Republic v Teauoki [2019] KIHC 44; Criminal Case 34 of 2018 (28 May 2019)

HIGH COURT OF KIRIBATI

Criminal Case № 34/2018

THE REPUBLIC

v

MANNABA TEAUOKI,
TEITEMAURI EROTE
and TEAIWA TETAO

Teanneki Nemta for the Republic
Banuera Berina for the prisoners

FILE NOTE

[1] The prisoners are jointly charged with 1 count of damaging property, contrary to section 319(1) of the Penal Code (Cap.67). The property said to have been damaged was a mwaneaba in Aoniman village on Beru island. The mwaneaba, constructed from ‘permanent’ materials and belonging to the Kiribati Uniting Church (KUC), had been demolished by a large mob on 14 December 2017, leaving only the concrete floor.

[2] The original information, filed on 29 August 2018, charged the prisoners and 23 others with 2 counts of damaging property and 1 count of arson, contrary to section 312(a) of the Penal Code. The damaging property charges related to the mwaneaba and a church building, while the arson charge concerned the house of the KUC minister. A further information was filed on 30 October, charging only the prisoners with 1 count of damaging property and 1 count of arson. The subject of the damaging property charge was said to be both the mwaneaba and the church. On 9 November a nolle prosequi was entered with respect to the original information. On 22 February counsel for the prisoners informed the Court that his clients would be pleading guilty to the damaging property charge but not guilty to the arson charge. The matter was set down for trial. Yesterday (which was to have been the first day of the trial) counsel for the prosecution withdrew the arson charge. This morning she amended the damaging property charge to remove the reference to the church building. The prisoners were arraigned on the charge as amended and each pleaded guilty.

1. The incident giving rise to the charge has, as its genesis, a split that arose in 2016 among the members of what had previously been known as the Kiribati Protestant Church, or KPC. The prisoners (and many others) disagreed with a resolution taken at the KPC General Assembly in 2014 to change the name of the church to the Kiribati Uniting Church. That change took effect from the time of the next General Assembly, in September 2016. A legal challenge to the change of name was unsuccessful.^[1] Those who opposed the name change (including the prisoners) then left the KUC and set themselves up as a new church, also called the Kiribati Protestant Church.
   

[4] The split led to disputes in many parts of the country. Often the disagreement concerned the desire of the members of the new KPC to retain possession of the assets of the KUC. This was based on their mistaken belief that the KUC was a new church, and the assets of the old KPC should be vested in the new KPC.

[5] Shortly before the events giving rise to the present charge, the Magistrates’ Court in Beru registered the KUC (properly, the trustees of the KUC) as owners of the land in Aoniman on which stood the mwaneaba, church and minister’s house. The prisoners and others who considered themselves members of the new KPC were aggrieved by this decision. On 14 December 2017 they held a meeting at the mwaneaba, at which it was decided that the mwaneaba should be demolished and the materials carried away to allow for its reconstruction at another location. It would appear that the mood of the deliberations was not helped by the actions of the KUC minister’s husband, who was cycling nearby, and whistling, in a manner considered provocative. The group then proceeded to dismantle the mwaneaba, carrying away the roofing iron and timber frame. The concrete boua (pillars) were smashed. When the group was approached by the senior police officer on Beru and asked to desist, the prisoner Mannaba told him that he should not interfere. The roofing iron and timber was taken to the house of Mannaba, which was nearby.

[6] It is not clear who at the meeting led the discussion about the demolition of the mwaneaba – counsel for the prosecution concedes that she has no evidence to suggest that any of the prisoners played a leadership role in the commission of the offence. Indeed, counsel for the prosecution is unable to say what distinguishes the conduct of the prisoners, such that they should be singled out for prosecution ahead of the more than 20 others who participated. Apart than Mannaba’s conversation with the police officer, and the fact that the materials were taken to his house, there is nothing to suggest a greater culpability on the part of any of the prisoners when compared to the rest of the group.

[7] The prisoner Mannaba is aged 49 years. He is married with 4 children aged between 7 and 16. The prisoner Teitemauri is aged 37 years. He is married with 4 children aged between 6 and 16. The prisoner Teaiwa is aged 56 years. He is married with a 27-year-old son, who lives with an intellectual disability. None of the prisoners are employed – they lead a subsistence lifestyle.

[8] Counsel for the prisoners submits that his clients are remorseful for their actions. They maintain that they were not the ringleaders of the group; they were simply carrying out the wishes of their unimwane. Mannaba’s house was used to store the roofing iron and timber only because it was the closest. Having now had the benefit of legal advice with respect to the dispute between the KUC and the new KPC, the prisoners accept that they were wrong to do as they did. A customary apology has been offered. The prisoners agree that the roofing iron and timber (now in the custody of the Council, having been seized by the police) should be returned to the KUC. They are prepared to assist in making good the damage they did to the mwaneaba.

2. Determining appropriate sentences in this case poses a significant challenge. Ordinarily an immediate sentence of imprisonment would be the inevitable consequence of property damage on this scale.^[2] The seriousness of their conduct is magnified by the fact that their target was a mwaneaba, a building that sits at the heart of the community. Counsel for the prosecution submits that I should impose a custodial sentence. However I am concerned that sending these 3 men to prison while the ringleaders go unpunished would not be fair. I also believe that there are positive steps that we can take that have the potential to contribute to the restoration and maintenance of harmony among the residents of Aoniman. Achieving this objective is more likely to have a far-reaching and positive impact than sending someone to prison.
   

[10] I have proposed deferring passing sentence on the prisoners for 6 months under section 45 of the Penal Code, to allow them to return to Beru and participate in the rebuilding of the mwaneaba. This will provide them with an opportunity to demonstrate the sincerity of their remorse and to make reparations for their offending. While I cannot promise that this will definitely save the prisoners from a custodial sentence, I can say that such an outcome will be far less likely. Deferral can only happen if the prisoners consent. Each of them, following an opportunity to consult with counsel, has so consented.

[11] I am satisfied that, having regard to the nature of the offence and the character and circumstances of each offender, it is in the interests of justice for me to exercise my power to delay passing sentence. I therefore defer passing sentence on the prisoners to 22 November 2019 at 9:30am.

[12] Bail is continued for each prisoner, save that the residence condition is varied to enable them to return to Beru at the earliest opportunity. They will need to come back to Tarawa in time to appear on 22 November. A failure to appear in Court on that day will result in an arrest warrant being issued.

[13] Counsel for the prosecution will need to give the necessary instructions to the police on Beru to facilitate the return of the roofing iron and timbers to the KUC community in Aoniman. On the resumption of this case, counsel will also need to provide the Court with a report from the KUC minister in Aoniman (or some other appropriate person) as to the status of the reconstruction efforts, and the contribution made by the prisoners to those efforts.

[14] I remind the prisoners that if, during the period of the deferral, any of them is convicted of an offence, I am empowered to pass sentence on that person before the expiration of the period.

[15] This case is adjourned until Friday, 22 November 2019 at 9:30am.

Dated 28 May 2019.

Lambourne J
Judge of the High Court

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1. ^[1]Motiti Koae & ors v Ariti Tiira & ors [2017] KICA 12.
2. ^[2] Counsel for the prosecution is unable to give a precise valuation of the damage caused, but it is conceded that it was in the tens of thousands of dollars.