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Republic v Beiata [2022] KIHC 32; Criminal Case 60 of 2021 (2 August 2022)

SENTENCE

1. Tetika Beiata, you have pleaded guilty to the charge produced below and was convicted as charged accordingly on 19 July 2022;

Charge:

Grievous harm contrary to section 220 of the Penal Code, Cap 67

Particulars of offence:

“Tetika Beiata, on the 1^st of August 2021, at Bikenibeu village, South Tarawa in the Republic of Kiribati, by unlawful act, caused grievous harm to Joseph Tetuai Aroito by biting his lower lip during the cause of their fight, and thereby caused his lower lip ripped off.”

2. You have admitted the following summary of facts;

“On the 1^st of August 2021 between 9.00 and 10.00am at Bikenibeu, the victim was drinking with some friends. While drinking, the police came and the victim was not aware of the purpose of their visit. Suddenly the victim saw the accused Tetika walking pass and he quickly confronted him about kicking his head once when he was sleeping and drunk.

After confronting him, Tetika walked straight to the victim Joseph, and when he was close, the victim and the accused started to fight. During the fight the victim fell, and the accused got on top of him and bit the victim’s lower lip removing part of it.

The victim was so stressed because part of his lower lip was removed, making his gum visible from the outside.”

3. Tetika Beiata, the sentence I impose must condemn your behavior, deter you and others from the same offending and hold you responsible and accountable for the serious harm you have done to the victim.
   
4. Section 220 of the Penal Code set out that

“Any person who unlawfully does grievous harm to another is guilty of a felony, and shall be liable to imprisonment for 7 years.”

• The only aggravating factor for your offending that I accept is that during the fight, you bit off the lower lip of the victim causing him pain, blood loss, underwent an operation and received medication for his grievous injury.
  

5. I take into account the approach taken by the Court of Appeal in how sentencing should be done in an offence of grievous harm with intent (comparable to this case where there is no intention to cause grievous harm) as well as the sentence for the offence of grievous harm with intent that is imprisonment for life in comparison to the seven years sentence for grievous harm with no intention.
   
6. In R v Teuruba Teriao [2013] KICA 12, the accused was convicted after a trial relating to a charge of grievous harm with intent in which the convict injured the victim (a woman) with a weapon. The Court of Appeal granted the appeal and quashed the sentence decided by the High Court and increased the sentence from 2 years to 3.5years imprisonment.
   
7. The Court of Appeal took the approach used in R v Taueki [2005] NZCA 174 in which three sentencing bands were used as follows;
   

..."There were three sentencing bands. Band one (three to six years) was appropriate for violence at the lower end of the spectrum, which did not involve extreme violence or violence which was life threatening. Where none of the aggravating features was present, a starting point at the bottom end of band one was appropriate. The presence of one or more factors required a higher starting point. Band two (five to ten years) was appropriate for grievous bodily harm offending which featured two or three aggravating factors. Band three (nine to 14 years) encompassed serious offending which had three or more of the aggravating factors, where their combination was particularly grave"...

8. Your offending is less serious than the Teriao case in particular that there is no intention to cause grievous harm but the fight occurred after the victim confronted you while you were both drinking at Tioti’s bar in Bikenibeu.
   
9. In applying the sentencing approach used in R v Taueki and used by our Court of Appeal in R v Teriao, the appropriate starting point would be from Band 1 (three to six years). However, I am mindful that your offending involved no interntion to cause grievous harm. The sole aggravating factor in your offending which is the serious injury to the lower lip of the victim will appropriately set the starting point at 2 years imprisonment.
   
10. In light of the aggravating factor discussed earlier, I add 12 months to the starting point.
    
11. The only mitigating factors in your favour, Tetika Beiata, are as follows;
    • No previous conviction which tells a good story about your past being a law-abiding citizen.
    • Early guilty plea to the charge should be significantly considered in terms of your sentence as it shows remorse in what you have done. I agree with your lawyer, Mr Rubetaake, that you are remorseful and take full responsibility of your actions. You tried to reconcile with the victim but that was to no avail.
12. For these mitigating factors, I reduce your sentence by 18 months.
13. Tetika Beiata, I sentence you to 1 year and six months imprisonment to run from today.
14. Mr Rubetaake, also submitted that your sentence be suspended in accordance to section 44(1) of the Penal Code setting out that,

“Subject to subsection (2) a court which passes a sentence of imprisonment for a term of not more than 2 years may order that the sentence shall not take effect unless, during a period specified in the order, being not less than 1 year or more than 2 years from the date of the order, the offender commits another offence punishable with imprisonment and thereafter a court having power to do so orders that the original sentence shall take effect; and in this section -suspended sentence" means a sentence so suspended and "operational period" means the period specified in the order suspending the sentence.”

15. Your end sentence of 18 months falls within the sentence that can be suspended with respect to section 44(1). The next step is to consider if your case warrants a suspension and why. Mr Rubetaake, ably submitted that the facts of your offending shows that it was not your intention at all to injure the victim but after the victim confronted you in a bar while you were both drinking, the victim and yourself fought. It was also submitted that both the victim and yourself have fought in the past while you were drunk.
16. Mr Rubetaake, compared your case to other cases including R v Tibwere Maiawa KIHC 19 of 2018, a High Court case decided by Judge Lambourne in which he considered that the circumstances of the offence and the prisoner’s personal circumstances warranted a suspended sentence. A nine months sentence was suspended for one year.
17. In R v Takuia [2017] KICA 6, the Court of Appeal decided that a suspended sentence should be imposed after considering the circumstances of the offence as well as the personal issues surrounding the convict.
18. In your case, Tetika Beiata, even though the injury sustained by the victim were serious, the fact that the victim confronted you while both of you were drinking caused the fight in which you injured the victim. It can be assumed that had the victim not confronted you, there would have been no fight. Both counsels agreed that an operation was done to the lower lip of the victim.
19. Tetika Beiata, you are the main breadwinner for your two little children and grandparents who you continue to look after since your parents separated.
    
20. The circumstances of your offending and your personal circumstances warrants a suspended sentence. Your sentence of imprisonment of 1 year and 6 months is suspended for two years. For the duration of your sentence’s suspension, you should not be involved in the commission of any offence whether minor or serious and should carefully and seriously think about quitting drinking alcohol which has landed you in this court. If you commit any offence during the two-years suspension of your sentence, you will be dealt again in court where your sentence of 18 months could be given effect.
    

__________________________
The Hon. Abuera Uruaaba,
Commissioner of the High Court