Republic v Tionatan [1998] KIHC 62; HCCrC 12.98 (9 December 1998)

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

HCCrC 12/98

THE REPUBLIC

versus

BIITI TIONATAN

Ms P Tebao for the Republic
Ms J Fleer for the Accused

Date of Hearing: 9 December 1998

SENTENCE

The accused has pleaded guilty to the following charges:

Count 1

Sexual Intercourse with a collateral contrary to section 158(1) of the Penal Code Cap 67.

Particulars of Offence

Biiti Tionatan being a native, on the 2^nd day of October 1996 at Teaoraereke, South Tarawa had sexual intercourse with Ruth (Ruta) Burataake who is a collateral relation of his by blood.

Count 2

Unlawful wounding contrary to section 223 of the Penal Code Cap. 67.

Particulars of Offence

Biiti Tionatan on the 2^nd day of October 1996 at Teaoraereke Tarawa unlawfully wounded Ruth (Ruta) Burataake.

The facts, which are not disputed, are set out in the summary of facts accompanying the indictment. A copy of same appears at the end of this judgment.

In relation to count 1, the victim was the first cousin of the accused and was aged 15 at the time of the offence. As can be seen from the summary of facts, the accused engaged in two acts of sexual intercourse with the victim. Force was used on both occasions. The first time, the accused grabbed the victim by the hand and forced her to lie on the ground where he had sexual intercourse with her without her consent. The second time, the accused pulled the victim by the hair into a pit and again had sexual intercourse with her without her consent. There is no allegation that the victim suffered any injuries during these two incidents. Nevertheless, in my view, this is a serious instance of this type of offence.

In relation to count 2, it can be seen from the summary of facts that the accused injured the victim's leg with a knife after they had arrived home. I am told that she suffered a small cut to her thigh. The use of a weapon to commit the offence is, of course, an aggravating factor.

The accused is unable to offer any explanation for his conduct apart from the fact that he was drunk and gave in to temptation.

I am told that the accused is aged 28 and comes originally from Maiana. He has a child with a woman from whom he separated in 1995, and the child now lives with its mother. The accused has an extensive criminal record going back to 1985. He has served many terms of imprisonment and, in fact, on the 22^nd October 1998 he was sentenced in the Magistrates' Court on a charge of criminal trespass to 3 months' imprisonment and on the 30^th October 1998 he was again sentenced in the Magistrates' Court on a charge of theft to a further 6 months' imprisonment. The accused must, of course, be sentenced for the particular offences before this court and not on his record, but the existence of such a record makes it difficult to find any mitigating circumstances apart from the fact that he has pleaded guilty. I am also told that he has sent an apology to the victim's family and has apparently been forgiven. He will of course be given credit for those matters.

Taking all of those circumstances into account, the accused is sentenced as follows:

On count 1 he is convicted and sentenced to imprisonment for a term of 2 years of 6 months. On count 2 he is convicted and sentenced to imprisonment for a term of 6 months.

Since the offences were committed in the course of different transactions, the sentences are to run consecutively with each other and are to be executed after the expiration of the previous sentences imposed by the Magistrates' Court on 22^nd October 1998 and 30^th October 1998.

THE HON R B LUSSICK
CHIEF JUSTICE
(09/12/98)