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Attorney-General v Tengke; Kaurake v Republic [2004] KICA 10; Criminal Appeals 03 and 07 of 2004 (23 August 2004)

IN THE KIRIBATI COURT OF APPEAL
CRIMINAL JURISDICTION
HELD AT BETIO
REPUBLIC OF KIRIBATI

Criminal Appeal 3 of 2004

THE ATTORNEY-GENERAL
Appellant

v.

TANRE TENGKE
Respondent

Criminal Appeal 7 of 2004

TEITINIMAN KAURAKE
Appellant

v.

THE REPUBLIC
Respondent

Coram: Hardie Boys JA
Tompkins JA
Fisher JA

Counsel: David Lambourne, Solicitor-General, for the appellant in 3/2004
Eweata Maata for the respondent in 7/2004
Aomoro Amten for the respondent Tengke and the appellant Kaurake.

Date of Hearing: 17 August 2004
Date of Judgment: 23 August 2004

JUDGMENT OF THE COURT

[1] Before the Court are two appeals against sentences for rape imposed in the High Court of Kiribati.

3/2004 Tengke

[2] In the first case the Attorney-General appeals against a sentence of one year's imprisonment imposed upon the respondent Tengke on 6 March 2004 following a trial before the Learned Chief Justice.

[3] The respondent and his family lived in their own house. For a few weeks they shared their house with the complainant, her husband and their five children. The two couples and their children slept on the same buia under separate mosquito nets.

[4] On the night in question the complainant was sleeping under her mosquito net with four children aged from 3 to 7 years. The respondent entered the area covered by her mosquito net and had sexual intercourse with her.

[5] The complainant and the respondent both gave evidence at the trial. The Chief Justice decided the conflict in the complainant's favour. On appeal her version must be accepted for sentencing purposes.

[6] In her evidence the complainant said that when the respondent had intercourse with her she initially complied, thinking that it was her husband. During the intercourse she realised that it was the respondent and pushed him away. He claimed that what was happening was the result of an agreement that he had with the complainant's husband. She did not accept this and he desisted. The Chief Justice found that the complainant had submitted to intercourse under the mistaken belief that the respondent was her husband and that it followed that there had been no consent to the intercourse that had occurred. Further, he rejected the respondent's claim that he had thought that the complainant was his wife.

[7] On sentencing the respondent the Chief Justice accepted that the respondent had no previous convictions. He noted that the incident had affected the marriage of the complainant and was expected to have a long lasting effect. He noted that the maximum penalty for rape was life imprisonment but considered that this was not the most serious rape. The sentence of one year's imprisonment followed.

7/2004 Kaurake

[8] In Appeal 7/2004 the complainant was a married woman asleep with her husband inside their mosquito net in their own home. The appellant Kaurake had been out drinking until the early hours of the morning. At 4 am, on his way home, he entered the house of the complainant and her husband without their knowledge. He entered the mosquito net where they were sleeping and began to have sexual intercourse with the complainant. This complainant also initially complied, thinking that the appellant was her husband. During intercourse she realised that it was not her husband. She woke her husband. He pulled the appellant off the complainant, threw him out of the mosquito net, fought him, and sent him away.

[9] The appellant Kaurake pleaded guilty. On sentence the Judge noted that the appellant had no previous convictions, that he had apologised to the victim and her husband and family who had accepted the apology, that the appellant had interfered with the sacred relationship which existed between a husband and a wife, and that he had committed the act in the privacy of their home at night. He rejected the argument that drunkenness excused the appellant's conduct and noted that he had not been too drunk to rape the complainant. He sentenced the appellant to six years' imprisonment for rape and four months on a further charge of criminal trespass, the two sentences to be concurrent.

Comparison between the two cases

[10] Both of these incidents involved the act of a first offender, entry to the private sleeping space of a married woman at night, and the commencement of sexual intercourse with a woman in circumstances where it would not initially be apparent to her that her husband was not involved. Although the details differed in other respects which we will come to shortly, we can find no sound basis for the marked disparity in the sentences imposed. The disparity suggests that some appellate guidance as to rape sentences in general may be of assistance.

