Republic v Teruakai [2017] KIHC 25; Criminal Case 15 of 2017 (30 May 2017)

IN THE HIGH COURT OF KIRIBATI 2017

CRIMINAL CASE NO. 15 OF 2017
(HELD ON KIRITIMATI ISLAND)

[THE REPUBLIC PROSECUTOR
[
BETWEEN [AND
[
[BITAUEA TERUAKAI ACCUSED

Before: The Hon Chief Justice Sir John Muria

30 May 2017

Ms Ereta Bruce for Prosecutor
Ms Manrongo Kararaonnang for Accused

JUDGMENT ON SENTENCE

Muria, CJ: The accused Bitauea Teruakai, now 52 years old, pleaded guilty to one count of rape contrary to section 129 of the Penal Code. At the time of the incident, the victim was 16 years old and the accused was 50 years old.

The facts revealed that the accused and victim lived in the same house belonging to Nei Teera and her husband. Sexual intercourse between the accused and victim took place when Nei Teera and her husband were away from the house.

The victim attended Junior Secondary School at the time. She now left school because of what had happened to her.

The prosecution said that the victim was pregnant. The suggestion sought to be drawn from that is that the accused got the victim pregnant. I do not think it is proper to say that the accused got her pregnant when there is no evidence to support such a suggestion. In particular, it was said that she was already five months pregnant when she went to check with the doctor in or about August 2016. The alleged incident took place in or about June 2016. It does not necessarily follow that because the accused raped the victim, he, the accused, got her pregnant.

In any case, the accused is to be punished for raping the victim. The victim’s pregnancy, unless there is evidence to link that to the accused, is irrelevant here.

I have to accept that the version of facts as put on behalf of the accused. He pleaded guilty.

The version put by prosecution suggested that there were two occasions when the accused raped the victim. I accept what Counsel for the accused stated that there was only one occasion in which the accused raped the victim.

If the prosecution were serious that the accused raped the victim twice, then there should be two counts of rape brought against the accused. It is not proper to charge the accused with one count of rape only and raised in Court for the purpose of punishing the accused that there was another occasion in which the accused also raped the victim.

Having said all that, I feel the proper sentence in this case must be custodial. The Court will however take into account his guilty plea. He admitted the offence to the police and before this Court he pleaded guilty. I give him credit. The case of
Republic v Uriano Arawaia (23 August 2013) High Court of Kiribati Criminal Appeal 1/13 applies.

The accused is also a person with previous good character. This is his first brush with the law.

He is a person of mature age, 52 years now, living on his own because his wife left him.

I cannot ignore the fact that what the accused did to the victim had an adverse effect on her education. Also, he is old enough to be and regarded by the victim as her grandfather with some trust that he would not behave as such. He betrayed that trust.

The starting point for rape is five years’ imprisonment. From that, the sentence moves up and down the scale depending on the aggravating factors and mitigating factors.

In this case starting with five years, the sentence scale slides down to three for credit of guilty plea. The sentence moves back up the scale again for breach of trust on the part of the accused and the loss of education prospect to the victim.

The appropriate sentence must be one of 3½ years’ imprisonment.

SENTENCE: 3½ years’ imprisonment with effect from
30 May 2017.

Dated the 30^th day of May 2017

SIR JOHN MURIA
Chief Justice