Republic v Ioane [2004] KIHC 190; Criminal Case 47 of 2004 (27 July 2004)

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

High Court Criminal Case No. 47 of 2004

THE REPUBLIC

vs

TARETI IOANE

For the Republic: Ms Pauline Beiatau
For the Accused: Mr Banuera Berina

Date of Hearing: 27 July 2004

SENTENCE

Tareti Ioane: you were originally charged with murder but as the trial was about to begin, Ms Beiatau prosecuting for the Republic abandoned that charge and in its place you were charged with assault causing grievous bodily harm. You pleaded guilty to the assault.

I asked the lawyers what had happened to the victim. They told me he had died but the medical report does not shew a link between his death and the injuries you inflicted on him. I ignore altogether in considering penalty Tebwebwe’s death.

The particulars of the charge are that on 27 May in between the villages of Tanimainiku and Tanimaiaki you caused grievous bodily harm to Tebwebwe. Assault causing grievous bodily harm has a maximum penalty of seven years’ imprisonment.

The incident happened between 9 and 10 o’clock in the morning on the road between the two villages. You were riding a bike to the court at Butaritari village to defend a civil claim for defamation against you by the Cooperative. I was told the Cooperative thought you had said things about it which were unpleasant. You had complained about what the officers were doing. You got a flat tyre and pushed the bike back to a few men who were at Aonibuaka. Just then the victim Tebwebwe came along on his motorbike. Stopped, got off and held a knife to your side. Tebwebwe was the manager of the Co-op. He put the knife away but jumped on to you. You and he had a fist fight for some time. He fell to the ground. You kicked him in the right jaw. It was dislocated and became swollen: blood came from his nose, his left ear also swelled and there was a cut on the back of his head. The prosecution acknowledges that Tebwebwe was the aggressor. On the other hand you admit kicking a man when he was down.

You are 40 years old, married, with five children. You live a subsistence life style. This is your first conviction.

A couple of weeks ago – after you had returned on bail having been charged on Tarawa – you had spent 11 days in custody before I allowed you bail – you were attacked in the early morning at your house by three men. They hit you with a piece of wood with nails in it. You were beaten about the head and jaw. The nails pierced your right hand: I could see it is still swollen. Mr Berina said you still cannot open your mouth freely.

The next morning you went and apologized to the victim’s brother. The apology was accepted and, Mr Berina said, there is no longer enmity between you. A pity, though, you had not offered the apology earlier.

It was very bad of you to kick a man when he was down and by kicking him to inflict such serious injuries. On the other hand, the victim was the aggressor. If he had not threatened you first then the incident would not have occurred.

That is in your favour as are your plea of guilty as soon as you could and that this is your first offence. These things mean a lesser penalty than otherwise you would receive. You are sentenced to imprisonment for one year.

Mr Berina asked that any sentence of imprisonment should be suspended. Ms Beiatau opposed suspension, arguing that I should not take into account that you were beaten up a fortnight ago: it may have had nothing to do with what you had done to the victim. I find that difficult to believe: too much of a coincidence. I do take it into account.

After thinking about it I have decided to suspend the sentence for these reasons:

- You were not the first aggressor

- You have no previous convictions but have lived a good life so far

- You have already suffered by being in custody for a few days and by being attacked and injured

- You have apologized although it was a late apology

The sentence of imprisonment of one year will be suspended if you will promise to be of good behaviour for the next two years.

If you do not commit any other offence in the next two years you will not have to serve this sentence.

If you do commit another offence in the next two years you will be liable to be punished for it and to serve this one year in prison as well.

Do you understand?
Do you agree?

Dated the 27th day of July 2004

THE HON ROBIN MILLHOUSE QC
Chief Justice