Republic v Ngatau [2003] KIHC 174; Criminal Case 67 of 2003 (19 December 2003)

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

High Court Criminal Case No. 67 of 2003

THE REPUBLIC

vs

TETOMA NGATAU & BUREETI IOANI

For the Republic: Ms Tebao
For the Accused:

Tetoma: Mr Amten

Bureeti: Ms Huston

Date of Hearing: 10th & 11th December 2003

SENTENCE

Tetoma Ngatau and Bureeti Ioani: You have pleaded guilty to two very serious crimes of burglary and larceny (stealing) in a dwelling house. You have also been charged with attempted burglary to which you would have pleaded not guilty but the prosecution has decided to discontinue the proceedings for that charge by entering a nolle prosequi. I am told that you have made an offer to plead guilty to the two charges of burglary and larceny in a dwelling house about ten days before the trial begins on 10^th December 2003. The crime of burglary carries a very heavy punishment of life imprisonment. Larceny or stealing from a dwelling house on the other hand carries a lesser but still quite a heavy punishment of imprisonment for 14 years.

The following is an account of what you had done and happened:

Before you set out to burgle Mr & Mrs Davies house on 25 October 2003 you had been drinking quite a lot of sour toddy and as the result you were drank but not fully drank. The sour toddy then ran out and wanted more but couldn't buy any more sour toddy as by then you have no more money. So you set out to look for more drink. So you decided to burgle Mr. Davies house and this is what you did:

You forcefully pulled out the security screen on one of the windows in the house then removed two glass louvers and entered the house. You did all this with your bare hands. On entering the house you went straight to the fridge where you found beer (4 packs of 6 beers) and started drinking. You drank about 10 cans of beer and you took the rest away. You also drank two half litre bottles of gin.

After drinking you had a good look around inside the house and the rooms and whereupon your eyes fell upon the following item of goods which you coveted and so you stole them. They are: Jewellery and jewellery box, a portable stereo, two compact discs, two cassette tapes, four cases of beer, a pair of glove, five pairs of shoes, which included a pair of women's sneakers and a pair of men's sneakers, a pair of leather thongs, a cap, a hat, a shirt and a tooth brush.

Further the owners of the house also noticed the following item of goods missing from the house after you burgled it. They are: two bottles of Gordon's gin and two body glove snorkels.

As the result of the break in some part of the house were damaged and have to be repaired. They are: 2 replacement locks for front door; 2 window panes; 1 door frame and reinstallation of security screen. There is also the labour cost.

According to the prosecution the total value of all the item of goods which you had stolen and the repair to the house is about $1,084.11

You Tetoma and Bureeti however disputed the alleged four cases of beer which the prosecution alleged that you have stolen and as stated earlier I am told that you had drunk about only 10 beers and took the rest with you which were placed in 4 packs of 6 beers. I reject this as when Mr Davies and wife, and Debbie McCoard drove up their drive way when they returned home they saw you walking out of the front door of their house and apart from the item of goods which they saw you carrying in your hands namely stereo, cd's and jewellery which Mr Davies had managed to recover from you before you took them away, they saw you at that time carrying no beer cans or cases with you at all. And you Bureeti couldn't have done so either in any case as you had been stuck inside the house ever since Mr Davies and wife returned home that early morning in question and you only left the house when the police arrested and detained you.

I am thus satisfied beyond reasonable doubt that the number of beer in beer cases that you have stolen and their value is as stated by the prosecution.

You - Tetoma managed to escape from the house but were arrested and detained by the police the next day. You Bureeti on the other hand had locked yourself up inside Mr and Mrs Davies' bedroom which Mr Davies has to forcibly open by kicking the door down in order to get you out of their bedroom. The police eventually came, arrested and detained you. You were released from custody the next day.

You - Tetoma are aged 19, single, living with your parents and six siblings at Bairiki. You had left school in 2000 when expelled at Form 3 level. You are unemployed and live a subsistence life style by fishing and cutting toddy.

You - Bureeti are 16 years and 3 months old, single and live with your grandmother at Bairiki. Your parents are divorced and have younger siblings who are living with your mother. You are the oldest in the family and had been living with your grandmother since you were a very young child. You are a youthful and immature offender. You have completed primary school to class 6 level and had left school since 2001. Apart from going out fishing occasionally you are unemployed.

