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

HCCrA 10/96

KAOTITARA NAUMA

vs

THE REPUBLIC

Mr D Lambourne for the Appellant
Ms T Beero for the Respondent

JUDGMENT

The appellant in this case pleaded guilty before the magistrates' court of the offence of being drunk and incapable contrary to section 170 of the Penal Code Cap. 67. The maximum penalty for that offence is a $20 fine and the maximum sentence in default of payment of that fine is only 6 weeks as to section 30(1) of the Penal Code. The sentence imposed by the magistrates was as follows:

"The accused is imprisoned for 2 months and is to reside at North Tarawa and stay there for 1 year"

 and the magistrates then gave as to their reason for imposing that sentence the fact that the accused was homeless and was unable to pay the fine in any event. Even if the accused is not able to pay the fine this does not give the magistrates any jurisdiction to impose a term of imprisonment where the law says the maximum penalty is a fine of $20. The correct procedure for the magistrates is to impose the fine as prescribed by law and give the accused a chance to pay that fine. If the fine is not paid they can impose a term of imprisonment in default. I have already pointed out that the term of 2 months they imposed was wrong in any event because the maximum default term of imprisonment was only 6 weeks. The magistrates' court is clearly in error. I can understand their reasoning but they must comply with the law and this they have not done. 

The appeal is therefore allowed the sentence of the magistrates' court is set aside. Because the appellant has already served the sentence the case is not to be remitted.

THE HON R B LUSSICK
Chief Justice
(28/06/96)