Republic v Arawaia [2013] KICA 11; Criminal Appeal 01.2013 (23 August 2013)

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

Criminal Appeal No. 1 of 2013

BETWEEN

THE REPUBLIC
APPELLANT

AND

URIANO ARAWAIA
RESPONDENT

Before: Paterson JA
Blanchard JA
Handley JA
Counsel: Pauline Beiatau for appellant
Abuera Uruaaba for respondent

Date of Hearing: 19 August 2013
Date of Judgment: 23 August 2013

JUDGMENT OF THE COURT

INTRODUCTION

1. Mr Arawaia pleaded guilty to two counts of indecent assault and two counts of defilement of a girl under 13 years of age. On 19 October 2012 the Chief Justice Sir John Muria sentenced him to a total term of two years imprisonment. The Republic has appealed this sentence on the grounds that it is manifestly inadequate.
   
2. The summary of facts presented to the Chief Justice disclosed the following essential facts:
   
   • The victim was 12 years old at the time of the offences. Mr Arawaia was 47 years old. He is the husband of the victim's grandmother;
     
   • The first incident occurred around midnight, when Mr Arawaia lay beside the victim, took off her shorts and underwear and inserted his penis into her vagina;
     
   • The second incident occurred when the victim and Mr Arawaia went into a bush where he indecently assaulted her by thrusting his penis between her thighs, after he had taken off the victim's shorts;
     
   • The victim and Mr Arawaia and the other members of the family then went to another property. On the first night at this property,
     

Mr Arawaia again inserted his penis into her vagina while she was lying under a mosquito net. The victim told Mr Arawaia that she was in pain;

• In the morning the girl told her grandmother what had happened. Mr Arawaia then came to the house and apologized;
  
• Mr Arawaia again indecently assaulted her that night. He wanted the victim to sleep with him and his wife told the victim to do so. When in bed together Mr Arawaia forced the girl to suck his penis and held her head towards his penis. The victim refused to do his and Mr Arawaia then licked her vagina.
  

3. It is unclear from the statement of facts as to the time over which this offending occurred. It was at least three days and the last offence happened after Mr Arawaia had apologised.
   

THE SENTENCE

4. The Chief Justice in his sentencing notes noted the breach of trust; noted the guilty pleas and took them into account; gave credit for the apology; and noted that this was a very serious case of indecent assault and that having sexual intercourse with a 12 year old girl involved a breach of trust.
   
5. The sentence imposed was two years imprisonment comprising four terms of imprisonment to be served concurrently. On each of the defilement charges a term of two years imprisonment was imposed, and on each of the indecent assault charges the term was eighteen months imprisonment.
   

THE REPUBLIC'S SUBMISSIONS

6. In submitting that the sentence imposed on each count was manifestly inadequate and that the totality was far more inadequate, Ms Beiatau said that the sentence failed to reflect adequately the gravity of the offences generally, and in this case in particular, failed to take sufficiently into account general deterrence and gave too much weight to mitigating factors.
   
7. The Republic submitted that this is a very serious case involving a victim of tender age, a breach of trust, threats of force to commit an offence, offending again after apologising and more than one offence involving sexual intercourse.
   
8. Ms Beiatau submitted that as similar sexual offences are becoming prevalent in Kiribati the Republic wished to see sentencing guidelines laid down. She referred to several sentences in indecent assault cases where the sentences varied considerably and in one case the prison sentence was suspended. Two defilement sentences were cited and in the first the term of imprisonment was 2 years 6 months, and in the other the Court of Appeal imposed a 7 year term.
   
9. While conceding that the Chief Justice did consider some aggravating factors the Republic submitted that he concentrated on mitigating factors rather than aggravating factors. It was submitted that he failed to consider the psychological effect on the victim, the threats of force and continuing offending after the apology.
   

THE RESPONDENT'S SUBMISSIONS

10. Mr Uruaaba for Mr Arawaia submitted that the Chief Justice convicted and made findings on the factual situation that supported his decision and therefore the sentences were not manifestly inadequate. These factual matters were the age disparity between Mr Arawaia and the victim, the breach of trust, that the plea of guilty was made at the first opportunity and the apology. He referred to case authorities and in the circumstances submitted that it cannot be said the Chief Justice did not consider the gravity of the offending.
    

