Republic v Kabeia [2003] KIHC 38; Criminal Case 05 of 2002 (28 March 2003)

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

CRIMINAL CASE No. 5 OF 2002

THE REPUBLIC

VS

AARON KABEIA

FOR THE REPUBLIC: Ms POLE TEBAO
FOR THE ACCUSED: MR BANUERA BERINA

DATE OF HEARING: 29, 30, 31 JULY 2002

SENTENCE

Aaron Kabeia: You had been found guilty of indecent assault. The victim was a 24 year old female employee of the Ministry of Works and Energy for whom you were responsible for personnel matters for her as an employee of that ministry. The facts are in my reasons for convicting you which are set out in the Judgment I delivered on 27 March 2003, also dated 27 March 2003.

You are 44 years of age and you originally came from an outer island called Nonouti Island but had been living in South Tarawa for a number of years perhaps because you had been employed by the Kiribati Government.

As a Government employee and especially the period before you were charged with the offence in question, you had occupied a pretty responsible senior position in the Ministry of Works and Energy as an Assistant Secretary. This position gives you the responsibility for personnel matters in that Ministry and affords you the opportunity to meet with employees in that Ministry of both men and women alike to discuss with you in a confidential manner any of their requests or problems relating to employment in that Ministry. And that position of responsibility and authority had enabled you to meet up with the victim because she wanted to obtain a work reference from you and that was the reason why she went to see you in your office as an Assistant Secretary responsible for personnel matters in that Ministry.

Ever since you were charged with the offence in question some time in January 2002 you had been suspended by the Kiribati Government from carrying out and performing your duties as an Assistant Secretary of the Ministry of Works and Energy. And you are still suspended from the performance of those duties up to today/s date of 28 March 2003.

I am informed that you had never been in trouble with the law before this, your conviction, and you had no previous conviction. I therefore regard you as a person of good character, good reputation, and good standing in the community. And the offence of indecent assault, which you had been convicted with yesterday must have been an isolated incident in your life and I am certain that you will never succumb to a similar temptation again in the future.

The offence of indecent assault is a very serious offence under Kiribati criminal law as well as under other jurisdictions in the world and especially in Commonwealth countries, and if convicted with it as it is now the case with you, you could be imprisoned for five years but that is the highest penalty that a court of law, like this one, can impose on you.

However when considering the gravity and circumstances of the indecent assault which you had committed against the victim and had been convicted with accordingly, it was a serious indecent assault but not the most serious. As Mr Berina has correctly pointed out the degree of violence and force used by you in committing the indecent assault on the victim is minimal. I agree.

However the aggravating feature of this indecent assault, as Ms Pole Tebao has pointed out is the position of authority and trust which you occupied vis-à-vis the victim as an employee of the Ministry of Works and Energy. She trusted you as her senior officer of the Ministry of Works and Energy to whom she could go to, to seek help and guidance in personnel matters which she did. She expected some security and protection from you as an Assistant Secretary of the Ministry of Works and Energy. However you had abused that position of authority and trust and instead ,of helping the victim and protecting her you had indecently assaulted her by struggling with her and kissing her all over the top part of her body including her neck and breasts in the confines of your office.

Mr Berina also pointed out that you are living with a lady who had nine (9) children who are also living with you and if you are imprisoned, not only yourself will suffer, but also the lady and the nine children you are living with and who are entirely dependent on you for their livelihood, will also suffer.

I certainly appreciate your potential plight, your lady and the nine children of losing a breadwinner if you are imprisoned. However one must not forget that when an offence is committed by any person there are always three aspects of it to consider and balance out. There is the offender, the victim and the public interest to consider and each of these interests must be brought into the equation when sentencing the convicted offender.

In all the circumstances, and having regard to the criminality involved, an appropriate sentence in my view is a term of imprisonment for six (6) months suspended for two years.

For the purpose of this sentence suspended term of imprisonment of two (2) years means that you will not have to spend six (6) months in gaol if within the next two (2) years you do not commit any other offence for which you could be imprisoned. If you do then you would be liable to be punished for that offence as well as to serve this six months.

Dated the 28th day of March 2003

THE HON MR JUSTICE MICHAEL N TAKABWEWE
JUDGE