Republic v Karibarenga [2005] KIHC 2; Criminal Case 55 of 2004 (11 January 2005)

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

High Court Criminal Case No. 55 of 2004

THE REPUBLIC

vs

TABERU KARIBARENGA

For the Republic: Ms Eweata Maata
For the Accused: Ms Taoing Taoaba

Date of Hearing: 10 January 2005

SENTENCE

Taberu Karibarenga: you have pleaded guilty to the charge of indecent assault on a girl of tender age of less than 13 years old named Tanouea Matite. Under the law the offence of indecent assault is a serious crime and it carries a fairly heavy maximum or highest penalty of five years’ imprisonment. However being a maximum penalty, a court of law will only impose such penalty if the aggravating factors of the indecent assault committed on the victim are exceptionally serious and bad for example where the indecent assault act was carried out by using weapons and physical force to force the victim to submit to such indecency.

I do not think however that the indecent assault to which you had pleaded guilty can under any view be regarded as the most serious one. It is at the lower end of the scale of serious and bad offences of sexual nature.

I am told that on 25 July 2004, you and your wife were attending a welcome party for the newly eloped couple named Aneti and Nei Temone whicb was held at the house of one Berau Matite, at Bakokoia, Utiroa village, Tabiteuea North.

Berau Matite is the father of Atite – a boy who had just eloped with Nei Temone that day. He is also the father of the victim Tanouea Matite. The party ended late at night and then you and your wife retired and went and slept at Tekabu’s house, a warder. Tekabei’s house was unoccupied that night: Tanouea – the victim also joined you and your wife in Tekabei’s house and slept with you and your wife. I am told you were sleeping between Tanouea and your wife. While Tanouea was fast asleep you then approached her and you indecently assaulted her by sucking her breasts, kissed her on the mouth and you rubbed your penis all over the surface of her vagina. At that time of the incident Tanouea was under 13 years of age.

I am also told that you are 25 years of age, you are married with two children aged five and two. You and your wife live at your house at Tekabuibui village, Tabiteuea North. You are unemployed and you live a subsistence life style. I am also told your wife and children depend on you entirely for their livelihood.

I am also told by your counsel that Tanouea had tempted you into doing what you had done to her. However being a girl of tender age of under 13 years and you, being much much older than her as you are about twice her age then, under the law you are to be blamed as the law expects you to be responsible for and must take care of girls of tender years like Tanouea especially as your family and Tanouea’s family are long-time friends.

As I had mentioned earlier on the law looks upon the offence of indecent assault as a fairly serious crime.

And in your situation in your present case there are a number of aggravating features of the offence which must be taken into account against you when assessing the appropriate sentence or penalty.

I am told that your family and the victim’s parents are long time friends and thus the two families according to Kiribati custom considered themselves as being closely related like blood relatives. Because of these long time relationship and ties between your two families the victim considered you a close relative and thus trust you like her own relative. However by having indecently assaulted her during that incident in question you had breached that trust which she has had for you.

Another aggravating feature of the offence which you had committed and as had mentioned earlier on is the considerable difference in age between you and the victim who is of tender age of under 13 years old whereas you, in contrast, are 13 years older than her. You are twice her age. I am told also the victim had, since childhood been suffering from recurring fits of epilepsy and that she is mentally retarded and as such she would be unable to know and appreciate the consequences of what she does. You have taken advantage of her unfortunate condition. As the result of what you did to her she is now afraid to go out and play with her own age group as she usually does so before this incident but she rather preferred to stay at home and keep to her company.

On the other hand the court does not take into account only the bad sides of what you had done: It also takes into account the good things which you had done to bring about the speedy resolution and the dealing by the court with the offence which you had committed.

In this respect the fact that you had pleaded guilty to the offence is of considerable advantage and assistance to you, to the victim Tanouea and to the court in general as no trial had to be held – hence saving cost and time for Kiribati and everyone else who is involved. Also the victim does not have to appear in court to give evidence which can be an embarrassing and frightening experience.

I am told that during the investigation of your case by the police you had cooperated and assisted them where possible all throughout the investigation.

You had also apologised through members of your family to the parents of the victim straight after the incident and though such apology was rejected by the parents of the victim I take this as an expression of your having been remorseful for what you had done to the victim. I am also told your wife had just yesterday morning apologised on your behalf again to the parents of the victim and the parents this time accepted the apology. This apology however is a rather belated one.

I am also told that you had never been in trouble with the law before nor with the police either before this present incident and you have no previous convictions under the law. I therefore regard you as basically a good person. You are law abiding citizen with good repute in your community.

Another mitigating factor in your favour which as mentioned earlier on I must also consider is the fortunate situation in which the victim was as you had used no physical force or violence in the course of your committing the indecencies on her.

Considering the whole of the facts and circumstances in which you, Taberu, were, when you committed the offence, and the victim’s situation and also the precedents which counsel had kindly made available to the court, I consider that the appropriate sentence in the present case is a custodial sentence.

I therefore sentence you to imprisonment for a term of 18 months commencing from the date of this sentence.

However in the interest of justice I consider that the term of imprisonment of 18 months shall be suspended for 18 months as from today’s date. In effect this means that you will not go to gaol to serve your sentence of 18 months but you will be free to stay outside of gaol and stay where you normally live and stay or wherever you may wish to live and stay.

You are however obliged under the law not to commit any more offence during those 18 months when your sentence is suspended and current.

If however you ever commit any offence during those suspended 18 months and you are convicted and imprisoned again by a court you will then, in addition to the sentence which may be imposed on you for the new offence with which you had been convicted, you will also be imprisoned and serve those 18 months which I just have now imposed.

Do you understand then what a suspended sentence is?

Dated the 11th day of January 2005

THE HON MR JUSTICE MICHAEL N TAKABWEBWE
Judge