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Republic v Tiaontoa [2021] KIHC 10; Criminal Case 52 of 2019 (16 November 2021)

IN THE HIGH COURT OF KIRIBATI

CRIMINAL CASE NO. 52 OF 2019

[THE REPUBLIC PROSECUTOR
[
BETWEEN [AND
[
[ANTEREA TIAONTOA ACCUSED

Before: The Hon. Chief Justice William Kenneth Hastings

Date of Hearing: 16 November 2021
Date of Judgment: 16 November 2021

Counsel: Mr. Tabotabo Auatabu for the Republic

Mr. Raweita Beniata for the Accused

SENTENCE DELIVERED BY HASTINGS CJ

1. Anterea Tiaontoa, you appear for sentence on one charge of burglary to which you have pleaded guilty. The maximum sentence for that offence is life imprisonment.
2. Sometime during the night of 19 August 2019, you entered the dwelling house of Moemoe Kaam in Temakin, Betio. You stole three mobile phones, a wallet and a laptop computer. These items belonged to Moemoe Kaam.
3. The next day, you attempted to pawn these items in a shop. You left the bag on the counter and sat against the wall. The shopkeeper thought you were drunk. One of the phones rang inside the bag on the counter. The shopkeeper answered it and discovered the phone belonged to the son of Moemoe Kaam. The police arrived. You were arrested, charged and made a full confession. The items were recovered and returned to the victims intact and without damage.
4. The sentence I impose must denounce your conduct. It must deter you and others from the same or similar offending. It must encourage you to take responsibility for what you have done and hold you accountable for the harm you have caused. It must be the least restrictive sentence that is appropriate in the circumstances, and provide for your rehabilitation and reintegration into the community to the extent it can.
5. Mr Auatabu stood in for Ms Bruce, who wrote the prosecution’s sentencing submissions. The prosecution submitted that deterrence is the most significant purpose your sentence must achieve. Ms Bruce submitted that this type of offending has become common amongst young offenders. She submitted an end sentence of between 4 and 5 years imprisonment is appropriate given your previous relevant convictions. Mr Beniata submitted that the end sentence should be less than 2 years. Neither counsel made written submissions as to starting point.
6. I turn now to establish a starting point, taking into account the aggravating and mitigating factors related to the offending.
7. I identify the following aggravating factors related to the offending:
   1. The offending took place at night in a dwelling house. This increased the risk of a confrontation.
   2. People are entitled to feel safe and secure in their own homes. Your offending violated the sanctity of the home.
   100. The offending took place while you were in custody. You gave your address to the police as “Prison, Betio.”
8. I also take into account the absence of an aggravating factor. The victims were not permanently deprived of their property. The items were recovered and returned to their owners undamaged.
9. In R v Tauati Tiaon,^[1] Millhouse CJ reached an end point of 18 months imprisonment for a nighttime burglary of a dwelling house. The defendant was sentenced on the basis that he spent only $5 of the $2,000 that was taken and mostly recovered. In your case, all of the property was recovered.
10. In R v Tioti Teweia,^[2] Lambourne J said a starting point of 7 years was appropriate for a defendant who was being sentenced on one count of burglary, three counts of breaking and entering and two counts of larceny arising from four separate incidents. You on the other hand are facing only one charge of burglary arising from one incident.
11. In R v Gary Nakareke, Miterua Aneti and Borerei Tiritaake,^[3] each defendant was sentenced on one charge of burglary, one charge of damaging property, and one charge of criminal trespass. Zehurikize J did not state the facts or a starting point, but on the burglary charge, he reached an end point of 6 years for the two defendants with previous relevant convictions, and an end point of 2 years for the defendant without previous convictions. In R v Takaria Katarake,^[4] the defendant was charged with housebreaking and theft. He stole a CB radio which was government property in order to buy alcohol. Zehurikize J again did not state a starting point, but reached an end point of 6 years for the defendant who had previous relevant convictions and “an attitude that made the convict a very dangerous person” in His Honour’s words. I consider Zehurikize J followed an “instinctive” judging style and not the modern sentencing practice set out by the Kiribati Court of Appeal in Tekaei v R^[5] and the New Zealand Court of Appeal in R v Taueki.^[6] I do, however, agree with Lambourne J in R v Tioti Teweia, that in a communal society, where security is non-existent, respect for the belongings of others is at the core of our need to maintain peace and harmony in our communities. The starting point must reflect the need for deterrence.
12. There are no mitigating features of this offending.
13. Taking into account the precedent cases and the aggravating factors related to the offending I have identified, I consider a starting point of 2 years and 8 months imprisonment to be appropriate.
14. I turn now to aggravating and mitigating factors related to you, the offender. I adopt the sentencing methodology set out by the New Zealand Court of Appeal in Moses v R.^[7]
