Republic v Batirio [2003] KIHC 154; Criminal Case 46 of 2003 (18 November 2003)

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

Criminal Case No. 46 of 2003

THE REPUBLIC

vs

TIARE BATIRIO

For the Republic: Ms Pole Tebao & Ms Tetiro Mate
For the Accused: Ms Jacqueline Huston

Date of Hearing: 17 & 18 November 2003

SENTENCE

Tiare Batirio: you were originally charged with a very serious crime of defilement of a girl under 13 years of age under section 134(1) of the Penal Code (Cap. 67)

When your plea was taken on 17 November 2003 you pleaded not guilty to that charge but instead you made an offer to the prosecution to plead guilty to a lesser crime of attempted defilement. However on the second day of the trial on 18 November 2003 and whether or not the prosecution had firstly made an offer to you that it would accept from you a guilty plea on a lesser offence on a charge of indecent assault, or you yourself through your counsel had made that offer first it is unclear to me. However, what is clear now is that on arraignment for the indecent assault charge you have pleaded guilty to that charge and the prosecution had accepted it.

This is a serious crime and it attracts a term of five years' imprisonment under the Penal Code (Cap. 67).

The following is an account of what you did and happened:

In the early evening of 28 of March 2003 at Nuatabu village, North Tarawa, you – Tiare took Nei Batitoka Ititaake to the bush and lied to her that you were going to collect pigs' feed with her. Batitoka is an eight year old little girl. Instead and as you were alone with her in the bush you pushed her down to the ground and then you indecently assaulted her by rubbing your penis between the girl's legs and on the surface of her genitals. I am told that you are related to Nei Batitoka as your mother is Nei Batitoka's first cousin.

I am told also that when the search party went to look for you and the girl, you and the girl were not found until nearly midnight. After the little girl was found she was taken to the clinic and examined by a female medical assistant. In her medical report (P1) her findings revealed that the girl had suffered five injuries in all to her genitals.

I am told that you are 18 years old. You are single and live with your parents and five younger siblings here on Betio. Some of your siblings are still in school and your parents are not working. You are the only support for your family as you had been employed at Atoll Seaweed Company before you had trouble with the police in this case.

In your favour you have pleaded guilty to indecent assault and thus you have saved the little girl the trauma and extra distress which she could have suffered had she testified. You have also offered to plead guilty to attempted defilement at the very beginning of the trial.

I also note the fact that you had used no weapon nor apply additional violence on the little girl to achieve what you did. I also note that you are a youthful first offender and you have no prior record and had never been in trouble with the police and that you feel remorseful and shameful for what you have done to the little girl. So I am prepared to regard you as a person of good reputation and character and I am prepared to consider what you had done in this case as an isolated incident in your life.

Nevertheless I regard what you had done to the little girl as being particularly nasty, shameful and cruel. I am told the little girl is closely related to you as she is the cousin sister of your mother and as such she is your aunt and even though she is a little girl you should have accorded her due respect as your aunt. Because you are related to her she was willing to go with you to the bush and I understand that you were also staying with the parents of the little girl when you took the girl to the bush. This is not the way to treat the little girl who has trusted you and expected you to protect as your relative and aunt.

The little girl had received and suffered from you a number of physical injuries and bruises to her vagina internally and externally according to the medical findings not mentioning any psychological damage that such indecencies might have caused to the little girl in the years ahead.

As the prosecution has correctly quoted: "The Court has a duty to protect young children – by imposing substantial sentences as a deterrent to those who would commit indecencies upon them".

Taking therefore into account all the circumstances I consider that an appropriate sentence for you is a term of imprisonment of two years and four months commencing from the date when you were first put into custody.

Dated this day of November 2003

THE HON MR JUSTICE MICHAEL N TAKABWEBWE
Judge