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Republic v Nakareke [2014] KIHC 21; Criminal Case 12.2012 (26 June 2014)

IN THE HIGH COURT OF KIRIBATI 2014

CRIMINAL CASE NO. 12 OF 2012

BETWEEN

THE REPUBLIC
PROSECUTOR

AND

GARY NAKAREKE
ACCUSED

Before: The Hon Justice Vincent Zehurikize

20 June 2014

Ms Pauline Beiatau for Prosecutor
Mr Christopher Meibusch for Accused

RULING ON SENTENCE

Zehurikize J: The convict was charged with two offences. In Count 1, he is charged with Store-breaking and Committing felony contrary to section 293(a) of the Penal Code Cap 67 and in Count 2 he is charged with Larceny contrary to section 254(1) of the Penal Code. The convict pleaded guilty to both offences.

The brief facts are that on 2 December 2011 between 12.00 midnight and 1.00 am the convict broke into a store owned by a certain Chinese and took away $140 from the cash box and some 10 packets of cigarettes. He spent all the money on alcohol and smoked the cigarettes with friends.

After convicting the convict, both Counsel made submissions in support of their respective cases. Ms Beiatau for the Republic submitted that the first count carries the maximum sentence of 14 years imprisonment while the second count is five years. Counsel drew the Court's attention to the fact that the convict has three previous convictions as per the Police Criminal record. He presented a Police Clearance Certificate which shows that:

(i) On 25 February 2013 he was convicted of criminal trespass contrary to section 182(1) of the Penal Code and was sentenced to 1 year suspended sentence of imprisonment;

(ii) On 25 May 2013 he was convicted of Larceny contrary to section 254(1) of the Penal Code and sentenced to five years imprisonment. He is still serving this sentence;

(iii) On 3 June 2013 he was convicted of Theft contrary to section 254(1) of the Penal Code and sentenced to three years imprisonment.

Counsel for the Republic further asserted that the convict is part of a group of people who roam around stealing things. She prayed for an appropriate sentence.

Mr Meibusch filed written submissions which are on record and orally summarised the same. In his written submissions he cited a lot of authorities, which I need not set out here as they are already on record.

I understand him to have been at pains to make two points namely that this Court should not impose consecutive sentence in the sense that the convict should not be made to serve the sentence to be imposed after serving the on-going sentence of imprisonment. That instead this Court should make an order that the two sets of sentences run concurrent.

The other point Counsel asserted was that by comparison with previous similar sentences this Court should not impose a harsh sentence.

I have considered submissions by both Counsel and the following are my observations and conclusions.

The convict has pleaded guilty thereby saving the Court's time and scarce resources. The convict at the time of the instant case had a previous criminal record two of which relate to the same offences as in this case.

In my humble view it is immaterial that those offences were committed subsequent to the present case. What is clear is that at the time of the conviction in this case those previous convictions were in existence. Court cannot close its eyes to that fact.

Instead of lamenting that if the system was working properly the conviction in this case would have come before the conviction in the subsequent cases, one should commend the Republic for being diligent in bringing the convict to book for his subsequent crimes which he committed when the trial of this case was pending. Why the prosecution acted so fast in prosecuting him in the subsequent cases is not a matter for this Court to investigate. In any case I do not see element of bad faith in both cases for such expeditious prosecution. There are many reasons why a subsequent case can move faster than an earlier one. This Court has no option but to treat this convict as a person with previous criminal record. It would defeat logic to treat him as a first offender in the face of the record presented by the State.

On the issue of commencement of service of sentence I need only state that the issue of whether the sentence to be imposed in this case should run consecutively or concurrently with the sentence the convict was serving does not arise. It only arises where the accused has been convicted of several offences in the same charge. Apart from this Court considering the convict's previous record, it has no business on the order of how the sentence I am to impose would be served. Whether a convict in a given case should serve the various sentences consecutively or concurrently is at the discretion of the Court considering the circumstances of that case where the accused is convicted of several offences.

There is no way this Court can judiciously exercise the discretion in relation to cases that were not tried by it.

Consequently this Court will hand out the appropriate sentence to be served by the convict in accordance with the law.

Having considered all the circumstances of this case and bearing in mind that the convict pleaded guilty with the consequences as aforesaid but having a criminal record disclosing that he has committed two other similar offences and doing the best I can I sentence him to a term of five years imprisonment in Count 1, and one year in the second Count. Both sentences shall run concurrently.

Dated the 26th day of June 2014

THE HON JUSTICE VINCENT ZEHURIKIZE
Judge