Nabuaka v Republic [2006] KICA 14; Criminal Appeal 09 of 2005 (26 July 2006)

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

CRIMINAL APPEAL 9 OF 2005

BETWEEN

AKAI NABUAKA
Appellant

AND

THE REPUBLIC
Respondent

Before: Hardie Boys JA
Tompkins JA
Fisher JA

Counsel: Aomoro Amten for appellant
Pauline Beiatau for respondent

Date of Hearing: 20 July 2006
Date of Judgment: 26 July 2006

JUDGMENT OF THE COURT

Introduction

[1] The appellant was charged with and pleaded guilty to assault occasioning actual bodily harm and to rape. He was sentenced to imprisonment for twelve months for the assault occasioning actual bodily harm and to four years for rape, the sentences to be served concurrently.

[2] The charges arose from the same incident. In sentencing the appellant the Chief Justice summarised the facts:

"At about 2 o'clock in the morning on 18 June at Bonriki, you and two girls had been drinking together. The victim wanted to go to the beach to relieve herself. The other girl went with her. So did you. On the way you forced her to have sex. You pulled her by the hair, punched her in the eye, made her nose bleed, forced her to lie down and had intercourse. At the Tungaru Central Hospital she was reported to have multiple physical injuries and to be stressed. She was 18 and a JSS student."

[3] In passing sentence the Chief Justice noted that the appellant was aged 17. He took into account the fact that the appellant made an apology to the victim's uncle, that he had become active in the Catholic Youth Group, and that he pleaded guilty to both offences as soon as he could. He took no account of a previous conviction of drunken and disorderly in March 2003.

Counsels’ submissions

[4] In support of his submission that the sentence imposed was manifestly excessive, counsel for the appellant relied principally on an affidavit sworn by the victim and filed on behalf of the appellant in support of the appeal. Counsel submitted that the information in the affidavit was not known to the appellant or his counsel or the Chief Justice at the time of sentence, and that the information could have had a significant impact on sentencing had it been disclosed at that time.

[5] The victim deposed that soon after the incident, the mother of the appellant apologized for what had taken place. She found it difficult to accept the apology as she was very much hurt by what had happened. But after some time and a number of visits by the mother, she came to accept that the appellant was truly remorseful and she has forgiven him.

[6] Counsel also relied on an affidavit from Brother Kevin Dobbyn, an experienced teacher and counselor. In the latter capacity he has interviewed the appellant. He found he has an average measure of intelligence, that there were occasions of attempted suicides, a strong lack of self esteem and that he would benefit from the help a male counselor could give.

[7] Counsel for the Republic submitted that the sentence of four years imprisonment was appropriate having regard to the degree of violence. She submitted that the affidavits filed in support of the appeal could have been available at the time of sentence, and that in any event they should not affect the sentence imposed.

Conclusion.

[8] In Attorney General v Tengte; Kaurake v Republic [2004] KICA 10 this court reviewed the sentences for rape and decided that a starting point of five years imprisonment for a contested case or rape is appropriate. The proper approach is to ask whether there are grounds for departing from that starting point.

[9] The major aggravating feature in this case, in addition to the act of rape itself, is the degree of violence that was involved, namely, punching the victim in the eye, dragging her by the hair, punching her in the nose causing it to bleed, pressing her face in the sand. Also of importance is the social stigma that results from a young unmarried girl having had sexual intercourse.

[10] The Chief Justice had regard to the mitigating factors, namely the age of the appellant, that he was supporting his family, his involvement in the Catholic Youth group and his early guilty plea.

[11] We do not consider that the affidavit evidence of the victim is of material assistance in determining the appropriate sentence. It is clear from her evidence that when first approached by the appellant’s mother she was not prepared to accept the apology. It was only after several further visits from the mother that she did so. We also note that she does not say that at any time the appellant himself expressed remorse for his actions. But in any event, subsequent acceptance of an apology and forgiveness by a victim, although it maybe of some relevance, does not materially mitigate from the seriousness of the rape itself, particularly where, as here, the rape is accompanied by violence.

[12] When regard is had to all these considerations, we are satisfied that there are no grounds for interfering in the sentence of four years imposed for both the rape and the assault causing actual bodily harm.

[13] We draw to the attention of prison authorities the evidence of Brother Dobbyn, in particular his recommendation that the appellant should be closely supervised, and that counselling on a regular basis, once or twice a week for ten or twenty sessions, would be of benefit and may go some way to restoring his self esteem.

Result

[14] The appeal against sentence is dismissed.

Hardie Boys JA
Tompkins JA
Fisher JA