Republic v Teruru [1998] KIHC 6; HCCrC 55.97 (20 January 1998)

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

Criminal Case No. 55 of 1997

THE REPUBLIC

vs

TEWAIWAI TERURU

For the Republic: Ms Pole Tebao
For the Accused: Mr Banuera Berina

Date of Hearing: 19, 20 January 1998

JUDGMENT

On Sunday night the 20^th July 1997, at Bikenibeu East, Tarawa, the accused assaulted an Australian Volunteer named Sandra Thompson. As a consequence, he has been indicted on the following five counts:

Count 1

Statement of Offence

ATTEMPTED RAPE contrary to section 130 of the Penal Code, Cap 67.

Particulars of Offence

TEWAIWAI TERURU, on the 20 July 1997, at Bikenibeu East, Tarawa attempted to have unlawful sexual intercourse with a woman, Sandra Thompson without her consent.

Count 2

Statement of Offence

INDECENT ASSAULT contrary to section 133(1) of the Penal Code, Cap 67.

Particulars of Offence

TEWAIWAI TERURU, on the 20 July 1997, at Bikenibeu East, Tarawa, unlawfully and indecently assaulted a woman by the name of Sandra Thompson.

Count 3

Statement of Offence

UNLAWFULLY WOUNDING WITH INTENT TO CAUSE GRIEVOUS HARM contrary to section 218(a) of the Penal Code, Cap 67.

Particulars of Offence

TEWAIWAI TERURU, on the 20 July 1997, at Bikenibeu East, Tarawa, with intent to do grievous harm to a woman, namely, Sandra Thompson, unlawfully wounded her.

Count 4

Statement of Offence

ENTERING A DWELLING HOUSE IN THE NIGHT WITH INTENT TO COMMIT FELONY contrary to section 294 of the Penal Code, Cap 67.

Particulars of Offence

TEWAIWARI TERURU, on the 20 July 1997, with intent to commit a felony entered in the night time into the dwelling house of Sandra Thompson.

Count 5

Statement of Offence

DISABLING IN ORDER TO COMMIT FELONY OR MISDEMEANOUR contrary to section 216 of the Penal Code, Cap 67.

Particulars of Offence

TEWAIWAI TERURU, on the 20 July 1997, rendered Sandra Thompson incapable of resisting his actions by his action which were calculated to choke, suffocate or strangle Sandra Thompson so that he could attempt to rape her.

The accused has pleaded guilty to counts 2 and 4, but not guilty to counts 1, 3 and 5.

There was no real dispute on the facts.

The victim testified that on that night she was alone in a house at Bikenibeu. She was sitting down in the living area talking by telephone to her son in Australia when the accused, a solidly built man, came running into the room with a knife pointed as if to strike.

He had a white cloth band around his head and a T-shirt wrapped around his face. He was saying "fuck you, fuck you." The victim thought she was going to be stabbed so she put up her hand to grab the knife and sustained some injuries. She screamed and struggled and fell to the floor. At one stage she was able to grab her attacker's testicles but he kept pushing the knife closer and closer so she stopped struggling. The accused put his hand over her mouth and dragged her to her feet. He told her not to talk and she said that she would not.

He then pushed her into the bedroom and onto the bed. She again struggled to get away he was sitting on her leg and menacing her with the knife. He tore her shorts off and put his mouth to he vagina, still holding the knife pointed towards her body. He told her not to move and she remained still.

When the accused left the room to turn off the light in the living area the victim got up from the bed and locked the bedroom door. The accused rattled the door but could not open it.

At that stage the accused no longer had the T-shirt around his face. He again came at the victim with the knife and they struggled. She fell to the floor with the accused on top of her. However, she managed to get to her feet and press her personal alarm, at the same time telling him that the police were coming. The accused stood looking at her for a couple of seconds and then grabbed her by the throat with one hand and pushed her back onto the bed. He still held the knife in his other hand. He again told her not to move. She tried to indicate to him that she would do what he wanted so that he would let go of her throat, which he did.

The next thing he did was to move down her body, push her legs apart and put his mouth to her vagina. At that stage she held her wounded hand across her body. It was wrapped in her T-shirt and bleeding badly. He moved up and kissed her on the mouth. Then he pushed up her T-shirt and kissed her breasts.

He stood up, took off his shorts and placed himself between her legs to have sexual intercourse but could not do so as he did not have an erection. He then lay on top of her. After a while he said "I'm sorry." It sounded as if he were crying. She replied "it's okay", hoping to prevent him from becoming agitated again.

Not long after that the police arrived and the accused jumped up and ran into the living area, where he was arrested.

When cross-examined, the victim agreed that it had been physically impossible for the accused to penetrate her with his penis. She also agreed that what the accused did was just to touch her genitals with his penis.

