Bateriki v Republic [2007] KICA 13; Criminal Appeal 01 of 2007 (30 July 2007)

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

Criminal Appeal No 1 of 2007

BETWEEN

TOKIA BATERIKI
Appellant

AND

THE REPUBLIC
Respondent

Before: Hardie Boys JA
Tompkins JA
Paterson JA

Counsel: Karotu Tiba for appellant
David Lambourne, Solicitor General for respondent

Date of Hearing: 24 July 2007
Date of Judgment: 30 July 2007

JUDGMENT OF THE COURT

1. Tokia Bateriki was convicted by the Chief Justice in the High Court on 9 January 2007 of the crime of rape and was later sentenced to three years imprisonment. On 3 April, he applied for leave to appeal out of time against his conviction and sentence. On the matter being called in this Court, Mr Tiba advised that the appeal against conviction was to be abandoned, and it is accordingly dismissed. Mr Lambourne consenting, the time for appealing against the sentence is extended.

The facts

2. In the early hours of the morning of 29 January 2006 the appellant, who was then only 16 years old, had been drinking with friends. After leaving them, he entered the home of the complainant, a 31 year old married woman who was asleep there with members of her family. She was awakened by the appellant penetrating her vagina. He ran away, and she chased him. She was able to recognise him, and although she did not catch him she later found him asleep at another house and gave him a beating.

3. His defence at his trial was that the complainant had been mistaken in her identification, but the Chief Justice was satisfied that she could not have been mistaken and therefore he convicted the appellant.

The sentence

4. In imposing the sentence of three years imprisonment, the Chief Justice had regard to several relevant matters. He emphasised both the seriousness of the crime of rape, and the seriousness of this intrusion into the privacy of the complainant’s home. On the other hand, there was here no accompanying violence, and the complainant suffered no physical injury. Indeed, she had vented her outrage by giving the appellant a beating that very morning. A telling factor was his youth; at the time of the offence, he had just left school. He was an active member of Catholic youth, and had no previous convictions.

This appeal

5. In this Court, Mr Tiba submitted that the sentence was manifestly excessive and that a sentence of two years imprisonment would have been appropriate. As well as emphasising the youth and previous good character of the appellant, he relied on a comparison with two cases in the High Court, one in 2001 and the other in 2003. In the former, a sentence of three years and six months was imposed on a 35 year old man, a first offender, who had pleaded not guilty to raping a 16 year old girl in circumstances of some violence. In the second of the cases, a 50 year old with a number of previous convictions had pleaded not guilty of a violent rape that had resulted in injury to the 18 year old complainant. He was sentenced to 5 years imprisonment.

6. For the Republic, the Solicitor-General relied on the judgment of the Court delivered on 23 August 2004 in two appeals heard together, Attorney-General v Tanre Tengke (Criminal Appeal 3 of 2004) and Tetiniman Kaurake v The Republic(Criminal Appeal 7 of 2004). In that judgment, this Court intimated that the appropriate starting point for the determination of the sentence in a rape case should be five years imprisonment. All the relevant circumstances of the particular case, whether by way of mitigation or of aggravation, would then determine to what extent the Court should impose a greater or lesser sentence than five years.

7. Mr Lambourne acknowledged that in the absence of a separate sentencing regime for young offenders, the sentencing options in Kiribati are the same as for older offenders, making it the more important for the Court to treat an offender’s youth as a significant mitigating factor. Nonetheless he submitted that the Chief Justice in this case had had due regard to that factor, as well as to the character of the appellant, and the effect the sentence – indeed any sentence of imprisonment – might have upon the appellant’s future. Without suggesting that the appellant should in any way be penalised for his denial of the charge, maintained until the very commencement of this Sitting, Mr Lambourne rightly commented that there has been no indication of remorse or regret for what was quite outrageous conduct.

8. We agree with that submission. We do not see the cases on which Mr Tiba relied as being helpful now, predating as they do this Court’s ruling in 2004, which must be the starting point in every case of rape. Indeed, had those cases come after 2004, the sentences in both would have been inconsistent with that ruling.

9. The present case is obviously a most unfortunate one, the result, as so much offending is, of excessive drinking. But the Chief Justice clearly gave careful consideration to all the relevant factors, and we are unable to say that the sentence he imposed was manifestly excessive.

The appeal against sentence is therefore dismissed.

Hardie Boys JA
Tompkins JA
Paterson JA