Republic v Tairo [2014] KIHC 25; Criminal Case 58.2012 (3 July 2014)

IN THE HIGH COURT OF KIRIBATI 2014

CRIMINAL CASE NO. 58 OF 2012

BETWEEN

THE REPUBLIC
PROSECUTOR

AND

BAKABO TAIRO
ACCUSED

Before: The Hon Justice Vincent Zehurikize

23 June 2014

Mr Taburuea Rubetaake for Prosecutor
Mr Chris Meibusch for Accused

SENTENCE AND REASONS FOR IT

Zehurikize J: The convict was charged with two offences namely:

(i) Rape contrary to s.129 of the Penal Code Cap 67 in the first count and

(ii) Sexual Intercourse with certain collaterals contrary to s.158(1) of the Penal Code.

He committed these offences at Eita village, South Tarawa on 26th June 2011 to the prejudice of one Nei Ata who was her niece. He had the sexual intercourse with her without her consent.

The brief facts are that in the afternoon of 26th June 2011 the accused confided to the victim that he would visit her at night. Indeed some time after midnight the accused came to where the victim was sleeping and demanded sex which the victim refused. He then forced her into sex. The victim who was a niece to the accused and had stayed at the accused's home during the Independence Celebrations.

When the matter came up for hearing the accused pleaded guilty to the charges in both counts.

Mr Rubetaake appeared for the Republic while Mr Chris Meibusch was for the accused. Both Counsel filed written submissions and made brief presentations in Court. They both cited a number of cases for which the Court is grateful.

The gist of Mr Rubetaake's submissions is that there was a degree of deliberation shown by the offender in that he prepared and planned the act. He stressed that the offender was in a position of trust as an uncle to the victim. He pointed out that the offence of rape is quite prevalent in this jurisdiction. He further pointed out that having sex with a relative is a serious matter in Kiribati custom and can easily result in the offender being banished from the village.

It was also contended that there was a degree of physical and mental harm inflicted on the victim. While the victim was only 15 years old, the offender was over 40 years. He forced her into sex and that this was an immoral act.

On the other hand, Counsel for the accused contended that the Court should exercise some lenience. He stressed that the accused had pleaded guilty. That he committed the offence under the influence of alcohol and that he had no recollection of the offences. That he had suffered significant stress and anxiety as a result of arriving at a plea of guilty to these offences. And lastly that the accused had no prior criminal record. Counsel observed that intoxication can be an aggravating or mitigating factor, but he did not guide the Court on which direction this Court should go in respect of this offence.

On rape both Counsel guided the Court that a sentence of five years imprisonment is the starting point but that each case would be considered in its own peculiar circumstances. What this really means is that in a given case the Court can impose a higher or a lower sentence than the five years depending on the peculiar facts of each case.

The starting point principle, in my view, is intended to assist the Court from imposing a sentence that is either manifestly excessive or so lenient as to amount to a miscarriage of justice. A court of law should not pass a sentence that can easily raise eyebrows one way or the other.

Having considered submissions by both Counsel and the decided cases cited, I make the following observations and conclusions. The convict is admittedly a first offender. He has pleaded guilty thereby saving the Court's time and scarce resources. It could easily be a sign of repentance.

On the other hand he committed a serious offence to the prejudice of a young girl who was only 15 years of age. The victim was at the home of the convict who was her uncle from whom she expected protection. He abused that trust.

As submitted by the Republic it appears all along the convict planned to commit the offence and that is why during the day he approached her with the suggestion that he would visit her at night. I wonder whether at that time he was already drunk and kept his word until the dead of night. I think that such behaviour should be shunned by all right thinking members of the society.

I notice, however, that while the offence was committed on 26 June 2011 the charge sheet was signed on 20 December 2012 and the case filed on 28 December 2012, a period of about a year and a half. This inordinate delay in commencing the criminal proceedings is not explained.

Be that as it may, having considered all the relevant factors and in particular that the convict pleaded guilty I will sentence him to a term of two (2) years imprisonment.

Dated the 3rd day of July 2014

THE HON JUSTICE VINCENT ZEHURIKIZE
Judge