Not Restricted

IN THE SUPREME COURT
REPUBLIC OF NAURU

Crim. No. 48 of 2011

THE REPUBLIC

V

CLIVE KIP QUADINA

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JUDGE:	Eames, C.J.	
DATE OF HEARING:	6 March 2012	
DATE OF SENTENCE:	13 March 2012	
CASE MAY BE CITED AS:	R v Clive Kip Quadina	
MEDIUM NEUTRAL CITATION:	[2012] NRSC 4 		

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Criminal law – Sentencing –Attempted Rape – s.349 Criminal Code of Queensland 1899 (1st Schedule) adopted – Plea guilty - No prior convictions – Offender aged 31 years, victim 14 years – Sentence 18 months’ imprisonment.
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APPEARANCES:
		
For the Prosecution	Mr Wilisoni Kurisaqila DPP	
		
For the Defendant	Mr.Knox Tolenoa (Pleader)	

CHIEF JUSTICE:

1.	Clive Kip Quadina you have pleaded guilty to the offence of Attempted Rape contrary to section 349 of the Criminal Code of Queensland 1899 (1st Schedule) Adopted. That offence carries a maximum sentence of 14 years’ imprisonment.

2.	The facts are as follows.

3.	At about 11:30 pm on Sunday 30th July 2011 the complainant, who was aged 14 years rode with a friend on a trail bike which belonged to the complainant’s mother. The trail bike had a flat tyre and the complainant’s mother was telephoned and she contacted you, Clive Kip Quadina, to go to the scene and repair the flat tyre. You ran a part time business of tyre repairs.

4.	You were the uncle of the complainant. Her mother was your cousin. Having been contacted by the mother you went to the scene and fixed the flat tyre. You then told the young girl that her mother wanted her to go with you to her mother’s place. Leaving the other girl behind you departed on the trail bike with the complainant. Instead of returning to the mother’s residence, however, you veered off the track into the bush, causing the young girl to become suspicious and fearful and she asked you to let her off so that she could walk home. You stopped the bike but then stood it on its stand and asked her to have sexual intercourse with you. She dropped your backpack, which she had been holding, and ran as fast as she could towards the road, screaming.

5.	You chased after her and caught her by the back of her T-Shirt, with your right hand. You covered her mouth with your left hand and threw her to the ground with sufficient force for her hair comb to fall out. She struggled to be released from you but you were on top of her, holding her down and telling her to shut up. She was frightened and screaming at you to stop what you were doing. 

6.	You said that if she would remain quiet you would let her up. As soon as you let go she got up and ran barefoot from the scene. You chased her and caught her, again grabbing her from behind and pulling her towards you, whereupon she kicked you and caused you to fall over, and let go of her. She then ran off, again. You got the trail bike and gave chase. You ran into her with your front tyre causing her to fall on the ground. At the same moment the trail bike hit a bump and you fell off. She ran off again, towards the road, yelling for help.

7.	The complainant reached the road and came upon a Security Officer who thought she was drunk and did not offer assistance, initially. He then recognized the girl and she told him that someone had tried to rape her and was following her. The Security Guard got out and searched but found no one, however he then saw you driving a trail bike and as you drove past the Security officer’s vehicle he heard the young girl screaming hysterically. The security officer ran to the car, where the young girl told him that the person who tried to rape her had just gone past. The girl used the Security Guard’s phone to telephone her mother, who lodged a formal complaint with Police.

8.	You eventually gave yourself up to the Police, some eight days later, and submitted to an interview during which you admitted that you knew that attempting to force the girl to have sex with you without her consent was a crime. 

9.	The Director of Public Prosecutions submitted that there were aggravating features to your conduct. He submitted that there were significant breaches of trust both because you were an uncle to the victim and also because the victim’s mother had trusted you to assist her daughter in the emergency of having a flat tyre.

10.	You are aged 31 years and the young girl was only 14 years of age.

11.	Mr Kurisaqila submitted that there were three separate attempts by you to seize the girl so that you could have intercourse with her, although the three events are treated as amounting to only one offence. You were persistent in your attempts and Mr Kurisaqila submitted that this should be regarded as a serious example of the offence of attempted rape. 

