Republic v Terara - Sentence [2005] KIHC 80; 64-04 (23 May 2005)

IN THE HIGH COURT OF KIRIBATI
CRIMINAL JURISDICTION
HELD ON KIRITIMATI
IN THE REPUBLIC OF KIRIBATI

High Court Criminal Case No. 64/04

THE REPUBLIC

vs

NENEBATI TERARA

FOR THE REPUBLIC: Ms Pauline Beiatau
FOR THE ACCUSED: Ms Jennifer Troup

DATE OF HEARING: 12 May 2005

SENTENCE

Nenebati Terara: you have been found guilty of defilement of a girl under 13 on three separate occasions in December 2003 and March 2004. She was 12 years old. You are 32, married with two young children. You had worked as a bus driver until this happened. You have not had a paid job since. Your wife has continued to support you. You have been a member of the committee of the Catholic Church at Tabwakea. I have described what you did in my reasons for convicting you.

Taking a view of the facts most favourable to you I accept that the girl was the initiator of the three incidents: you may have forced yourself on her the first time at your house when she was looking after your new baby but she certainly took the lead on the second and third occasions. You were tempted and did not resist the temptation. You should have. That you did not makes you guilty of the crimes.

A lot of time was taken up during submissions on whether an apology were made. I am satisfied on the balance of probabilities that your wife and her mother did go to see the girl’s grand parents and, as a mark of reconciliation arranged a feast. The grand parents having at first accepted finally refused to go. The grandmother said because you would be there: the grandfather because it would embarrass the girl’s new husband. The catechist from the Catholic Church at Banana also went to offer an apology for you but did not find the grand parents at home. After these incidents the girl was married on Tabuaeran. An apology was offered on your behalf but not accepted. As a rule I do not give much weight to an apology made on behalf of a wrong doer, even when accepted. I shall give the offer of apology some weight in your favour.

The Police Clearance Certificate shews one previous conviction but here must have been two counts as you received two fines each of $15.00. The offence was catching immature rock lobster. I disregard it in sentencing. I sentence as if these were your first offences and that is in your favour. They are serious but that the girl was physically mature, nearly 13 who encouraged you and is now married makes it less serious than some other cases of defilement. Nevertheless you must serve imprisonment. Although you were convicted of an offence on three separate occasions and the first was some months before the second and third I regard them as one course of conduct. On each count you will be imprisoned for 2½ years from 17 May when you went into custody, the terms to be served concurrently.

Dated the 23^rd day of May 2005

THE HON ROBIN MILLHOUSE QC
Chief Justice