Bename v Republic [1990] KICA 2; Criminal Appeal No 6 of 1989 (27 March 1990)

IN THE COURT OF APPEAL OF KIRIBATI

Criminal Jurisdiction

Criminal Appeal No 6 of 1989

BETWEEN:

KATIEUA BENAME
Appellant

AND

THE REPUBLIC
Respondent

Mr. Teiwaki for Appellant
Mr. Tabane for Respondent

Date of Hearing: 27th March 1990
Delivery of Judgement:

JUDGMENT OF THE COURT
(Gibbs V.P., Frost, Donne, Dillon and Mitchell J.J.A.)

The appellant, Katieua Bename, was convicted on a charge that on 27th August 1988 he unlawfully killed Nei Toabo Kawaitu (henceforward referred to as "the deceased") and was sentenced to six years imprisonment. He now seeks leave to appeal against that sentence on the ground that, taking into account all the circumstances of the case, the sentence was manifestly excessive.

The relevant facts may be stated quite briefly. On the night of 27th August 1988 the deceased, a woman of about sixty, went to the appellant's house at about 6 o'clock in the evening and spent some hours drinking sour toddy with him. Both the appellant and the deceased became drunk; she at least was very drunk. In the course of the evening, as a result of a blow or blows struck by the accused the deceased sustained injuries from which she died. The post-mortem revealed the causes of death to be cerebral haemorrhage and respiratory arrest following fracture and collapse of the thyroid and adjacent tracheal rings. According to the medical evidence, the cerebral haemorrhage was probably the result of a blow to the eye and the fracture of the cartilages in the neck could have been caused either by strangulation or a strong blow to the neck.

There were only two witnesses to the incident in which the deceased sustained her injuries, namely, the appellant himself and his wife.

According to the wife of the appellant, the appellant became angry after the deceased had started pouring drink on the ground and he hit the deceased with the back of his hand on the top of her nose. Both the appellant and the deceased were sitting down at the time. After the blow the appellant suggested that the deceased should be lain down and the wife of the accused went to feel her stomach to see if she was still alive. At the time the deceased was bleeding from the nose. The appellant himself said that earlier in the evening two men had tried to persuade the deceased to go home and that this had caused her to become furious and to start screaming and shouting. At one stage she hit the appellant. After that incident, however, the appellant and the deceased resumed drinking. The evidence of the appellant then was as follows:

"After I poured the second cup she was asked for instead of drinking it poured her drink on to the mat she intended her hand and tried to hold on my cup. When I saw her extending her hand on to my cup I just loss my temper. So I took my own cup and place it far from her reached. And at the same time I pushed her hand away and somehow my hand just slip and ended up at her cheek. Her cheek was hit."

According to the appellant the deceased remained sitting down and asked for another drink but when the drinking session had come to an end he thought that the deceased was very drunk and needed some sleep so he asked his wife to lift up the deceased and place her on a mat. Later she was found to be dead.

The learned trial judge did not believe that either the appellant or his wife had been entirely frank or truthful in their evidence. He concluded that the injuries and death of the deceased had resulted from a great deal more violence than the appellant had admitted.

In the course of this remarks when imposing the sentence of six years' imprisonment, the judge addressed the appellant as follows:

"You have terrible record of violence and offences associated with drinking and disregard of Law and Authority.....I have a duty to the Public to ensure that when a person of violent conduct who threatens the peace is brought to the court, he is dealt with fairly but firmly so that they can rest assured that justice would be done."

An examination of the record of the offences proved to have been committed by the appellant suggests that the learned judge formed too adverse a view of the appellant's record of violence. Certainly he had a bad record, particularly for drunkenness, having been convicted on about 24 occasions between 1976 and 1984 for a variety of offences, many involving drink. However of his offences, the only ones which it can safely be concluded involved violence were two (unlawful wounding in 1978 and fighting in 1984) although there were in addition two convictions for damaging property. For most offences a small fine was imposed, and only once was the appellant sentences to imprisonment (for criminal trespass in 1982, the sentence then being 4 months). Certainly the record is discreditable, but it does not justify the conclusion that the appellant had a terrible record of violence. It should be noted that the appeal book contains a page of recorded convictions, several of violence, which were not in the name of the appellant and not proved to have been his. The view which the learned trial judge took of the appellant's past conduct may have contributed to the severity of the sentence which he imposed.

We have had the advantage of being informed of other sentences for manslaughter imposed in Kiribati. The present case was one in which, both parties being drunk, the appellant assaulted the victim on very slight provocation. No weapon was used and the assault was unpremeditated. Having regard to the range of sentences imposed for manslaughter in other cases, we think that the sentence of six years' imprisonment was excessive. As we have said, the erroneous conclusion regarding the appellant's record may have contributed to the result.

For these reasons we allow the appeal. The Order of the Court will: appeal allowed; sentence of six years imprisonment on the appellant set aside and in lieu thereof impose a sentence of imprisonment for four years to commence on 27th August 1988.

Vice President
Judge of Appeal
Judge of Appeal
Judge of Appeal
Judge of Appeal