Queen v Katuke [2008] CKCA 9; CA 03.2007 (1 January 2008)

IN THE COURT OF APPEAL OF THE COOK ISLANDS
HELD AT RAROTONGA
(CRIMINAL DIVISION)

CA 3/07

IN THE MATTER of Article 60(2) of the Constitution

AND

THE QUEEN
(Appellant)

AND

KATUKE KATUKE, an inmate
of Arorangi Prison
(Respondent)

Coram: Barker JA (Presiding)
Weston JA
Grice JA

Counsel: Mr M C Mitchell, Solicitor General, for Appellant
Mr N George for Respondent

Date of hearing: 30 November 2007
Date of decision: 30 November 2007
Date of Reasons for Judgment: January 2008

REASONS FOR JUDGMENT OF THE COURT

INTRODUCTION

[1] On 30 November 2007, the Court heard an appeal by the prosecution against the adequacy of the sentence imposed on the Appellant of 9 months' imprisonment on one count of rape and one count of sexual intercourse with a girl under his care, the terms to be concurrent.

[2] The Appellant had been sentenced by the Chief Justice on 13 April 2007, after a jury trial earlier in that month which had resulted in his conviction on both counts.

[3] On 14 June 2007, Paterson J in the High Court gave leave to the Crown to appeal against the adequacy of the sentence. He took the view that the Crown could appeal as of right under Section 60(2)(b) of the Constitution. No challenge was made in this Court to Paterson J's determination that the Crown had a right of appeal on the inadequacy of sentence.

[4] At the hearing of the appeal, the Solicitor-General pointed out that there should not have been convictions entered on both the charge of rape and the charge of sexual intercourse with a girl under the care of the Respondent.

[5] These were clearly alternative counts. A conviction should only have been entered on the count of rape. The reason why they were alternative counts is that the consent of the victim is not a defence to the lesser charge of sexual intercourse with a girl under the accused's care. Lack of consent is a necessary element in the charge of rape. The Respondent's defence at the trial was that his admitted act of intercourse with the complainant had been consensual, a defence which the jury rejected. The fact that the victim was under the Respondent's care became, therefore, an aggravating feature of the rape - not an additional offence.

[6] In the circumstances, we granted Mr George's oral application for leave to appeal against conviction on the lesser count and quashed the conviction.

[7] At the conclusion of the hearing, after taking time for consideration, the Court decided that it would not interfere with the sentence of nine months' imprisonment, although it considered the sentence inadequate. The reason for this leniency was that the Respondent had almost completed his sentence. We were informed by his counsel that there had been some reconciliation between his family and the victim's family and that the Respondent, who had a wife and dependent children, had a job waiting for him on his release from prison.

[8] The Court, nevertheless, considered the quantum of the appropriate sentencing for rape to be important. It announced that it would issue reasons for judgment at a later date.

FACTS

[9] On 5 October 2004, the Complainant, then aged 16 years, was living on Abu with the Respondent, his wife and family. The Complainant had, two months earlier, given birth to a baby in Atiu and had gone to Rarotonga in July to arrange the baby's adoption before returning to Atiu. On the day of the offence, the Complainant was sleeping with a child of the Respondent in a bedroom of his house. The Respondent asked her for sex and she declined twice. On the third request she merely giggled. The Respondent claimed in evidence that the giggling was an indication of consent, which proposition was rejected by the jury. He told her to get up and he led her by the arm to a toilet where he had brief coitus interruptus with her. Medical reports indicated no signs of bruising or scratching.

[10] An aunt of the Complainant reported the matter to the Police who interviewed the Respondent. He admitted that he had had sex with the Complainant at a time when she had visited his house to pick up a bucket, which his wife had requested.

JUDGE'S SENTENCING REMARKS

[11] The Chief Justice noted that the Respondent was sober at the time of the offending and that he must have committed the offence for the sole purpose of his own gratification. The Respondent had one minor previous conviction and had been described as a good provider to his wife and children. He noted that the victim impact report showed that the Complainant suffered from a lack of self esteem. Although she was mildly depressed, there had been no long term after-effects and she now lived on Atiu with members of her family.

[12] The Chief Justice noted that rape was serious crime and that it was rare to see a sentence of less than four years imposed in the Cook Islands. He stated that persons living as members of a family group are not to be taken advantage of for sexual purposes, there being an element of trust imposed on persons in the situation of the Respondent. He noted that the Probation Service had recommended 12 months' imprisonment on each charge. He noted that the Respondent had been on remand for a long period since his arrest in October 2004 until his trial in April 2007. The Chief Justice said:

"I am very unimpressed with what has happened here in terms of Police delays. I am pleased to hear that steps have been taken to remedy similar delays in other cases."

