IN THE HIGH COURT OF KIRIBATI

HIGH COURT CRIMINAL CASE 6 OF 2023

		BETWEEN:		THE REPUBLIC  

		AND:			 KARABUNG TEMATANG

Date of Hearing:			25 APRIL 2024
Date of Judgment:			24 MAY 2024

Appearances:			Ms Ana Temaia for the Republic
Mr.Taburuea Rubetaake for the Accused 

 SENTENCE

Brief Fact

1.	Karabung Tematang has pleaded guilty to 1 count of abduction contrary to section 131 of the Penal Code and 6 counts of sexual intercourse involving a girl under the age of 13 years old contrary to section 134(1)  of the Penal Code.

2.	I refer to the agreed facts as stated in the submission of Counsel for the accused as follows;

The victim, Macky Clifford, was under 13 years old when the offences were committed.  The incidents happened in different places at different times in Marenanuka village of North Tarawa. 

For the abduction offence, the victim went to collect coconut alone at Tabonteaba Marenanuka on September 28, 2022. Karabung was there too; he pulled the victim and dragged her to the nearby toilet owned by Uncle Tiribo, undressed her, laid her down, got on top of her holding her hands and legs by his leg, covered her mouth with his hand, untied his lavalava and inserted his penis inside her vagina. After being satisfied, he got up and threatened the victim with a knife not to tell anyone and then left. 

For sexual intercourse offence, Karabung had sexual intercourse with the victim in different places as follows;
a)	Tabonteaba Marenanuka, whilst the victim was collecting firewood (as stated above)
b)	Uncle Tiribo’s bathroom
c)	Tabonteaba tanrake(ocean side) 
d)	Near Tentau’s grave
e)	At the house of the victim’s father
f)	Ocean View Hotel (where the offender, Karabung, worked)
g)	Beia’s house.

Count 1: the abduction happened on 28 September 2022.
Count 2: sexual intercourse occurred on 28 September 2022.
Counts 3 to 7 happened between 29 September to 11 October 2022.

3.	The offences were quite serious and occurred over a short period from September 28 to October 11, 2022, specifically within 13 days. There was no mention of the offender being under the influence of alcohol when committing the offences; rather, he was driven by temptation.

4.	The maximum penalty for count one, abduction, is seven years. Sexual intercourse is life imprisonment. The prosecution submits the starting point for sexual intercourse as seven years; see Republic v Rereieta [2019] KIHC 84; Criminal Case 15 of 2019 (16 August 2019). A further three years should be added for the significant age difference; see Republic v Temwanira Tereke [2020] KIHC55; Criminal Case 33 of 2019 (10 February 2020). 1/3 of the starting point should be deducted for his early plea and 1-month deduction for a clean police report. Supporting case authorities referred to are R v Uriano Arawaia [2013] KICA and R v Kabua [2017] KIHC 22; Criminal Case 25 of 2017 (29 May 2017), for the early plea and the clean report the case of R v Li Zhan Hong [2019] KIHC; Criminal Case 1 of 2018 (20 September 2019 (para 7). The proposed imprisonment is six years and six months.

5.	On the other hand, the offender, through Counsel, proposes six years as a starting point following the case of Attorney General v Tanre [2004] KICA 10. From the six years, a deduction of nine months should be made for his early guilty plea, another nine months for his clean police report (first-time offender), and another nine months for his antecedents (a law-abiding citizen). All these deductions come to a total of 3 years and nine months imprisonment. Counsel’s submission did not mention any aggravating features; therefore, assuming we add one year for this, the sentence would have been four years and nine months.

6.	The offender was a lot older than the victim at the time of the offending. Unfortunately, there is a conflicting submission about his actual age. His Counsel stated he was around thirty-plus, while the Prosecutor claimed he was forty-four. Whatever his age was at the time of the offending, it is undoubtedly twice or more than the victim's age. I will accept the Prosecution’s submission that he is very mature and physically strong compared to a skinny and physically weak young victim. The offender also threatened the victim with a knife not to disclose his actions to anyone. Although there was no mention that he did the same for the other six times, I will still consider this as an aggravating factor. The continuous acts of offending were also submitted as an aggravating feature; in this case, the offending happened on six different occasions, as illustrated in Counts 2 to 7. For these aggravating factors, I give one year of imprisonment.

7.	Breach of trust and lack of remorse are also raised as aggravating factors. I do not think a breach of trust is applicable in the circumstances of the case as it is not stated in the agreed fact that the offender is the husband of the victim’s aunt or that they live together. From the Counsels’ submissions, I believe Karabung is a distant relative of the victim, and he did not live in the same house, nor has he been in charge of the victim’s welfare. The Prosecution submits that the offender showed a lack of remorse towards the victim and her family when he fled the village to live in South Tarawa. I do not think this submission was well supported.

8.	Following the Court of Appeal approach to sentencing in Kaere Tekaei v Republic [2016] KICA 11, at [10], I will apply the totality principle for offences 2 to 7 and give a concurrent sentence for offences 1 to 7. For counts 2 to 7, on sexual intercourse with a girl under the age of 13 years, the starting point is seven years following R v Rereieta. For the aggravating factors discussed above, one year is added. For the early plea, the seven years (84 months) is deducted by 25% or 21 months. For a clean police report, a deduction of 10% or 8.4 months. The end result would be five years and six months.

9.	For abduction, the starting point is three years following the case of Republic v Kabiriera [2019] KIHC 134; Criminal Case 41 of 2017 (8 November 2019). The aggravating feature is the use of threats with the knife, which should be reflected by adding one year. A reduction of 30% must be considered for his early plea and clean police report. This brings down the sentence to three years and one month imprisonment.

10.	 Therefore, the offender is sentenced as follows;

-	For six counts of sexual intercourse with a girl under the age of 13 years, five years and six months imprisonment.

-	For abduction, three years and one-month imprisonment.

-	The sentences are to run concurrently. 

-	Mr Karabung Tematang will be imprisoned immediately.

Order accordingly.

THE HON TETIRO SEMILOTA MAATE MOANIBA
Chief Justice