In the High Court of Kiribati
Criminal Jurisdiction
Held at Betio
Republic of Kiribati

High Court Criminal Case No. 3 of 2008

The Republic

v

Nakibae Tiiroo
Ueanteiti Kanikaiua

For the Republic:		Ms T Tookam
For the 1st Accused:	Mr Karotu Tiba
For the 2nd Accused:	Mr Giles O’Brien-Hartcher

Date of Hearing:		28 July 2008

FIXING OF NON-PAROLE PERIODS

Last Friday, 1 August, I found both prisoners guilty of murder and sentenced them to life imprisonment. The hearing on the question of whether or not to fix a non parole period was adjourned until this Tuesday, 5 August.

Both Mr Tiba and Mr O’Brien-Hartcher made submissions. Mr Tiba submitted that because of the personal circumstances of his client, Nakibae, I should fix a non parole period and make it less than 10 years, perhaps six to seven years. Nakibae comes from an outer island: his father is paralyzed: his wife is pregnant: and so on.

Mr O’Brien-Hartcher argued that fixing a non parole period for murder is a de facto sentence and the Court should look at all the circumstances of the prisoner. One circumstance, he submitted, in his client’s favour is that it was he who went to the police after the victim’s death.

His client, Ueanteiti, has a bad personal background. That comes out in the report of Dr K Barbova, consulting psychiatrist upon Ueanteiti’s fitness to plead. Ms Tookam handed up the police clearance certificate which shews that Ueanteiti had a number of previous convictions, going back to 2000, the latest being the conviction on 20 May this year for rape when he was sentenced to 6½ years’ imprisonment.

The Parole Board Act was amended in 2005 to give the Court power to fix a non parole period for an offender sentenced to imprisonment for life:-

Section 11 of the principal Act is amended by - 

….(b)	inserting after subsection (1) the following subsections:-

"(1A)	Where a court sentences an offender to imprisonment for life, it may, at the time of passing sentence, and having regard to the particular circumstances of the case, fix a period longer or shorter than the standard period of 10 years ….."

The words used in giving the discretion are "and having regard to the particular circumstances of the case". The significant word is "case". Parliament has used the word "case" which I interpret to mean the circumstances of the crime. [I think of the phrase "the case against the accused ….": it refers to the crime itself not to the circumstances of the accused.] Parliament could have used the word "offender" or some such but it has not. I conclude that in fixing a non parole period the circumstances of the offender are not relevant: all relevant are the circumstances of the crime.

I do not take into account the submissions of counsel regarding the personal circumstances of their clients. Personal circumstances are relevant in determining sentence (except for murder) but not in fixing (or deciding not to fix) a non parole period pursuant to Section 11(1)(A).

It has been said that when a group of people get together and drink, sooner or later there is a quarrel: that leads to violence: that leads to the death of one of the group. That situation may be regarded – in one sense it is dreadful when such a tragedy has occurred to use the phrase but it is descriptive and accurate – the situation may be regarded as "a standard murder". What happened here.

I conclude that the appropriate non parole period for both (they were equally responsible for the victim’s death) is 10 years. Although that non parole period would be automatic if I were not to fix it, I do fix a non parole period for each prisoner at 10 years.

There is a further problem. Ueanteiti is serving a sentence of 6½ years for rape, the sentence running from 7 February 2008.

There is no problem in relation to Nakibae. He has no previous convictions. His non parole period is to begin from the day of his conviction, 1 August 2008.

The problem relates to Ueanteiti. From what date should his non parole period run? 

The Act is silent: does not contemplate this situation. Parliament may care to fill the gap but in the meantime I must come to a decision.

Sections 8 and 9 of the Criminal Procedure Code are not entirely in point but they may be some guide: likewise Section 27 of the Penal Code.

Ms Tookam submitted that the non parole period should commence at the end of Ueanteiti’s time in gaol for rape. His two crimes are separate and distinct: sentences for them should be cumulative, not concurrent.

As a matter of principle Ms Tookam is correct: non parole period should be cumulative.

Bearing in mind Section 11(1)(b) of the Parole Board Act Ueanteiti will be eligible to apply for parole relating to his conviction for rape in about three years. 

In answer to Ms Tookam’s submission Mr O’Brien-Hartcher reminded me of the totality principle: a prisoner should not be crushed by the total of the sentences on him. If the total would be crushing then there should be some modification.

If Ueanteiti’s two non parole periods were to be cumulative that would mean a total of about 13 years for this man in gaol before he could apply for parole. Too long: should be regarded as crushing.

Counsel made a good suggestion that I fix a starting point for Ueanteiti’s non parole period some time ahead but not as far ahead as three years. Ueanteiti’s 10 year non parole period is to commence on 5 August 2009.

Dated the day of August 2008

THE HON ROBIN MILLHOUSE QC
Chief Justice