[13] The Chief Justice said that because rape was such a serious charge, it would be irresponsible not to impose a sentence of imprisonment. He noted a sentence of 12 months' imprisonment imposed by Nicholson J in a case (to which reference will be made later) concerning the rape of a drunken woman by two accused whilst she was asleep.

[14] The Solicitor-General had suggested at the hearing before the Chief Justice, a sentence of two years. The Chief Justice took into account the delay which he said enabled him to impose the sentence of nine months' imprisonment concurrent on both charges. He did not wish to indicate that the Court was taking a lenient view of rape cases, even those at the so-called bottom end of the scale. He was troubled by the long delay and the fact that the Respondent has been kept in suspense for a long period and stated:

"I also want, by my sentence, to signify my displeasure at the prosecution delays".

DELAYS

[15] We were provided with particulars of court fixtures over the two years from April 2005 to April 2007, for those periods when there had been a Judge available in Rarotonga who might have been able to have presided over the Respondent's trial.

[16] The trial date was originally set for 15 April 2005 but the fixture was not reached because of pressure of other work. Nicholson J remanded the Respondent on bail, on 13 April 2005, "to a date to be fixed by the Registrar".

[17] The Respondent's case did not feature on subsequent lists of pending cases, although the Respondent had remained committed for trial on a serious charge. Admittedly, in the ensuing two years the visiting High Court Judges seem to have been fully occupied with both criminal trials and civil matters.

[18] However, the Respondent's file apparently was not activated by either the Prosecution or the Defence. We think that the Chief Justice was right to have been critical of the Police for not seeking a fixture earlier than in April 2007 for this case which was ready for trial in April 2005. Whilst the Respondent had been on bail all this time, we agree that the uncertainty would have been unsettling for him.

[19] We were informed from the bar that, after the remand on 13 April 2006, the Police still would have retained conduct of the prosecution, even though the Respondent had been committed for trial. The Crown Law Office would not have taken over prosecution of the case until a trial was imminent.

[20] We find this scenario highly unsatisfactory. Once a person has been committed for trial and, as in this case, been given a trial date (which did not eventuate), we consider that the Crown Law Office should be actively responsible in obtaining a fixture for the trial. It seems that this matter just "went to sleep" for two years. We trust that arrangements are now in place to ensure that it is the Crown Law Office that has responsibility for ensuring the prompt trial of persons committed for trial.

LEGAL CONSIDERATION

[21] The maximum sentence for rape in the Cook Islands is 14 years' imprisonment. The Sentencing Judge was provided with a list of sentences for rape, ranging over a period from 1983 to 2005. Sentences of 12 years' imprisonment had been imposed in 1988 and 1993, 9 years in 1992 and 7 1/2 years in 1996. Other sentences were around 4 to 5 years. The sentence imposed by Nicholson J in April 2005 (referred to by the Chief Justice), of 12 months' imprisonment and the sentence imposed in this case are out of kilter with the heavier sentences which had been imposed over the years. We do not know the circumstances of the cases where heavy sentences have been imposed.

[22] We have looked to the situation in New Zealand for some guidance. There, the maximum sentence for sexual violence by rape was increased from 14 years' to 20 years' imprisonment in 1993. In the case of R v A [1994] 2 NZLR 129, the Court of Appeal noted that 8 years' imprisonment under the new regime was the starting point for sexual violation in a non-contested rape case. However, prior to the change in maximum sentence, The Court of Appeal in R v. Clark [1987] 1 NZLR 380 had held that 5 years' imprisonment was the starting point under the 14 years' maximum regime in a contested rape case i.e. for rape committed by an adult without any aggravating or mitigating factors.

[23] Aggravating factors are always taken into account in rape sentencing. They include the infliction of violence or indignities, acting in concert with other offenders, the youth or age of the victim, intrusion into a home, kidnapping, the use of weapons, prolonged abuse. Mitigating factors could include a guilty plea, especially if made early and, in some circumstances, the youth of the offender. The factors are not exclusive.

[24] In the present case, the chief aggravating factor was the fact that the complainant was a member of the Respondent's household. There was a breach of trust involved when he took advantage of her sexually. Whilst there was no extreme violence, the very act of rape is necessarily violent. The Respondent could not be given any discount in sentencing for an early guilty plea. He was fully entitled to exercise his constitutional right to defend the case but that factor does not entitle him to the discount that he might otherwise have received from an early admission of guilt and remorse.

[25] We were not referred to any decision on prosecutorial delay per se, which had not amounted to a breach of the Bill of Rights requirements or an abuse of process, being treated as a mitigating factor in the sentencing. In the United Kingdom, it appears settled that unreasonable delay before an offender has been properly convicted after a fair trial can provide the basis for reduction in sentence, see Mills v. HM Advocate [2002] UKPC D2; [2002] 3 WLR 1597.