I shall take into account the following facts and circumstances as mitigating factors in your favour which means less penalty than otherwise:

(a) That you have pleaded guilty to the charges at the earliest opportunity and by doing so you have saved the Court a considerable amount of time in holding a full trial, and have also demonstrated to the Court that you are remorseful and ashamed of what you have done.

(b) That you have co-operated with the police all along throughout the investigation.

(c) That you are first offenders or have no prior convictions for any offence.

(d) That there was no weapon used nor any violence involved nor any vandalism or damage to the interior of the house other than removing the glass louvers and bending the security screen to get in the house.

(e) That you both are young offenders.

On the other hand there are some aggravating features of this case which are against you and these are:

(a) That the house you had broken in and stole from is the house of an Australian diplomat.

(b) That following the burglary of and larceny in such house the owners no longer feel safe and secure to live in such house.

Counsel for the prosecution and each counsel for the defence for the two accused have referred me to some precedents where the Court has sentenced offenders who had been convicted of the crime of burglary and larceny in a dwelling house before. These various precedents are useful as general guideline in the way the Court has dealt with such offenders in the past. However each case must necessarily turn on its own peculiar facts and circumstances.

I have also been referred to a number of options that are available to the Court under relevant statutes as to the appropriate sentence that the Court may impose on an accused person who is guilty of any offence under the law.

From the submissions of counsel for the prosecution and each of the counsels for the two accused the common message that I am able to read is that imprisonment as a penalty is inappropriate in this case as the accused are young offenders. And as Ms Huston has reminded the Court:

"The principles that apply in sentencing a young offender are different from those that apply to adults. And the primary concern of the Court is to help the young offender develop into a law abiding citizen. Retribution and deterrence are of minor importance".

However the sentencing option that the Court may eventually adopt will largely depend on availability in our jurisdiction of developed and workable alternative forms of sentencing apart from imprisonment which appear to be serving our need for the time being.

As I have said before burglary is a very serious crime which attracts a penalty of life imprisonment. Larceny in a dwelling house is also a very serious crime but carries a lesser penalty than that of burglary, of imprisonment for 14 years.

Therefore it is in the public interest that the penalty imposed by the Court in respect of these two crimes must reflect the gravity of such crimes. But the Court will regard the interest of these two young offenders in that it is to help them develop into law abiding citizens. The Court will also regard the feelings of the victims of the crime of the owners of the house which is the subject of burglary and larceny in this case.

Taking into account therefore all the facts and all circumstances in this case I consider that the appropriate sentence in the present case is as follows:

In view of the fact that you Tetoma Ngatau are a young man of 19 years old and owing to the rudimentary nature of other alternative forms of sentencing available in our jurisdiction apart from incarceration, I sentence you to imprisonment for a term of 12 months in respect of the crime of burglary, and imprisonment for a term of 6 months in respect of the crime of larceny in dwelling house.

And as the crimes had arisen out of one course of conduct the sentence of 12 months imprisonment and 1 month imprisonment will run concurrently.

This means that you will be goaled for 12 months.

And as for you Bureeti Ioaneti and taking into account the fact that you are a youthful and immature offender of 16 years and three months old and again owing to the rudimentary nature of other alternative forms of sentencing available in our jurisdiction apart from incarceration, I sentence you to imprisonment for a term of two months in respect of the crime of burglary and imprisonment for a term of 1 month in respect of the crime of larceny in a dwelling house. The sentences to run concurrently as they have arisen out of one course of conduct.

This means that you will be in gaol for 2 months

In view of the gravity of the crime of burglary and larceny in a dwelling house, in addition, but after you have served the term of two months imprisonment referred to above, I order you – Bureeti Iaoni pursuant to section 35 of Penal Code (Cap 67) that you enter into your own recognizance without sureties by which you shall bind yourself to keep the peace and be of good behaviour for the next 12 months.

Dated the 19^th day of December 2003

THE HON MR JUSTICE MICHAEL N TAKABWEBWE
JUDGE