15. First, you have previous convictions for dishonesty offending. The police clearance certificate is not easy to read. The prosecution initially submitted you have eight previous convictions, but on closer reading there appear to be 12. Between 2014 and 2016, you were convicted on four charges of simple larceny, and two charges of theft. You also have convictions for destroying property, escaping lawful custody, and criminal trespass, the most recent of which was in October 2017. Each of these convictions attracted short sentences of imprisonment in the Magistrate’s Court. You do not have a previous conviction for burglary, but your past offending shows a pattern of minor dishonesty offending. Your history warrants an uplift of 5 percent or 1 1/2 months from the starting point.
16. You are entitled to credit for your guilty plea. Your plea saved the executive and judicial branches of government the expenditure of a trial, and witnesses the inconvenience of having to give evidence. You did not plead guilty, however, until your fifth appearance, on 12 November 2021. It was not at the first opportunity as Mr Beniata submitted. Nevertheless, I am prepared to find your guilty plea warrants a discount of 25 percent, or 8 months from the starting point.
17. You were 23 at the time of the offending and are now 25. Both of your parents have passed away. You were living with a relative but are now living at premises owned by the Assembly of God church. You are unemployed and live a subsistence lifestyle. I do not consider these personal factors are sufficiently special or significant as mitigating factors to warrant a discount, but they will become relevant later.
18. There has been some delay in the prosecution of this charge. The offending took place in August 2019. You were charged in May 2020. You were not brought to Court until August 2021. Although the delay was not as significant as that in Attorney-General v Li Jian Pei,^[8] the post-charge delay in your case warrants a discount of 1 1/2 months, or 5 percent from the starting point.
19. That brings me to an end point of 2 years imprisonment.
20. This is also the point at which I can consider an alternative sentence. I mentioned earlier that it is important that offending of this nature is deterred, and is seen to be deterred. I do not think that suspending this sentence for two years as Mr Beniata submitted would provide sufficient deterrence. On the other hand, I am told that you are beginning to turn your life around at the Assembly of God where you are learning Christian values. Although Mr Auatabu submitted that Christian values can be taught in prison, I am reluctant to rock this particular boat if it is working. This should work to mitigate the risk of reoffending, but there still needs to be a sentence in this case that has deterrent value, and that takes into account the fact that this is your first conviction for a burglary in which all of the items were recovered and returned to their owners.
21. Section 46 of the Penal Code states that where a person is convicted of any offence punishable with imprisonment, in lieu of imprisonment the court may make a community service order. Such an order holds you accountable for the damage you have caused, deters you and others from the same or similar offending, and allows you to give something back to the community. Imprisonment would not allow you to give something back to the community in any publicly visible way. Section 46(2) states that the order can be made subject to such requirements that the sentencing judge thinks are necessary for securing your good conduct and for preventing more offending.
22. I will not send you to jail, nor will I suspend the end sentence of imprisonment I have reached. Instead, I sentence you to a 100 day community service order under s 46 of the Penal Code which is to include but not be limited to any or all of (a) picking up litter from those streets, parks and beaches of South Tarawa determined by the supervising public officer, (b) doing work for Bobby Perez (US Marines, Ret’d) as part of the project to find World War Two artefacts so that you learn some of the history of Tarawa, and (c) any other public works deemed appropriate by the supervising public officer. The supervising public officer will in your case be the police. Another requirement of your community service order will be that you are not to be found intoxicated in public.
23. If you fail to undertake any of the work set for you, or if your conduct is found to be unsatisfactory, the public officer supervising your community service work can apply for a summons or warrant to bring you back to Court. The Court may then revoke the community service order and sentence you as though the order had not been made. You know what that sentence will be.
24. To denounce your conduct, to deter you and others from the same or similar offending, to encourage you to take responsibility for what you have done, and to hold you accountable for the harm you have caused, I convict and sentence you to 100 days community service starting tomorrow, 17 November 2021.

Dated 16^th day of November 2021

Hon William Kenneth Hastings

Chief Justice

^[1] R v Tauati Tiaon [2005] KIHC 165.
^[2] R v Tioti Teweia [2019] KIHC 31.
^[3] R v Gary Nakareke, Miterua Aneti and Borerei Tiritaake [2014] KIHC 30.
^[4] R v Takaria Katarake 2015 KIHC 6.
^[5] Tekaei v R [2016] KICA 11.
^[6] R v Taueki, CA384/04, 30 June 2005, at [43] and [44].
^[7] Moses v R [2020] NZCA 296.
^[8] Attorney-General v Li Jian Pei [2015] KICA 5.