Tekaei v Republic [2016] KICA 11; Criminal Appeal 1 of 2016 (17 August 2016)

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

Criminal Appeal No. 1 of 2016

BETWEEN

KAERE TEKAEI
APPELLANT

AND

THE REPUBLIC
RESPONDENT

Before:
Blanchard JA
Handley JA
Hansen JA

Counsel:
Reiati Temaua for appellant
Taburuea Rubetaake for respondent

Date of Hearing: 11 August 2016
Date of Judgment: 17 August 2016

JUDGMENT OF THE COURT

[1] The appellant appeals against a sentence of imprisonment for 12 years for manslaughter imposed concurrently with a sentence of three years for causing grievous harm with intent. Zehurikize J also ordered that he serve a non-parole period of eight years’ imprisonment.

[2] The appellant had been tried for murder but the Judge found that the killing had been provoked by the victim and therefore found him not guilty of murder but guilty of manslaughter. He had previously offered to plead guilty to manslaughter but the prosecution had not accepted the plea. He is accordingly entitled to a credit for pleading guilty at the earliest opportunity.

[3] The appellant was tried along with his father who was also guilty of the same charges but given a lesser sentence. He had pleaded guilty at the earliest opportunity. In the father’s case the prosecution accepted his plea to manslaughter.

The Facts
[4] We summarise the events described in Zehurikize J’s judgment of 12 August 2015 in which he found the appellant guilty of manslaughter.

[5] The deceased victim and his father, the victim of the grievous harm assault, were neighbours of the two accused.

[6] All concerned had been drinking. In the early hours of the morning of 6 April 2012 there was a fight between the deceased and the appellant’s brother. The fight was started by the deceased who used abusive language. That fight was broken up. The appellant and his father went to their own home. But some time later – it many have been as much as an hour – they returned and entered the home of the victims. They were armed with what the Judge described as deadly weapons. The appellant’s father had “a sword that is normally used by gladiators – long and sharp”. The appellant, a man in his 20s, was armed with a spear.

[7] The appellant’s father attacked the deceased’s father with the sword. The appellant also attacked the deceased’s father with the spear. These attacks gave rise to the grievous harm charges. The deceased’s father was cut on his chest by the sword. The appellant’s spear wounded him on his right thigh.

[8] At that time the deceased and his brothers were swimming in the sea. They saw the attack on their father and came to rescue him. They attacked the appellant’s father. The deceased hit the appellant’s father with a piece of wood. The appellant then speared the deceased at least twice. The fatal wound, which it is accepted was caused by the appellant’s spear, was to the deceased’s chest. The Judge found the appellant must have intended to cause the deceased’s death “or ought to have known that death would be caused” but had lost self-control when he saw the attack on his father. The Judge commented that it was “a borderline case between murder and manslaughter”.

A Sentencing Methodology
[9] It is unfortunate that in his brief sentencing remarks the Judge gave little or no indication of how he arrived at the sentence of 12 years’ imprisonment. Sentencing judges will better guide themselves and assist this Court in the event of an appeal if they proceed by stages and so spell out how their sentences are constructed.

[10] An appropriate way of doing this is as follows:

(a) First, assess the starting point that reflects the relative seriousness of the offending in the particular case and has regard to the maximum sentence. This would involve taking account of any aggravating and mitigating features relating to the actual events of the offending.

(b) Secondly, adjust that starting point upwards if there are any aggravating factors external to the actual events of the offending, such as the convicted person’s relevant previous criminal record. Relevance for this purpose includes recent offending of the same or similar nature which suggests the need for a sentence protective of the public.

(c) Thirdly, allow a reduction for any mitigating factors, such as a guilty plea (taking account of when it was made), any genuine expression of remorse, prior good character, any
co-operation with the police or the youth of the person being sentenced.

(d) Fourthly, make a reduction for time spent in custody if the sentence is to run from the date of sentencing.

(e) Fifthly, where the sentence is for a term of not more than two years’ imprisonment, consider whether any suspension should be ordered in terms of s.44 of the Penal Code.

This Case

(a) The Starting Point

[11] Sentencing for manslaughter is a difficult exercise because there is such a multiplicity of circumstances in which someone may cause the death of another by acting or omitting to do something unlawfully. There are consequently great differences in levels of culpability. Sentences therefore can vary considerably.

