Republic v Kabua [2017] KIHC 22; Criminal Case 25 of 2017 (29 May 2017)

IN THE HIGH COURT OF KIRIBATI 2017

CRIMINAL CASE NO. 25 OF 2017
(HELD ON KIRITIMATI ISLAND)

[THE REPUBLIC PROSECUTOR
[
BETWEEN [AND
[
[NTIUA KABUA ACCUSED

Before: The Hon Chief Justice Sir John Muria

26 May 2017

Ms Pauline Beiatau for Prosecutor
Ms Kabure-Andrewartha for Accused

JUDGMENT ON SENTENCE

Muria,CJ: The accused is 20 years old. He has pleaded guilty to a charge of grievous harm contrary to section 220 of the Penal Code. The maximum penalty for grievous harm is 7 years’ imprisonment.

This is a guilty plea. While the Court appreciates the assistance of the prosecution in placing the facts of the case before the Court before sentencing, the Court must give due consideration to the version of the facts given by the accused. Failing to take into account the accused’s version of the facts of the case in a guilty plea is to ignore a salient feature in a sentencing process. The same thing cannot be said of the accused where he is found guilty after a trial.

The version of the facts as presented by the prosecution painted the picture that the accused was a merciless aggressor who fought the victim for no reasons at all; that the accused fell down to the ground and the accused continued to hit him and kicked him until he was unconscious. There was no attempt in the version of facts presented by the prosecution to elicit any circumstances which gave rise to the fight between the accused and victim. Justice flows both ways.

It is important, therefore, as I have already stated earlier, that the Court must take into account also the version of the facts as put on behalf of the accused. In a way, this is a prize that the accused also earns for pleading guilty.

The accused’s version shows the circumstances which gave rise to the fight between the accused and the victim. The victim was not blameless.

The facts as put by the accused show that the accused had been having a social drink with his friends on the night of 13 March 2016 until morning of 14 March 2016. The victim was not with them. It was in the morning that the victim came along and joined them. The accused and his friends had been enjoying their social drink all throughout the night without any problem until morning.

When the victim joined them in the morning, he (victim) started an argument, not with the accused, but with one Renate Banee who is the accused’s friend and fought. That was when the accused kicked the victim and chased him away. The victim in return punched the accused. A fight then ensued between them (accused and victim). Those facts plainly demonstrate that the victim was far from blameless in the whole saga.

Of course, the scenario just mentioned does not excuse the accused’s action. He is still criminally responsible for his actions. But the punishment to be imposed on him must be proportionate to his blameworthiness and the gravity of the offence committed. In addition, the Court will take into account factors which go to mitigate the accused’s sentence.

The accused has pleaded guilty to the charge brought against him which must tell greatly in his favour. He had pleaded guilty at the earliest opportunity when the charge was put to him in Court. There is authority in this jurisdiction that an early guilty plea entitles the accused to a 25%-35% reduction in his sentence. See Republic –v- Uriano Arawaia [2013] KICA 11.

Not only that, the accused pleaded guilty in Court, but he also admitted his wrongdoing to the police when interviewed. He cooperated with the police during the investigation.

The accused has no previous conviction. This was his first brush with the law. But his first brush with the law should serve him as a life-long lesson.

The Court also bears in mind that the accused is a young man of 20 years old. He also has a very young family – a wife and a two (2) months old son.

Following the commission of the offence the accused has quit drinking, underscoring his decision to make a real metanoia in his life. He should be encouraged to take on such reformative steps.

On the question of delay, I accept that five months from the end of investigation to the charging the accused is not too long a delay. But given the fact that the police investigation was completed in August 2016, the accused admitted the offence to the police in his caution statement, the charge could have been laid against the accused immediately or shortly after that, so that he could have been brought before the High Court at its October 2016 sitting here in Kiritimati Island. One of the principles of best prosecution practices is that when an accused person admits the offence in his caution statement, he/she should be charged without any delay and brought before the Court. In this case, there is no excuse for the delay in charging the accused when he admitted the offence to the police and recorded in his caution statement.

On the other end of the scale, the injuries suffered by the victim were very serious. The injuries sustained were to the head. He was unconscious for three days. Although no weapon was used, the hittings and kickings delivered by the accused must have had severe impact on the victim’s head.

There is no dispute to the Medical Report from the Doctor who attended to the victim in the Hospital. The Medical Report confirms the injuries to the head were severe.

Both the accused and victim had been affected by alcohol at the time of the fight. But being drunk cannot be an excuse for one drunken person to severely beat up the other drunken person in the course of their drunken brawl, as in the present case.

While a deterrent sentence is to reflect society’s abhorrence to violence, how would the Court fairly reflect society’s view in such a case where two drunken men willingly engaged in a drunken brawl? One becomes the accused and the other a victim because of the result of their drunken brawl. No doubt society detests drunken violence. But that goes to both the accused and victim in the present case.

Fortunately, the Court is a court of law, dispensing justice according to law. In doing so the law gives the Court discretion to use in arriving at a sentence that is fair and just in the eyes of the law, the accused and victim. That is what this Court will now do.

In the present and in circumstances as found by the Court in this case, and taking into account all that have been submitted by both the prosecution and defence, I feel the appropriate sentence should be one of 18 months’ imprisonment suspended for 12 months.

SENTENCE: 18 months’ imprisonment suspended for a period of 12 months.

Dated the 29^th day of May 2017

SIR JOHN MURIA
Chief Justice