Republic v Teriao [2013] KICA 12; Criminal Appeal 02.2013 (23 August 2013)

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

Criminal Appeal No. 2 of 2013

BETWEEN

THE REPUBLIC
APPELLANT

AND

TEURUBA TERIAO
RESPONDENT

Before: Paterson JA
Blanchard JA
Handley JACounsel: Pauline Beiatau for appellant
Taoing Taoaba for respondent

Date of Hearing: 20 August 2013
Date of Judgment: 23 August 2013

JUDGMENT OF THE COURT

INTRODUCTION

1. The Republic appeals against a sentence imposed on Mr Teriao on being convicted, after a hearing, on a charge of unlawfully causing grievous bodily harm. He was sentenced to a term of imprisonment of two years. The Republic's ground of appeal is that the sentence is manifestly inadequate.
   

REPUBLIC'S SUBMISSIONS

2. The underlying submission on behalf of the Republic is that the sentence does not reflect adequately the gravity of the offending.
   
3. In support of this submission Ms Beiatau noted that the offence carries a maximum sentence of life imprisonment; the nature and extent of the victim's injuries; and the surrounding circumstances of the offence.
   
4. Counsel submitted that the Chief Justice in view of his findings on the seriousness of the case failed to consider properly the injuries to the victim which resulted from the actions of Mr Teriao. The injuries and the circumstances of the attack are considered below.
   
5. There was also a submission that the Chief Justice gave too much weight to factors going to mitigation and not sufficient weight to the aggravating features, which have been referred to above. Counsel also referred to previous sentences in support of these submissions.
   

MR TERIAO'S SUBMISSIONS

6. Ms Taoaba for Mr Teriao made submissions on the circumstances leading to the commission of the offence which in her submission amounted to provocation; on the extent of the victim's injury; and on factors which were said to be mitigating factors.
   

DISCUSSION

7. The Republic is entitled to appeal against a sentence: s.19A Court of Appeal Act 1980. Although the appeal is against a decision in which the sentencing judge has a wide discretion, this Court can vary the sentence if it considers the sentence to be manifestly inadequate: see Republic v Arawaia Criminal Appeal 1/2013, 23 August 2013.
   
8. The New Zealand Court of Appeal decision of R v Taueki [2005] NZCA 174; [2005] 3 NZLR 372 is informative in this appeal. It determined that only in exceptional cases of serious violent offending would a starting point of less than three years' imprisonment be appropriate. The Court identified three sentencing bands. The head note to the case summarises these bands as follows:
   

"There were three sentencing bands. Band one (three to six years) was appropriate for violence at the lower end of the spectrum, which did not involve extreme violence or violence which was life threatening. Where none of the aggravating features was present, a starting point at the bottom end of band one was appropriate. The presence of one or more factors required a higher starting point. Band two (five to ten years) was appropriate for grievous bodily harm offending which featured two or three aggravating factors. Band three (nine to 14 years) encompassed serious offending which had three or more of the aggravating factors, where their combination was particularly grave".

9. While this Court considers that it should not in this case lay down bands for Kiribati it notes that R v Taueki may be a useful guide for High Court judges and this Court.
   
10. Factors which go to the seriousness of Mr Teriao's offending were the seriousness of the violence, the injuries inflicted on the victim and the use of a knife. Provocation may justify a lower starting point.
    
11. The Chief Justice in his judgment convicting Mr Teriao recorded the injuries sustained by the victim from three knife wounds to limb on different parts of one arm. He noted that the victim cannot perform some actions precisely. These include extending a thumb, abducting the wrist, extending an index finger and an inability to lift heavy objects because of a weak power grip.
    
12. In sentencing Mr Teriao the Chief Justice said that this was a serious case of grievous bodily harm. Mr Teriao admitted causing the injuries but unsuccessfully raised self defence. Mitigating factors taken into account were provocation; Mr Teriao was a first offender at the age of 51 years; and that he had been a good citizen.
    
13. The provocation arose from the victim and Mr Teriao both claiming title to a piece of land, the title to which was registered in Mr Teriao's name. The offence occurred when the victim was burning rubbish on that land when Mr Teriao arrived. A comment by the victim started an argument which led to the assault and the offence. Mr Teriao was called a thief by the victim. The victim had a knife as did Mr Teriao. They both said that the other party was the first to approach with a knife. The Chief Justice after analysing the evidence found that Mr Teriao delivered the first blow to the right wrist of the victim; the first blow was so severe that the cut to the wrist caused the victim's knife to fall from her hand; and that the other two blows to the victim's hand caused two cuts and were delivered after the victim lost control of her knife and was using her hand to defend herself.
    
14. If a Taueki analysis were to be applied this offending would fall within band one. While this Court is not adopting bands at this time it notes that the offending would not be at the bottom of band one. On the Chief Justice's finding the first blow with a knife was struck by Mr Teriao, he struck twice more when the victim did not have a knife in her hand. The self-defence defence understandably failed.
    
15. This Court in Toakarawa v Republic [2006] KICA 9 upheld a sentence of three years' imprisonment. The appellant had pleaded guilty at an early stage. In Republic v Teuannang [2006] KIHC 117 the then Chief Justice imposed a three year sentence in a grievous bodily harm case. There was also can early plea of guilty in that case.
    
16. The mitigating factors are problematic. The Chief Justice treated Mr Teriao's "circumstances of a particular nature, in that he has the right over the land in dispute, only to be convicted of an offence arising out of a dispute concerning land". It is apparent that he determined the victim's behaviour in respect of the land to which title is held by Mr Teriao as a contributing factor.
    
17. Where there is an available range for a penalty, a successful prosecution appeal leads to a sentence at the bottom of the range. In this case, giving Mr Teriao an allowance for provocation and taking into account that it is a Republic appeal the Court is of the view that a sentence of three and a half years is appropriate.
    

RESULT

18. The appeal succeeds and the sentence of two years' imprisonment is quashed and replaced with a sentence of three years six months' imprisonment.
    

Paterson JA

Blanchard JA

Handley JA