Republic v Nakareke [2023] KIHC 60; Criminal Case 62 of 2020 (1 September 2023)

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

High Court Criminal Case 62 of 2020

BETWEEN	THE REPUBLIC Prosecution
AND	GARY IOANE NAKAREKE Accused

Appearances:	Ms Teanneki Nemta, Senior Prosecutor for Prosecution Mr Tabibiri Tentau, for the Accused
Judgment:	1 September 2023

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JUDGMENT ON SENTENCE
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1. Gary Ioane Nakareke, you have been convicted by this court of three counts shown below:
   • 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.
     
   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. You pleaded not guilty to the three charges and a trial was conducted on 9 November 2022. You were found guilty of the three charges on 18 August 2023.
   
3. The sentence I impose must condemn your behavior, deter you and others from the same offending and hold you responsible and accountable for the 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 Gary Nakareke).
   
4. Ms Nemta, for the Prosecutions put forth aggravating factors such as:
   
   • You pleaded not guilty and was convicted of the three charges showing that you are not remorseful for what you have done;
   • You are a serial thief having committed several thefts before and currently have cases pending in this court for the same offence;
   • You are a danger to members of the public particularly members of the dwelling houses;
   • You have 5 previous convictions, four of them involving stealing and burglarly.
     
5. The prosecution strongly prayed for a custodial sentence. Ms Nemta, submitted case authorities including Toora v The Republic [2005] KICA 6, in which the Court of Appeal decided that a sentence for simple larceny after having been convicted of an offence should be 18 months imprisonment. In Republic v Teweia [2019] KIHC 109, this court decided that the starting point in this type of cases should be set at 7 years.
   
6. Mr Tentau, on your behalf prayed for a much lenient sentence and in mitigation, submitted that the following issues should be considered in addition to the fact that you are single:
   
   • Number of days you served in custody and the delay in having your case completed;
   • Totality principle in sentencing given that there is one more case pending in this court.
     
7. Each case should be judged on its own facts and so in carefully considering your offending and the aggravating factors submitted by the Prosecution, for the first charge of simple larceny after having previously convicted of felony (maximum sentence of ten years), I set the starting point at 6 years. For the aggravating features of your offending, 12 months is added. The only mitigating factor to be accounted is the delay in having the case completed while you were in custody awaiting your fate. However, this court also notes that you have another case in the High Court warranting your being in custody. 8 months should be deducted. For the first count, your sentence is 6 years and 4 months.
   
8. For the second count of any person who, with intent to commit any felony therein, enters any dwelling-house in the night in guilty of a felony (maximum sentence of 7 years), I set the starting point at 5 years. I add 6 months for the aggravating factors and deduct 2 months for the mitigating factors. For the second count, your sentence is 5 years and 4 months.
   
9. For the last count of procuring another person to commit the offence, I sentence you to the same sentence in count two of 5 years and 4 months.
   
10. The sentences should run concurrently and your final sentence that you will serve at the Betio Prison is 6 years and 4 months minus the number of days you have been in custody awaiting the completion of the trial and sentencing.
    

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MR ABUERA URUAABA,
COMMISSIONER OF THE HIGH COURT