Uaai v Republic [2004] KICA 6; Criminal Appeal 10 of 2004 (23 August 2004)

IN THE KIRIBATI COURT OF APPEAL
CRIMINAL JURISDICTION
HELD AT BETIO
REPUBLIC OF KIRIBATI

Criminal Appeal No. 10 of 2004

BETWEEN:

TEBUAI UAAI
Appellant

AND:

THE REPUBLIC
Respondent

Coram: Hardie Boys JA
Tompkins JA
Fisher JA

Counsel: Jennifer Troup for the Appellant
David Lambourne, Solicitor General for the Respondent

Date of Hearing: 18 August 2004
Date of Judgment: 23 August 2004

JUDGMENT OF THE COURT

[1] This appeal is against a sentence of four months' imprisonment which the Chief Justice imposed on 20 July 2004 on a charge of wrongful confinement (S.248 of the Penal Code). The appellant was also charged with common assault. He defended both charges and was convicted of both, but on the assault charge no penalty was imposed.

[2] The complainant is an 18 year old High School student. After attending school, followed by Mass, she was waiting at the bus stop to take her home. It was nearly dark. She was in school uniform.

[3] The appellant was driving past. He stopped his car and invited the complainant to get in. She said she would wait for the bus, but on his assuring her that he knew her parents (whether he did or not is not disclosed) she got into the car, but within a very few minutes asked to be let out again. He did not stop. His manner of driving scared her, and again she asked to be let out. Then, seeing a fellow student, she called out to him, and opened the car door saying she was going to jump out, but was too afraid to do so. The appellant spoke of taking her to the hotel for a drink, and then to the Lagoon Club. He finally stopped at a shop to buy some beer. He told her to stay in the car, but she got out, taking her bag with her, and went into the store in tears. After he had bought his beer, the appellant asked her to get back into the car, but she refused. He got back in, taking her bag. The shopkeeper retrieved it for her. The appellant drove off.

[4] In submitting that the sentence of four months' imprisonment was manifestly excessive, Ms Troup relied principally on the fact that the appellant is a Member of Parliament and that he would lose his seat were he to be imprisoned: see S.58(1) of the Constitution. This result would not follow were the sentence to be suspended, or were it to be reduced to a fine, or were both to be ordered. Ms Troup drew our attention to authorities which show that the loss of employment or career prospects are mitigating factors in sentencing, for they can amount to a considerable punishment in themselves. So of course can such things as publicity, loss of reputation, family disruption. But there is an obvious limit to the allowances a Court may properly make for any of them. Almost all offending has consequences, for the offender and the victim, that may go well beyond the immediate.

[5] The maximum penalty prescribed for the offence of wrongful confinement is one year's imprisonment or a fine of $400. It is classified as a misdemeanour, not a felony as is kidnapping or abduction. The penalty is quite modest. We were referred to two cases, the first Republic v Itibwinnang Aiaimoa (High Court Criminal Case 73 of 2000) where the victim was shut up in a room on a ship for a brief time. The penalty was a six month suspended sentence and a fine of $400. There were mitigating factors: the accused was a ship's captain and would have lost his job had he been imprisoned, he had pleaded guilty and the events had occurred 4½ years previously.

[6] The second case was Republic v Tiaekitin Yee On, High Court Criminal Case 32 of 2003, but that was a case of elopement (section 132) and is of no assistance to the present.

[7] In this present case, aggravating features are the appellant's refusal to stop the car when asked, on two occasions, the fear and distress he caused to the complainant, and the undoubted sexual undertone to the whole episode. Here was an apparently respectable man betraying the trust a schoolgirl had reposed in him.

[8] That the appellant defended the case is not of course an aggravating factor, but it does mean that he cannot claim the mitigation of an early guilty plea. He can however claim credit for his many years of public service, his hitherto unblemished record, and his family circumstances. Also to be taken into account is the damage to his reputation which his actions have brought upon him. On the other hand, we do not consider that much weight can be given to the effect of imprisonment on his Parliamentary seat. We note that if a Member loses his seat as a result of having to serve a term of imprisonment, he is not disqualified from standing again in the by-election that will necessarily follow, even if he is still in prison at that time. That this is so suggests that a Member of Parliament who merits a prison sentence should serve it, and that those who elected him should have the opportunity of deciding again whether he should continue to represent them. This is as it should be. A Member of Parliament occupies a position of great responsibility, which carries with it an obligation to set high standards as an example to the whole community. When such a person offends against the criminal law, the Court must be careful not to give the impression that his special position gives him special immunities.

[9] In our view, the sentence of four months' imprisonment made fair allowance for all relevant factors, both aggravating and mitigating. It allowed for the loss of office and the possibility that the appellant may have to take less well paid employment in the future. To suspend the sentence would allow for those contingencies a second time. And it might suggest that the Court should accord a Member of Parliament special privileges. As has so often been said, no one is above the law.

[11] The appeal is dismissed.

Hardie Boys JA
Tompkins JA
Fisher JA