Republic v Timau [1998] KIHC 36; HCCrC 01.98 (17 August 1998)

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

Criminal Case No. 1 of 1998

THE REPUBLIC

vs

KAABE TIMAU

For the Republic: Ms Pole Tebao
For the Accused: Mr David Lambourne

Date of Hearing: 17 August 1998

SENTENCE

The accused has pleaded guilty to two charges, namely:

Count 1

INDECENT ASSAULT contrary to section 133(1) of the Penal Code, Cap. 67 in that he unlawfully and indecently assaulted a girl by the name of Nei Moaiti Kaabe.

Count 2

ASSAULT CAUSING ACTUAL BODILY HARM contrary to section 238 of the Penal Code, Cap. 67 in that he unlawfully committed an assault occasioning actual bodily harm to the same girl.

The facts relating to the first charge were that on 1^st March 1997 whilst they were sleeping under the same mosquito net the accused touched the complainant's breast without her consent. The complainant is the accused's daughter, aged 18 at the time.

In respect of the second charge, on the 5^th March the complainant had run away from home. It took some time to find her and when she was found the accused took her back home. The accused asked the complainant why she had run away and the complainant answered that he knew the reason why she had run away. The accused became angry and threatened to find a knife to kill her.

She tried to run away but the accused pulled her by the hair and slapped the side of her head. There was a struggle and the accused threw the complainant onto the floor and hit her left ear severely with his hand. The complainant managed to escape and ran to Betio hospital for treatment. Whilst there she asked a nurse to call the police in case the accused followed her. He was later arrested.

I am told that the accused is aged 40 and originally from Abaiang. He has been a seaman for the last 16 years. He has 6 children, the eldest of whom is the complainant.

There has been a reconciliation and the complainant has returned to live with the accused's family, although not in the same house as the accused.

The accused offers the explanation that he was drunk on both occasions. I accept that this could have affected his judgment but it cannot be regarded as mitigation. It is said for the accused that he knows he has a problem and has taken steps to limit his drinking.

The accused has a previous conviction for common assault and another for damaging property. He was dealt with by way of a fine of $7 on each conviction. Those offences occurred 9 years ago and I am told that they were the result of another domestic dispute.

The facts of the indecent assault in themselves do not appear serious. However, the accused as the complainant's father, was in a position of trust which he seriously abused. It obviously affected the complainant to such an extent that she wanted to run away from home.

With regard to the second charge, a medical report shows that injury to the complainant's left ear was serious enough to require operative treatment to repair it, although the report does not state the nature of the treatment. The report further states that the complainant's right ear was also injured but that it did not need repair.

I take into account that the accused has pleaded guilty and that he cooperated with the police. An appropriate allowance will be made in the sentence.

I think the circumstances call for an immediate custodial sentence. On the first charge of indecent assault the accused is convicted and sentenced to imprisonment for one month. On the second charge of assault occasioning actual bodily harm the accused is convicted and sentenced to imprisonment for 3 months. The sentences are to be served cumulatively, so that the total term of imprisonment is 4 months.

The prosecution have filed a nolle prosequi in relation to the other two charges of attempted rape and attempted incest and the accused is discharged in respect of those charges.

Dated the 17^th day of August 1998

THE HON R B LUSSICK
CHIEF JUSTICE