Republic v Tien [2023] KIHC 56; Criminal Case 58 of 2021 (3 May 2023)

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

High Court Criminal Case 58 of 2021

BETWEEN	THE REPUBLIC Prosecution
AND	MENTY TIEN Accused

Appearances:	Public Prosecutor, Ms Benateta Atanteora, for the Republic Mr Raweita Beniata, for the convict
Date of sentence:	3 May 2023

_____________________________________________________________________

SENTENCE
______________________________________________________________________________

1. Menty Tien, you have pleaded guilty to two charges relating to sections 294(b) [house breaking with intent to commit a felony] and 251 [theft] of the Penal Code, Cap 67.
   
2. The summary of facts is set out below:

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

“On the 19^th of January 2021 around 0200hrs to 0500hrs, at Betio village, South Tarawa, in the Republic of Kiribati, with intent to steal, broke and entered a dwelling house of Paul and Bebe and stole items that amounted to $10,500.00 (AUD). The suspect stole valuable items such as necklaces, rings, earrings, necklace’s pendant, 8 cans of Heineken. The suspect removed the two glasses from the window, cut a hole in the window screen to go inside.”

For the second count of theft,

“On the 19^th of January 2021 around 0200hrs to 0500hrs, at Betio village, South Tarawa, in the Republic of Kiribati, with intent to steal, broke and entered a dwelling house of Paul and Bebe and stole items that amounted to $10,500.00 (AUD). The suspect stole valuable items such as necklaces, rings, earrings, necklace’s pendant, 8 cans of Heineken. The suspect removed the two glasses from the window, cut a hole in the window screen to go inside.”

3. During the sentencing and plea in mitigation submission, the Prosecution’s counsel, Ms Atanteora, raised two accepted issues as aggravating factors to your offending. The first being the financial burden on the owner and secondly, the invasion of privacy of the complainants. Ms Atanteora, submitted that the financial value of the properties stolen is significantly high impacting the business and livelihoods of the complainants.
4. On the other hand, your counsel, Mr Beniata, submitted that the mitigating factors to be accounted for include, your early guilty plea, clean police record, cooperation with the police and the delay in the prosecuting of your case.
5. 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. You have no previous conviction meaning that you have been law-abiding until this first conviction and you have been cooperating with the police in their investigation.
6. Mr Beniata, also submitted and confirmed by the prosecution that some items were recovered including 1 tablet, 1 necklace, 2 rings, 1 perfume, 2 Swarovski crystal duck and 12 empty boxes.
7. Your counsel raised the delay of prosecuting the case as one of the issues to be accounted as mitigating towards the final sentence you will receive which this court accept. The delay of over ten months should not happen in criminal cases especially in cases where the accused pleaded guilty. The prosecution and the police should always strive to ensure that the charge is filed as a matter of urgency particularly when the accused pled guilty.
8. 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 of 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 and 5 years for theft contrary to section 251 (punishable under section 254(1) of the Penal Code. It is important to note at this stage that I am mindful of another 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.
9. 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 Taitai [2019] and this court considered just that the starting point for your sentence with respect to house breaking with intent to commit a felony is 18 months. I increase this by 12 months for the aggravating factors. Lastly, I deduct 8 months for the mitigating factors. You are sentenced to 22 months.
10. For the offence of theft, the starting point used is 12 months, 6 months is added for the aggravating factors and a deduction of 4 months is considered for the mitigation factors. You are sentenced to 14 months.
11. The prosecution strongly submitted for a custodial sentence while Mr Beniata raised another form of sentence in which you will not be sent to prison but returned to your home island of Kuria and not to leave Kuria pursuant to section 37(1) of the Penal Code. I reject this submission and agree with Ms Atanteora that in light of your offending, a custodial sentence should be imposed.
12. Menty Tien, you are sentenced to:
    • 22 months for house breaking with intent to commit a felony;
    • 14 months for theft;
    • Sentence to run concurrently meaning you should be imprisoned for 22 months from the day you were first taken to custody.
      

MR. ABUERA URUAABA,
COMMISSIONER OF THE HIGH COURT