Republic v Rakobu [2019] KIHC 46; Criminal Case 9 of 2019 (2 May 2019)

IN THE HIGH COURT OF KIRIBATI 2019

CRIMINAL CASE NO. 9 OF 2019
(HELD ON KIRITIMATI ISLAND)

[REPUBLIC PROSECUTOR
[
BETWEEN [AND
[
[NABUAKA RAKOBU ACCUSED

Before: The Hon Chief Justice Sir John Muria

1 May 2019

Mr Monoo Mweretaka for Prosecutor
Mr Reiati Temaua for Accused

SENTENCE

Muria, CJ: The accused, Nabuaka Rakobu, has pleaded guilty to one count of the offence of rape. The law treats the offence of rape very seriously by imposing the maximum sentence of imprisonment for life for the offence.

2. There is some dispute as to the facts particularly regarding the threats and violence said to have been exerted by the accused upon the victim. But this is a guilty plea and such the accused is entitled to the most favourable version of the facts, if a version is not agreed before the plea is taken. Briefly, the victim and her friend attended a party at Tereitaki Village, in Tabuaeran on or about
1 October 2016. While they were at the party, the accused came and invited them to join him for drinks. They agreed and went off with the accused to a vacant house to drink fermented yeast.

3. After a few hours of drinking, the victim fell asleep. The accused then started touching the victim’s breasts and tried to pull down the victim’s shorts. The victim woke up, became angry and hit the accused to the side of his head. The victim also uttered a few bad words toward the accused and started to leave.

4. The accused did not stop there. He followed the victim and insisted to have sexual intercourse with her despite her reluctance. Finally, and to avoid threats and violence from the accused, the victim gave in and the accused had sexual intercourse with her. They had sexual intercourse several times at different locations. Upon returning home early in the morning the victim reported the matter to her aunty who took her to the police and to the nurse for medical examination.

5. It is worth noting that the Penal Code (Cap 67) has been amended by the Penal Code (Amendment) and the Criminal Procedure Code (Amendment) Act 2017 which came into force on 23 February 2018. Under the Amendment Act, sections 128, 129 and 130 have been repealed and were replaced with the new sections 127A, 128, 129 and 130. Rape is now referred to as “unlawful sexual intercourse”, a term now defined in the new section 127A.

6. The accused has pleaded guilty and Mr Temaua submitted on his behalf factors that the Court is urged to take into consideration before passing the appropriate sentence on the accused. These mitigating factors include the accused’s plea of guilty, that he is a first offender, he cooperated with the police, he is remorseful for what he did, he apologized to the victim and her family. All these factors do bear mitigating effect on the sentence to be imposed on the accused.

7. The starting point on sentencing for rape on a contested case is five years’ imprisonment. See Attorney General –v- Tengke; Kaurake –v- Republic [2004] KICA 10. In that case Tengke pleaded guilty to rape. There were aggravating features in that Tengke committed rape in the presence of the victim’s children. He also attempted to deceive the victim in saying that her husband authorized him to have sex with the victim. The Court of Appeal refused to give Tengke the benefit of his guilty plea. His sentence of one (1) year was increased to four years’ imprisonment. The other accused, Kaurake, had his sentence reduced to 3½ years taking into account his guilty plea. In Akai Nabuaka –v- Republic [2006] KICA 14, the accused pleaded guilty to the charge of rape and assault causing actual bodily harm. He was sentenced to four years for rape and 12 months for assault causing actual bodily harm. There was violence involved. The Court of Appeal upheld the sentences.

8. The benefit of a guilty plea was established in Republic –v- Arawaia [2013] KICA 11. The accused in the present case pleaded guilty at the first instance to the Court. He also admitted his wrongdoing to the police. He is clearly entitled to 25% - 30% reduction in his sentence. The Court also notes the other cases referred to by both counsel on sentencing for rape: Republic –v- Tairo [2014] KIHC 25; Republic –v- Takaria [2018] KIHC 36 and Republic –v- Teruakai [2017] KIHC 25.

9. The offence was committed in 2016. He admitted his guilt to the police. The High Court had been coming to Kiritimati Island twice a year in 2017 and 2018. Having admitted the offence to the police during his interview, there was no reason to keep the matter hanging over the accused’s head for two years before bringing him before the Court. The delay in doing so in this case entitles the accused to a small reduction in his sentence as established in
Attorney General –v- Li Jian Pei [2015] KICA 5.

10. The accused is to be treated as a first offender for the purpose of this case. His prior was for Drunk and Disorderly which has no bearing on this case. His present conviction, however, adds one more stain to his record.

11. There can be no question that the appropriate sentence in this case is a custodial one. The only question is, how long?

12. Counsel for the accused urged that the custodial be suspended. Unfortunately the circumstances of this case do not justify, in the Court’s view, a suspended sentence.

13. Taking into consideration all the mitigating factors ably submitted on his behalf by Mr Temaua, including his personal circumstances, as well as the circumstances of offending and a modest reduction for delay, the sentence of the Court is one of three years’ imprisonment. The sentence is to be served with effect from today.

SENTENCE: 3 years’ imprisonment with effect from 2 May 2019.

Dated the 2^nd day of May 2019

SIR JOHN MURIA
Chief Justice