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Republic v Tsiode [2022] NRSC 7; Criminal Case 18B of 2020 (18 February 2022)


IN THE SUPREME COURT OF NAURU CRIMINAL CASE NO. 18B OF 2020
AT YAREN
CRIMINAL JURISDICTION



BETWEEN


THE REPUBLIC

AND


VENUS TSIODE


Before: Khan, ACJ
Date of Guilty Plea: 3 September 2021
Date of Sentencing Submissions: 9 December 2021
Date of Further Submissions: 15 December 2021
Date of Sentence: 18 February 2022


Case to be referred to as: Republic v Tsiode


CATCHWORDS: Sentence – Rape – of a 14-year-old niece – sentencing principle laid down by Nauru Court of Appeal in Jeremiah and Others v The Republic – Sentencing is not a ‘mathematical exercise’ – That a single sentence must be reached by balancing different and conflicting features.


APPEARANCES:


Counsel for the Republic: R Talasasa (DPP)
Counsel for the Defendant: E Soriano


SENTENCE


INTRODUCTION


  1. On 3 September 2021 you pleaded guilty to an amended Information of rape. The Information reads as follows:

STATEMENT OF OFFENCE


Rape of a child under 16 years old: Contrary to s.116(1)(a) and (b) of the Crimes Act 2016.


PARTICULARS OF OFFENCE


Venus Tsiode (also aka Gabija) at Anibare District, in Nauru, on 21 August 2020 intentionally engaged in sexual intercourse with VV, a child under the age of 16 years.


  1. The complainant VV is your niece, your sister’s daughter and at the material time she was 14 years 1 month old.

RELEVANT LAW


  1. S.116 of the Crimes Act (the Act) provides that the maximum penalty for the offence of rape is 25 years.
  2. The Act was amended by Crimes (Amendment) Act 2020 on 23 October 2020 and the penalty for the offence of rape now is life imprisonment of which at least 15 years imprisonment has to be served without any parole or probation. This amendment also provides that any pre-trial detention shall not be taken into account for sentencing purposes – see s.282A.
  3. However, insofar as you are concerned, you will be sentenced in accordance with the provisions of the Act prior to the amendment in October 2020.

BACKGROUND


  1. The victim’s mother is your sister and is from Nauru and her father is from Kiribati. The victim has 3 other siblings who are aged 19, 17 and 15 years and she is the youngest. Her parents separated in 2010 and she returned with her mother and her brothers to Nauru to live with your mother in the family house in Anibare District.
  2. You adopted the victim as your own child when she was 4 years old.

YOUR PERSONAL CIRCUMSTANCES


  1. At the material time you were married – having got married in 2003 and your wife, Nola Timothy divorced you in July 2021 after this incident surfaced.
  2. You were employed by Nauru Utilities Corporation as a water truck driver for 26 years and were appointed a team leader and you had to resign from your employment after you were charged for this offence and remanded in custody.
  3. You are 43 years old and live with your elderly mother who is 70 years and has eyesight problems.

THE OFFENDING


  1. On the day in question, you returned from work at around midnight and had sexual intercourse with the victim who had been sleeping in your room for approximately 6 months.
  2. You pleaded guilty to this charge as soon as it was amended and that goes to your credit as you spared the victim the indignity of re-living through the entire incident which was very traumatic. Fortunately, the next morning the victim told her relatives as to what you did to her and as a result the matter was reported to the police. Thereafter the victim had to have medical examination by a gynaecologist who carried out a very intrusive examination of her genitals.

VICTIM IMPACT STATEMENT


  1. In the victim impact statement, she states that the rape was very painful and she felt disgusted at what you did to her; she is extremely traumatised; she wishes to forget what you did to her but it keeps coming back to her and she feels scared of what you did and states that she will always be scared that that it may happen again. She also stated that when she was living with you, you were very controlling and would not let her go out with friends and she wanted you to know that:

“I am not your wife, I am your niece, a daughter to you and everything you did to me is wrong and I am not happy with him.”


  1. After you were charged, she had been going out with friends but is very wary of “male family members” because of what you did to her. She has completely lost trust in male family members.
  2. Despite this traumatic experience, fortunately she is enjoying her school work at Nauru Secondary School and her favourite subject is English and she wants to become a policewoman when she grows up.
  3. The victim came from a broken family and returned from Kiribati with her mother and other siblings and sought refuge in the family house at Anibare District. Her mother and her siblings were given refuge by your mother in accordance with Nauruan custom that family house is always open to family members in need.
  4. The victim in particular was not only given refuge in the family house, but you accepted her as your own daughter and yet you breached that trust by committing this heinous act on her which is unforgiveable, and as a result, she has lost faith in all male family members which is indeed very sad.

