Republic v Obaia [2017] KIHC 6; Criminal Case 20 of 2015 (8 March 2017)

IN THE HIGH COURT OF KIRIBATI

CRIMINAL CASE NO. 20 OF 2015

[THE REPUBLIC PROSECUTOR
[
BETWEEN [AND
[
[TEBIKAU OBAIA ACCUSED

Before: The Hon Mr Justice Vincent Zehurikize

Ms Tewiia Tawita for the Prosecutor
Ms Batitea Tekanito for the Accused

RULING

Zehurikize, J: The accused who eventually pleaded guilty was charged with destroying evidence contrary to section 109 of the Penal Code Cap 67.

The brief background of the case is that the accused had been charged with Rape under Criminal Case No. 51 of 2012. The alleged victim of the rape case was a step daughter of the accused. The complainant and star witness in that case was the accused’s wife.

After his wife had given incriminating evidence against the accused, the case was adjourned and later re-fixed for hearing on
25 September 2015. On this date the accused presented to his lawyer a letter in which his wife indicated that the evidence she gave in Court was false. That the accused never committed the alleged offence of rape.

This state of affairs appears to have enraged Ms Pauline Beiatau who was prosecuting the case. Realising that the letter was likely to put his wife in trouble, he retrieved and destroyed it. The matter was brought to the attention of the Chief Justice. It appears the wife of the accused was recalled and informed the Court that indeed her evidence against him was false having been instigated by some people who did not like the accused. The rape case collapsed.

The accused was charged with the instant case. The prosecution examined one witness and closed its case. The accused in his defence gave evidence in which he admitted that he destroyed the letter in a bid to save his wife from possible prosecution.

At the time of closing submissions, he decided to change his plea to that of guilty. Having pleaded guilty this Court found him guilty of the offence with which he was charged. The Court sought and got submissions from Ms Tawita for the Republic and Ms Tekanito for the accused before pronouncing its sentence.

I have considered submissions from both Counsel and taken into account the peculiar circumstances of this case. The gist of Ms Tawita’s submissions is that the convict deserves a custodial sentence which will reflect the serious nature of the offence. That a non-custodial sentence would undermine the sentencing authority of the Court.

I do agree with Counsel that the convict was charged with a serious offence, albeit a misdemeanor, but it is not correct to urge that a non-custodial sentence would undermine the authority of the Court. The discretion of the Court cannot be stifled simply because the offence is a serious one. Court in sentencing is guided by many factors and the nature of the offence is just one of them. The authority of the Court in handing out sentence is a wide one.

I must take into account, as submitted by Counsel for the accused, the fact that the accused was faced with two troubling options, namely to let his wife be prosecuted as he gets released on account of the letter. He panicked which led him to destroy the letter.

It appears after the alleged rape the couple were separated. They later got reconciled after his wife had given the damning evidence. It appears to me therefore that the letter in favour of the convict was intended to cement and maintain the renewed relationship.

In my view, a custodial sentence would once again ruin this enviable reconciliation. Needless to say that delayed prosecutions in this Court has at least the positive effect of creating room for reconciliation. I have noted this in many cases I have handled. Reconciliation appears to be one of the norms, values, traditions, heritage and customs of the people of Kiribati as enshrined in the preamble to the Constitution. Courts should be seen to be promoting such values instead of discouraging the practice by handing out defiant harsh sentences.

It should be noted that the Court expressed its displeasure when the convict’s bail was cancelled and was put on remand for about two months when learning of the criminal act by the accused. In my view it would not serve any interest of justice to once again subject him to a custodial sentence. The community from which the convict and his wife come would be left in awe if he was once again put in jail despite the reconciliation. It would only undermine their good intentions. The period he spent on remand is sufficient lesson to him and the would be offenders.

Thus considering all the circumstances of this case and doing the best I can I will sentence the convict to a term of 15 months’ imprisonment which is hereby suspended for the same period on account of good conduct during the said period. If during this period he is found guilty of any other offence, he will in addition serve the sentence hereinabove imposed.

Dated the 8^th day of March 2017

THE HON MR JUSTICE VINCENT ZEHURIKIZE
Judge