Republic v Tainimaki [1998] KIHC 73; CRC 13 of 1997 (31 March 1998)

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

HCCrC 13/97

THE REPUBLIC

v.

BURAITOA TAINIMAKI

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

Date of Hearing - 30 & 31 March 1998

SENTENCE

The accused has pleaded guilty to a charge of indecent assault contrary to section 133(1) of the Penal Code Cap. 67 in that on the 5^th of November 1994 at Tabonibara village, North Tarawa he unlawfully and indecently assaulted Nei Tinee Tabwakea, a female child of about 11 years of age. The case originally proceeded as a defended hearing on a charge of buggery contrary to section 153(a) of the Penal Code. However, after the complainant and a medical assistant had given evidence, the prosecution decided to withdraw that charge and replace it with the present charge.

The facts which are not disputed are that in the early hours of the 5^th of November 1994, the accused forcefully led the victim away from where she was sleeping and took her to a 'kiakia' in the middle of a pond. There he removed her lavalava and took her into the pond and later put her back on the 'kiakia'. At some stage during this activity, the accused inserted a finger into the anal orifice of the victim. In fact it was probable that more than one finger was inserted because the evidence of the medical assistant was that the injury suffered by the victim to her anus could not have been caused by the insertion of just one finger. The victim suffered bruising around the anal orifice and two tears which extended into the anal canal. There was some bleeding and the site of the injury was painful.

The accused comes from TabNorth. He is aged 58 and for most of his life has led a subsistence lifestyle, although he has on occasions worked as a carpenter. He is married with four children, the youngest of whom is 18 years of age. He comes before the court as a person with a bad criminal record. Between the years 1964 and 1982 there were 14 convictions recorded against him, some for very serious offences. However, I take note of the fact that the present offence is the first time he has come under notice in the last 16 years.

The reason given by the accused for having committed the offence is rather bizarre. Approximately a week before the offence occurred, the accused came upon the complainant's father attempting to rape the accused's daughter. The accused challenged the complainant's father to a fight but the complainant's father tendered an apology instead of fighting. The accused believed that he was bound by custom to accept the apology although he was not happy to have to do so. The accused then embarked on the present offence which was intended as revenge against the complainant's father. In reality, it was a distressing and rather brutal attack on an 11 year old girl.

I take into account the accused's plea of guilty. I do not know whether before today he was ever given the option of pleading guilty to the present charge. It is regrettable that the young victim had to go through the additional stress of giving evidence, although I noted that she was not upset at having to do so. I also take into account the age of the accused; by local standards he is indeed an old man. As already mentioned, two aggravating features of the offence were the young age of the victim and the fact that she suffered injuries.

I am of the view that an immediate custodial sentence is warranted. Taking all of those matters which I have mentioned into account, the accused is convicted and sentenced to imprisonment for a term of twelve (12) months.

THE HON R B LUSSICK
Chief Justice

(31/03/98)