Republic v Tenamorua [2021] KIHC 4; Criminal Case 52 of 2019 (19 October 2021)

IN THE HIGH COURT OF KIRIBATI

CRIMINAL CASE NO. 52 OF 2019

[THE REPUBLIC PROSECUTOR
[
BETWEEN [AND
[
[EBENRI TENAMORUA ACCUSED

Before: The Hon. Chief Justice William Kenneth Hastings

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

Counsel: Ms. Tewia Tawita for the Republic

Mr. Raweita Beniata for the Accused

SENTENCE DELIVERED BY HASTINGS CJ

1. 1. Ebenri Tenamorua, you appear for sentence on three charges.
2. 2. The first is a charge of rape which carries a maximum sentence of life imprisonment. This occurred sometime in 2016. The victim is your stepdaughter and the offending took place in your, and her, home. Your wife had gone to play bingo. The victim was 12 or 13 years old. You were 49.
3. 3. The second charge is also of rape, also in 2016, and involved the same victim. She went into the bush to collect firewood in the afternoon. You suddenly appeared and told her to come to you. She obeyed. She lay down, you took off your shorts and underwear, and you inserted your penis into her vagina until you ejaculated.
4. 4. The third is a charge of indecent assault by a person in a position of trust contrary to s 155A(3) of the Penal Code. That offence carries a maximum penalty of 10 years’ imprisonment. In November 2018 you rubbed your hands on the same victim’s breast while she was sleeping. She woke up and slapped your hand away. She was 15, you were 51.
5. 5. The sentence I impose must denounce your conduct. It must deter you and others from the same or similar offending. It must encourage you to take responsibility for what you have done and hold you accountable for the harm you have caused. It must be the least restrictive sentence that is appropriate in the circumstances, and provide for your rehabilitation and reintegration into the community to the extent it can.
6. 6. I turn now to establish a starting point, taking into account the aggravating and mitigating factors related to the offending. I will consider the two rape charges together given their proximity in time to each other. I will then add an uplift for the indecent assault because it is chronologically less proximate, and apply the totality principle to achieve an overall starting point that reflects your culpability.
7. 7. I identify the following aggravating features of this offending:
   1. a. Two rapes occurred in relation to the same victim within a year.
   2. b. The victim was your stepdaughter. You abused your position of trust.
   100. c. One of the rapes and the indecent assault took place in the family home. The victim was entitled to feel safe at home.
   4. d. The offending took place when the victim was between 12 and 15 years old. Although Mr Beniata painted a picture of the victim seducing a weak older man who could not resist, I accept the victim’s vulnerability as an aggravating factor. She was especially vulnerable, alone with you in the bush during the second rape.
   5. e. There is an age gap of 37 years between you and the victim which lends more weight to her vulnerability and your abuse of her trust.
   6. f. You did not use a condom. This risked exposing her to sexually transmitted diseases and pregnancy.
   7. g. This offending would inevitably have had an emotional and psychological effect on the victim.

8. 8. There are no mitigating factors of this offending.
9. 9. In R v Arawaia, the Court of Appeal considered a starting point of five years’ imprisonment for defilement to be appropriate. Taking into account R v Arawaia and the aggravating factors I have identified, I consider a starting point for both rape charges of seven years’ imprisonment to be appropriate. I add an uplift of two years imprisonment on the indecent assault charge which brings me to an overall starting point of nine years imprisonment on all charges. This starting point takes into account the totality principle.
10. 10. I turn now to consider aggravating and mitigating factors personal to you.
11. 11. First, you have one previous conviction for assault causing actual bodily harm for which you received a sentence of one year imprisonment in 2016. That was not a sexual charge, so I will not add an uplift to your sentence, but I cannot give you a discount for good character either.

50. 12. Second, there has been a delay in prosecution. You gave a statement to the police in November 2018. Charges were filed in in October 2019, but your case was not listed in the October 2019 sitting of the High Court on Kiritimati Island. Then of course the pandemic intervened, but you have had this case hanging over your head for a considerable time when it could have been disposed of two years ago. That warrants a discount of 5 percent.

13. 13. Third, you pleaded guilty, and have been willing to plead guilty for some time. Your guilty pleas show you accept responsibility for what you have done. They also save the victim having to give evidence and the state the expenditure involved in a trial. Your guilty please warrant a discount of 25 percent.
14. 14. Fourth, I accept that sending you to prison will be hard on your wife and your mother who I am told is in her 90s. You are the only one providing food to them currently, and you subsist largely on copra and fish. Your personal circumstances warrant a further discount of 5 percent.
15. 15. Applying the methodology in Moses v R, the discounts for personal mitigating factors add up to 35 percent, which is the equivalent of 38 months deducted from the starting point. That brings me to an end point of five years and 10 months imprisonment.
16. 16. To achieve the purposes of sentencing I have identified at the beginning of these remarks, I sentence you on both rape charges to 4 years and 7 months imprisonment concurrently, and on the indecent assault charge to 1 year and 3 months imprisonment cumulatively.
17. 17. These sentences are to be served consecutively, for a total of 5 years and 10 months imprisonment on all charges.
    

Dated the 19^th day of October 2021

Hon William Kenneth Hastings

Chief Justice