Rape sentences in general

[11] In response to questions from the bench, Mr Lambourne submitted that it would be useful for sentencing judges and counsel in Kiribati to have a tentative starting point for rape sentences. He submitted that for a rape committed by an adult without any aggravating or mitigating features, a figure of five years should be taken as the starting point in a contested case. He supported this by reference to a range of recent rape sentences passed in Kiribati, saying:

In recent years, rape committed in the more conventional manner has resulted in sentences of imprisonment for upwards of three years being imposed by the High Court (see The Republic v. Kinatio Baba (Criminal Case 35 of 2001, 25 July 2002) – 3½ years; The Republic v. Bwarame Tourakai & Nikuata Nakoti (Criminal Case 23 of 2001, 30 May 2002) – 5 years; The Republic v. Arawatau Riaben (Criminal Case 38 of 2003, 27 October 2002) – 5 years; The Republic v. Timoti Taoaba (Criminal Case 41 of 2001, 1 February 2002) 6 – years; The Republic v. Taberaua Kobaua (Criminal Case 43 of 2001, 24 May 2002) – 6 years. An appeal against a sentence of seven years' imprisonment was dismissed by this Honourable Court in Tieta Timiti & Rabaere Robuti v. The Republic (Criminal Appeal 3 of 1998, 29 November 1999

[12] As far as one can tell from the records produced, those were all contested cases in which the offender had forced himself upon the complainant but without physical violence beyond that which is inherent in the act of rape itself. There appear to have been special factors in aggravation or mitigation capable of explaining the sentences at each end of that range.

[13] A starting point of five years imprisonment for a contested case of rape would accord with the approach taken in England: see R v Billam [1986] 1 WLR 349 (CA), 351D. In New Zealand the starting point is eight years. We are mindful of the need to avoid imposing upon Kiribati approaches taken in other jurisdictions which may not necessarily be appropriate here. However we accept that in very broad terms the cases cited by Mr Lambourne would be consistent with a starting point of five years. We think that this can be usefully adopted as the starting point in Kiribati so long as it is not allowed to detract from the need to tailor the sentence to the particular case. Bilam, supra, at 351 contains a convenient, although non-exhaustive, summary of the circumstances which may be regarded as matters of aggravation or mitigation. They will be of assistance in deciding whether and to what extent the Court departs from five years in the particular case.

[14] A convenient approach in the two cases now before the court will therefore be to ask whether there are grounds for departing from a starting point of five years. We note at the outset that to secure sexual intercourse through mistaken identity on the complainant's part is not inherently less serious than a case in which a complainant succumbs to intercourse through force or threats of force unaccompanied by violence beyond that inherent in the act of rape itself. The shock and distress for a woman who discovers during or after intercourse that the man involved is not her partner may be no less than in the more usual cases mentioned.

Sentence imposed on Tengke 3/2004

[15] There were aggravating features in Tengke's case. The rape was carried out in the presence of the complainant's children. When the complainant demurred, Tengke attempted to deceive her with the false, and no doubt hurtful, claim that her husband had authorised Tengke to have intercourse with her. The rape had tragic consequences for the complainant. We were informed that, through absolutely no fault of her own, the incident brought her marriage to an end. No reduction is available for a guilty plea.

[16] In Tengke's favour it should be noted that there was no suggestion of violence beyond that inherent in the act of rape itself, that Tengke stopped when asked by the complainant to do so, and that he was entitled to be in the house in question. But these can all be described as the absence of additional aggravating circumstances rather than reasons for reduction below the starting point of five years. In our view a sentence of five years at first instance could not have been criticised in this case. But on appeal it is important to note that this was an appeal by the Attorney-General. On such appeals this Court will not increase a sentence beyond that which represents the minimum possible in the circumstances.

Result in Tengke 3/2004

[17] We are satisfied that the sentence of one year's imprisonment was manifestly inadequate. The sentence of one year's imprisonment is quashed and in its place a sentence of four year's imprisonment is imposed.

Sentence imposed on Kaurake 7/2004

[18] In Kaurake's case there was the aggravating feature that he invaded the sanctity of the complainant's home at night. But against that there were two important features in mitigation. One was the substantial discount warranted by his early guilty plea. The other was the acceptance of Kaurake's apology by the complainant and her family. In those circumstances we are satisfied that the sentence of six years is manifestly excessive.

Result in Kaurake 7/2004

[19] The sentence of six years' imprisonment for rape is quashed and in its place a sentence of three years and six months is imposed. The concurrent sentence of 4 months for criminal trespass will stand.

Hardie Boys JA
Tompkins JA
Fisher JA