IN THE HIGH COURT OF KIRIBATI 2014

CRIMINAL CASE NO. 35 OF 2011

BETWEEN

THE REPUBLIC PROSECUTOR

AND

ITINIKUA TORERE ACCUSED

Before: Hon Chief Justice Sir John Muria

20 February 2014

Ms Tewia Tawita for Prosecutor
Ms Fuatino Noa for Accused

SENTENCE

Muria CJ: The accused, Itinikua Torere, has been charged with indecently assaulting a girl under 15 years of age contrary to section 133(1) of the Penal Code. The accused pleaded guilty to the charge.

The prosecution submitted that this is a serious case and warrants custodial sentence. I agree. The only questions to be considered are the length of the sentence and whether it should be suspended or not. Those have to be determined taking into account the factual circumstances of the case together with the mitigating circumstances placed before the Court on the accused's behalf.

The summary of agreed facts in this case reveal that on 12 January 2010 at about 10 or 11pm, following a church service, the accused who was a voluntary pastor with the Church of God, asked the victim to fetch him some rain water. The victim complied. The victim fetched rain water and went to deliver them to the pastor at his house in Eita.

At the house, the accused asked the victim to lay down with him on the mat. The victim complied. The accused then poured oil on his penis and on the victim's thighs. The accused then got on top of her, nodded his penis and pushed his fingers into her vagina. The accused also fondled with the victim's breasts and kissed her.

The victim reported the incident to her parents who in turn reported it to the police. The accused was arrested and charged.

In the light of the circumstances, the prosecution, rightly in my view, asked for a custodial sentence in this case. The defence on the other hand submitted that if custodial sentence was to be imposed, then it ought to be suspended.

Ms Noa of Counsel for the accused relied on a number of factors when presenting her mitigation submission on behalf of the accused. The factors relied on are: guilty plea, the accused's remorse, no prior convictions, apology to the victim and her family, and the accused's personal situation.

Let me say a word or two on the question of apology. In many of the criminal cases coming before the Court in this jurisdiction, and in particular, with regard to sentencing, the defence very often rely on the accused's apology as a mitigating factor. I have to say that an apology by the accused is not a mitigating factor in offences of sexual nature involving very young victims. It has no bearing on the commission of the offence, unlike that of a guilty plea which has a direct impact on the offence through the accused's admission of his guilt in the commission of the offence and saving the victim of having to re-live the trauma she had been put through. The most that an apology can be of benefit in a criminal case such as the one we are dealing with here, is to maintain social harmony between the victim's and the accused's families.

The Court of Appeal in the Republic –v- Uriano Arawaia (23/8/13) KICA, Crim. App. 1 of 2013 made it very clear that an "apology" has little effect as a mitigating factor. In that case, Uriano was charged with and pleaded guilty to two counts of indecent assault and two counts of defilement of a girl under 13 years of age. Whether an accused is convicted of sexual offences involving victims under 13 or under 15 years of age, in my view, makes no difference to the view I hold that an apology is not a mitigating factor in such offences.

In the present case, the mitigating factor that counts heavily in the accused's favour is his pea of guilty. I note from the cases referred to by both Counsel for the Republic and defence, the sentences range from four months to 18 months. I feel the accused falls into that range and with the benefit of a guilty plea, the Court is able to fix his sentence appropriately to somewhere in that range.

I accept that no weapons and no force was used in this case. But I cannot overlook the fact that the accused is in a position of a "big man" to whom the members of the community, including the victim, look up to, in particular in his position as pastor in his Church. In that position, he exploited a vulnerable victim of 13 years of age. That is the aggravating factor in this case. The conduct of the accused in this case offends the conscience of society, in particular, his community.

I take into consideration that this is his first brush with the law. I also bear in mind that the accused is now 53 years old and that he was married, although his wife has now passed away.

Taking all that has been ably submitted by Ms Noa on his behalf, I feel the appropriate sentence is one of six months imprisonment. This is not an appropriate case for a suspended sentence for the reasons also stated above. The sentence must be served.

ORDER: Six months imprisonment to be served commencing today 14 May 2014.

Dated the 14th day of May 2014

SIR JOHN MURIA
Chief Justice