Republic v Irata [2015] KIHC 83; Criminal Case 22 of 2013 (27 October 2015)

IN THE HIGH COURT OF KIRIBATI

CRIMINAL CASE NO. 22 OF 2013

BETWEEN

THE REPUBLIC
PROSECUTOR

AND

KAIBEAU IRATA
ACCUSED

Before: The Hon Justice Vincent Zehurikize

27 October 2015

Ms Pauline Beiatau for Prosecutor
Ms Fuatino Noa for Accused

RULING ON SENTENCE AND REASONS FOR IT

Zehurikize, J: The convict was charged with Rape contrary to section 129 of the Penal Code. When the case came up for plea and hearing, the convict pleaded guilty upon which he was convicted as charged.

The brief facts of the case were that the victim, the accused and other workers spent the night of 5 January 2013 on a drinking spree in the Midtown Night Club. Early in the morning some of the workers went on cleaning the bar, while the victim who was drunk slept on the floor of the bar as the convict was sitting nearby. He took advantage of her drunken condition by removing her pants and had sexual intercourse with her as she slept. When she got awakened by this act she pushed him off and the other workers got alerted. They confronted the convict. The matter was reported and hence this charge.

Ms Beiatau for the Republic and Ms Noa for the accused filed written submissions in support of their respective sides. Both Counsel appeared to agree that the starting point for rape cases in Kiribati whether contested or not is five years' imprisonment. The case of R v Tengke Teurake and Others, Criminal Appeal No. 3 of 2004 was cited to drive home that point. Several other cases were cited by Counsel in emphasis of the same proposition. I need not set them out here asthey are already on record.

Both Counsel raised the aggravating and the mitigating factors which I will refer to in my ruling as hereunder. Ms Beiatau prayed for a custodial sentence.

I have considered submissions by both Counsel. It is not disputed that the convict is a first offender since no previous criminal record was produced. He pleaded guilty thereby saving the Court's time and scarce resources. Although he did not apologise at the spot of crime, as Counsel for the prosecution would have liked, it is not in dispute that after a week the convict went to the house of the victim and made an apology which was accepted.

He admitted his crime at the first opportunity when making a caution statement to the Police according to the defence Counsel.

Counsel for the prosecution emphasised the fact that the convict had sexual intercourse with the victim without her consent and that she was 22 years old. That the offence was committed in a public place.

Further in mitigation Counsel for the convict explained that an offender who pleads guilty thereby saving time and resources expects some recognition in the form of reduction in sentence. I agree. Counsel further pointed out that there has been a long delay in prosecuting this case and that this should also go towards reducing of the sentence to be imposed.

This argument has drawn my attention to the recent decision of the Court of Appeal of Kiribati in Criminal Appeal No. 5 of 2015 Attorney General v Li Jian Pei and Taaiteiti Areke. In that case the Court of Appeal observed that there was a pre-charge and post-charge delay but they did not affect the accused's right to having a fair trial. The order for a stay of proceedings on account of the delay was quashed. But the court went further to consider remedies for unreasonable delay should the accused go on trial where the delay is found not to have affected a fair hearing.

The Court held that the remedy lies in a public acknowledgment of the breach of the accused's right to a trial within reasonable time, a reduction in the penalty imposed on a convicted defendant or the payment of compensation to an acquitted defendant. The Court further clarified that the purpose of any reduction is not disciplinary but to mark the breach and to compensate the defendant for undue prolongation of the uncertainty of outcome in having to face the trial.

In allowing the appeal and ordering a retrial of the case, the Court of Appeal gave redress to the respondent (accused) by finding that there had been a breach of s.10 of the Constitution. The Court also said, "In the event of any conviction, it will be for the High Court, in light of the then circumstances, to determine whether a modest reduction in the sentence should be given for the breach of s.10. It is a matter for the High Court to make that assessment and to decide whether any reduction at all is warranted".

The question to consider, therefore, is whether in the circumstances of this case any reduction is warranted.

It is noted that the victim, the convict and others had spent the night drinking as friends. When left alone with her and as she slept the convict was lured into having sex without her knowledge and of course without her consent. As Counsel for the defence pointed out there was no force, threat or any form of violence as is usually the case in rape cases.

Counsel for the Republic contended that the convict did not make immediate apology. But I consider an apology after a week was reasonably immediate. It is not conceivable that the convict could have raped and at the same time make an apology at the scene of crime. That would have been shedding crocodile tears as it were.

The offence was committed on 5 January 2013. The accused admitted his crime to the Police and within a week made an apology to the victim, which was accepted. It is not clear nor explained why it took almost nine months to present the charge to Court.

It is clear to me that if the accused/convict had been produced before the Court within a week or two he would have pleaded guilty and by now he would probably have finished or at least served a big part of his sentence.

More still when the charge was registered on 19 September 2013 no action was taken and the accused was not summoned until his first appearance in Court on 24 September 2015, after a period of two years or so. In my view the fault for the delay of two years falls on both the Court and the Prosecution. The case having been registered with the Court it had an obligation to fix the matter within reasonable time and summon the prosecution to produce the accused.

But on the other hand it was incumbent upon the prosecution which had preferred the charge against the accused to apply for a date in order to prosecute the case. It is improper to file a charge and sit on it for so long waiting to be summoned by the Court. It was their case and they ought to have been vigilant. There is no evidence on record that they ever made any steps to have the case cause listed for at least a plea.

Be that as it may and no matter who is to blame for the delay, the fact remains that the accused was kept in suspense for a long time. He was ready to plead guilty and get over this matter. I do believe even the victim was equally anxious to have this matter coming to a closure.

In these circumstances I do acknowledge that there was a blatant breach of the convict's right to a trial within reasonable time to which he was entitled under s.10 of the Constitution. He deserves a reduction in the penalty to be imposed by this Court. I consider the inordinate delay as a mitigating factor when imposing sentence.

Therefore considering all the matters as highlighted herein above and the inordinate delay and doing the best I can I sentence the convict to a term of two years' imprisonment but it will be suspended for the same period on account of good behaviour. If during this period he commits any other offence he will then be committed to prison to serve this sentence in addition to any other sentence that will be handed out for the subsequent crime.

Dated the 30th day of October 2015

THE HON MR JUSTICE VINCENT ZEHURIKIZE
Judge