Republic v Napoleon [2019] KIHC 47; Criminal Case 10 of 2019 (3 May 2019)

IN THE HIGH COURT OF KIRIBATI 2019

CRIMINAL CASE NO. 10 OF 2019
(HELD ON KIRITIMATI ISLAND)

[REPUBLIC PROSECUTOR
[
BETWEEN [AND
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[TEUEA NAPOLEON ACCUSED

Before: The Hon Chief Justice Sir John Muria

3 May 2019

Ms Pauline Beiatau for Prosecutor
Ms Angitonu David for Accused

SENTENCE

Muria, CJ: The accused has been charged with one count of Sexual Intercourse with a girl under 15 years contrary to section 135(1) of the Penal Code. The wording of the charge under section 135(1) follows the Penal Code (Amendment) and Criminal Procedure Code (Amendment) Act 2017. The accused pleaded guilty to the charge.

2. The accused and his wife lived at the Kakai place which is further away from the main village. The victim is the sister of the accused’s wife. On occasions the victim would come to visit the accused and his wife. On several occasions, she would display some interest in the accused as shown by her touching the accused. On the night in question while the accused was sleeping with his wife at the Kakai place, under a mosquito net, the victim came and lied down beside the accused inside the same mosquito net. The victim put her left leg and left arm on the accused. They had sexual intercourse that night. That was the only one occasion they had sexual intercourse. That was in March 2018.

3. The victim never mentioned about the accused having had sexual with her to anybody nor to her mother. It was in April 2018 that she told her mother that she lost her monthly period. Her mother confronted her and asked her if she was pregnant. It was only then that she told her mother that the accused had sexual intercourse with her when she went to visit her sister and the accused at the Kakai. Subsequent medical examination confirmed that the victim was pregnant.

4. The accused confessed to his wife that he had sexual intercourse with the victim. The accused also confided with a female police officer about the matter. The accused admitted his wrongdoing to the police. He also pleaded guilty before this Court.

5. The incident resulted in the accused’s wife and children separating from him. The Court is now told that they have since came back together and they are now living together again at Tabwakea.

6. The victim has now given birth to a son who is now five months old. She is now a young single mother.

7. The prosecution submits that this is a serious offending and must be met with severe punishment to reflect the gravity of the offence. Ms Beiatau, in her submission, suggests that the starting point for this offence must be the same as that in a rape case, that is, five years’ imprisonment. Counsel submits that the element of deterrence must be brought home to the accused for committing such an offence and to show the community’s abhorrence for such a behavior.

8. Ms David, on behalf of the accused, submits that the mitigating factors in this case, warrant a less severe sentence. In particular, Counsel stressed the fact that the accused admitted his wrongdoing to his wife, to the police and to this Court at the first opportunities. Counsel also contends that the victim’s behavior should not be ignored.

9. Under the new Amendment, section 135(1) carries the maximum sentence of life imprisonment. But that must, of course, be reserved for the worst possible case. Previously, the offence carried a maximum of five years’ imprisonment. Nevertheless, the new maximum sentence for the offence under section 135(1) reflects the seriousness Parliament places on such offending.

10. Having said that, it must always be noted that each case must be considered under its own factual circumstances. The present case is to be considered also under its own circumstances.

11. The case authorities in this jurisdiction appear to reflect a common stand in these sort of sexual offences involving young victims. This is clearly shown by the line of cases decided by the Court of Appeal and High Court. See
Attorney General – Tengke; Kaurake –v- Republic [2004] KICA 10 (rape); Republic –v- Arawaia [2013] KICA 11 (Defilement under 15 years); (others). The sentence of five years appears to be accepted as reasonable starting point, as contended for by Ms Beiatau especially in rape cases. I think in the light of the new amendments to the Penal Code, I accept the position as argued for by
Ms Beiatau, even in very serious defilement cases.

12. The accused in this case pleaded guilty to the charge of having sexual intercourse with the victim who was under 15 years of age at the time of the offence. Bearing in mind the seriousness of the offence, I must take account to the mitigating factors as put on his behalf by Ms David.

13. In the first place, guilty pleas always tell in favour of the accused. In this case, the accused’s guilty plea has earned him 25% to 30% reduction in his sentence. See Republic –v- Arawaia (above). Taking five years as a starting point, and according him 30% reduction for his early admission and guilty plea before the court, the sentence should be reduced to about 3½ years.

14. A further reduction in the sentence should be considered also for other mitigating facts, including being a first offender, and his cooperation with the police. I agree with Ms David that in this case, the victim’s behavior cannot be ignored. Although consent is not a defence, a demonstration of willingness to engage or even initiate the sexual activities on the part of the victim, must be taken into account by the Court. This is because sentencing is a balancing exercise.

15. In the present case, I find the victim not an unblameworthy actor in this saga. That factor together with the other additional mitigating facts, should entitle the accused to a further reduction in his sentence.

16. The Court takes into account also in this balancing exercise, the accused’s personal circumstances. He is a very young man of 26 years old now. He has a young family – a wife and two very young children to support. He is remorseful for what he did.

17. I feel also that there is a further factor to be taken into the balance. I do not ignore the fact that it is alleged that the victim bears his child, although there is no evidence before this Court to confirm that the child is his. Be that as it may, if the paternity of the victim’s child is determined to be that of the accused, he will be made to account for it at some stage. Not only in custom but in law the accused will have to share the responsibility over the care and maintenance of that innocent child. This is an additional impact on the victim and the Court considers it a relevant factor to be added to the balancing scale in sentencing the accused.

18. When one puts all those factors in the basket and put them in the balance, the Court is bound to strive to achieve what is fair and just to the society as well as to the accused and to the victim.

19. I feel the offence committed by the accused merit a custodial sentence. The only question is how long the sentence should be and whether it should be suspended or not, in full or part.

20. Doing the best I can in this case, in determining what is the appropriate, fair and just sentence for the accused, I feel the appropriate sentence should be one of two years’ imprisonment. In the circumstances of this case, the period of suspension is one of 12 months under section 44 of the Penal Code.

ORDER: Sentence 2 years’ imprisonment suspended for 12 months, on the condition that you do not commit another offence within that 12 months suspension period.

Dated the 3^rd day of May 2019

SIR JOHN MURIA

Chief Justice