High Court of Kiribati

[6] There is little to be said in mitigation, save that the prisoner has no previous convictions. I accept that the prisoner’s offending was opportunistic, with no pre-planning. I also accept that the prisoner’s intoxication was a significant factor in his offending, although that cannot excuse his conduct. The prisoner has demonstrated no remorse for his actions. He went to trial, as is his right, but, by doing so, he has foregone the reduction in sentence that he would have received had he pleaded guilty. For his previous good character I will reduce his sentence by 3 months.

[7] I acknowledge that the offending involved no use of force, and the complainant sustained no physical injuries. However, the following remarks of the Court of Appeal in the cases of Tanre Tengke and Teitiniman Kaurake are relevant:

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.^[3]

While this case is not one of personation, I consider such cases to have significant similarities to the case of a person raped while she sleeps.

[8] This case was unusual, in that, in the course of sentencing submissions, the complainant asked if she could address the Court. She said that she had been approached by the prisoner’s wife after he had been remanded in custody. The complainant said that she felt sorry for the prisoner’s children and asked that the prisoner be given a suspended sentence. I am not happy that the complainant was put in this situation, particularly given her age. She was not at fault here, and is not to be blamed for the prisoner going to prison. It was extremely unwise for the prisoner’s wife to ask the complainant to come to Court, and I wish to discourage – in the strongest possible terms – similar tactics being employed in the future.

[9] Finally, it has taken 4 years from the time the offence was reported to police to conclude the prosecution of this case. This is completely unacceptable. For the reasons discussed by the Court of Appeal in Li Jian Pei, the prisoner is entitled to a modest reduction in his sentence to compensate him for the breach of his constitutional right to be afforded a fair hearing within a reasonable time.^[4] I will reduce his sentence by 6 months.

[10] Taking all of the above matters into account, the prisoner is sentenced to be imprisoned for a period of 6 years and 3 months. Under section 28(2) of the Penal Code, I order that this sentence is to run from 16 August 2019, being the day on which he was first remanded into custody on these charges.

Lambourne J
Judge of the High Court

^[1] Kaere Tekaei v Republic [2016] KICA 11, at [10].

^[2] Attorney-General v Tanre Tengke; Teitiniman Kaurake v Republic [2004] KICA 10, at [13].

^[3] ibid. at [14].

^[4] Attorney-General v Li Jian Pei & Taaiteiti Areke [2015] KICA 5.