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Republic v Beiaata [2021] KIHC 3; Criminal Case 26 of 2020 (19 October 2021)

IN THE HIGH COURT OF KIRIBATI

CRIMINAL CASE NO. 26 OF 2020

[THE REPUBLIC PROSECUTOR
[
BETWEEN [AND
[
[NARUAI BEIAATA ACCUSED

Before: The Hon. Chief Justice William Kenneth Hastings

Date of Hearing: 19 October 2021
Date of Judgment: 19 October 2021

Counsel: Ms. Tewia Tawita for the Republic

Mr. Raweita Beniata for the Accused

SENTENCE DELIVERED BY HASTINGS CJ

1. Naruai Beiaata, you appear for sentence on one charge of indecent assault which carries a maximum penalty seven years’ imprisonment.
   
2. A person named Tanoataake Ratei walked by the victim’s house just after midnight on 23 June 2019. He heard a noise, investigated, and found you on top of the victim not wearing shorts or underwear. No more than that is stated in the agreed summary of facts.
   
3. When Tanoataake Ratei tapped you on the shoulder, you ran away. He and two others gave chase, and eventually found you back at the victim’s house about to touch the victim again. You told them you were just looking for your drinking mate. You left again after they threatened you with violence if you came back.
   
4. The sentence I impose must denounce your conduct, deter you and others from the same or similar offending, encourage you to take responsibility for your actions and, to the extent it can, provide for your rehabilitation and reintegration into the community.
   
5. I identify the following aggravating factors related to the offending:
   
   1. The victim was vulnerable. She had been drinking and was asleep when the assault occurred.
   2. She was entitled to feel safe in her own home. You invaded her home to commit this offence.
   100. This offending has caused stress between the victim and her husband.
        
6. In R v Moaniba Ierebuka,^[1] a case cited to me by the prosecution, a starting point of 7 ½ months was adopted for an indecent assault that involved the victim struggling against a defendant trying unsuccessfully to remove her shorts, a large difference in age, and a threat of violence against the victim. None of those aggravating factors exist in this case. This case involves a very different set of aggravating factors that warrant a starting point of 15 months’ imprisonment.
   
7. I turn now to personal aggravating and mitigating factors.
   
8. First, you have one previous conviction for obstructing a police officer who was closing a bar, for which you were fined $300. This has no relevance to the present charge except, when considered in light of your comment that you were looking for a drinking mate, it shows your offending may be driven by alcohol abuse. There will be no uplift for your previous conviction.
   
9. There are several personal mitigating factors. You have taken steps to address your alcohol abuse. You have restricted your drinking and joined a Charismatic Group to get your life in order. You have apologised to the victim’s husband. He has accepted your apology. You were 23 years old at the time of this offending. A modest discount for youth is warranted, although you are now at an age where that will be unavailable if there is offending in the future. These factors combined warrant a modest discount of 10 percent.
   
10. You have pleaded guilty. That warrants an additional discount of 25 percent, which brings me to a total discount of 35 percent or five months, and an end point of 10 months’ imprisonment.
    
11. I am told you help your family by fishing and cutting toddy. Given that you are addressing your alcohol consumption, I am not going to send you to prison. Instead, I want you to put your skills to use in the community. I make a community service order for 60 days community service under s 46 of the Penal Code, which is to include maintaining the beauty of Kiritimati Island and any other public works deemed appropriate by the supervising public officer.
    
12. 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.
    
13. Sixty days’ community service.
    

Dated 19^th day of October 2021

Hon William Kenneth Hastings

Chief Justice

^[1] R v Moaniba Ierebuka, Criminal Case No. 5/2019, 17 June 2019.