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Republic v Baiteke [1997] KIHC 78; CRC 14 of 1997 (7 November 1997)

IN THE HIGH COURT OF KIRIBATI
(BEFORE THE HON R LUSSICK C.J.)

HCCrC 14/97

THE REPUBLIC

v.

KAITABA BAITEKE

Ms P Tebao for the Republic
Mr D Lambourne for the Accused

Date of Hearing: 7 November 1997

SENTENCE

The accused has pleaded guilty to a charge of attempted rape contrary to section 130 of the Penal Code Cap. 67. The allegation is that on the 24^th April 1995 at Teuaabu village, Nonouti island, the accused attempted to have unlawful sexual intercourse with a girl named Teboora Kiritimati without her consent.

The facts were that the accused went to visit the victim's father and found the victim all alone in the house. The victim at the time was 16 years of age and was paralysed on one side of her body from head to toe as a result of a stroke she suffered during childhood. It was despicable that the accused took advantage of the victim's physical disability to attempt to have sexual intercourse with her. He pushed the victim on to her back, untied her lavalava and jumped on to her, trying to force his penis into her vagina. The victim struggled and cried out and was heard by her older sister who was nearby. Her sister came to the house and saw the accused on top of the victim whereupon the sister called out and the accused ran away, still naked.

The accused is about 26 years of age. He was married at the time of this incident but because of the incident he is now separated from his wife. He has had a very limited education leaving school in primary Class 5 to lead a subsistence lifestyle. The only explanation the accused offers for his conduct was that he was affected by alcohol. He acknowledges that he does have a problem with drinking, dating back to 1990. In fact he has two previous convictions which appear to be for minor offences associated with alcohol.

In his favour he has pleaded guilty and has thus spared the victim the additional distress of having to give evidence. I also accept that he does feel remorse for what he has done. I further take into account that there was no violence used on the victim over and above what was necessary to achieve his purpose of sexual intercourse.

There is no question that for an offence of this nature the only appropriate penalty is a term of imprisonment. All things considered, I think that an appropriate sentence is one of 2 years and 6 months' imprisonment and the accused is sentenced accordingly. The accused has also been charged in the alternative with indecent assault contrary to section 133(1) of the Penal Code. Counsel for the Republic has entered a nolle prosequi in relation to that charge by indicating to the court that it is not intended to proceed.

The accused is therefore discharged in respect of this second count.

THE HON R B LUSSICK
Chief Justice

(07/11/97)