Republic v Nakangeri [2023] KIHC 55; Criminal Case 5 of 2021 (3 May 2023)

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

High Court Criminal Case 5 of 2021

BETWEEN	THE REPUBLIC Prosecution
AND	IOANE GARY NAKANGERI TANIBEIA MWEA MENTY TIEN Accused(s)

Appearances:	Senior Public Prosecutor, Ms Teanneki Nemta, for the Republic OPLS Director, Mr Raweita Beniata, for the convict
Date of sentence:	3 May 2023

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SENTENCE
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1. Before proceeding to sentencing you, Menty Tien, it is important to note that this court ordered on 4 April 2023 that the charges against the other two accused, namely Ioane Gary Nakangeri and Tanibeia Mwea were withdrawn and discontinued.
2. It is also worth noting that this was the first case charging Menty Tien however, his other criminal case in Criminal Case 58 of 2021 was considered first so this court is treating this one as his second case.
3. Menty Tien, you have pleaded guilty to one charge relating to section 294(b) [house breaking with intent to commit a felony] of the Penal Code, Cap 67 thus this court convicting you accordingly.
   
4. The summary of facts is set out below:

For the offence of house breaking with intent to commit a felony,

“On the 22^nd of May 2020, at Betio village, South Tarawa, in the Republic of Kiribati, with intent to steal, broke and entered the office of the Ministry of Commerce and stole the cash inside the envelope in the amount of $234062 which was placed and kept inside the accountant’s drawer namely Toatu Teteki.”

5. During the sentencing and plea in mitigation submission, the Prosecution’s counsel, Ms Nemta, raised three accepted issues as aggravating factors to your offending. The first being your previous conviction, public and government insecurity for such offending and the principle of deterrence. You were recently convicted and sentenced for house breaking with intent to commit a felony similar to this current conviction and this will be reflected in your end sentence as an aggravating factor.
6. Ms Nemta, for the Republic also argued that the public and government are insecure with such offending committed in the night when no one is around to fend their properties. The timing of the offence shows that even with securities, such offenders could still find ways to break in with an intention to commit a serious crime such as stealing the government’s funds.
7. The principle of deterrence should be taken into account as submitted by Ms Nemta to prevent the offender and those to offend to this extent from committing this serious offence particularly to government’s properties. The prosecution submitted that you should be sent to custody for this offence.
8. On the other hand, your counsel, Mr Beniata, submitted that the mitigating factors to be accounted for and accepted by this court include, your early guilty plea and cooperation with the police.
9. You pleaded guilty at the very earliest opportunity saving everyone’s time and the court’s scarce resources and this will go in your favor in terms of your final sentence and you have been cooperating with the police in their investigation.
10. 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 complainants in this case the government of Kiribati. 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 you, Menty Tien).
11. I will now consider the starting point of your sentence taking into account all that have been submitted by the prosecution and your counsel and the relevant provisions from the Penal Code. For house breaking with intent to commit a felony contrary to section 294(b) of the Penal Code, the maximum sentence is 7 years imprisonment. It is important to note at this stage that I am mindful of another recent criminal conviction in Criminal Case 5 of 2021 so the totality principle of sentencing is taken into account with respect to the final sentence reached in this case.
12. Counsels made submissions on some case authorities decided by this court including Republic v Katarake [2014], Republic v Teweia [2019], Republic v Tiaontoa [2021] and Republic v Rieta [2005] and this court considered just that the starting point for your sentence with respect to house breaking with intent to commit a felony is 24 months. I increase this by 18 months for the aggravating factors. Lastly, I deduct 6 months for the mitigating factors. You are sentenced to 36 months or 3 years.
13. The prosecution strongly submitted for a custodial sentence while Mr Beniata raised other forms of sentencing including suspended sentence and for yourself to be returned to your home island of Kuria and not to leave Kuria pursuant to section 37(1) of the Penal Code. I reject these alternative sentencing and agree with Ms Nemta that in light of your offending, a custodial sentence should be imposed particularly that this is the second time that you have broken into a housing/property to commit a serious offence. Your evidence shows that you took an envelope containing money. You will serve a prison sentence.
14. Menty Tien, you are sentenced to:
    • 36 months or 3 years for house breaking with intent to commit a felony;
    • I have considered that this is another offence different from your previous conviction and should be in consecutive to your other sentence. Sentence to run consecutively meaning you should serve your sentence of 22 months in Criminal Case 58 of 2021 plus 36 months in this case, totaling to 58 months or 4 years and 10 months from the day you were first taken to custody.
      

MR. ABUERA URUAABA,
COMMISSIONER OF THE HIGH COURT