Republic v Tiaon [2023] KIHC 35; Criminal Case 35 of 2020 (10 January 2023)

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

HIGH COURT CRIMINAL CASE 35 OF 2020

BETWEEN	THE REPUBLIC Prosecution
AND	TIMON TIAON Accused

Appearances:	Public Prosecutor, Ms Tumai Iaokiri, for the Republic Mr Taburuea Rubetaake, for the convict
Date of sentence:	10 January 2023

SENTENCE
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1. Timon Tiaon, you have pleaded guilty to indecent assault contrary to s.135(3) of the Penal Code, Cap 67.
2. The summary of agreed facts is set out below:

“it was during the period of May to June 2019, at Rungata village in Nikunau, the accused namely Timon Tiaon had entered the house of one Kuribaba, the complainant’s father whilst everyone was asleep. The complainant’s father heard the dogs barking, making loud noises. Both the complainant’s father and mother woke up, the mother turned on the flashlight and both saw a man inside a mosquito net of their daughter Nei Veronica, the victim. The man rushed and ran away, they went after him and recognized him to be Timon Tiaon. The complaints were that there were three times the accused came to the victim. The first time, he was seen so he ran away, secondly he entered the house laid close to the complainant and put his leg on her. As the complainant stood up to have a closer look, the accused threw a pillow to her face and ran away. The third time sometimes in June 2019, the accused sexually abused Veronica by licking her nipples, she woke up and saw Timon Tiaon had sucked her breasts, and later undressed her and pulled off her underwear. He told the complainant not to tell her parents and stayed inside the mosquito net with the complainant for about five to ten minutes and told the complainant not to make a noise. The complainant’s mother suddenly came with a flashlight which made Timon ran away. The complainant followed him and recognized him to be Timon Tiaon.”

3. During the sentencing and plea in mitigation submission, the Prosecution’s counsel, Ms Iaokiri raised two issues aggravating your offending. The first being your offending insulting the modesty of her femininity. The victim is a young girl of thirteen years old when you committed an indecent act on her sucking her breasts.
4. Secondly, this is one of the common offences committed on young girls as submitted by Ms Iaokiri. The sentence should deter you and others from committing this sexual offence.
5. The prosecution suggested 18 months as the starting point and that you be given an imprisonment term and supported their recommendation with the case authority R v Karibarenga [2005] KIHC 2. Even though persuasive to this court, the principle of sentencing and the facts of such case is almost similar to your current offending. In the Karibarenga case, the convict pleaded guilty to indecently assaulting the victim of under 13 years of age by sucking her breasts, kissing her on the mouth and rubbing his penis all over her vagina. The sentencing Judge sentenced the convict to 18 months imprisonment suspended for 18 months.
6. In your case, you sucked the victim’s breasts and told her not to make any noise amounting to a threat. You also pulled off the victim’s underwear and came back to the victim three times showing your clear intention to do an indecent act on her. These are aggravating factors of your offending.
7. Your lawyer, Mr Rubetaake, submitted that the mitigating factors in your case are your early guilty plea showing your genuine remorse and that you have a clear police record. This court accept these as mitigating factors and will in your favour reduce your final sentence.
8. Your counsel also submitted that an apology has been made by your family to the victim’s family and accepted. The victim’s family in their acceptance offered to withdraw the complaint however, it is the victim that wants the case to proceed. This means that the reconciliation will have little weight on your sentence.
9. Mr Rubetaake, further submitted that your sentence be suspended in light of the less severity of your offending. In R v Tabokai [2017] KIHC 40, the accused’s counsel requested for a suspended sentence but was not granted given that the convict’s offending was more serious than your offending.
10. The Amendment to the Penal Code set out that the revised penalty for indecent assault is from 3-5 years showing the severity of such an offence especially to girls of tender age.
11. After considering submissions by both counsels, I agree with the Prosecution to take the starting point of 18 months. For the aggravating factors of your offending, I increase your sentence by 12 months and deducting 10 months for the mitigating factors. Your sentence is 20 months imprisonment.
12. The next question is whether to suspend your sentence according to section 44 of the Penal Code. This is discretionary in light of your sentence which is under 2 years. After carefully considering the submissions put forward by both counsels, I exercise my discretion to suspend your 20 months imprisonment sentence for 2 years. You will be able to live at your home in Nikunau but you should abide by the law and not commit any offence for the duration of your sentence’s suspension of 2 years. If you happen to come back to court again within the 2 years suspension period, your 20 months imprison term will be given effect and you will also receive your sentence for your recent offending.
    

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ABUERA URUAABA,
COMMISSIONER OF THE HIGH COURT