Two police constables, Constable Tomebwa Amota and Constable Tanentoa Matita, gave evidence that, after receiving a complaint, they went to the victim's house that night with a third policeman, Constable Kaotan, and arrived just in time to see the accused coming out of the bedroom pulling on his underwear and holding a large knife. The knife was admitted into evidence without objection as Exhibit A. Special Sergeant Taeuea Betero testified that the next day, Monday the 21^st July 1997, he witnessed the accused giving a cautioned statement to Detective Bamaere Tiira. The latter produced the statement, which was admitted into evidence without objection as Exhibit C.

When cross-examined, Detective Constable Bamaere agreed that although he had shown the I-Kiribati word "taua" as meaning "rape" in the English translation of the accused's statement, the common meaning of "taua" is simply to have sexual intercourse.

In his cautioned statement the accused told the police, amongst other things, that he had only lain beside the victim but that his penis had not entered her vagina.

The only other witness for the prosecution was Doctor Georgina Phillips, who examined the victim after the attack and treated her wounds. The injuries suffered by the victim are set out in detail in Dr Phillips' report (Exhibit B). Briefly, the victim sustained lacerations to two fingers and the thumb of the left hand and to the left forearm, all of which required stitching. She also suffered welling and bruising to the face and neck, a large haematoma to the occipital area of the scalp, bruises and grazes to the shoulders, back, chest, breasts, abdomen, hips, left and right upper arms, right forearm including superficial lacerations to two fingers of the right hand, and a large haematoma to the lower back.

That was the case for the prosecution.

The accused elected not to give or call any evidence.

The first of the charges to which the accused has pleaded not guilty is the charge in count 1 of attempted rape contrary to section 130 of the Penal Code. It is argued for the accused that there was more than one plausible explanation for the accused's action of rubbing his penis against the victim's vagina – for example, he may have been merely trying to arouse himself – and that therefore he should be given the benefit of the doubt.

I remind myself that there is no onus on the accused at any stage to prove his innocence and that the burden of proof beyond reasonable doubt remains on the prosecution from first to last.

Neither counsel has referred me to any authorities on the question of what constitutes an attempt. Section 371 of the Penal Code defines an attempt as follows:

371(1) When a person, intending to commit an offence, begins to put his intention into execution by means adapted to its fulfilment, and manifests his intention by some overt act, but does not fulfil his intention to such an extent as to commit the offence, he is deemed to attempt to commit the offence.

(2) It is immaterial, except so far as regards punishment, whether the offender does all that is necessary on his part for completing the commission of the offence, or whether the complete fulfilment of his intention is prevented by circumstances independent of his will, or whether he desists of his own motion from the further prosecution of his intention.

(3) It is immaterial that by reason of circumstances not known to the offender it is impossible in fact to commit the offence.

In my view, the facts of the present case very clearly bring the accused within that definition. The evidence leaves no doubt that the accused was a person intending to commit the offence of rape. His actions cannot reasonably be regarded as having any other purpose than to have sexual intercourse with the victim without her consent. The evidence clearly shows how the accused began to put his intention into execution by means adapted to its fulfilment and how his intention was manifested by overt acts. He did not fulfil his intention to such an extent so as to commit the offence of rape solely because of his inability to achieve an erection. Had there been even the slightest penetration then such an offence would have been committed.

In those circumstances, the accused cannot maintain that he did not attempt to rape the victim. I am satisfied that the prosecution have proved the charge beyond reasonable doubt and the accused is found guilty of that charge.

I now turn to the charge contained in count 3 of unlawful wounding with intent to cause grievous harm contrary to section 218(a). This is a serious offence which carries a maximum penalty of imprisonment for life. The relevant part of section 218 of the Penal Code provides as follows:

218. Any person who, with intent to maim, disfigure or disable any person, or to do some grievous harm to any person, or to resist or prevent the lawful arrest or detention of any person –
     

(a) unlawfully wounds or does any grievous harm to any person by any means whatever;

is guilty of a felony, and shall be liable to imprisonment for life.

It is submitted for the accused that the prosecution have failed to prove beyond reasonable doubt that the accused intended to do grievous harm to the victim. Again, neither counsel has referred me to any authority on the point.

In my view, the evidence falls far short of proving such an intent. There was no question that the victim was unlawfully wounded. On the evidence, all of the wounds suffered by the victim occurred during her struggle with the accused. The most serious wound, the injury to her left hand, was sustained when she grabbed the accused's knife. But it was clear from the evidence that had the accused intended to do grievous harm then he had ample opportunity to do so. Yet, on those occasions when the victim stopped struggling, the accused did not harm her. In my view, the evidence as it stands is not capable of proving the charge. To establish a charge of unlawful wounding with intent to do grievous harm there must be proof of a specific intent to inflict harm of that nature; mere recklessness or foresight of the likelihood of such harm occurring without a specific intention to inflict it, is not sufficient (R v. Belfon (1976) 3 All ER 46).

