Republic v Tioneri [1995] KIHC 8; CRC 35 of 1994 (22 November 1995)

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

HCCrC 35/94

THE REPUBLIC

v.

RUTAWERU TIONERI

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 first cousin. I have not been told her age but I note that at the time of the offence she was married, with one child.

On the night of the offence the accused took the victim on his motorbike to go fishing. At the beach he asked the victim to have sexual intercourse with him but the victim refused. The accused then overpowered her and had intercourse with her against her will. Although this must have been a most distressing experience there is no evidence that the victim suffered any physical injury. I have no way of knowing the emotional impact on the victim but the fact that after being raped she continued with her fishing suggests that it may not have been severe, at least at that stage. They later left the beach and on their way to another spot the motorcycle broke down. The accused then raped the victim again despite her protests. Again, she suffered no physical injury.

The accused was spoken to by police the next day (i.e. 12 February 1991) and admitted to the offence. For some reason not known to me the indictment was not filed until July 1994. Possibly the delay might have been caused by the prosecuting of other charges brought against him which are not related to the present offence, but I cannot really say. In relation to those other charges the accused is currently serving a prison sentence of 2 years and 9 months effective from 10th October 1994.

It is in favour of the accused that he has pleaded guilty, thus sparing the victim from the extra distress of having to give evidence. Also in his favour is the fact that the victim suffered no physical harm. On the other hand, the offence was aggravated by the fact that the act of rape was repeated.

The accused is 28 years old, single, and, prior to being imprisoned, led a subsistence life style. I accept his claim that he was affected by alcohol at the time of the offence.

Rape is always a serious crime. In my view the circumstances of the present offence call for a custodial sentence. In arriving at an appropriate sentence I do not take into account the three convictions on the accused's criminal record; the offences concerned were not of a sexual nature and I am told that they were committed after the present offence.

Learned counsel for the accused submits that because of the delay in bringing this case before the court any sentence I impose ought to run concurrently with the other sentences. This is because had the present case been dealt with promptly the accused would already have served his sentence before the current term of imprisonment was imposed. I do not follow that logic. It might also be said that because the case has been delayed the accused has enjoyed liberty at a time when he might have been in prison. Having admitted to the crime of rape, it was always foreseeable that he would go to prison. That he would go on to commit further offences would not have been foreseeable, except perhaps to the accused himself. Therefore, I do not accept the submission that the sentence for the present offence should run concurrently with the other sentences.

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. Banana Unikanteata (HCCrC 11/94). Although, with respect, I do not disagree with that sentence I am more influenced by the 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.

The accused is convicted and sentenced to three (3) years' imprisonment which is to commence upon expiration of the former sentences.

THE HON R LUSSICK
Chief Justice

(22/11/95)