Republic v Toani - sentence [2002] KIHC 69; Criminal Case 34 of 2001 (7 June 2002)

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

High Court Criminal Case 34\01

THE REPUBLIC

vs

BETERO TOANI

For the Republic: Mr Tion Nabau
For the Accused: Ms Emma Hibling

Date of Hearing: 4 & 5 June 2002

SENTENCE

Betero Toani: you are guilty of three crimes, of unlawful and indecent assault, common assault and indecent assault.

The first and third were committed on a young girl of 12 or 13. The common assault was on her mother.

The unlawful and indecent assault was very serious indeed. Had the Republic charged you differently you may have been now facing sentence on four or five counts of rape and a much more severe penalty. You are very lucky.

The indecent assault is much less serious. It is the offence created by S.133(3) of the Penal Code. You told the young girl that you were going to rape her. That was an insult to her modesty. At the end of the prosecution you changed your plea from not guilty to guilty of indecent assault. If a person pleads guilty before trial he gets a lesser penalty and the longer before trial the indication of plea the less the penalty. Your change of plea was so late that there cannot be much reduction.

The common assault consisted in hitting the mother of the girl across the face in the course of a domestic argument. The lady had been your girl-friend. Any assault is serious but this assault was not one of the most serious assaults. You pleaded guilty to common assault at the end of the prosecution after I found you had no case to answer on the charge of Assault Occasioning Actual Bodily Harm but did have to answer to common assault.

You are married with eight children. Your family lives here on Nikunau. You were a shopkeeper until this happened. You have no previous convictions. Ms Hibling has told me that, through the catechist, you offered an apology but it was not accepted.

For the unlawful and indecent assault you will be imprisoned for 3½ years, for the indecent assault for 3 months and for the common assault for 2 months.

Ms Hibling said you were drunk and asked me to regard the three crimes as one course of conduct. I do not regard it as one course of conduct. The indecent assault was two or three days before the other crimes. The common assault and unlawful and indecent assault were against separate victims and are crimes of a different kind. The penalties should be cumulative.

The total period of imprisonment is 3 years and 11 months. You have spent nearly two weeks in custody. So the imprisonment will date from 24 May 2002.

Dated the 7^th day of June 2002

THE HON ROBIN MILLHOUSE QC
CHIEF JUSTICE