Republic v Toteri [1995] KIHC 7; CRC 33 of 1994 (22 November 1995)

IN THE HIGH COURT OF KIRIBATI
(BEFORE THE HON R LUSSICK C.J.)

HCCrC 33/94

THE REPUBLIC

v.

KAMRARA TOTERI

Ms P Atanraoi for the Republic
Mr D Lambourne for the Accused

SENTENCE

The accused has pleaded guilty to a charge of Rape contrary to section 128 of the Penal Code (Cap. 67). The victim was his own daughter who was 24 years old at the time of the offence.

According to the victim, on the night of the offence she was not feeling well and was lying down in the maneaba when her father came to her and, after gagging her with a cloth, committed the offence. He later returned with a knife and threatened to kill her if she told anyone. The victim was frightened by this threat and did not tell anyone until circumstances later gave her no choice. As a result of the rape she fell pregnant, but after carrying for about six months she suffered a miscarriage. The story then came out, police were informed and the victim's mother ordered the accused to leave their home.

The accused does not deny the victim's account, except that he claims that the rape occurred outside of the maneaba as his daughter was walking to the beach. I do not think much, if anything turns on this, but having read both of their statements I prefer the victim's version, particularly since the accused claims he had been drinking heavily at the time of the offence.

There are several features which aggravate the offence. The accused was in a position of trust, after the rape he produced a knife and threatened to kill the victim unless she kept silent, and as a result of the rape the victim became pregnant but later miscarried.

On the other hand, there are other factors which must be regarded as being in the accused's favour. He has pleaded guilty, thus sparing the victim the extra distress which giving evidence can cause. Despite the shock and distress which the victim must have undergone, there was no evidence of any physical injury being caused to her, although of course I have no way of gauging the impact of the emotional trauma which must have followed. Again, the victim on her own admission, was no newcomer to sex. Finally, there can be no doubt that the accused has shown remorse. Soon after the crime was revealed he apologised to his wife, promised not to drink again, and was accepted back into the family. Not long after that he apologised to the victim who, understandably, had left home. She also accepted his apology and returned to live once more with the family. She has since married and now lives with her husband on Butaritari. Since being accepted back into the family in later November 1991 the accused has honoured his promise and has not touched any alcohol.

The accused is 47 years old, is a person of previous good character and leads a subsistence life style. He has a large family of eleven children, four of whom are now married, but he is still supporting the other seven. I am aware that some degree of hardship will be caused to them if the accused is sent to prison. Nevertheless, the offence is so serious that in my view a non-custodial sentence cannot be justified.

Learned counsel for the accused has submitted by way of a comparable sentence the decision of this Court in the case of The Republic v. Teem Tiimi (HCCrC 2/92). Although, with respect, I agree with the sentence in that case, I am more influenced by the very useful guidelines laid down by the English Court of Criminal Appeal in the case of Billam (1986) 8 Cr. App. R(S) 48. However, in the present case the result is the same.

Having weighed the aggravating and mitigating features of this case, I consider five years to be the appropriate term for a custodial sentence and, accordingly, the accused is convicted and sentenced to five (5) years' imprisonment from today.

THE HON R LUSSICK
Chief Justice

(22/11/95)