[26] In New Zealand, where the delay was such as not to breach the Bill of Rights requirement of trial without 'undue delay', some earlier decisions suggest a reduction in sentence should still be given where prejudice is proven. See R v. Taylor, Hamilton AP 50/91, 12 September 1991, where Penlington J said:

"The greater the time between the offending and sentence the greater the time the prisoner has had to live with his guilt and contemplate its detection and ultimate punishment."

[27] In R v. Cornelius (9 February 1995), the New Zealand Court of Appeal refused to impose the sentence of 18 months imprisonment which the circumstances of the offending warranted, on the account of a systemic delay in preparing jury rolls. It said that there would have been an "element of cruelty" in requiring the offender to surrender to a custodial sentence after the matter had been "hanging over him for three years through no fault of his".

[28] More recently, the Court of Appeal ruled that delay not amounting to a breach of the Bill of Rights requirements will not of itself provide the basis for a reduction in sentence. In R v. Harmer (26 June 2003), Blanchard J said:

"The freeing of a man found guilty of a most serious offence would have been an entirely disproportionate response to delay is not causative of prejudice. In the line of decisions culminating in Mills v HM Advocate [2003] 3 WLR 1597 the Privy Council has found troublesome the question of remedy for delay experienced by a guilty person. In Mills, the remedy granted was a small reduction in sentence. We must leave for another day whether that would be an appropriate remedy in a case of this kind if undue delay were shown to have occurred. Since in the present case it was not, the only ground on which, the sentence appeal was advanced before us has not been established."

[29] Subsequent judgments indicate that sentencing judges continue not to treat undue delays as mitigating factors, but subject to the recognised discretion of a sentencing judge to be compassionate and merciful in special circumstances. Delay can often provide a setting for the existence of an additional mitigating factor such as rehabilitation since the offending. See R v Tutty (7 May 1998 - Court of Appeal).

[30] We are of the view that the appropriate starting point in a non-contested rape case with no aggravating feature is 4 years imprisonment. This accords with the trend of sentencing in the Cook Islands established by the cases cited since 1983.

[31] We have read the sentencing notes of Nicholson J in the case referred to by the Chief Justice in his sentencing remarks in the present case. We have difficulty in seeing how the learned Judge could have justified the sentence of 12 months' imprisonment when the victim, albeit drunk, was asleep at the time she was raped by the first of two offenders. The sentence was not appealed by the Crown. As we understand the facts of that case the sentence appears to lie well outside the trend mentioned in the previous paragraph.

[32] We think too that the Chief Justice was entitled to take a more lenient view on sentencing, even though this case had been defended, on the grounds that there had been unreasonable delay in bringing this man to trial brought about by Police inefficiency. We do not think that this consideration should have been expressed as a punishment for the Police but rather as a mitigating factor which justified a reduction in sentence. However, there was the aggravating factor of the rape of a young woman who was a member of the Respondent's household to balance matters.

[33] We should have thought that a minimum sentence in this case, taking into account all these mitigating factors would have been one of three years' imprisonment. However, for the reasons we gave in Court and at the start of this judgment, we do not interfere with the sentence imposed. We mention also that in the case of a Crown appeal against an inadequate sentence, the authorities, both in New Zealand and elsewhere, indicate that if the Court allows the appeal, it should impose a sentence at the lower end of the appropriate sentencing scale.

[34] We confirm:

[a] the crown appeal against sentence is dismissed;

[b] the Respondent's appeal against conviction on the count of sexual intercourse with a child under his care is allowed and the sentence quashed.

MISCELLANEOUS

[35] Where there has been a criminal trial in the High Court, the prosecution ought to be brought in the name of "The Queen" and not "The Police". We direct the change in the intituling in this case. The change is more than symbolic: once a person has been committed for trial, the conduct of the prosecution should become the responsibility of the Crown Law Office as representing the Crown.

[36] We note that in the present case, the Probation Officer recommended the quantum of the sentence of imprisonment. We do not think that it is any function of the Probation Service to recommend the length of a sentence of imprisonment and suggest that the practice cease. The Court is always assisted by a careful report and other relevant information from the Probation Service on the circumstances of a convicted person. The Probation Report in this present case admirably provided the Court with material relevant to sentencing.

[37] Although, in appropriate cases, the Probation Officer may be in a position to advise the Court whether an offender is a suitable candidate for a community sentence, the Probation officer should not recommend the length of a particular term of imprisonment. Such a matter should be the subject of submissions by prosecution and defence before the sentencing judge. Again, we applaud the highly professional Probation Report in this case but offer these comments about what seems to have become an unsuitable practice.

BARKER JA
WESTON JA
GRICE JA