DISCUSSIONS

11. The Republic was given the right to appeal to this Court against a sentence by the High Court by the Court of Appeal (Amendment) Act 2010.
    
12. A sentencing judge has a wide discretion. This Court accepts that the principle adopted by the Australian High Court in Lacey v Attorney-General (Qld) [2011] HCA 10; 275 A.L.R. 646 should apply to a sentencing appeal by the Republic to this Court. It said at paragraph 62:
    

"In our opinion, the appellate jurisdiction conferred upon the Court of Appeal .. requires that error on the part of the sentencing judge be demonstrated before the court's "unfettered discretion" to vary the sentence is enlivened. The unfettered discretion may be taken to confer upon the Court of Appeal in such a case the power to substitute the sentence it thinks appropriate where error has been demonstrated. The appeal should be allowed. The question that then arises is whether the matter should be remitted to the Court of Appeal on the basis that it did not determine whether the trial judge erred in principle or imposed a manifestly inadequate sentence indicative of such error".

13. This Court has an unfettered discretion to vary a sentence if it is satisfied that the sentence is manifestly inadequate.
    
14. Defilement is a serious crime. The severity of the crime is evidenced by the fact that a person convicted of such an offence is liable to imprisonment for life. In many jurisdictions there is a finite term of less than 20 years. Further the elements of the crime would almost always enable an accused to be charged with rape.
    
15. In the Court's view this was serious offending. It involved threats and force, was a serious breach of trust towards a child and was not a single incident. One of the indecent assaults was committed after the first offending had been disclosed and Mr Arawaia had apologised.
    
16. While the Court does not suggest that sentencing levels in other countries necessarily apply to Kiribati it notes that in both Australia and New Zealand the starting point for a single conviction for conduct equivalent to defilement would not be less than 5 years. Further in a case of multiple offending the totality principle applies. This principle requires the sentencing judge to take into account, when there are convictions of two or more separate offences, not only the penalty for each offence separately, but also whether the total of the punishment being given is appropriate for the total offending. The final overall sentence is more significant than the individual parts of it.
    
17. Each case turns on its own facts but nevertheless it is desirable to maintain consistency in sentencing within a jurisdiction as much as possible. In this respect Kimaere v The Republic [2005] KICA 5 is relevant. This Court in that case had before it an appeal from a man convicted of defilement on two occasions of a girl under 13 and of an assault occasioning actual bodily harm. It did not consider a term of imprisonment for 5 years on one count of defilement unduly severe, noting that defilement is about the same seriousness as rape where the starting point had twice been set by this Court at five years imprisonment. In Kimaere the Court reduced a total sentence of ten years to seven years imprisonment.
    
18. The offences by Mr Arawaia were serious. A starting point of five years imprisonment on each defilement would not have been inappropriate before aggravating and mitigating factors are taken into account. Looked at in its totality the offending justifies a term of imprisonment of seven to eight years. The sentence under appeal was manifestly inadequate.
    
19. This Court places little weight on the apology as a mitigating factor. Mr Arawaia is however entitled to a discount for his early plea of guilty. Such a discount in other jurisdictions is in the range of 25% to 30% if made at the earliest opportunity. The reduction in this case would bring the sentence down to between five and six years.
    
20. As this is an appeal by the Republic the lower point of the range is appropriate. Thus when considering the totality of the offending the total sentence will be fixed at five years imprisonment. This can be achieved by sentences of five years on each of the defilement offences and sentences of one and a half years on each of the indecent assault offences with all sentences to be served concurrently. The starting point for the indecent assault charges, before giving a credit for the mitigating factors would have been two and a half years.
    

RESULT

21. The appeal is allowed. The terms of imprisonment on counts 2 and 3 are increased to five years each and the terms of imprisonment for counts 1 and 4 will remain at one year six months, all terms to be served conurrently. Mr Arawaia will therefore serve a term of five years imprisonment.
    

Paterson JA

Blanchard JA

Handley JA