12.	In support of his submissions that this offence should be regarded as being in the higher range of seriousness. Mr Kurisaqila referred to two decisions from the High Court of Kiribati : Republic v Tito Matakite and Republic v Bakati Reetan. He also referred to a decision in the High Court of Solomon Islands Koraua and Kiaitira v R

13.	In the last of the three mentioned cases, the Court of Appeal of the Solomon Islands dealt with a case in which full intercourse had taken place against the will of the victim and where she was attacked by two men, both of whom had intercourse with her. The Court held that generally the offense of Attempted Rape was to be punished with a lesser sentence than for the completed offence but added that there may be some circumstances in which an attempt would be more severely punished than would a completed rape. They noted that the case before the court was not an instance where the attempt was a half hearted one or was one in which conscience and remorse caused the offender to draw back from completing the act of rape. The Solomons Island Court of Appeal declined to interfere with sentences of 4 years’ and 3 and a half years’ imprisonment, respectively, for the two offenders. 

14.	As for the two Kiribati Sentencing Judgments, it is to be noted, first, that the maximum penalty in that country for Attempted Rape was 7 years imprisonment whereas in Nauru the maximum sentence is 14 years imprisonment. 

15.	In the case of Reetan the offender had a prior conviction for indecent assault, for which he had been sentenced to 16 months imprisonment. On the attempted rape charge he was sentenced to 4 years imprisonment. In the case of Matakite the victim suffered extreme violence, including having her throat cut, nearly dying as a result. The offender was convicted of attempted murder as well as attempted rape and on the attempted rape count he was sentenced to 3 years imprisonment. 

16.	In my view, little assistance can be gained from those cases, having regard to the different maximum penalty which is available and/or to the difference in the circumstances of the offences. 

17.	 Mr Tolenoa, pleader for the defendant, submitted that the offence in this case was less serious than that in the Kiribati cases. That may be so, but provides little assistance to me in my task.

18.	More helpful is the decision of R v Kennedy Olsson a judgment of Chief Justice Gilbert in Nauru. That was a case in which force had been used by a man armed with a knife. But for the victim’s cries being heard by strangers who then intervened, the offence would have been committed. In the course of his judgment Gilbert C.J said:

“I consider that a sentence of not less than 2 and a half years imprisonment would normally be appropriate for an attempt, as an armed intruder, to rape a woman in the privacy of her own home in the middle of the night. Perhaps a longer sentence would be called for if the woman was seriously affected. On the other hand when the accused is given credit for those factors I have mentioned, a sentence of 21 months imprisonment is sufficient to meet the interest of society and the ends of justice.”

19.	The accused in that case was aged 21, had no relevant prior convictions and showed genuine remorse. He was sentenced to 21 months imprisonment.

20.	Mr Tolenoa referred to the case of R v Taomia Iosia. This case is of little assistance, as the learned Chief Justice found the accused not guilty of attempted rape but guilty of cognate offences. 

21.	Mr Tolenoa submitted that your offence should be regarded as less serious than many other cases of attempted rape. He submitted that there was no evidence that the complainant had suffered injury. I accept that there is no such evidence of physical injury, but she was plainly terrified by her experience.

22.	You are an Australian citizen, of Nauruan parents, having been born on the 16th of December 1980. Apart from a short stay in Australia you have resided in Nauru. On your return from Australia at the age of about 25 years you worked for the Nauru Rehabilitation Corporation. 

23.	Mr Tolenoa stressed the fact that you gave pleaded guilty and that you have no prior convictions. Although you are unemployed you have part time work making repairs to tyres and also to computers. You are involved in community activities serving on committees which perform public services. You are a single man. 

24.	Mr Tolenoa submitted, and I accept, that your plea of guilty should be regarded as a statement of remorse on your part. Your pleader submitted that you had good prospects of rehabilitation and that imprisonment should not be the sentencing outcome in this case. He submitted that a community service order or probation would suffice.

25.	I accept that the circumstances of the offence here were not as serious as some that come before the court, nonetheless you exposed the young girl to a terrifying ordeal and you were persistent in your attempts to run her down and force her to the ground, where you undoubtedly would have had intercourse, had she not escaped your clutches.

26.	The fact that you had no prior convictions is an important consideration but in my view a sentence of imprisonment must be imposed. Conduct of this kind must be deterred by the courts. 

27.	Clive Kip Quadina, on the charge of attempted rape you will be convicted and sentenced to 18 months’ imprisonment, dating from today. 

13 March 2012
Geoffrey M Eames AM QC
Chief Justice