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Republic v Terimoa [2004] KIHC 100; Criminal Case 32 of 2004 (6 January 2004)

IN THE HIGH COURT OF KIRIBATI
CRIMINAL JURISDICTION
HELD AT BETIO
REPUBLIC OF KIRIBATI

High Court Criminal Case No. 32 of 2004

THE REPUBLIC

vs

BORAIA TERIMOA

For the Republic: Ms Ruria Iteraera
For the Accused: Ms Botika Maitinnara

Date of Hearing: 31 May 2004

SENTENCE

Boraia Terimoa: you have pleaded guilty to attempted rape of a girl of tender age of six. That is a crime which attracts a maximum penalty of seven years' imprisonment.

I note that you do not dispute the facts which the prosecution provides. This is what you did: on Sunday 5 October 2003 at about between 1 pm and 2 pm, I am told that, you were under the influence and whilst being so you visited Ruatara Tonako's house where Nei Buriti Makoni (the victim) lives. Ruatara is the victim's uncle. You asked Ruatara for clothes and a bus fare. You also told Ruatara that you have been attacked. You then saw the victim and asked Ruatara whether she was his daughter and he told you that she is his wife's niece. Ruatara then asked you whether you knew Buriti (victim) and you said you knew her well as you had lived together with her under the same roof for about two years when she stayed with her grandfather who is married to your aunt. When Ruatara heard all this from you Ruatara asked Buriti to get you some drink and he himself gave you your bus fare. You then walked out to leave but asked Ruatara to show you the way out to the main road where you would catch the bus but instead of him showing you the way out Ruatara kindly sent Buriti (victim) to do so which she did.

When you reached the main road you forced Buriti to get on board the bus with you and took her all the way to Dai Nippon Causeway between Bairiki and Betio. At Dai Nippon Causeway you and the victim got off the bus and then you led her to a particular spot where there was a rock and you sat her there. Then you removed her short and underwear and started to indecently assaulted her by inserting your finger into her vagina and played with her for a while. The girl in the meantime cried in pain but you ignored her and you then threatened her that you would kill her if she told her parents about the dirty things you were doing to her then. Following this you then tried to rape the girl by attempting to insert your erect penis several times into her vagina. The girl's vagina was too small and so you could not penetrate her. So you once again inserted your finger into her vagina and played with her again for a while with the result that her vagina was injured and bled.

Fortunately for the little girl a couple saw you and the girl, and felt suspicious as to what you were up to with the girl so they came and rescued the girl from you.

I am told you are 18 years old, single and unemployed and went only as far as primary school. You come from South Tarawa. You have three brothers and four sisters and you are the third child in your family. You basically live a subsistence life style.

What you have done to the little girl is indeed very bad and disgusting. And I am told that you were under the influence when you indecently assaulted her. The girl is a very young girl of six years old when you tried to rape her. And as the result of what you have done to her, I am told, that the little girl now is left in great fear and distress. The following are the aggravating features of the offence you had committed on the victim:

(a) She could not stay by herself in the house as she always felt scared.

(b) She could not go alone to a nearby house or their (family) "kiakia" which is just outside especially at night.

(c) She always felt unsafe and frightened when she is on the bus and she has to cling onto whoever she goes with whenever she sees drunken men on the bus.

(d) She always feels scared of you now.

(e) You have also betrayed the trust that the uncle has on you when the uncle sent the girl to show you the way out to the main road.

So there is no doubt that the little girl has been adversely affected psychologically by what you have done to her. And whatever future psychological effect or damage the incident in question may have had on the future life of the girl remains to be seen.

The fact also that her hymen was partly torn as the result of the indecency you did to her will also affect her future Kiribati marriage prospect according to Kiribati custom.

In your favour of course is the fact you have pleaded guilty before the trial begins so you will get a lesser penalty than otherwise.

Counsel for the prosecution had referred me to other cases of attempted rape and the penalties imposed. Each case however must be decided on its own peculiar facts. In one of the cases the defendants had pleaded guilty and that was taken into account in their favour.

You have a record of offending consisting mainly of drinking offences since 2003 where you had been fined.

Taking then the whole circumstances in this case I consider that the appropriate penalty under the circumstances is a custodial sentence. I therefore sentence you to three years' imprisonment commencing from the date when you first went into custody.

Dated the day of June 2004

THE HON MR JUSTICE MICHAEL N TAKABWEBWE
Judge