It follows that the prosecution have not proved the charge to the required standard and I therefore find the accused not guilty of that charge and he is acquitted.

I come now to the charge in count 5 of disabling in order to commit a felony or misdemeanour contrary to section 216 of the Penal Code. This is a serious offence which also carries a maximum penalty of imprisonment for life. Section 216 of the Penal Code is in the following terms:

216. Any person who, by any means calculated to choke, suffocate or strangle, and with intent to commit or facilitate the commission of a felony or misdemeanour, or to facilitate the flight of an offender after the commission or attempted commission of a felony or misdemeanour, renders or attempts to render any person incapable of resistance, is guilty of a felony, and shall be liable to imprisonment for life.
     

It is argued for the accused that the prosecution have failed to prove beyond reasonable doubt that the victim was rendered incapable of resistance.

Once again, neither counsel has referred me to any authority on the point. Nevertheless, it is clear from the wording of the section that what the prosecution must prove is that the accused, by the said means and with the said intention, rendered or attempted to render the victim incapable. What is contemplated by the section is a choking, suffocating or strangling of such seriousness that, as a result, the victim becomes unable to offer any resistance.

In my opinion the provision of section 216 do not apply to the facts of the present case. It is clear on those facts that the victim stopped struggling not because she had been rendered incapable of actually doing so, but because she decided that it was the best way to make the accused take his hand from her throat. The evidence also fails to establish that the accused was attempting to render the victim incapable of resistance. Had that been his real intention then there was nothing to stop him from completing the offence once the victim had ceased to struggle. Instead, what he did when that happened was to release his grip on her throat.

The evidence not being sufficient to prove the charge beyond reasonable doubt, the accused is found not guilty of that charge and acquitted.

In the event, the accused stands convicted of three offences, having pleaded guilty to counts 2 and 4 and having been found guilty on count 1.

Dated the 23^rd day of January 1998

THE HON R B LUSSICK
CHIEF JUSTICE

SENTENCE

As has been related in the judgment, the victim was subjected to a terrifying ordeal in which several acts of indecency were inflicted upon her as well as many injuries, ranging from superficial grazing to quite serious cuts on her hand. Throughout the whole time, she was menaced by a large knife which the accused kept pointed at either her face or body.

The maximum penalty for the offence of attempted rape contrary to section 130 pf the Penal Code is imprisonment for 7 years. It is the same maximum penalty for the offence of entering a dwelling house at night with intent to commit a felony contrary to section 294 of the Penal code. The maximum penalty for the offence of indecent assault contrary to section 133(1) of the Penal Code is imprisonment for 5 years.

I am told that the accused is aged 29 and has a de facto wife and one son aged 2. I sympathise with them because these are obviously offences for which a term of imprisonment must be imposed.

The only excuse offered by the accused for his conduct is that he has a drinking problem and was under the influence of alcohol at the time.

He did not dispute the facts and pleaded guilty to 2 of the charges. It is true that the victim had to undergo the extra distress of having to give evidence, but the responsibility for that does not rest entirely with the accused. In my view, the accused's admission of the facts does justify some degree of leniency.

But apart from that consideration, there is nothing that can be said in his favour. He has a bad criminal record with 15 previous convictions going back to 1980, some of them for serious offences. He is currently serving a one-year prison sentence for the unlawful wounding of another female which occurred on the same day as the present offences.

As has been seen the present offences have some serious aggravating factors. A considerable amount of violence was used on the victim, a knife was used to frighten and would her, and she was subjected to a number of sexual indignities. I have not been told whether the victim has been left with any mental trauma but it is obvious that the experience must have been an extremely distressing one. For those reasons, the offences must be regarded as being at the upper end of the scale.

For the offences of attempted rape and entering a dwelling house at night with intent to commit a felony, the accused is sentenced to six (6) years' imprisonment on each offence. For the offence of indecent assault the accused is sentenced to four (4) years' imprisonment.

All sentences are to be served concurrently with one another and are to commence upon the expiration of the sentence of one (1) year's imprisonment imposed by the Bikenibeu Magistrates' Court on 14 October 1997.

In imposing those sentences I should mention that I am aware that the accused has been in custody since the date of the offence. However, for some of the intervening time he had also been held in custody for another offence which has since been tried in the High Court. For that trial, the accused had to be brought before the court under arrest. In the circumstances, I have not made an allowance for the time already spent in custody.

THE HON R B LUSSICK
CHIEF JUSTICE