Republic v Nakareke [2023] KIHC 37; Criminal Case 62 of 2020 (18 August 2023)

IN THE HIGH COURT OF KIRIBATI

HIGH COURT CRIMINAL CASE 62 OF 2020

BETWEEN	THE REPUBLIC Prosecution
AND	GARY IOANE NAKAREKE Accused

Date of Hearing:	9 November 2022
Date of Judgment:	18 August 2023
Appearances:	Ms Teanneki Nemta, Senior Prosecutor for Prosecution Mr Tabibiri Tentau, for the Accused

VERDICT
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1. The accused, was charged by the Prosecution with three counts shown below:
   
   1. Count 1 – Simple larceny after having been previously convicted of a felony, contrary to section 254(2) of the Penal Code, Cap 67,
      

Particulars of offence

Gary Nakareke, on 25 February 2020, in Betio, South Tarawa in the Republic of Kiribati, after having been previously convicted of a felony in 2013 and 2014, stole the cargoes, the total value of $1873 from the dwelling house, belonging to Kitnar Jung.

2. Count 2 – Entering contrary to section 294(a) of the Penal Code, Cap 67,
   

Particulars of offence

Gary (Ioane) Nakareke, on 25 February 2020, in Betio, South Tarawa in the Republic of Kiribati, in the nighttime, entered the dwelling house of Kitnar Jung and stole cargoes, the total value of $1873 belonging to the same Kitnar Jung.

100. Count 3 – Procurement contrary to section 21(4) of the Penal Code, Cap 67,
     

Particulars of offence

Gary (Ioane) Nakareke, on the 25 February 2020, in Betio, South Tarawa in the Republic of Kiribati, procured a child namely Kunei Kanangnang, to break and enter the dwelling house of Kitnar Jung, by mean of threatening the child to do such, and stole the cargoes being the value of $1873.

2. The accused pleaded not guilty to all of the charges and a trial was conducted on 9 November 2022. The prosecution called two witnesses including Kunei Kanangnang and Kitnar Jung.
   
3. The accused exercised his rights to remain silent after the end of the Prosecution’s evidence.
   

The prosecution’s evidence

4. There were two prosecution’s witnesses including Kunei Kanangnang, a boy of between 12 and 13 years old and the complainant, Kitnar Jung.
   
5. The evidence of the teenager Kunei Kanangnang set out that on 24 February 2020 between 4 and 5 in the morning, he was at home (Baraatu’s house) when the accused, Ioane and Tieru came and called him to come with them. They drank beer. They took him to the wharf and went to the Korekorea’s Corner. They forced him to go inside the store/house and assisted him. Once he was inside, he opened the door. the witness said that the accused and his two friends went inside the house. He also said that he did not shout as he was afraid as they will beat him if he did not go inside as they told him to. He continued to say that the accused and Ioane once inside the house/store took a lot of cartons of beer. He left the scene after that. The witness also identified the accused in court.
   
6. The evidence of the complainant, Kitnar Jung, set out that on 24 February 2020 between 4 and 6 in the morning, she was sleeping in her house/store with her husband and kids at Korekorea’s Corner at the Wharf in Betio. I woke up and saw that there was a break-in to our house/store because counter opened, lock was broken, and back door opened (the bar). She continued saying that she always carried out a stock taking of all the cargoes and after the break-in, the following items were stolen:
   • 3 cartons of Heinekken, 1 carton of 4x, 3 cartons and 3 cans of Foster, 1 carton and 8 cans of VB
   • 2 bottles of Jim Beam (750mls), 2 bottles of Jim Beam (350 mls), 1 bottle of rum, 1 bottle of Brandy wine, 3 bottles of white wine,
   • 6 pieces of Rexone, 2 pieces of Gillette
   • 2 sleeve of Wishing Start cigarette and 30 pieces of gas lighter
   • $50 cash
   • 2 mobile phones
     
7. The total amount of the stolen cargoes is $1873.00.
   
8. The evidences of both witnesses were not substantially challenged during cross examination and I find the first witness, Kunei Kanangnang, to be telling the truth of what transpired on 24 February 2020 even though he seems to be illiterate as he quit school earlier on. Both witnesses are reliable.
   

