Republic v Tawere [2018] KIHC 2; Criminal Case 8 of 2016 (23 February 2018)

IN THE HIGH COURT OF KIRIBATI 2018

CRIMINAL CASE NO. 8 OF 2016

[THE REPUBLIC PROSECUTOR
[
BETWEEN [AND
[
[TEMWAMWAIA TAWERE ACCUSED

Before: The Hon Chief Justice Sir John Muria

9 October 2017

Mr Waimauri Nawaia for the Prosecutor
Mr Kiatoa Iaoniman for the Accused

REASONS FOR SENTENCE

Muria, CJ: On 9 October 2017 the Court sentenced the accused,
Temwamwaia Tawere, to 2½ years’ imprisonment for rape. The followings are brief reasons for the Court’s decision.

The accused, together with a group of boys and girls, were having drinking session at Buota on 17 November 2014 at night. The victim and a boy named
Patrick Tekanene, both of whom were drunk, went off to another place in the bush to have sex but did not execute their plan because Patrick realized the victim was a virgin. Instead they both fell asleep. While they were asleep, the accused, Temwamwaia, left the group and came to the place where Patrick and the victim were sleeping. The accused took off his clothes, got on top of the victim who was sleeping and had sexual intercourse with her while she was asleep. It was another boy, Aviata Enari, one of their drinking mates, who came and saw the accused having sex with the victim and told him to stop and to get off from the victim. The victim woke up and Aviata told her what the accused did to her. The victim saw blood on her skirt and realized that she had “surrendered” her virginity.

The matter was reported to the police. The accused was arrested and interviewed. He admitted the offence to the police during the interview shortly after the commission of the offence in November 2014. For some unexplained reason the no charge has been filed against the accused until 28 January 2016, that was one year two months after the accused committed the offence and admitted it to the police.

To exacerbate the delay further, the accused was not summonsed to Court until July 2017. His first appearance was 1 August 2017. Delay in prosecution especially where the accused had already made an admission of committing the offence to the police during the interview is inexcusable.

It is well for the prosecution to take note that when an accused person admitted the offence in a police interview and recorded in his caution statement, the prosecution no longer has any excuse for the delay in bringing the accused before the Court. The accused should be charged immediately and have him brought before the Court without delay.

In the present case, despite the admission by the accused to the police in November 2014 that he committed the offence, no charge had been laid against the accused until 28 January 2016, more than one (1) year later. Despite the filing of the charge on 28 January 2016, the accused had not been served with the charge until July 2017, some one (1) year and seven (7) months later. The combined delay effect of almost three years before the accused was brought to Court, despite admitting his wrong-doing in November 2014 to the police. This is not an acceptable prosecution process where an accused person makes an early admission of an offence for which he is arrested.

The accused pleaded guilty in this case of having sexual intercourse with the victim without her consent. The accused is entitled to a discount in the range of 25%-30% for his early guilty plea. See Republic –v- Arawaia [2013] KICA 11; Crim. App. 01/2013 (23 August 2013).

The accused had no previous conviction. This is his first brush with the law. I take this factor into account in his favour also.

The accused had shown remorse for his action toward the victim by apologizing to the victim and her family. The apology was accepted.

An apology can have little effect as a mitigation in sentencing (Republic –v- Arawaia [2013] KICA 11) in cases of defilement of a girl under 13 years committed upon her, not once but repeatedly. However, I do not think that the Court in Arawaia intended that such a statement of principle to be of universal application when it comes to sentencing. There may be occasions when an apology can be taken into consideration by a sentencing judge, as an additional factor in assessing an appropriate sentence to be imposed on an offender.

The circumstances of the present case are very different from that in Arawaia (above). In the present case, the accused and victim were having a night out together with other young boys and girls on a drinking bout. They were drunk. The victim fell asleep. Another boy, with whom the victim made a plan to move further away from the group, in order to have sex, did not have sex with the victim. He also fell asleep beside the victim. The accused came to where the victim and the boy were sleeping and had sex with the victim while she was sleeping. Another boy came and found them and told the accused to get off the victim. The accused got off the victim, woke the victim up and told her what happened. The accused apologised to the victim and her family the following day. In the Court’s view and in the circumstances of the present case, some consideration, however modest it may be, should be accorded in the offender’s favour.

Counsel for the accused suggested that an imprisonment sentence in this case should be suspended. I do not think a suspended sentence is appropriate in this case. The offence of rape is a serious offence, and if convicted, whether upon a guilty plea or trial, a sentence of imprisonment to be served, is appropriate.

In all the circumstances of this case and for the reasons stated above, the sentence of the Court, as already pronounced, that is one of 2½ years’ imprisonment to be served with effect from 9 October 2017.

Dated the 23^rd day of February 2018

SIR JOHN MURIA
Chief Justice