SENTENCING TARIFF OR STARTING POINT


  1. The court has been at variance in setting up a sentencing tariff or starting point for rape and the tariff has ranged from 6-16 years.
  2. In Republic v Notte[1] Crulci J set a tariff/starting point at 6 years for rape for 21-year-old first offender and the victim was a 14-year-old neighbour who was charged under the Criminal Code 1899 and after making adjustments imposed a final sentence of 5-year imprisonment.
  3. In R v AB[2] Crulci ACJ set a tariff/starting point of 10 years for rape where the accused was 35 years old and the victim was his 7-year-old step-daughter. Again, the case was under the Criminal Code 1899 and after making adjustments, she sentenced the accused to 11 years imprisonment.
  4. In R v Olsson[3], where the accused was 53 years old, was charged with rape and various other sexual offences of his 7-year-old niece. A tariff/starting point of 16 years was set and after adjustments for aggravating and mitigating circumstances a sentence of 12 years imprisonment was imposed.
  5. In R v Tannang[4] where a 44-year-old close family member was charged for digital rape of a 10-year-old – a starting point of 6 years was fixed and after all adjustments for aggravating and mitigating circumstances and the time spent in custody, a final sentence of 4 years 8 months was imposed.
  6. In R v Buramen[5] where a 25-year-old accused convicted for rape of a 12-year-old student – a starting point of 6 years was set and after deducting 18 months for good character and remorse and a further 18 months for guilty plea, a final sentence of 3 years imprisonment was imposed. I would like to add that this matter is currently on appeal to the Nauru Court of Appeal.

MATHEMATICAL EXERCISE IN SENTENCING


  1. In Jeremiah and Others v The Republic[6] the Nauru Court of Appeal (Palmer, Muria and Scott JJ) rejected that sentencing process of mathematical exercise. The Court stated at [25], [26] and [27] as follows:

[25] With respect to the submissions by the Republic, that by imposing sentences of the same length for the offences of unlawful assembly, rioting and disturbing the legislature, when these offences carry different maximum penalties, 12 months and 3 years, the Magistrate erred, we note no authority has been cited to support such contention. In any event, we are of the view that the fact that unlawful assembly carried a maximum penalty of 12 months imprisonment, riot 3 years and disturbing the legislature 3 years, cannot deprive the sentencing Magistrate of her discretion to ascertain the proper sentences to impose on the appellants within the circumstances of the case before her even if it meant imposing the same sentences. Of course, in appropriate cases, different sentences would be necessary to be imposed. But the sentencing discretion remains intact, lest the sentencing would be in danger of a mathematical tabulation. (Emphasis added)


[26] The case of Barbaro v The Queen; Zirilli v The Queen [2014] HCA 2 (12 February 2014) they rejected a mathematical approach to sentencing:


“Fixing the bounds of a range within which a sentence should fall or within which a sentence that has been imposed should have fallen, wrongly suggests that sentencing is a mathematical exercise. Sentencing an offender is not, and cannot be undertaken, as some exercise in addition or subtraction. A sentencing judge must reach a single sentence for each offence and must do so by balancing many different and conflicting features. The sentence cannot, and should not, be broken down into some set of component parts.” (Emphasis added)


[27] Thus to say that a sentence for riot must be such as to reflect the seriousness of the offence shown by the maximum of 3 years fixed by law, or for unlawful assembly in a range reflective of the seriousness of the offence as shown by the maximum of 12 months or disturbing legislature to be the range of such as to reflect the seriousness of the offence as shown by the maximum of 3 years imprisonment, suggest that the sentencing Magistrate should approach sentencing process in some mathematical exercise without the need to take into account all the circumstances of the offence and the offenders (appellants), such an approach to sentencing must be rejected. (Emphasis added)


  1. I wish to state for the sake of clarity that the sentences in R v Tennang; and R v Buramen were delivered after the Nauru Court of Appeal’s decision in Jeremiah and Others v The Republic and the mathematical exercise was followed. In light of the Nauru Court of Appeal’s decision, counsels should refrain from making sentencing submissions which includes the mathematical exercise and should always advise the Court of the sentencing approach adopted by the Nauru Court of Appeal.
  2. As can be seen from my discussions of the cases the courts have been grappling to arrive at a “starting point” and the range has been within 6-16 years and fortunately for the courts, Parliament has now set the starting point when it amended the Crimes Act in October 2020 and set a minimum period of 15 years imprisonment for the offence of rape.
  3. To arrive at a net figure of 15 years imprisonment, the actual sentence has to be 22½ years, as under s.46 of the Correctional Services Act 2009, a prisoner is entitled to one-third remission. In my respectful opinion, for all offences committed before the changes in the Crimes Act, we should use 15 years as a base and that again would be subject to one-third remission.
  4. In R v Harris[7]a minimum sentence of 15 years was imposed on the 27-year-old accused for rape of her 11-year-old cousin under the amended provisions of the Crimes Act.
  5. As can be seen from the cases discussed above, it is indeed a very disturbing and worrying trend in this country that almost all sexual abuses are committed by close family members like yourself. In that regard, the legislature rightly took the appropriate steps in amending the Crimes Act for imposition of mandatory minimum prison term which will also bring consistency in sentencing.

CONCLUSION


  1. Having taken into account all the matters put before me, including the fact that you are a first offender, your early guilty plea and your relationship with the victim you are sentenced to 14 years imprisonment. You have spent 8.5 months in custody and that is to be deducted from 14 years and I will round off the remaining term which is 13 years and 3 months imprisonment.

DATED this 18 day of February 2022


Mohammed Shafiullah Khan

Acting Chief Justice

[1] [2017] 53
[2] [2016] NRSC 29
[3] [2017] 47 Criminal Case No. 10 of 2017 (9 June 2017) Khan ACJ
[4] [2019] NRSC 25 Criminal Case No. 15 of 2018, Jitoko CJ
[5] [2021] NRSC 31; Criminal Case No. 5 of 2021 (25 August 2021) Fatiaki CJ
[6] Criminal Appeal No. 1 of 2018; Supreme Court Criminal Appeal No. 101 of 2016
[7] [2021] NRSC 44; Criminal Case No. 25 of 2020 (21 October 2021)

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