Republic v Kimaere [2004] KIHC 17; Criminal Case 29 of 2003 (28 January 2004)

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

Criminal Case 29 of 2003

THE REPUBLIC

vs

TEKARIBA KIMAERE

For the Republic: Ms Pole Tebao
For the 1st Accused: Ms Jacqueline Huston

Date of Hearing: 7, 8 and 9 January 2004

SENTENCE

Tekariba Kimaere: you have been convicted of two counts of very serious offences indeed of defilement of a girl under 13 years of age and assault causing actual bodily harm. The conviction for the two offences of defilement attracts in each case a penalty of life imprisonment. The conviction for the offence of assault causing actual bodily harm on the other hand attracts a lesser penalty of five years' imprisonment.

All the above mentioned offences took place in May and November 2001.

You are now 53, she is now 14: at the time she was only 12. The facts are in my reason for convicting you. You are a widower. Your wife died on 18 May 2001. You have two daughters, the eldest being 17 years who had passed away at the end of 2001. You no longer live at Tebunia, South Tarawa but had been living at Bikenibeu with various members of your family before you were remanded in custody following your convictions.

The aggravating features of the offences was that the complainant was your stepdaughter whom you and your wife who is her grandmother also had raised and cared for her since she was two years old. She relies and depends on you totally to protect her. She looks up to you as a father. You are a father image to her. So she must have been shocked and confused and sad when you forced her to have sexual intercourse with you for the first time on the night of 28 May 2001. She did not know what to do and where to go and to whom to confide in and tell about what you did to her. Her grandmother has also just died 10 days before that terrible forced sexual intercourse. It took her about five months before she broke the news to her aunty and before she managed to escape from you.

What you did to Mareweata was indeed a terrible thing to a helpless and trusting child like Nei Mareweata. Her world must have been shattered. That was a breach of trust that she had for you as a stepfather, a protector and guardian. She said in her evidence that after you forced her to have intercourse with you on 28 May 2001 she lost her trust in you as a stepfather, a guardian and protector. She no longer trust and believe in you.

You had also not pleaded guilty to all the charges in this case and when Ms Huston asked you as whether or not you consider your having sexual intercourse with the complainant on 5 November 2001 as bad or wrong and you said that there was nothing wrong with it at all. This clearly shows a lack of contrition on your part and you will therefore be not entitled to the benefit of contrition.

Further you did not save the complainant the stress and trauma of having to give evidence in a Court environment which can be quite terrifying for a little young girl like the complainant. Ms Huston – your counsel told me that you had never denied the charges but I disagree as you had pleaded not guilty to all the charges in this case.

Ms Huston also said that no weapon was used or violence involved in the commission of the offence and that this should be taken into account as a mitigating factor in your favour. I agree but I will not attach much weight to such factor as the complainant is a little girl of 12 years old. She looks upon you as a father and as such she has to obey you when you want her to do anything for you.

The fact that the complainant continues to stay with you and your daughters and family for about five months after you forced her to have sex with you goes to prove she still respects you as her father as well as apart from you and your daughters, she really did not know anybody else well enough to go to that was why she had to be content with staying with you for that long.

Another aggravating aspect of the offences from the Kiribati culture point of view was that the complainant's future prospect for proper and respectable marriage will now be affected as the complainant is no longer a virgin. Also the psychological effect of such defilement on the complainant remains to be seen in the future.

I agree with Ms Huston that your prior record of convictions are so old and irrelevant. I will not therefore take them into account when fixing your penalty and I shall regard you as a person of good character. In your favour also I accept the fact that this case has been delayed unduly and I shall take into account that fact also when fixing the penalty.

As already said earlier the offences for which you have been convicted are very serious indeed. Further such offences although similar yet they are distinct offences as they were committed in the course of different transactions on different occasions: one – on 28 May 2001; and others on 5 November 2001.

Ms Huston has also kindly referred me to a number of cases relating to sexual offences where the Court had passed sentences on accused who had been convicted or pleaded guilty to charges of defilement or rape. However no two cases are the same and the sentences passed in each of the cases referred to are unique and peculiar to the circumstances of each of those cases.

Taking all those circumstances into account and especially the special position of trust you hold for the complainant as a father image since she was two years old, also the difference in age of 51 and 12, the fact of the lack of contrition on your part and the ruinous effect of such defilement on the future prospect of marriage of Nei Mareweata I consider that the appropriate penalty under the circumstances is custodial sentence as follows:

For Count 1: offence of defilement of a girl under 13 years of age which took place on 28 May 2001 I sentence you to imprisonment for five years.

For Count two: also offence of defilement of a girl under 13 years of age which took place on 5 November 2001 I sentence you to imprisonment for five years.

For Count 3: assault causing actual bodily harm I sentence you to imprisonment for three months.

As count 2 and count 3 were offences committed in the course of same transactions on 5 November 2001 the sentences are to run concurrently with each other.

And as count 1 and count 2 including count 3 are distinct offences as they were committed in the course of different transactions the sentences are to run consecutively with each other and therefore you are liable to be imprisoned for 10 years commencing from 22^nd January 2004 when you were first remanded in custody.

Dated the 28^th day of January 2004

THE HON MR JUSTICE MICHAEL N TAKABWEBWE
Judge