Atera v Republic [2006] KICA 11; Criminal Appeal 07 of 2006 (26 July 2006)

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

Criminal Appeal No 7 of 2006

BETWEEN

TEBEIA ATERA
Appellant

AND

THE REPUBLIC
Respondent

Before: Hardie Boys JA
Tompkins JA
Fisher JA

Counsel: Aomoro Amten for appellant
Ruria Iteraera for respondent

Date of Hearing: 21 July 2006
Date of Judgment: 26 July 2006

JUDGMENT OF THE COURT

[1] The appellant was charged with house breaking and committing a felony and with indecent assault. Following a defended hearing before the Chief Justice, he was convicted on the charge of indecent assault and acquitted on the charges of house breaking and committing a felony. He was sentenced to 9 months imprisonment. He has appealed against conviction and against sentence on the grounds that it was manifestly excessive.

Background

[2] Between 5 o’clock and 6 o’clock in the morning (when "it was getting light" according to the victim) the appellant, who was very drunk (he said he had been drinking for two days), went into the house where the victim was sleeping. She was alone: her mother had gone down to the beach. The accused was looking for the house of his friend Tekamae: he had gone into the house next door.

[3] The girl gave evidence that she felt something heavy on top of her, touching her vagina, lifting up her skirt, taking off her under pants. She said that the appellant was lying on top of her thrusting his bottom up and down. The appellant accepted that he entered the house, but says that he then went to sleep on his own, although beside the girl. He said he did not touch her. He therefore effectively denied the evidence given by the girl.

Findings in the High Court

[4] The Chief Justice expressed his conclusions:

"If it were not for the admission in the caution statement I would have had a reasonable doubt about the indecent assault. I discount the mother’s evidence: as I suggested to counsel during addresses, a mother confronted with that situation was likely to think the worst whatever had actually gone on. Discounting her evidence it would have been word against word. The accused’s admission in the caution statement tilts the balance decisively in favour of the prosecution. A man would not put his legs on top of the little girl in these circumstances without having an indecent intent. Placing of the legs over the girl was an indecent touching and so an indecent assault.

How much of the rest of the little girl’s account is accurate may be open to some question but I am satisfied beyond reasonable doubt the accused is guilty of an indecent assault.

Without doubt, what happened was that the accused blundered into the house innocently enough (and without there being any break-in – the only evidence, the accused in cross examination, is that the house had no door) and was confronted by the temptation of the little girl lying asleep and alone. It was then (and not before he entered) the accused formed the intention of indecently assaulting her. It follows the accused is not guilty of house-breaking and committing a felony but is guilty of indecent assault.

Conviction appeal

[5] To establish an indecent assault, the prosecution must prove beyond reasonable doubt that the accused intended to commit an indecent assault, that is an intentional assault accompanied by circumstances of indecency – R v Court [1989] AC 28.

[6] The Chief Justice, in effect, found each of these elements proved. His finding that the appellant put his legs on top of the girl is certainly justified having regard to the statement the appellant made to the police when he said. "As I entered the house there was one person lying in the house. As I lay there I put my legs on top of her." His finding that the action of the appellant in putting his legs over the girl was an indecent touching and so an indecent assault was a finding of fact. No sufficient grounds have been advanced to justify reversing that finding on appeal. On the contrary, it is difficult to understand why he would deliberately do so if it were not for some indecent reason. The Chief Justice was entitled to reject his claim in his evidence that he had no such intention.

Sentence appeal

[7] In imposing sentence the Chief Justice took into account that the little girl was terrified and that the appellant was chased by the father and beaten up. The appellant said in mitigation that he was very drunk. That is not a mitigating factor. If a person chooses to get very drunk as a result of which he commits an offence, which seems to occur all too often in Kiribati, that is in our view an aggravating factor. We note Mr Amten’s submission that the appellant has since given up drinking.

[8] The Chief Justice took into account that the appellant is aged 34, married with two children and that this is a first offence.

[9] However, we consider that the Chief Justice did not take sufficient account of the fact that this was an indecent assault at the very lower end of the scale. He accepted that the appellant did not have any improper motive when he entered the house, apparently by mistake. On the findings made, the appellant did nothing more than place his legs over the girl. He may then have gone to sleep but in any event he did nothing more to carry out his intention.

[10] In these circumstances we conclude that the sentence was excessive. An appropriate sentence is a term of imprisonment of six months.

Result

[11] The appeal against conviction is dismissed. The appeal against sentence is allowed. The sentence imposed in the High Court is quashed. In lieu thereof, the appellant is sentenced to a term of imprisonment of six months.

Hardie Boys JA
Tompkins JA
Fisher JA