IN THE KIRIBATI COURT OF APPEAL 	   ]  	Criminal Appeal No. 1 of 2018
CRIMINAL JURISDICTION			   ]
HELD AT BETIO				   ]
REPUBLIC OF KIRIBATI			   ]

BETWEEN	ATTORNEY-GENERAL			APPELLANT			

AND	TAREKA MATAUA			          RESPONDENT

Before:	Blanchard JA		
Handley JA 
Heath JA

Counsel:		Teanneki Nemta for appellant
Reiati Temaua for respondent

Date of Hearing:	15 August 2019
Date of Judgment:	21 August 2019	

JUDGMENT OF THE COURT
Introduction
In May 2018, following a trial before Muria CJ in the High Court, 
Tareka Mataua was found guilty and convicted on two charges of defilement of a girl under the age of 13 years.  The maximum penalty for each such charge is life imprisonment.  The Chief Justice sentenced Mr Mataua to a term of imprisonment of four years and six months, effective from the date on which he had been taken into custody, 9 May 2017.  
The Republic appeals against the sentence on the ground that it was manifestly inadequate.  Ms Nemta, for the Republic, contended that the sentence does not reflect the gravity of the offending, having regard to the significant aggravating factors disclosed by the Chief Justice’s reasons for verdicts.  
Mr Temaua, for Mr Mataua, resists the appeal on the basis that the sentence fell within the range available to a sentencing judge.
Background
On unknown dates, between December 2016 and March 2017, on two separate occasions, both on Kiritimati Island, Mr Mataua had unlawful sexual intercourse with the complainant, who was then aged either 11 or 12 years.  On the first occasion, alleged to have been at te non in tenei n rababa, Mr Mataua was said to have had sexual intercourse with the complainant at night while her carer was away from their home, playing bingo.  On the second occasion, at Tabwakea Village, Mr Mataua had sexual intercourse with the complainant, during the day.
While accepting that he had sucked the complainant’s breasts and licked her vagina on both occasions, Mr Mataua gave evidence that he did not have sexual intercourse with her.  Muria CJ preferred the complainant’s evidence to that of Mr Mataua and found that sexual intercourse did take place on each occasion.
Sentencing in the High Court
The Chief Justice accepted Republic v Arawaia as the controlling authority as to starting point.  In that case, the Court of Appeal remarked that “the starting point for a single conviction for conduct equivalent to defilement would not be less than five years” imprisonment, in either Australia or New Zealand.  In emphasising the desirability of maintaining consistency in sentencing but the need for Judges in Kiribati to sentence in accordance with local circumstances, the Court of Appeal ruled that a starting point of five years imprisonment should be used by sentencing judges.
Having taken a starting point of five years imprisonment, the Chief Justice considered what allowances should be made for aggravating and mitigating factors.  He did not refer specifically to aggravating factors, and in relation to mitigation only to the fact that Mr Mataua was a first offender.
Unfortunately, there is a lack of transparency in the reasons given by the Chief Justice for imposing sentence.  In passing sentence, he said:
Sentencing is not a mathematical exercise.  It is a balancing exercise, in the process of achieving what is just and fair both to the accused and society.
In the present case, taking Republic v Arawaia’s baseline of five years, the scale moves up and down depending on the aggravating and mitigating factors.
Taking into account all that has been said on behalf of the prosecution and the accused, and bearing in mind that the accused was found guilty after trial, the appropriate sentence should be one of four years and six months imprisonment.
Analysis
The Chief Justice’s approach was inconsistent with the methodology recommended by this Court in Tekaei v Republic.  While sentencing judges retain wide discretions in sentencing, we emphasise the desirability of following that model because it affords transparency to the sentencing process and is more likely to promote consistency in sentencing. The approach adopted by the Chief Justice in this case does not provide us with an appropriate baseline against which we can test the adequacy or inadequacy of the sentence.  As a result, we need to undertake the sentencing exercise afresh, but consistently with the principle that manifest inadequacy will be measured against the end sentence actually imposed.
In Tekaei. this Court observed that, in brief sentencing remarks, the Judge “gave little or no indication of how he arrived at the sentence” imposed.  The Court said that sentencing Judges would “better guide themselves and assist [the Court of Appeal] in the event of an appeal if they proceed by stages and so spell out how their sentences are constructed”.  In explaining the appropriate methodology, the Court of Appeal said:
[10]   An appropriate way of doing this is as follows:
(a) First, assess the starting point that reflects the relative seriousness of the offending in the particular case and has regard to the maximum sentence. This would involve taking account of any aggravating and mitigating features relating to the actual events of the offending.
(b) Secondly, adjust that starting point upwards if there are any aggravating factors external to the actual events of the offending, such as the convicted person’s relevant previous criminal record. Relevance for this purpose includes recent offending of the same or similar nature which suggests the need for a sentence protective of the public.
(c) Thirdly, allow a reduction for any mitigating factors, such as a guilty plea (taking account of when it was made), any genuine expression of remorse, prior good character, any co-operation with the police or the youth of the person being sentenced.
