Republic v Langston [2019] KIHC 48; Criminal Case 14 of 2019 (7 May 2019)

IN THE HIGH COURT OF KIRIBATI 2019

CRIMINAL CASE NO. 14 OF 2019
(HELD ON KIRITIMATI ISLAND)

[REPUBLIC PROSECUTOR
[
BETWEEN [AND
[
[GEORGE LANGSTON ACCUSED

Before: The Hon Chief Justice Sir John Muria

6 May 2019

Mr Monoo Mweretaka for Prosecutor
Ms Botika Maitinnara for Accused

SENTENCE

Muria, CJ: The accused has pleaded guilty to one (1) count of Indecent Assault on a girl under 13 years of age and one (1) count of Assault Causing Actual Bodily Harm on the same girl.

2. The brief background and facts of the case are that:

On 5 March 2018, the victim Nei Tieriin Betero was with the accused’s family to help out with family chores. In the evening of that day, the accused had been drinking fermented yeast and called his wife and the victim to join him. His wife went over to join him, but the victim refused. The accused then went to where the victim was and forced her to join in the drink. He poured a cup of yeast into her mouth despite her refusal. His wife was scared to stop him. Then he played a porno movie and forced the victim to watch it on the laptop. It was at this time the accused’s wife left the victim and the accused alone inside the house. His wife went to the police for assistance.

3. When the victim and the accused were left alone, the accused again forced the victim to drink another cup of yeast. When the victim refused, the accused then hit her on the mouth and face causing injuries to the victim’s lip. He then told the victim to put out her tongue. The victim refused but the accused insisted. She complied and the accused then kissed her. Then he dragged her to the bathroom where he threatened her with an iron fishing rod and took off the victim’s short, pulled her leg to make her lie down on her back, pulled her two legs apart and licked her vagina.

4. The police together with his wife arrived at the house. The wife took the victim and children away, while the police took the accused away.

5. The offence of indecent assault on a person under 13 years has been created under section 134(3) of the Penal Code (Amendment) and Criminal Procedure Code (Amendment) Act 2017. To reflect the seriousness of the offence, the law now provides the maximum sentence for the offence to 12 years’ imprisonment. Previously under the old section 133, indecent assault on any woman or girl carried a maximum imprisonment of only five years’ imprisonment.

6. In the light of the factual circumstances of the case, the prosecution is seeking a custodial sentence of not less than five years’ imprisonment to be imposed on the accused. Mr Mweretaka of Counsel for the prosecution laid emphasis on the need for deterrence to bring home to the accused that his sexual conduct toward a girl of tender age is not acceptable to society. As such society, through the Courts, must protect such a victim.

7. The Court agrees with the sentiment expressed by Counsel. The increase in the maximum sentence now put into effect by the Amendment to the Penal Code reflects society’s intolerance of such behaviour as those displayed by the accused toward the victim in the present case. On the facts as disclosed, they represent a reprehensible behavior of the accused toward a vulnerable child of tender age.

8. The aggravating factors in this case include a breach of trust, the use of force and invasion of the privacy of a little girl of tender age. If that was not enough, the accused tried to introduce the young victim into the degraded pollutants of pornography by playing a pornographic video on his laptop and forced the victim to watch it. Such behaviour toward a very young and vulnerable victim is unacceptable.

9. Ms Maitinnara, on behalf of the accused, did not try to shy away from the seriousness of the actions of the accused. Counsel also, properly in the Court’s view, accepted that custodial sentence is the appropriate sentence in this case. Counsel, however, pleads that in the circumstances of the case, the accused be given a suspended custodial sentence.

10. Counsel laid emphasis on alcohol as the major influence on the actions of the accused. It is submitted on his behalf that whenever he is intoxicated, his mental capacity is affected which led him to do things such as what he did to the victim in this case. He has since stopped drinking and has sought medical help from doctors. Two doctors made reports in support of his conditions. I accept that the accused had taken rehabilitative actions to help him improve his behavior and life.

11. The accused had pleaded guilty at first instance which under
Republic –v- Arawaia [2013] KICA 11 entitles him to a 25% - 30% reduction in his sentence. Not only that his plea of guilty saves the victim of the trauma of
re-living the ordeal he had put her through, but also to show his genuineness of his remorse for what he did to the victim. A plea of guilty always tells in favour of the accused: Republic –v- Teuea Napoleon (3 May2019) High Court Crim. Case 10 of 2019.

12. The sentences on indecent assault decided by the Courts in this jurisdiction range from six months to 3½ years on guilty pleas, depending on the seriousness of the offending. See the cases of Republic –v- Toani [2002] KIHC 69;
Republic –v- Karibarenga [2005] KIHC 2; Atera –v- Republic [2006] KICA 11;
Republic –v- Arawaia (above); Republic –v- Taberuru [2014] KIHC 20 and Republic –v- Boiti [2018] KIHC 67. The present case comes within the upper range.

13. The accused is not a first offender, although his two priors were unrelated to his present offending. Both previous convictions occurred in 2016 for Destroying Property and Criminal Trespass.

14. The Parish Priest has written in support of the accused standing in the community and that he is an active parishioner who helps the community and work of the Church. Apart from the Parish Priest, the mother of the victim has also written in support of the accused, conveying her and her husband’s acceptance apologies from the accused and that they forgave him for what he did. I accept that an apology plays an important role in the community life and relationship in Kiribati. It is really to maintain peace and harmony in the community. But it must be accepted also that an apology in cases of sexual nature does not take away the trauma and impact that such an offending had on the victim.

15. I give the accused credit for the steps he had taken to rehabilitate himself through seeking medical help and abstaining from alcohol. As it has been said “if your eye caused you to sin, pluck it out. It is better to go to heaven with one eye than to go to hell with both eyes”. That should translate to the accused that if alcohol caused you to commit crimes, cut it out of your life. It is better for you to be free to enjoy life with your family, neighbours and all those around you, than to keep your lust for alcohol and go to prison where you will spend time in regret and misery.

16. I take everything that is ably said on your behalf by your lawyer. I bear in mind the character references made to support your case. I do also pay particular attention to the doctors’ reports on your conditions. Likewise I am mindful that you have taken steps to rid yourself of alcohol. All these go to support one of the principles in sentencing, namely, rehabilitation. The Court will assist, in appropriate cases, rehabilitation of prisoners through the types of sentences they impose on persons convicted of offences. In your case, the Court is mindful of this sentencing principle also.

17. The sentence which the Court will impose on you today must also reflect the seriousness of the offending that you have done. This is the reason why a custodial sentence as suggested by the prosecution must be imposed on you. In the circumstances of this case, that sentence is one of two years’ imprisonment.

18. However, in the light of circumstances and all the matters now placed before the Court, I feel the Court can exercise its discretion to give you the opportunity to rehabilitate yourself. This the Court will do by suspending your sentence so that you continue to seek medical help or advice with regard to your mental condition.

19. The suspension of your sentence is not free. There is a condition attached to it. That condition is that you must not commit any offence whatsoever within the next 12 months. If you do, you will be brought back to this Court and the Court will order you serve your two years’ imprisonment and together with any sentence for the offence that you commit during the period of your suspended sentence.

SENTENCE: Two years’ imprisonment suspended for 12 months on condition that the accused does not commit any other offence within the said 12 months.

Dated the 7^th day of May 2019

SIR JOHN MURIA
Chief Justice