Republic v Nauenaua [2022] KIHC 31; Criminal Case 29 of 2021 (1 August 2022)

IN THE HIGH COURT OF KIRIBATI TE KABOWI AE RIETATA I KIRIBATI

High Court Criminal Case 29 of 2021

BETWEEN	The Republic v
AND	Teruru Nauenaua

Appearances:	Ms Tumai Iaokiri for the Republic Mr Taburuea Rubetaake for the Convict
Date of sentencing Date of sentence:	Hearing: 18 July 2022 1 August 2022

SENTENCE

1. Teruru Nauenaua, you have pleaded guilty to two counts of unlawful sexual intercourse contrary to section 129(1) of the Penal Code and therefore convicted accordingly on 7 July 2022. These are the particulars of the charges:

Charge:

Count 1: Unlawful sexual intercourse contrary to section 129(1) of the Penal Code, Cap 67

Particulars of the offence

Teruru Nauenaua, on 11 December 2020 at Teaoraereke village, South Tarawa, inside their house had unlawful sexual intercourse with Nei Hazel Gordon, aged 25 years by means of licking her vagina.

Count 2: Unlawful sexual intercourse contrary to section 129(1) of the Penal Code, Cap 67

Particulars of the offence

Teruru Nauenaua, on 11 December 2020 at Teaoraereke village, South Tarawa, inside their house had unlawful sexual intercourse with Nei Hazel Gordon, aged 25 years by means of penile-vaginal penetration.

You have admitted the following summary of facts;

“On the 10^th of December 2020 between 1.00am and 1.30am early in the morning, the complainant namely Hazel Gordon, was living in his half-brother’s house at Teaoraereke together with his half-brother’s son. The half-brother, the prisoner Teruru Nauenaua had sexual intercourse with the complainant without her consent.

The complainant was fast asleep when the prisoner, Teruru Nauenaua, who was also sleeping in the same house with his son who was fast asleep, approached the complainant. The prisoner woke the complainant by calling her name, and when the complainant awoke, the prisoner covered her mouth and threatened the complainant that he has a knife.

The complainant was afraid, the prisoner then performed oral sex with her by means of licking her vagina for not more than a minute. Then after that he got on top of the complainant, pulled out his penis from his boxer and inserted it into the complainant’s vagina. He thrusted the complainant for more than a minute and a few seconds, then got off from the complainant and went to sleep.

The complainant ran to her next-door neighbour, her cousin brother Ten Tokiara to sleep with them where she told Ataranta Tabiita what happened the next morning.”

2. Teruru Nauenaua, the prosecution during sentencing submitted and this court accept as aggravating factors of your offending the breach of trust, weapon used, mental and emotional effect of the offending to the victim, and the need for deterrence.
3. There is a fundamental breach of trust by yourself as half-brother to the victim in which the victim looks up to you as a family member, a brother who provides her a home in Tarawa when she came from Nauru. I do not know why the prosecution did not file more charges to the extent that the victim and you are family members and that will be a question for them.
4. During the commission of the offence, you told the victim that you had a knife for her to comply with your demands. Because she was afraid for her life, stood still while you performed oral sex on her and later unlawfully had sexual intercourse with the victim by way of inserting your penis in her vagina. There was nothing in the summary of facts about yourself ejaculating so that was not considered in this sentencing.
5. The victim was emotionally affected after the incident in which she was afraid to live at your house and had to now live with her other families in Bonriki. She continued to advise the Prosecution that you should await your sentencing in custody as she fears for your release. It is more emotionally draining that you, the half-brother of the victim would do such a serious and disgusting offence to someone you shared your mother with, your half-sister.
6. The Prosecution submitted that in addition to the aggravating factors discussed, that a custodial sentence is issued against you to deter you from future offences to this extent or other likewise offences. Unlawful sexual intercourse is one of the most committed offences in the country according to the statistics submitted orally by the prosecution but with no supporting evidence. However, the court’s statistics confirms that this is one of the common offences with an increasing number of sexual offences happening in a domestic setting (family members) and this court notes the strong argument by the prosecution for the need to deter you and other potential offenders.
   
7. Teruru Nauenaua, in sentencing you for the offence of unlawful sexual intercourse, it is important to consider the circumstances of your offending and the Court of Appeal decision in Attorney General v Tengke; Kaurake v Attorney General [2004] KICA 10. In Tengke’s case, the highest court of Kiribati decided that a starting point of five years in a contested rape or unlawful sexual intercourse case is fine.
   
8. The sentence I impose must condemn your behavior, deter you and others from the same offending and hold you responsible and accountable for the serious harm you have done to the victim. The sentence should also to the extent that it can, rehabilitate you before you reintegrate into the community (The Superintendent of Prisons should take note of the vital need to have variety of rehabilitative measures for prisoners including Teruru Nauenaua).
   
9. Considering your offending and the court of appeal’s case discussed above, I take 4 years as the appropriate starting point in your case. After considering the above aggravating factors including the breach of trust, weapon used in the commission of the offence, emotional harm of the offending upon the victim, and the need to deter you and potential offenders, I add 2 years.
   
10. Mr Rubetaake, ably submitted on your behalf the mitigating factors including early guilty plea, clean past police record and unreasonable post charge delay in prosecuting this case.
    
11. I accept that your early guilty plea shows remorse in what you have done to the victim however, you should have done more in terms of a true spirit of I-Kiribati reconciliation but instead, and as submitted by the Prosecution, your family only care about advising the victim to withdraw her complaint and this will not significantly mitigate your sentence.
    
12. Your past clean record shows that you were law abiding until you committed this very serious sexual offence and will have some effect on your sentence.
    
13. Mr Rubetaake, argued that the post charge delay in prosecuting your case within a reasonable time which is one year, and two months should also be reflected in mitigating your sentence which I accept to be considered accordingly.
    
14. The prosecution submitted that a custodial sentence is an appropriate sentence to which your lawyer also agreed but requested for a sentence of not more than five years.
    
15. The circumstances of your offending as submitted by your lawyer are unjustified excuses and I reject them. You are an adult man with a wife and child, and you understand well that the victim is your biological half-sister who lived with you.
    
16. In taking account of all the mitigating factors, I reduce your sentence by 15 months.
17. Teruru Nauenaua, I sentence you to 4 years and 9 months imprisonment for count 2. For the first count, I sentence you to one year imprisonment. The sentences should run concurrently.
    

__________________________
The Hon. Abuera Uruaaba,
Commissioner of the High Court