Attorney-General v Langston [2019] KICA 9; Criminal Appeal 2 of 2019 (21 August 2019)

IN THE KIRIBATI COURT OF APPEAL ] Criminal Appeal No. 2 of 2019
CRIMINAL JURISDICTION ]
HELD AT BETIO ]
REPUBLIC OF KIRIBATI ]

BETWEEN ATTORNEY-GENERAL APPELLANT

AND GEORGE LANGSTON RESPONDENT

Before: Blanchard JA

Handley JA

Heath JA

Counsel: Tewia Tawiita for appellant

Banuera Berina for respondent

Date of Hearing: 15 August 2019
Date of Judgment: 21 August 2019

JUDGMENT OF THE COURT

[1] The respondent pleaded guilty to a charge of indecent assault on a girl contrary to s.134(3) of the Penal Code on 5 March 2018, and to a second charge of assault on the same girl occasioning actual bodily harm (s.238).

[2] He was sentenced by the Chief Justice two years’ imprisonment suspended for 12 months.

[3] The Republic has appealed contending that the sentence was manifestly inadequate.

[4] The offences occurred shortly after the Penal Code was amended with effect from 23 February 2018 to increase the maximum penalty for indecent assault on a person under the age of 13 from 5 years to 12 years. The offence charged in the second count created by s.238 attracted an unchanged maximum penalty of five years’ imprisonment.

[5] The offences occurred on the evening in question. The victim then aged 10 was at the home of the accused to help with family chores. The accused, then aged 52, who had been drinking fermented yeast, invited his wife and the victim to join him in such drinking. His wife did but the victim refused. He then went to where she was and forced her to drink a cup of the alcoholic liquid.

[6] He then played a pornographic film on his laptop and made the victim watch it. At this point the accused’s wife left the victim alone with the accused and went to get the police.

[7] The accused forced the victim to drink another cup of the alcoholic liquid.

[8] When the victim refused the drink, he hit her on the mouth and face causing injuries to her lips. She was then told to put out her tongue. She refused at first but when the accused insisted she complied and he kissed her.

[10] He then dragged her to the bathroom where he threatened her with an iron fishing rod before taking off her shorts, and forcing her to lie down on her back when he licked her vagina. At this stage the police arrived and detained the accused.

[11] The Chief Justice acknowledged the need for the courts to protect young persons like the victim, a vulnerable child of tender age. He referred to the many aggravating features, the use of force, the tender age of the victim, the use of alcohol and the pornographic video.

[12] He referred to the response of the Parliament to the prevalence of sexual offences against young girls with the increase in the maximum penalty for indecent assault to 12 years reflecting the community’s view of the seriousness of such offences.

[13] The Chief Justice referred to some mitigating features which included the accused’s drunkenness, his early plea of guilty, his apology and his membership of the local parish church.

[14] The Chief Justice noted the steps that the accused had taken to deal with his abuse of alcohol in an attempt at rehabilitation. He also referred to “the doctor’s reports” on his condition.

[15] He then said “The sentence which the Court will impose on you ..... must ..... reflect the seriousness of the offending. This is .... why a custodial sentence ... must be imposed”.

[16] The Chief Justice fixed a custodial sentence of two years’ imprisonment but then suspended it for 12 months.

[17] The mitigating features identified by the Chief Justice were not as significant as he appears to have thought. The plea of guilty was simply an acknowledgment of the inevitable having regard to the situation when the police arrived. The early plea was entitled to minimal weight in this case. The medical report from the brother of the accused was also entitled to little weight against the independent report from the Government doctor. His abuse of alcohol and his drunkenness on the evening in question are not matters of mitigation but aggravation.

[18] In our judgment the sentence of two years, which qualified for suspension, failed to reflect the objective features of the offending and the serious view taken by the Parliament of such offences in the legislative changes that had recently taken effect. These factors called for an effective custodial sentence that the accused would have to serve.

[19] The offence of indecent assault covers a wide range of criminality and it would not be appropriate or useful for this Court to attempt to fix a single starting point.

[20] This case which involved many serious aggravating features including physical violence and the threat of physical violence justifies a starting point of 5 years’ imprisonment.

[21] This must be reduced to reflect the double jeopardy inherent in a State appeal and some allowance for the early guilty plea. Allowing for these factors we fix a term of 4 years’ imprisonment on the indecent assault charge.

[22] We make the following orders:

1. Appeal allowed.
2. The sentence imposed by the High Court is quashed;
3. In lieu thereof the respondent is sentenced to a term of four years’ imprisonment on the first charge, and 18 months’ imprisonment on the second, both sentences to be served concurrently.
4. The respondent must now surrender himself to the Police to serve this sentence.
   

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Blanchard JA

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Handley JA

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Heath JA