Republic v Teanaa [2021] KIHC 14; Criminal Case 41 of 2020 (29 November 2021)

IN THE HIGH COURT OF KIRIBATI

CRIMINAL CASE NO. 41 OF 2020

[THE REPUBLIC PROSECUTOR
[
BETWEEN [AND
[
[TEMOUA TEANAA ACCUSED

Before: The Hon. Chief Justice William Kenneth Hastings

Date of Hearing: 29 November 2021
Date of Judgment: 29 November 2021

Counsel: Ms. Tabotabo Auatabu for the Republic

Mr. Taburuea Rubetaake for the Accused

SENTENCE DELIVERED BY HASTINGS CJ

1. Temoua Teanaa, you appear for sentence on one charge of bigamy which carries a maximum penalty of seven years’ imprisonment.
   
2. On 3 March 1981, you married Ioteba Bobai. On 26 November 2001, you married Teangitau Taakei without having divorced Ioteba Bobai, who was still alive at the time. Teangitau Taakei died three years later, in 2004. In 2020, Ioteba Bobai found out that you had been married to another man for three years while he was alive, and lodged a complaint.
   
3. Mr Auatabu submitted a two-year suspended sentence or a fine of $500 is appropriate punishment. Mr Rubetaake submitted a non-custodial sentence or a fine of $300 is appropriate.
   
4. Your sentence must denounce your conduct, deter you and others from the same or similar offending, encourage you to take responsibility for your actions and, to the extent it can, provide for your rehabilitation and reintegration into the community.
   
5. Bigamy must be considered on a case-by-case basis. It does not always warrant a custodial sentence. In Police v Malaga,^[1] the Supreme Court of Samoa decided that a custodial sentence would be inappropriate for a defendant who had remarried without divorcing a husband who had emotionally and physically abused her throughout their marriage. The defendant was fined $300. In State v Robinson,^[2] the defendant obtained a certificate of dissolution of marriage to his first wife before marrying his second wife. He was charged with bigamy and making a false declaration. The Papua New Guinea National Court held that the local court had no jurisdiction to issue the certificate of dissolution, meaning he was still married to his first wife at the time. The Court nevertheless decided that the defendant must be held responsible for the problem he created. He was given a two year suspended sentence on the bigamy charge and a K300 fine on the charge of making a false declaration.
   
6. I identify the following aggravating factors related to the offending:
   
   1. You did not tell the Civil Registration Office in Bairiki that you were married to Ioteba Bobai when you married Teangitau Taakei.
      
   2. The prosecution submitted that your actions after your marriage to Teangitau Taakei are factors aggravating the bigamy charge. After your marriage to Teangitau Taakei you moved to Nauru with one of your six children, leaving the others with Ioteba Bobai. The prosecution submitted Ioteba Bobai suffered by not having access to this child. I do not give your actions after the bigamous marriage much weight because they are not directly related to the charge of bigamy. There is no evidence that marriage was a condition of entry to Nauru. In the absence of such evidence, the shift to Nauru could have happened whether or not you were married. I accept however that Ioteba Bobai would have suffered from not being able to visit his child in Nauru, but again, that seems to be a function of the move rather than the bigamy.
      
7. There are also significant mitigating factors related to you, the offender:
   
   1. Your marriage to Ioteba Bobai was not a happy one. Early in your marriage, Ioteba Bobai granted his uncle’s request to sleep with you. This was a customary practice called iaonikie. You refused and ran away. Mr Rubetaake submitted that Ioteba Bobai however became “jealous and tormented” at the thought of you sleeping with his uncle that night, and would often beat you as a result. As the violence in your marriage continued to the point of being threatened with a knife in 1999, you naturally feared for your life and asked Ioteba Bobai for a divorce, which he refused claiming he still loved you. You married Teangitau Taakei in 2001 both to escape an unhappy marriage and to show Ioteba Bobai you no longer loved him. Mr Rubetaake submitted you did not understand the significance of your offending because of your lack of education, and your observation of a local police officer living with two wives.
      
   2. You have lived 61 years without any convictions.
      
   100. You pleaded guilty and have spared the state the expense of a trial and witnesses the burden of having to give evidence.
        
8. To my mind, these significant mitigating factors mean that a non-custodial sentence is appropriate. Domestic violence must be denounced, but bigamy is not the solution. Your case is very similar to Police v Malaga, another case of bigamy brought on by domestic violence. As Chief Justice Sapolu said in that case, you have suffered enough.
   
9. You are convicted and fined $300. You have until 31 March 2022 to pay the fine, in default of which you will be sentenced to prison for one month under s 30 of the Penal Code.
   

Dated 29^th day of November 2021.

Hon William Kenneth Hastings

Chief Justice

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^[1] Police v Malaga [2014] WSSC 83.
^[2] State v Robinson [1992] PGNC 113.