Kimaere v The Republic [2005] KICA 5; Criminal Appeal 06 of 2005 (8 August 2005)

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

Criminal Appeal 6 of 2005

BETWEEN:

TEKARIBA KIMAERE
Appellant

AND:

THE REPUBLIC
Respondent

Before: Millhouse P
Tompkins JA
Fisher JA

Counsel for Appellant: Karotu Tiba
Counsel for The Republic: Pauline Beiatau

Date of Hearing: 3 August 2005
Date of Judgment: 8 August 2005

JUDGMENT OF THE COURT

The appellant has been convicted of defilement on two occasions of a girl under 13 years of age, 28 May and 5 November 2001 and of assault occasioning actual bodily harm on the same victim on 5 November.

He was a man just about 50: she a little girl of 12. The facts are set out in extenso in the learned judge’s reasons for conviction and in his sentencing remarks. In brief, the appellant had been married to the victim’s grandmother. When the victim was two years old the victim’s mother died and she went to live with her grandmother and the appellant, became a member of their family. They brought her up as their daughter or granddaughter. A few days before 28 May 2001 the grandmother died.

On the night of the first offence the victim was asleep on a buia under a mosquito net. The appellant came under the net and, as the judge found despite the appellant’s evidence, obliged the victim to have intercourse with him. Much the same thing happened on the second occasion but as well the appellant punched the girl in the mouth.

The sentencing judge rightly regarded the offences as very serious. To come to that conclusion he set out in his sentencing remarks a number of factors with none of which we take issue. He imposed on each of counts 1 and 2 a five year term of imprisonment, on count 3 three months’ imprisonment: the terms of imprisonment for counts 1 and 2 to be served cumulatively: the term for count 3 to be served concurrently with the term for count 2. In all 10 years’ imprisonment.

During the course of submissions reference was made to the decision of this Court in The Attorney General v Tanre Tengke and Teitiniman Kaurake v The Republic (Criminal Appeal 3 of 2004 and Criminal Appeal 7 of 2004). The two decisions set a starting point of five years’ imprisonment for the crime of rape, more or less depending on the circumstances of the case. This present appeal is not from sentences for rape but for offences of about the same seriousness. Although severe, we do not regard the terms of imprisonment for five years on each of counts 1 and 2 to be unduly so.

However that is not the end of it. A significant point is whether 10 years’ imprisonment as punishment for the appellant’s total offending towards the victim is appropriate or not. When there are convictions of two or more separate offences a court should consider not only the penalty for each offence separately but also the total of the punishment being given, whether as a whole the penalty for the offending is appropriate. Sometimes, as we consider it to be in this case, even though the penalty is for each offence considered separately may not be too severe, the totality of the punishment is too severe.

In our view a total of seven years’ imprisonment is the appropriate term to be imposed on the appellant.

We reduce the term of imprisonment imposed on each of counts 1 and 2 to 3½ years. We do not vary the term of three months for count 3 and that continues to be served concurrently with the three and a half years for count 2.

The appeal originally was against both conviction and penalty. Counsel for the appellant, Mr Tiba, abandoned, very sensibly for it could not have succeeded, the appeal against the convictions.

The appeal is allowed. Instead of the sentence of five years on each of counts 1 and 2 the sentence is reduced to three and a half years: the term of imprisonment of three months on count 3, to be served concurrently with the term on count 2, is not altered. The appellant will therefore serve a total of seven years’ imprisonment.

Millhouse P
Tompkins JA
Fisher JA