[12] We agree with the Judge that this was a very serious case of manslaughter. The appellant acted with murderous intent but was not convicted of murder because there had been provocation from the deceased that caused him to lose his self-control. The affray in the course of which the deceased was killed by the appellant did arise, however, out of a joint criminal enterprise between the appellant and his father who, as the Judge put it, “stormed the home of the victims” with deadly weapons which they must have intended to use from the outset. They proceeded to inflict serious injury and death. It must be borne in mind that the maximum sentence for manslaughter is life imprisonment, although, as in other jurisdictions, that is rarely imposed for this offence. It must also be borne in mind in this case that the sentence for manslaughter is the lead, or effective, sentence for both that offence and for the grievous harm offence against the deceased’s father. Thus the effective sentence must reflect that there were two victims of serious offending by the appellant.

[13] It is true, as counsel for the appellant said, that the deceased was the original aggressor and was then involved in the attack on the appellant’s father using a weapon (a piece of wood) and there has been a finding that the appellant’s actions were provoked by the deceased’s actions. But of course the appellant, along with his father, can be said to have caused the affray in which he lost his self-control and the deceased was killed by invading the home of the deceased with the apparent intention of launching an attack by way of revenge for what had happened earlier.

[14] Nevertheless we are in no doubt that the starting point seemingly adopted by the Judge was far too high. The end sentence of 12 years was presumably arrived at after allowing for mitigating factors and time spent in custody. The Judge seems to have started at a level not far short of 20 years.

[15] We consider that the appropriate starting point for the offending in this case is 12 years.

(b) No Aggravating Features

[16] There are no features external to the events that aggravated the offending. The appellant was being sentenced only in relation to the attacks on the victims and had no previous criminal record.

(c) Mitigating Features

[17] Although the case against him for manslaughter was strong one, the appellant is entitled to a credit for his early guilty plea. He is a first offender and was remorseful. For these matters we deduct three years.

(d) Time Spent in Custody

[18] The appellant was remanded in custody from 7 April 2012 until charges were laid almost two months later, when he was released on bail. That bail was revoked in May 2013 because he breached its conditions. He was then in prison on remand for 2 years 3 months until tried, convicted and sentenced. He is entitled to a sentence reduction of 2 years 5 months to reflect the aggregate of the periods on remand.

(e) Breach of Constitutional Right

[19] There is an additional matter particular to this case. The appellant was not tried until three years and two months after he was charged. As this Court explained last year in Attorney-General v Li Jian Pei Criminal Appeal 5 of 2015, unreasonable post-charge delay – and a delay of over three years is plainly unreasonable – is a breach of an accused’s rights under s.10(1) of the Constitution of Kiribati even if the delay is caused not by the prosecution but by the court system. Section 10(1) reads:

s.10(1) If any person is charged with a criminal offence, then, unless the charge is withdrawn, the case shall be afforded a fair hearing within a reasonable time by an independent and impartial court established by law.

[20] The appropriate remedy for such a breach in this case, which will mark it out and compensate the appellant for undue prolongation of the uncertainty of outcome in having to face trial, is what this Court in
Li Jian Pei described as a modest reduction in sentence. We consider that a reduction of four months suffices.

(f) End Sentence

[21] We have by following the process described in para [10] above arrived at a sentence for the manslaughter committed by the appellant of 6 years 3 months’ imprisonment.

(g) The Non-Parole Period

[22] The Judge had no power to fix a non-parole period in excess of that provided for in s.11 of the Parole Board Act 1986. As this Court pointed out in Terabatu v Republic [2008] KICA 2 at [19] – [20], it is only when a sentence of life imprisonment is imposed that the Court is empowered to fix a non-parole period. Section 11 provides that where there is a sentence of more than two years, the prisoner, unless serving life imprisonment, is eligible for parole after half the sentence imposed.

Result
[23] The appeal against the sentence of 12 years is allowed. That sentence and the non-parole period are quashed. Instead there will be a sentence of 6 years 3 months’ imprisonment to be served concurrently with the sentence for causing grievous harm with intent, against which there was no appeal. The sentence will run from the sentencing date in the High Court, namely 20 August 2015. The appellant will be eligible for parole under s.11 of the Parole Board Act when half this sentence has been served.

____________________________

Blanchard JA

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Handley JA

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Hansen JA