Tiiroo v Republic [2009] KICA 20; Criminal Appeal 06 of 2009 (26 August 2009)

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

Criminal Appeal 6 of 2009

BETWEEN:

NAKIBAE TIIROO
APPELLANT

AND:

THE REPUBLIC
RESPONDENT

Before: Hardie Boys JA
Tompkins JA
Fisher JA

Counsel for Appellant: Ms Maere Kirata
Counsel for Respondent: Ms Ereta Bruce

Date of Hearing: 20 August 2009
Date of Judgment: 26 August 2009

JUDGMENT OF THE COURT

Introduction

[1] On 1 August 2008 the appellant was convicted of murder and sentenced to life imprisonment. On 5 August 2008 the Chief Justice fixed the non-parole period at 10 years. In this appeal the appellant challenges only the non-parole period.

Background

[2] On the night of 1 June 2007 the appellant was drinking with three others on the beach at Takoronga, Betio, South Tarawa. The three others were the appellant’s co-accused Ueanteiti, a woman named Nei Bwaueti, and a further man named Moarerei Timon. They were drinking fermented yeast. All became affected by the drink.

[3] An argument developed when the appellant accused Ueanteiti of having sexual relations with Bwaueti to whom he was related. The appellant attacked Ueanteiti and subjected him to a beating. Ueanteiti ran away.

[4] The appellant then attacked Bwaueti. When she too ran away he gave chase. He caught her on the beach and began to beat her there.

[5] Upon returning to the scene Ueanteiti joined the appellant in a combined assault on Bwaueti. By the end of the assault Bwaueti was left lying motionless on the beach. At the appellant’s direction, Ueanteiti dragged her into the sea on the ocean side. Her dead body was found on the beach on the following morning.

[6] On examination of the body a doctor found peri-orbital swelling, bleeding from the nose and bruising around the eye. The doctor considered the cause of death to be what she described as "suffocation drowning asphyxia" but in cross-examination she accepted that the cause of death could have been the beating before the deceased was thrown into the water.

The non-parole decision

[7] Following the conviction and sentence to life imprisonment the appellant came before the Chief Justice for the fixing of the non-parole period. On that subject s 11(1A) of the Parole Board Act 1986 provides:

(1A) Where a courtences an offender to imprisonment for life life, it may, at the time of passing sentence, and having regard to the particular circumstances of the case, fix a period longer or shorter than the standard period of 10 years....

[8] The Chief Justice recorded that counsel for the appellant urged a reduction on the basis of the appellant’s personal circumstances:

Mr Tiba submitted that because of the personal circumstances of his client, Nakibae, I should fix a non parole period and make it less than 10 years, perhaps six to seven years. Nakibae comes from an outer island: his father is paralysed: his wife is pregnant: and so on.

[9] The Chief Justice considered that in the phrase "and having regard to the particular circumstances of the case" in s 11(the word word "case" was confined to the circumstances of the offence. He therefore declined to into accounccount counsel’s submissions as to the appellant’s personal circumstances.

[10] Having considered the nature of the offending the Chief Justice concluded that the presumptive non-parole period of 10 years should be adopted.

The Appeal

[11] In this Court Ms Kirata submitted that for the purpose of s 11(1A) the phrase "the particular circumstances of the case" embraces the circumstances of the offender as well as those of the offence. This point was conceded by Ms Bruce on behalf of the Republic.

[12] We agree with the Republic’s concession. There are essentially two reasons for this. First, it accords with the primary meaning of the word "case" as a particular example of a general proposition or, more narrowly, a legal action – see further the Oxford Dictionary of English (2nd Ed OUP 2005). In the present context, the natural meaning of the phrase "the particular circumstances of the case" is no more than a reference to the circumstances of this instance as distinct from all proceedings in which offenders may be convicted of murder.

[13] Secondly, sentencing policy normally has regard to the circumstances of the offender as well as those of the offence. This applies as much to the fixing of a non-parole period as it does to fixing the penalty itself – see, for example, Arrowsmith v The Queen [1994] FCA 1586; (1994) 55 FCR 130.

[14] We have no way of telling whether the non-parole period fixed by the Chief Justice might have differed had he taken the subjective circumstances of the appellant into account. We do not think it appropriate that we fix the non-parole period ourselves. The Chief Justice heard the trial evidence and submissions as to the appellant’s personal circumstances.

Result

[15] The appeal is allowed. The decision fixing the non-parole period at 10 years is set aside and that question remitted to the High Court for further determination. In all other respects the sentence imposed in the High Court is confirmed.

Hardie Boys JA
Tompkins JA
Fisher JA