Republic v Burangke [2016] KIHC 8; Criminal Case 15 of 2016 (17 June 2016)

IN THE HIGH COURT OF KIRIBATI 2016

CRIMINAL CASE NO. 15 OF 2016
(HELD AT ABAIANG)

BETWEEN

THE REPUBLIC
PROSECUTOR

AND

TIMWA BURANGKE
ACCUSED

Before: The Hon Chief Justice Sir John Muria

17 June 2016

Ms Tewia Tawiita for Prosecutor
Ms Manrongo Kararaonnang for Accused

REASONS FOR SENTENCE

Muria, CJ: On 17 June 2016, the accused Timwa Burangke pleaded guilty and was convicted of the offence of Defilement contrary to section 135(b) of the Penal Code. He was sentenced to 18 months’ imprisonment, of which 12 months is suspended. The accused is to serve six months of his prison sentence. I indicated then that my reasons for sentence would be published later. These are now those reasons.

The offence of defilement of a girl under the age of 16 years is provided for under section 135(b) of the Penal Code which states as follows:

“135(1) Any person who –

(b) has or attempts to have unlawful sexual intercourse with any female idiot or imbecile woman or girl under circumstances which do not amount to rape but which prove that the offender knew at the time of the commission of the offence that the woman or girl was an idiot or imbecile shall be guilty of a misdemeanor, and shall be liable to imprisonment for 5 years”.

The facts of the case are that the accused, on 22 September 2012 at about lunch time, called the victim to come to him in a sleeping house. The victim did. While in the house, the accused grabbed the victim by the hand and made her lay down on a mat. The accused threatened the victim that if she refused, he would harm her. The accused then sucked her breast, pulled her pants down and inserted his penis into her vagina and had sexual intercourse with her.

The matter was reported to the police. The accused was arrested, interviewed and admitted having sex with the victim in 2012. The accused had not been charged with the offence until February this year 2016 when he was charged with rape which was later replaced with the charge of defilement of a girl under 16 years of age. The victim was 16 years of age at the time of the commission of the offence.

In sentencing the accused the Court took into account the following factors, both in his favour and against him. In his favour, the Court took into account his plea of guilty, he is a first offender, his admission to the police in 2012, the long delay between the commission of the offence and laying of the charge against the accused, and generally cooperated with the police.

Against him is the factor of his relationship with the victim who is his niece. Also against him is the factor of using threat to subdue the victim to enable him to have sex with her.

Weighing these factors in this case I feel that his early admission to the police, his plea of guilty in Court and the delay on the part of the prosecution in bringing the charge against him justified a considerable reduction in the sentence to be imposed on the accused. The Court gave the accused further credit for the fact that he had been a person of good character and had no brush with the law for more than 50 years. He was 57 years of age when he committed the offence. He is now 61 years old.

The aggravating feature in this case is that the accused had breached the trust expected of him as an uncle to the victim. This aggravating factor, not only increased the mitigated sentence, but discounted any suggestion of a full suspended sentence.

Ms Tawiita sought to suggest that the victim is a person of “feeble intellect” and should be considered as an aggravating factor in this case. Since that was a suggestion from the bar table, I do not accept it unless some evidence of the mental condition of the victim is placed before the Court.

In all the circumstances, I feel the appropriate sentence is one of 18 months’ imprisonment, 12 months of which is suspended. The accused is to serve six months of his prison sentence.

Dated the 17^th day of June 2016

SIR JOHN MURIA
Chief Justice