Republic v Tebau [2017] KIHC 21; Criminal Case 23 of 2017 (29 May 2017)

IN THE HIGH COURT OF KIRIBATI 2017

CRIMINAL CASE NO. 23 OF 2017
(HELD ON KIRITIMATI ISLAND)

[THE REPUBLIC PROSECUTOR
[
BETWEEN [AND
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[TOKAREI TEBAU ACCUSED

Before: The Hon Chief Justice Sir John Muria

29 May 2017

Ms Pauline Beiatau for Prosecutor
Mr Teetua Tewera for Accused

SENTENCE

Muria, CJ: The accused has been charged with three (3) counts of Indecent Assault contrary to s. 133(1) of the Penal Code and one (1) count of Rape contrary to s. 129 of the Penal Code.

The first incident occurred in July 2012 when the accused indecently assaulted the victim who, for all intention and purposes, was his adopted daughter. The second incident was in February 2013 when the accused again indecently assaulted the victim at Banana Village. The third incident occurred in 2014 at Banana Village when the accused raped the victim. The fourth incident occurred on 31 July 2015 at Banana Village when the accused again indecently assaulted the victim.

The victim is the biological daughter of the accused’s wife’s sister. She came to live with the accused and his wife since she was two years old. The victim regarded the accused and his wife as her parents.

The indecent assault incidents in 2012, 2013 and 2015 took the forms of the accused sucking the victim’s breasts whenever they were alone in the house. The incident of rape occurred at Banana Village, in the house belonging to one Bakoaiti. The accused had unlawful sexual intercourse with the victim.

As correctly submitted by Ms Beiatau, one of the most serious aggravating features of this case is the breach of trust on the part of the accused. As an adopted child into his family, the accused is in the position of a father to the victim. He raised her up since she was two years old. Now he turned around and indecently assaulted and raped her. Such an action on the part of the accused can only be described as the worst form of breach of trust and the most repulsive conduct by a person in the position of a father to a child of tender age.

The sexual abuse and violence were repeated year after year for four (4) years. One can only imagine the trauma and psychological effect of the sexual abuse had on the victim. The Court has heard that the victim had been so traumatically affected that she had even contemplated suicidal option for herself.

Mr Tewera very properly accepted the seriousness of the charges and the accused’s actions. Counsel, however, asked the Court to take into account factors that are favourable to the accused, such as his guilty plea and that he has no previous convictions.

Despite Ms Beiatau’s strong submission on disregarding the accused’s guilty plea, I feel the Court should give the accused some benefit of pleading guilty. Not only that he pleaded guilty in Court, the accused actually admitted his actions to the police in his caution statement. The Court will therefore give credit for his guilty plea together with his cooperation with the police.

His wife has now left him because of what he did. This will be part of the consequences for his actions which he had to bear.

There can be no doubt that the case is very serious and merits custodial sentence. The only question is how long?

In this regard, I accept that the starting point is five years’ imprisonment on the rape charge. The indecent assault charges are equally serious and also merit custodial sentence.

I agree with Ms Beiatau that the charges relate to incidents that occurred very far apart. As I have said earlier, the incidents were committed yearly. Concurrent sentences would not be right in this case.

Taking into account all that has been said by the prosecution and the mitigation put to the Court on his behalf by Mr Tewera, I feel the appropriate sentence should be as follows:

1. Count 1 2 years’ imprisonment

Count 2 2 years’ imprisonment

Count 3 2 years’ imprisonment

Count 4 5½ years’ imprisonment

2. All sentences are to be served consecutively to each other.
3. The sentence to commence from the date the accused was taken into custody, i.e. 11 August 2015.
   

Dated the 29^th day of May 2017

SIR JOHN MURIA
Chief Justice