Republic v Timau [2003] KIHC 171; Criminal Case 60 of 2003 (5 December 2003)

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

Criminal Case No 60 of 2003

THE REPUBLIC

VS

TIO TIMAU

For the Republic: Birimaaka Tekanene
For the accused: Aomoro Amten

Date of Hearing: 1st and 2nd December 2003

SENTENCE

Tio Timau: You were originally charged with a very serious offence of rape to which you had pleaded not guilty. However on the first day of the trial instead of proceeding with the rape charge during the trial the prosecution had amended that charge to the lesser offences of attempted rape and in the alternative to indecent assault. This took the court by surprise as this had occurred after the trial was adjourned specifically for the purposes of enabling the prosecution to prepare a brief written summary of the facts of this case for the court which it (prosecution) has failed to do so before the trial begins.

However when you were re-arraigned for the fresh charges of attempted rape you had pleaded not guilty to that charge and instead you had pleaded guilty to the alternative charge of indecent assault.

As you yourself has admitted the offence of indecent assault is a serious offence and it attracts a penalty of 5 years imprisonment.

With regard to what you have done to the victim- Ereamarewe in this case, I am told that on 28 March 2003 at about 5 pm at Temaiku, South Tarawa, you asked the victim to accompany you to your house. The victim, I am told, is your sister in law, as she is the sister of your wife. She is a young girl of 13 years of age. The victim agreed to go with you to your house and so you and victim set out walking to your house and as you reached the spot where 'te ni uakai' (a coconut tree with 2 trunks) also in Temaiku area you went to some bushes to hide and there you ordered the victim (Ereamarewe) to undress and threatened to hit her with a torch which you carried if she refused. She undressed. You then pushed her down to the ground. You then undressed, got on top of her, and then you tried to penetrate her vagina with your penis but you could not penetrate her vagina as she kept moving her bottom and body about while she was lying on her back under you.

So from all these it appeared that you got the message that the victim did not want to have sex with you. So you stopped, stood up and both got dressed and headed home together (i.e. your house).

I am told that you accept the above prosecution's version of the incident in question but there is more that you wish to add and this is what Mr. Amten your counsel told me:

'You took and led away Ereamarewe - the victim from her home because you really believed that she wanted to have sex with you and you held this view because her brother Faio who is your brother in law had also given you the idea an encouragement that he (Faio) didn't mind at all if you had sex with her sister Ereamarewe the victim at that night in question.

I am further told that in the early evening of 28 March 2003 you and Faio had a social drunk of alcohol together at Teimaiku. You both consumed a considerable amount of alcohol but were not full drunk. Then you returned home after you finished your social drink. However on your way home you both were inspired by some bright ideas as you then suggested to each other to have same time with each other's sister.

So you accompany Faio to his house where on reaching the house he called his sister Ereamarewe and she came. Then you asked her to accompany you to your house and she agreed.

On the way to your house you told her that you were interested in her and that you would like to have sex with her. So you suggested to her that you should stop at near 'ni uakai' (coconut tree with 2 trunks) beside some bushes. You then pushed the victim to the ground, you undressed and so did the victim as well. You then got on top of her. You then tried to insert your penis inside her vagina but she refused. So you stopped, stood up, you both got dressed and went home (your house).

The next day which was 29 March 2003 you were shocked and surprised when you were arrested by the police and told that you have tried to rape Ereamarewe the victim. You were later released on bail by the police the next day.

As the result of your arrest and accusation of you having attempted to rape Ereamarewe, I am told your relationship with your wife's parents went sour, strained and became unpleasant. You considered yourself to have been framed for the attempted rape of Ereamarewe by you by the parents and brother Faio of the victim. I am told that your wife's parents and especially your father in law had for some reason or other always wanted you and your wife to separate since you first settled down with her. I am also told that your in laws had on several occasions physically taken your wife away from you. However fortunately for you she had always returned to you after each of these incidents.

I am also told that on 7 November 2003 your father in law (also father of victim) had apologised to you for having gotten you into trouble with the police regarding the alleged attempted rape of the victim by you. I am told also that the same father in law and his family were willing to withdraw their complaint against you regarding the alleged attempted rape of the victim by you. And it was only then that you were able to be reconciled with your in laws and family.

I am also told that you are 33 years of age, married, and has a daughter aged 7. Your wife is working and expecting a baby within the next three or four months from now on. You are from Abaiang and South Tarawa. You are unemployed and you are awaiting the result of your application to undertake teachers training course at Kiribati Teacher's College next year in 2004.

I shall take into account as credit in mitigation in your favour the following facts and circumstances:

(a) That you had pleaded guilty to the charge of incident assault at the first opportunity. And by having done so you have saved the courts time in holding a full trial and also the victim who is a young girl of 13 years of age from the stress and agonizing experience of giving evidence in a full trial.

(b) That you have used no physical force nor violence against the victim when you attempted to have sex with her.

(c) That the victim had suffered no physical injuries to her genitals and to other parts of her body generally.

(d) That you have not coerced the victim to go with you to your house but that she had agreed to go with you when you asked her in the presence of her brother Faio to accompany you which she did. This has convinced you that she would be willing to have sex with you as you had already planned and agreed upon earlier on with her brother Faio that she would be spending some time with you. Hence the reason why you had proceeded to have sex with the victim.

(e) That you are a first offender and although you have some recorded previous criminal convictions on police record they are irrelevant to the present charge as they relate to throwing stones and reckless driving offences.

I am also told that you have been remorseful about what you had done to the victim and that you had been through considerable amount of emotional stress due to the charges of first of all rape, then attempted rape and indecent assault to which you had pleaded guilty and also the conduct and behaviour of your in laws towards you before and after you were charged as described above.

Up to now and apart from your previous convictions referred to above you have been living a decent life without any trouble with the police. I am therefore prepared to regard you as a good man.

The prosecution and the defence had referred me to a number of cases in which the offence of indecent assault has been dealt with by the court before. However it must be remember that each case is distinct and different and must turn on its own peculiar facts.

Counsel for prosecution however has not assisted the Court in suggesting as what the appropriate penalty should be in the present case. On the other hand counsel for defence has been quite helpful to the Court as it has suggested a suspended sentence of imprisonment, of three or four months suspended for 18 months or 2 years.

So when weighing all the facts and circumstances in this case it seems to me that the indecent assault which you have committed upon the victim who is a girl aged 13, falls within the lower end of the scale of indecency.

It is not very serious, but still serious and bad. However this kind of offence normally attracts a penalty of imprisonment. I therefore consider that the appropriate sentence is imprisonment for a term of six months which will be suspended for 18 months.

This means that if you do no not commit any other offence within the next 18 months then you would not have to serve these 6 months. However, if you were to commit another offence and were convicted and sentenced to imprisonment for it during the eighteen month period you would be liable to go to goal and serve such sentence of imprisonment for the new offence and also to serve this term as well after you serve the new term of imprisonment for the new offence.

Dated 5^th day of December 2003.

HON MR JUSTICE MICHAEL TAKABWEBWE
Judge