the staff placed three $50 notes with other cash on the counter. The appellant was then seen to put her basket near the money and push it closer to the $50 notes. Very soon after that the appellant said she would return on Monday and left, but one of the staff noticed that there were only two $50 notes remaining on the counter. Steps were immediately taken to alert other Nanolelei branches to notify the main branch if anyone presented a $50 note. Not long afterwards on the same evening notification was received and, on the Police having been informed, the appellant was arrested.

3. The appellant made a statement under caution to the Police, to which she made no objection in the Magistrates' Court, to the effect that a $50 note stuck to her basket and fell on the floor when she took her basket off the counter but, not realising that it was the property of the Nanolelei, she put in her basket and went away.

4. In her defence she denied everything and said that she did not remember making the statement under caution as she was too drunk at the time to know what she was doing.

5. The Magistrates found her guilty of the theft, convicted her and, even though she was a first offender, sentenced her to 6 months' imprisonment.

6. The appellant was granted bail on her own recognizance in the sum of $20 pending the outcome of this appeal, in view of the fact that she is nursing a baby of four months' old, is aged 27 and has four other children to look after.

7. The Magistrates were clearly right in their decision to convict and I confirm the conviction. With regard to sentence I must point out what I have said before, in Criminal Revision Case No. 7 of 1977, R v Tareta Tekarawa, and in Criminal Revision Case No 2 of 1977, R v Binoka Randolph, as well as in other cases, that a custodial sentence is not the proper punishment to be passed in the case of a first offender where the offence is not very serious. Taking the facts of this particular case it is obvious that the appellant succumbed to the immediate temptation before her, not realising the full seriousness of what she was doing. Further, in view of the fact that she is a nursing mother and has four other children to look after, a prison sentence would be most inappropriate. She is young and she is a first offender.

8. If all these matters are considered as well as the fact that the $50 was recovered, I must reduce the sentence to one of 3 months' imprisonment suspended for one year and impose a fine of $25 to be paid before the end of February 1979. The suspension of the sentence means that if the appellant commits any offence between now and 2nd February 1980 she will be brought back to this Court to be ordered to go to prison for this 3 months as well as for any period of time ordered in respect of the offence she has then committed. If she fails to pay her fine of $25 she will go to prison for one month.

9. The $50 (Exhibit 1) is to be paid back to the Manager of the Nanolelei Co-operative Store, Betio and the Recognizance is to be discharged.

10. In passing, I would mention that the Police Prosecutor has abused the right of re-examination to ask questions not remotely arising out of the cross-examination and this practice must stop.