Home | Databases | WorldLII | Search | Feedback High Court of Kiribati

Republic v Taniera [2021] KIHC 7; Criminal Case 54 of 2020 (15 November 2021)

IN THE HIGH COURT OF KIRIBATI

CRIMINAL CASE NO. 54 OF 2020

[THE REPUBLIC PROSECUTOR
[
BETWEEN [AND
[
[WANIKAIE TANIERA ACCUSED

Before: The Hon. Chief Justice William Kenneth Hastings

Date of Hearing: 5 November 2021
Date of Judgment: 15 November 2021

Counsel: Ms. Kabweea Itintaake for the Republic

Mr. Taburuea Rubetaake for the Accused

SENTENCE DELIVERED BY HASTINGS CJ

1. Wanikaie Taniera, having pleaded guilty to one charge of breaking and entering contrary to s 293(a) of the Penal Code and one charge of damaging property contrary to s 319(1) of the Penal Code, and having accepted the agreed summary of facts, I find you guilty on both charges. You now appear for sentence. The first offence carries a maximum penalty of 14 years’ imprisonment. The second offence carries a maximum penalty of 5 years’ imprisonment.
2. On 27 January 2020, you were drunk on fermented yeast. Between 6 pm and 7 pm you broke into IT Services in Abarao intending to sleep. Before you slept however, you broke three security cameras, two computer monitors, two landline telephones, a passport scanner, and air conditioning system, a CCTV monitor, a smoke detector, a glass door and a glass window. The agreed summary of facts states the damaged items were estimated to be worth $20,000.
3. The sentence I impose must denounce your conduct, deter you and others from the same or similar offending, hold you accountable for the harm you have done, and be the least restrictive sentence that is appropriate in the circumstances. It must also provide for your rehabilitation and reintegration into the community to the extent that it can.
   
4. I identify the following aggravating factors related to the offending:
   1. Your actions caused considerable financial loss and inconvenience to the victim. The items had an estimated value of $20,000. None of the damaged property could be repaired, and the items you damaged were difficult to replace.
   2. Ms Itintaake described the victim as a vulnerable business owner because there were no security guards on the premises at the time of the offending. Any vulnerability for that reason was in the control of the victim, but I accept that the absence of security guards created an opportunity that you exploited.
   100. Ms Itintaake described your offending as premeditated. It is more accurate to describe your offending as opportunistic. I do not think you gave your entry into the building and the destruction of property much thought. Mr Rubetaake described you “roaming around drunk with your friends.”
5. There are no mitigating features of this offending.
6. A starting point of 18 months in Republic v Teang Taitai^[1] was held to be appropriate for a defendant who appeared to have opportunistically broken into and entered commercial premises at night, stealing items valued at nearly $6,000, almost all of which was recovered. In your case, none of the property could be repaired, and it was valued at $20,000. Taking into account the aggravating features of your offending and Taitai, a starting point of 2 years’ imprisonment is appropriate.
7. I turn now to personal mitigating factors. You have no conviction history, you pleaded guilty at an early opportunity, and importantly, you were 16 years old at the time of the offending.
8. In Churchward v R,^[2] the New Zealand Court of Appeal held youth to be relevant to sentencing in the following ways:

(a) There are age-related neurological differences between young people and adults, including that young people may be more vulnerable or susceptible to negative influences and outside pressures (including peer pressure) and mayore impulsive than adults.

(b) The effect of imprist on yoon young people, including the fact that long sentences may be crushing on young people.

(c) Young pehave greater capaciapacity for rehabilitation, particularlyn that the character of a jf a juvenile is not as well formed as that of an adult.

9. The Court of Appeal in Churchward also referred to additional factors recognised by the England and Wales Sentencing Guidelines Council. They are: “offending by a young person is frequently a phase which passes fairly rapidly and thus a well-balanced reaction is required in order to avoid alienating the young person from society; and criminal convictions at this stage of a person’s life may have a disproportionate impact on the ability of the young person to gain meaningful employment and play a worthwhile role in society.”
10. The Court of Appeal went to state that “these neurological factors can lead to a reduction in culpability of young people as compared to adults. This does not mean that young persons should not take responsibility for their actions – it is merely that their actions may be partly explicable (but not necessarily excusable) by their state of neurological development.”
11. Your previous good character warrants a 10 percent discount from the starting point. Your guilty pleas warrant a 30 percent discount, and your youth warrants a 25 percent discount. Added up, you are entitled to a 65 percent discount from the starting point, which is the equivalent of 15 ½ months. That brings me to an end point of 8 ½ months’ imprisonment.
12. Your age also means the Juvenile Justice Act 2015 applies to you. Section 11(2) states that “no young person shall be sentenced to imprisonment if he or she can be suitably dealt with in any other way specified in section 15.” Section 15 gives a number of sentencing options when a young person “is tried by any court.” Although you pleaded guilty and were not tried by any court, in the absence of any section dealing with sentencing following a guilty plea, I will apply the provision to you.
13. Mr Rubetaake asked me to order your guardian to pay a fine under s 15(e). Ms Itintaake submitted these are serious offences and that a “slap on the wrist” sentence would have insufficient deterrent value. She submitted that s 11(3) anticipates that a young person could be sent to prison for serious offending such as this.
14. I have not heard evidence about your guardian’s ability to pay a fine. But I also do not think your offending is sufficiently serious to warrant a custodial sentence. Serious crimes are listed in Schedule 2 to the Juvenile Justice Act, and the offences for which you are being sentenced are not in that list.
15. You can be “suitably dealt with” in the words of s 11(2) in another way specified in s 15. Section 15(j) enables a sentencing judge to deal “with the case in any other manner in which it may be legally dealt with.” Section 46 of the Penal Code states that where a person is convicted of any offence punishable with imprisonment, in lieu of imprisonment the court may make a community service order. Such an order holds you accountable for the damage you have caused, deters you and others from the same or similar offending, and allows you to give something back to the community. Section 46(2) states that the order can be made subject to such requirements that the sentencing judge thinks are necessary for securing your good conduct and for preventing more offending.
16. I will not order your guardian to pay a fine. I will not send you to jail. Instead, I sentence you to a 70 day community service order under s 46 of the Penal Code which is to include but not be limited to any or all of (a) picking up litter from those streets, parks and beaches of South Tarawa determined by the supervising public officer, (b) doing work for Bobby Perez (US Marines, Ret’d) as part of the project to find World War Two artefacts so that you learn some of the history of Tarawa, and (c) and any other public works deemed appropriate by the supervising public officer. Another requirement of your community service order will be that you are not to be found intoxicated in public.
17. 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.
18. It will be seventy days’ community service starting tomorrow, 16 November 2021.

Dated 15^th day of November 2021.

Hon William Kenneth Hastings

Chief Justice

^[1] Republic v Taitai [2019] KIHC 32.
^[2] Churchward v R [2011] NZCA 531 at [77], [78], [81].