Republic v Tebou [2021] KIHC 2; Criminal Case 3 of 2020 (19 October 2021)

IN THE HIGH COURT OF KIRIBATI

CRIMINAL CASE NO. 3 OF 2020

[THE REPUBLIC PROSECUTOR
[
BETWEEN [AND
[
[NABUAKA TEBOU ACCUSED

Before: The Hon. Chief Justice William Kenneth Hastings

Date of Hearing: 19 October 2021
Date of Judgment: 19 October 2021

Counsel: Mr. Tabotabo Auatabu for the Republic

Ms. Angitonu David for the Accused

SENTENCE DELIVERED BY HASTINGS CJ

1. 1. Nabuaka Tebou, you appear for sentence on charge of doing grievous harm contrary to s 220 of the Penal Code. The maximum sentence for this offence is seven years’ imprisonment.
   
1. 2. At 5 pm on Friday 15 February 2019, you punched the victim once in the face. The victim is the husband of your ex-wife. You had recently separated from her and your emotions were undoubtedly raw. That explains what you did, but it does not excuse it.
2. 3. When the victim went to his car to get his smokes, you came up behind him and when he turned around, you punched him. You had been drinking.
3. 4. The victim suffered a bleeding nose, bruised eye and his upper left incisor broke off.
4. 5. The sentence I impose must denounce your conduct, deter you and other from the same or similar offending, hold you accountable for the harm you have done, and be the least restrictive sentence that is appropriate in the circumstances. It must also provide for you rehabilitation and reintegration into the community to the extent it can.
5. 6. I identify the following aggravating factors related to the offending:
   1. a. You took the victim by surprise. The suddenness of the assault meant he was less able to defend himself.
   2. b. The victim sustained injuries that included the permanent loss of a tooth.
   100. c. This appears to have been part of an ongoing domestic dispute, the heat of which has now dissipated.

4. 7. In your case, there is also an absence of aggravating features that are present in the cases cited to me:
   5. a. Nothing was used as a weapon as was the case in R v Aron, R v Tooma and R v Kaumauti.
   6. b. There was no loss of consciousness as was the case in R v Kabua.
7. 8. Your case seems closer on its facts to R v Tebakota in which an end point of seven months was reached.
8. 9. Taking these aggravating factors and the precedent cases into account, I consider a starting point of seven months’ imprisonment to be appropriate.
9. 10. I turn now to personal aggravating and mitigating factors. First, you have a previous conviction for domestic violence for which you were sentenced to six months’ imprisonment suspended for one year. That warrants an uplift of one month, bringing me to eight months. Your guilty plea warrants a discount of 25%, or two months, which brings me to six months.
10. 11. Ms David submitted there should be a further discount for the delay in prosecution. Although witness statements were taken by the investigating officer in February and March 2019, the Attorney-General’s office was not notified until October 2019, and the charge was not laid until March 2020. There has been some unexplained pre-charge delay. Transportation difficulties caused by the pandemic explains the post-charge delay. I do not consider the delay in this case to be unreasonable given the relatively limited resources allocated to the administration of justice, but I am concerned at the length of time that passes between the filing of a charge and first appearance generally. I do not consider the delay in this case to warrant a discount in sentence.
11. 12. That brings me to an end point of six months’ imprisonment. I accept that a custodial sentence would bring hardship upon your two children of whom you have custody. You work in IT and are the sole income-earner for your household. Ordinarily I would suspend your sentence in those circumstances, but this is your second conviction for violent offending. I consider a sterner approach is appropriate.

50. 13. I am told there are no rehabilitative programmes on Kiritimati Island. Such programmes would have been useful in addressing any underlying anger management issues. I am also told the High Court rarely if ever makes use of s 46 of the Penal Code. It is available for use however, and to my mind enables me to impose a sentence that keeps you out of prison, but also permits you to give something back to the community, the peace of which you disrupted.

13. 14. For these reasons, I sentence you to a 40 day community service order under s 46 of the Penal Code which is to include maintaining the beauty of Kiritimati Island and any other public works deemed appropriate by the supervising public officer. Tourists will return next year when the borders reopen, and you can contribute to maintaining this island’s beauty.
14. 15. If you fail to undertake any of the work set for you, or if your conduct is found to be unsatisfactory, the public officer supervising your community service work can apply for a summons or warrant to bring you back to Court. The Court may then revoke the community service order and sentence you as though the order had not been made.
    
1. 16. Forty days’ community service.
   

Dated 19^th day of October 2021

Hon William Kenneth Hastings

Chief Justice