The Law and Application

9. Because the defendant exercised his right to silence, the court will consider the accused’s guilt by assessing the evidence of the prosecution only.
   
10. The presumption of innocence principle dictates that every person accused of any crime is considered innocent until proven guilty. Under the presumption of innocence, the legal burden of proof is thus on the prosecution, which must present compelling evidence to the trier of fact, in this case a judge alone. If the prosecution does not prove the charges true, then the person is acquitted of the charges. The prosecution must in most cases prove that the accused is guilty beyond a reasonable doubt. If reasonable doubt remains, the accused must be acquitted.
    
11. The provision of the Penal Code in which the accused was charged are set out below with the relevant penalty:
    
    • Section 254(2) – Any person who commits the offence of simple larceny after having previously convicted of felony, shall be liable to imprisonment for 10 years
    • Section 294(a) – any person who, with intent to commit any felony therein, enters any dwelling-house in the night in guilty of a felony, and shall be liable to imprisonment for 7 years.
    • Section 21(4) – Any person who procures another to do or omit to do any act of such a nature that, if he had himself done the act or mad ethe omission, the act or omission would have constituted an offence on his part, is guilty of an offence of the same kind, and is liable to the same punishment, as if he had done the act or made the omission; and he may be charged with doing the act or making the omission.
      
12. For the first charge of theft and simple larceny, the evidence shows that the accused went inside the house/store of the complainant and stole cartons of beer as adduced by the first prosecution’s witness. Did he steal all the goods mentioned by the second prosecution’s witness? The evidence is circumstantial but I find that the accused in entering the dwelling house of the complainant and taking away the goods without the consent of the owner for own usage have committed theft. He and his two friends stole the items adduced in evidence of the second prosecution’s witness and no longer in the complainant’s house/store specified in the evidence of the second prosecution’s witness amounting to $1873.00.
    
13. In addition, having being previously convicted of felony and now found guilty of theft and simple larceny, he is therefore found guilty according to section 254(2) of the Penal Code.
    
14. For the second charge, the evidence of Kunei Kanangnang clearly shows that the accused and two others forced the witness to break-in in order to be able to open the door for them. This shows their clear intention to enter the dwelling house to commit theft, a felony. When the door was opened, they entered the house/store of the complainant to steal the cargoes mentioned above. The locks, counter and back door were all broken after the accused and his two friends entered the house/store. It was done between the hours of 4am and 6am which under law is nighttime (section 4 of the Penal Code). The accused is found guilty of this charge.
    
15. For the third charge, the evidence shows that the accused and his two friends procured the first witness, a young boy of 12 or 13 years of age to break-in and enter the dwelling house at night. The accused and his two friends forced Kunei Kanangnang to enter the dwelling house of the complainant at Korekorea’s corner to be able to open the door for them to enter and steal the cargoes mentioned earlier. In addition to the second charge, the accused is also found guilty of this charge with respect to breaking in and entering a dwelling house at night.
    

Finding of this court

16. In light of the relevant laws, evidence adduced and the findings of this court, I find the accused, Gary (Ioane) Nakareke guilty on charges with respect to:
    
    • Section 254(2) – the offence of simple larceny after having previously convicted of felony
    • Section 294(a) – entering any dwelling-house in the night with an intention to committing a felony
    • Section 21(4) – Procurement of another person to commit an offence.
      
    17. The accused is convicted of counts 1,2, and 3.
        
    18. The sentencing hearing is to follow on Tuesday, 22 August 2023 at 2pm.
        

__________________________
MR ABUERA URUAABA,
COMMISSIONER OF THE HIGH COURT