(d) Fourthly, make a reduction for time spent in custody if the sentence is to run from the date of sentencing.
(e) Fifthly, where the sentence is for a term of not more than two years’ imprisonment, consider whether any suspension should be ordered in terms of s.44 of the Penal Code.
The first step is to determine a starting point, having regard to all aggravating circumstances affecting the offending.  The starting point is to be chosen in the context of the maximum penalty available, in this case life imprisonment.  In Republic v Arawaia this Court indicated that a starting point, without taking into account particular aggravating factors relating to the offending, should be one of five years imprisonment.  
In Arawaia, the Court of Appeal explained the way in which aggravating factors should be taken into account in the context of the presumptive starting point for a single conviction of defilement of five years imprisonment.  The Court said:
16	While the Court does not suggest that sentencing levels in other countries necessarily apply to Kiribati it notes that in both Australia and New Zealand the starting point for a single conviction for conduct equivalent to defilement would not be less than 5 years. Further in a case of multiple offending the totality principle applies. This principle requires the sentencing judge to take into account, when there are convictions of two or more separate offences, not only the penalty for each offence separately, but also whether the total of the punishment being given is appropriate for the total offending. The final overall sentence is more significant than the individual parts of it.
17.	Each case turns on its own facts but nevertheless it is desirable to maintain consistency in sentencing within a jurisdiction as much as possible. In this respect Kimaere v The Republic [2005] KICA 5 is relevant. This Court in that case had before it an appeal from a man convicted of defilement on two occasions of a girl under 13 and of an assault occasioning actual bodily harm. It did not consider a term of imprisonment for 5 years on one count of defilement unduly severe, noting that defilement is about the same seriousness as rape where the starting point had twice been set by this Court at five years’ imprisonment. In Kimaere the Court reduced a total sentence of ten years to seven years imprisonment.
Mr Mataua committed two acts of defilement, by having sexual intercourse with a girl under the age of 13 years.  On his own evidence, Mr Mataua also perpetrated other acts of sexual abuse, by sucking the young victim’s breasts and licking her vagina.  On the Chief Justice’s findings, those acts were preludes to 
Mr Mataua having sexual intercourse with the complainant.  
The same acts occurred on both occasions.  For the purposes of the Arawaia analysis, totality must be assessed by reference to multiple offending, involving three distinct sexual acts.  In our view, the nature of the conduct justified an uplift of at least two years imprisonment, which would have made the starting point something in the order of seven years imprisonment.
In argument counsel for the Republic espoused the proposition that, as there were two acts of defilement each of which would attract a starting point of five years, the appropriate methodology was simply to accumulate them and fix a starting point of 10 years.  That would be wrong and, if extrapolated for further such acts, would lead to a grossly excessive sentence.  We were surprised to receive such a submission.  Regard must always be had to whether a starting point is disproportionate, in the same way as that must be considered in relation to the actual sentence imposed.  Obviously a grossly excessive starting point is likely to lead to a grossly excessive sentence.
There are no aggravating factors personal to the offender.  Mr Mataua has no prior convictions.  Accordingly, he is entitled to a modest credit for previous good character.  At the time of offending, Mr Mataua was of mature age.  The Chief Justice gave a credit of six months to represent mitigating factors.  For present purposes, we adopt that allowance.
The Chief Justice referred to a submission from counsel for Mr Mataua to the effect that time spent in custody since 9 May 2017 should be taken into account in fixing the end sentence.  In fact, the Chief Justice had ordered that the sentence be served from the date on which Mr Mataua was first taken into custody.  Therefore, credit has already been given for that factor.  
It is generally accepted within common law jurisdictions that if an appeal court were to find a sentence manifestly inadequate, it should substitute a sentence at the lower range of that which would have been legitimately available to the sentencing Judge.  Such an approach reflects an appreciation of the likely response of the offender to an appellate decision converting a non-custodial sentence into imprisonment.  Generally speaking, an appellate court will not lightly reach that result.  
We conclude that the sentence of four years and six months imprisonment was manifestly inadequate.  On the basis of our analysis, the end sentence ought to have been in the range of six years and six months’ imprisonment.  That is the sentence that we would have imposed.  However, because this is a prosecution appeal, we shall fix the end sentence at 6 years’ imprisonment.

Result
The Republic’s appeal against sentence is allowed.  The sentence of four years and six months imprisonment is quashed and a sentence of six years imprisonment is substituted.  As with the sentence imposed in the High Court, the sentence shall take effect from the date on which Mr Mataua was taken into custody, 9 May 2017.

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	Blanchard JA

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	Handley JA 

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	Heath JA